Kerala High Court
Iffco Tokio General Insurance Company ... vs Sebastian Felix on 4 April, 2024
Author: Mary Joseph
Bench: Mary Joseph
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE MARY JOSEPH
THURSDAY, THE 4TH DAY OF APRIL 2024 / 15TH CHAITHRA, 1946
MACA NO. 57 OF 2020
AGAINST THE AWARD DATED 22.06.2019 IN OP(MV) NO.2339 OF 2015 OF MOTOR ACCIDENTS
CLAIMS TRIBUNAL, KOLLAM
APPELLANT/2ND RESPONDENT:
IFFCO TOKIO GENERAL INSURANCE COMPANY LIMITED,
PAN AFRICAN PLAZA,M.G.ROAD,THIRUVANANTHAPURAM,
NOW REPRESENTED BY ITS LEGAL MANAGER,
IFFCO BHAVAN,THOTTAKKAT ROAD,
KOCHI-11.
BY ADVS.
SRI.MATHEWS JACOB (SR.)
SRI.P.JACOB MATHEW
RESPONDENT/PETITIONER:
SEBASTIAN FELIX
S/O.SARAPHIN FELIX,SANU BHAVAN,AMMAN NAGAR-92,
VADAKKEVILA VILLAGE,PATTATHANAM.P.O,KOLLAM,
PIN-691 021.
BY ADV.
SRI.S.SREEKUMAR (KOLLAM)
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR HEARING ON
04.04.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
MACA NO.57/2020
2
JUDGMENT
Dated this the 04th day of April, 2024.
This appeal is originated from an award passed by Motor
Accidents Claims Tribunal, Kollam on 22.06.2019 in O.P(M.V)
No.2339/2015. The appellant is the 2nd respondent before the
Tribunal, who was the insurer of the offending vehicle.
2. For the sake of convenience, the parties to this
appeal will hereinafter be referred to as the petitioner and
respondents 1 and 2 in accordance with their status in the
Original Petition.
3. Challenge was raised mainly against the fixation of
monthly income as `8,000/- by the Tribunal for the purpose of
calculation of compensation. According to the learned counsel,
the injured was a 20 year old young man pursuing his 5 th
semester Engineering course at the relevant time when he met
with the motor accident and in that backdrop, the Tribunal is
not justified in fixing `8,000/- as his monthly income.
According to him, the monthly income needs to be fixed
notionally for calculation of compensation, but `8,000/- fixed
is exorbitant and liable to be reduced.
4. The Tribunal had treated the petitioner as 100%
occupationally disabled and granted compensation calculated
on it's basis in his favour. According to her, the petitioner was
examined by an individual doctor and a certificate was issued in
his favour, marked in evidence as Ext.A9, where the
occupational disability was certified as 100% and permanent
disability as 16%. According to her, the petitioner failed to
depose about his difficulties and sufferings following the motor
accident. Even the doctor, who had issued Ext.A9 was not
examined. The Tribunal had taken 100% as his occupational
disability solely based on the certification made by the
individual doctor, which ought not to have been done by it.
5. The learned counsel also pointed out that the
Tribunal is unjustified in awarding `50,000/- and `35,000/-
respectively as compensation separately under the heads loss of
marriage prospects and dis-figuration, even after treating the
petitioner as 100% occupationally disabled and awarding
compensation calculated on it's basis. The learned counsel
seeks for modification of the compensation stood awarded by
the Tribunal on the above grounds.
6. The counsel who was engaged by the petitioner did
not turn up to argue the matter when it was taken for hearing.
