Kerala High Court

K.X.George vs The New India Assurance Co.Ltd on 20 June, 2024

             IN THE HIGH COURT OF KERALA AT ERNAKULAM
                               PRESENT
         THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN
     THURSDAY, THE 20TH DAY OF JUNE 2024 / 30TH JYAISHTA, 1946
                        MACA NO. 1224 OF 2019


AGAINST THE AWARD DATED 29.01.2018 IN OPMV NO.1668 OF 2015 OF
ADDL. MOTOR ACCIDENTS CLAIMS TRIBUNAL, ERNAKULAM


APPELLANT/PETITIONER:

           K.X.GEORGE
           AGED 68 YEARS
           S/O. XAVIER, KADUNGAMPARAMBIL HOUSE, PANCHAYATH RAJ
           ROAD, KUMBALANGHI SOUTH, COCHIN 7.
           BY ADVS.
           RAHUL SASI
           SMT.NEETHU PREM

RESPONDENT/2ND RESPONDENT:

    1      THE NEW INDIA ASSURANCE CO.LTD
           REGIONAL OFFICE, KANDOMKULATHY TOWERS,
           OPPOSITE MAHARAJAS COLLEGE STADIUM, ERNAKULAM M.G.
           ROAD, COCHIN 682 011.
    2      DANIEL JUDE
           S/O JUDE.C.J @ KUNJUMON, HOUSE NO.2/41(3/148),
           CHAKYAMURI HOUSE, KUMBALANGI P.O, COCHIN -682007
           (*THE ADDITIONAL SECOND RESPONDENT IMPLEADED AS PER
           ORDER DATED 19/09/2022 IN IA 2/2019 IN MACA
           1224/2019).
           BY ADVS.
           SRI.JOHN JOSEPH VETTIKAD
           M.H.HANIS
           P.M.JINIMOL(K/1092/2004)
           T.N.LEKSHMI SHANKAR(K/1181/2010)
           NANCY MOL P.(K/650/2012)


     THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD
ON 20.06.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 MACA NO. 1224 OF 2019
                                    2

                     JUDGMENT

Dated this the 20th day of June, 2024

This appeal has been filed by the claimant in OP(MV)

No.1668 of 2015 on the file of the Motor Accidents Claims

Tribunal, Ernakulam. The respondents herein is the

respondents before the Tribunal.

2. According to the appellant, on 19.05.2015, at about

8.30 a.m., while he was crossing Kumbalangi-Perumbadappu

road, was knocked down and injured by a motor cycle bearing

registration No.KL-43/F-4095. The appellant approached the

Tribunal claiming a total compensation of ₹45,78,000/-, which

is limited to ₹40,00,000/-.

3. The respondent-insurer filed a written statement,

admitting the insurance policy, but disputing the quantum of

compensation claimed. Before the Tribunal, no oral evidence

was adduced by either side. Exts.A1 to A14 and Ext.X1

documents were marked on the side of the appellant. No

documentary evidence was adduced by respondent-insurer. The

Tribunal, after analysing the pleadings and materials on record,

awarded a sum of ₹7,78,346/- as compensation under different MACA NO. 1224 OF 2019

heads with interest @ 9% per annum from the date of petition

till realization, against the respondent being the insurer.

Dissatisfied with the quantum of compensation awarded by the

Tribunal, the claimant has come up in appeal.

4. Heard the learned counsel for the appellant and the

learned Standing Counsel for the respondent insurer.

5. The learned counsel for the appellant claims

enhancement mainly under the following heads:-

I.Monthly notional income/Loss of earnings

The main challenge in this appeal is under the head of

notional income arrived at by the Tribunal. The learned

Counsel for the appellant submits that he was running a bakery

and was earning an amount of ₹20,000/- per month. The

Tribunal, after consideration, has fixed an amount of ₹7,000/-

as his notional income. On the basis of the principles laid down

in Ramachandrappa v. Manager, Royal Sundaram Alliance

Insurance Co. Ltd. [2011 (13) SCC 236] , the income ought

to have been taken at ₹10,000/-. On perusal of the claim

petition as well as the award, it is seen that the appellant was

self employed and accident occurred in the year 2015, going by MACA NO. 1224 OF 2019

the judgment in Ramachandrappa (supra), I am inclined to

re-fix the notional income at ₹10,000/- per month.

Though the appellant had claimed an amount of ₹2,40,000

under the head loss of earnings, the Tribunal has awarded only

₹42,000/-, taking into consideration ₹7,000/- as the notional

income for six months. Since the notional income is enhanced

to ₹10,000/-, the loss of earnings has to be recalculated. Thus

there will be an additional amount of ₹18,000/- (Rupees

Eighteen Thousand Only) under the said head.