7. The facts relevant for disposal of the appeal are
stated in brief hereunder:-
While the petitioner was riding his motorcycle bearing
Registration No.KL-02-AS 4046 on 10.08.2015 from his
residence to Bishop Jerome Engineering College through
Kannanalloor - Kollam road, a car bearing Registration No.KL-
02/AT-12, dashed against the motorcycle at a place near
Fathima Matha National College and thereby he sustained
serious injuries. A claim was raised for `8,00,000/- as
compensation in the Original Petition seeking compensation. It
was contended that the motor accident was occurred due to the
rash and negligent driving of the car by its driver, who was also
it's owner and was insured with the 3 rd respondent at the
relevant time when the motor accident was occurred. The
owner cum driver and insurer of the car were arrayed as
respondents 1 and 2 in the Original Petition filed.
8. Notice was issued to all respondents from the
Tribunal. Being served with notice, 2 nd respondent entered
appearance and filed a written statement admitting issuance of
a policy for the car covering the date of the motor accident.
Allegation of negligence raised against the 1 st respondent was
denied and it was sought to be attributed to the petitioner
himself. Claims raised by the petitioner in the Original Petition
regarding his age, occupation and monthly income were also
denied. Amount claimed as compensation is also disputed for
its exorbitance. 1st respondent though served with notice from
the Tribunal did not turn up to contest the Original Petition and
therefore was declared as ex parte.
9. Before the Tribunal, Exts.A1 to A15 were marked by
the petitioner in evidence. The Tribunal found on the basis of
the evidence on record that the motor accident in question was
occurred due to the rash and negligent driving of the car
bearing Registration No. KL-02/AT-12 by its driver, who was
arrayed in the Original Petition as the 1 st respondent. The
Tribunal found on the basis of medical documents relied on by
the petitioner that serious injuries were caused to him in the
motor accident. Accordingly, it found the petitioner as entitled
to get compensation from respondents 1 and 2 jointly and
severally. A sum of `23,43,000/- was arrived at as the
compensation payable. 2nd respondent was directed to deposit
the compensation alongwith interest at the rate of 8% per
annum from the date of filing of the Original Petition till the
date of realisation and proportionate costs. Interest was
exempted for the compensation stood awarded by the Tribunal
towards future treatment expenses. 2 nd respondent was directed
to deposit the amount within one month from the date of the
award. Court fee was also ordered to be deducted from the sum
stood awarded.
10. As already stated, the main challenge raised was
against the fixation of monthly income as `8,000/-. Admittedly
the petitioner was a 5th semester student of B.Tech in Electrical
& Electronics at Bishop Jerome Engineering College, Kollam.
He met with the motor accident while proceeding to the college
from his house. It is established from the accident register cum
wound certificate and discharge summary marked in evidence
respectively as Exts.A5 and A7 that the petitioner had
sustained a lacerated wound on occipital region of scalp and
crush injury on left thigh with bone exposed, another lacerated
wound over dorsum of left foot and open fracture of femur. As
revealed from Ext.A7, treatment was continued as inpatient for
a period from 10.08.2015 till 21.08.2015. During
hospitalisation, implants were laid at the fracture site and
medicines were administered. Petitioner was examined by a
doctor associated with SP Fort hosptial, Thiruvananthapuram
and a certificate was issued certifying his permanent disability
as 16%, which is marked in evidence as Ext.A9. Shortening of
left leg by 2 cm, a lengthy scar on leg and tear of cruciate
ligament with loss of soft tissues around knee were the reasons
reported in Ext.A9 for assessment of 16% as the disability.
Removal of implants was suggested in future. It is convinced
from the above discussion that serious injuries were caused to
the petitioner in the motor accident and he was treated as
inpatient at SP Fort hosptial, Thiruvananthapuram for 11 days.
The doctor who had issued Ext.A9 was not examined before the
Tribunal. The cruciate ligament of the petitioner was reported
as torn in the motor accident. Shortening of left leg by 2 cm
was also reported in Ext.A9. For the reasons, this Court finds
justification in considering 16% as his permanent disability.
11. Though the monthly income was sought to be
reduced from `8,000/- to a lower sum, this Court is declined to
do so having regard to the educational qualification of the
petitioner and his probability to get a job immediately after his
studies. Moreover, a certificate was also marked from the side
of the petitioner, which was issued by the Principal of Bishop
Jerome Engineering College, Kollam, certifying that the
Engineering course pursued by him was discontinued in the
year 2015 itself, following the motor accident. The reasons
reported in Ext.A9 for assessment of 16% disability
undoubtedly restrain the petitioner from getting a good
marriage proposal. Having due regard to that aspect, `50,000/-
was awarded by the Tribunal towards loss of marriage
prospects. `35,000/- was also found awarded by the Tribunal
towards disfiguration resulted from the lengthy scar measuring
20 cm x 10 cm formed on his left leg. The sum stood awarded
by the Tribunal as compensation towards marriage prospects
and disfiguration being reasonable are maintained.
12. When viewed in the backdrop of the reasons
reported in Ext.A9, this Court finds the Tribunal justified in
calculating the compensation payable, on it's basis. It is noticed
from a scrutiny of the evidence on record that the petitioner
failed to mount the witness box to depose about the difficulties
and discomforts suffered by him in the motor accident. The
doctor who issued Ext.A9 was not examined. Therefore, the
Tribunal is unjustified in considering 100% occupational
disability for him and to award compensation on its basis.
Therefore, the impugned award to the extent the Tribunal
calculated compensation for occupational disability is only to be
set aside and this Court do so. This Court finds it appropriate
to calculate compensation on the basis of 16% physical
disability certified in Ext.A9.
13. Having due regard to the academic qualification of
the petitioner and discontinuation of studies following the
motor accident, this Court is inclined to maintain `8,000/-
fixed by the Tribunal as his monthly income. The age of the
victim is not proved by authentic documents but the Tribunal
has taken the age of the victim as 20 years based on the age
recorded in the accident register cum wound certificate marked
in evidence as Ext.A5. Since the petitioner has abandoned his
studies, this Court is also inclined to consider loss of future
prospects for him. He being aged 20 years, 40% is added to the
monthly income fixed in consideration of loss of future
prospects and thus, `11,200/- (`8,000/- + 40% of `8,000/-) is
arrived at. 18 was adopted by the Tribunal as the multiplier and
it being appropriate to the age of the victim taken as 20 years, is
also maintained.
14. When compensation for disability is calculated
afresh with the modified factors as above, the petitioner will get
`3,87,072/- (`11,200/- x 12 x 18 x 16/100) as compensation
towards physical disability. Compensation stood awarded by
the Tribunal under other heads are maintained. Thus, the
petitioner will get a total sum of `10,02,072/- (`3,87,072/- +
`20,000/- + `20,000/- + `4,000/- + `3,14,000/- + `27,000/-
+ `60,000/- + `50,000/- + `35,000/- + `50,000/ +
`35,000/-) (Rupees Ten lakh two thousand seventy two only) as
the modified compensation. Compensation stood awarded by
the Tribunal is replaced by the compensation now arrived at.
Rate of interest fixed by the Tribunal is also maintained.
Therefore, the modified compensation will carry interest at the
rate of 8% per annum from the date of the Original Petition till
the date of realisation. Interest is waived for the compensation
stood awarded by the Tribunal towards future treatment
expenses. 2nd respondent shall pay the modified compensation
alongwith interest and costs, within a period of two months
from the date on which a certified copy of this judgment is
received. Since the modified compensation exceeds the claim of
compensation raised in the Original Petition, the Tribunal shall
see that additional court fee for the excess sum is realised from
him while disbursing the amount in his favour.
15. It is submitted by the learned counsel that while
passing an interim order in the appeal, `8,00,000/- alongwith
interest and costs was deposited by the appellant as a condition
precedent. On being convinced of the submission made as
above, the Tribunal shall adjust the above sum in the sum
payable.
MACA is allowed accordingly.
Sd/-
MARY JOSEPH
JUDGE
JJ