II. Extra Nourishment

The next aspect is regarding the compensation awarded

for extra nourishment. Since the appellant had claimed an

amount of ₹25,000/- under the above head, the Tribunal had

granted a meagre amount of ₹500/-. Going through the facts of

the case, the claimant had undergone nearly one month in-

patient treatment. Hence, I feel that awarding an amount of

₹10,000/- under the said head is reasonable. Thus, there will be

an additional amount of ₹9,500/- (Rupees Nine Thousand

Five Hundred Only) granted under the said head.

 MACA NO. 1224 OF 2019


     III.    Bystander expenses

The learned Counsel for the appellant submits that the

bystander expenses awarded by the Tribunal was very low, as

the appellant was in-patient for nearly one month. Considering

the facts and circumstances of the case, I am inclined to grant a

total amount of ₹15,000/- to the above head. Thus, there will be

an additional amount of ₹5,000/- (Rupees Five Thousand

Only) under the said head.

IV. Compensation for continuing or permanent

disability

The next head under which the learned Counsel for the

appellant seeks enhancement is under the head compensation

for continuing or permanent disability. The learned Counsel for

the appellant submits that the disability assessed by the

Medical Board was at 40%. The Tribunal has not considered the

functional disability while awarding compensation under the

said head.

The learned Standing Counsel for the respondent -

Insurer submits that the Tribunal has taken 40% permanent

disability, assessed by the Medical Board and no further MACA NO. 1224 OF 2019

enhancement would be appropriate in this case. But, it is an

admitted fact that the claimant is aged 64 years and was

running a bakery business. Certainly he will have functional

disability due to the amputation of his right leg below the knee.

However, considering the facts of the case, I am of the opinion

that, to the permanent disability of 40% assessed by the

Tribunal, 15% of functional disability also has to be added for

assessing the compensation under the said head. Accordingly,

the compensation for continuing or permanent disability is re-

calculated (10,000 x 12 x 7 x 55 / 100 - 2,35,200) and there will

be an additional amount of ₹2,26,800/- (Rupees Two Lakh

Twenty Six Thousand Eight Hundred Only) under the above

head.

V. Compensation for loss of amenities and

enjoyment in life

The next head under which the appellant has claimed

enhancement is compensation for loss of amenities and

enjoyment in life. Though the claimant had claimed an amount

of ₹3,00,000/- under the said head, the Tribunal has granted

only ₹75,000/-. However, considering the injury sustained and MACA NO. 1224 OF 2019

hospitalization undergone by the claimant, I feel that an

amount of ₹1,00,000/- is just and reasonable. Accordingly, an

additional amount of ₹25,000/- (Rupees Twenty Five

Thousand Only) granted under the said head.

Thus the impugned award is modified as under:-

                                          Amount         Amount
Sl.                          Amount                                    Total
                                          awarded by     modified in
No.      Head of Claim       claimed                                   compensati
                                          the Tribunal   appeal
                             (in Rs.)                                  on
                                          (in Rs.)       (in Rs.)
         Notional
                                          7,000          3,000         10,000
         income
         Loss of
1                            2,40,000     42,000         18,000        60,000
         earnings

         Transport to
2.                           10,000       2,000          (not          2,000
         hospital
                                                         modified)
         Extra
3.                           25,000       500                          10,000
         nourishment                                     9,500
         Damage to

         articles                                        modified)
         Treatment
5.                           5,00,000     2,38,146       (not          2,38,146
         expenses
                                                         modified)
         Bystander
6.                           5,00,000     10,000                       15,000
         expenses                                        5,000
         Compensation
7.       for pain and        2,00,000     1,25,000       (not          1,25,000
         sufferings                                      modified)
         Compensation                                    (not
8.                           2,00,000     50,000                       50,000
         for disfiguration                               modified)
         Compensation
         for loss of
9.       amenities and       3,00,000     75,000         25,000        1,00,000
         enjoyment in
         life
10.      Compensation        10,00,000    NIL            (not          -
       MACA NO. 1224 OF 2019


          for loss of
                                                       modified)
          earning power
          Compensation
          for continuing
11.                        10,00,000      2,35,200     2,26,800      4,62,000
          or permanent
          disability
          Compensation
          for short                                    (not
12                         1,00,000       NIL                        -
          expectation in                               modified)
          life
          Compensation
          for further                                  (not
13                         5,00,000       NIL                        -
          treatment                                    modified)
          expenses
          Total            45,78,000
12.                                       7,78,346     2,84,300      10,62,646
          (limited to)     40,00,000

In the result, the above appeal is allowed in part and the

appellant/claimant is awarded an additional compensation of

₹2,84,300/- (Rupees Two Lakh Eighty Four Thousand Three

Hundred Only) over and above the compensation awarded by the

Tribunal with interest @ 9% per annum from the date of petition till

realization and proportionate costs. The respondent insurer shall

deposit the said amount together with interest and costs within a

period of two months from the date of receipt of a certified copy of

this judgment. The claimant shall furnish copies of the PAN Card,

AADHAAR Card and bank details before the respondent insurer

within a period of one month so as to enable the insurance company

to make the deposit as ordered above. In case of failure to furnish MACA NO. 1224 OF 2019