Kerala High Court

Jijo vs Sajeevan on 7 November, 2024

                                                             2024:KER:84020
MACA No.933/2021
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                  IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                    PRESENT

               THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN

         THURSDAY, THE 7TH DAY OF NOVEMBER 2024 / 16TH KARTHIKA, 1946

                            MACA NO. 933 OF 2021

   OPMV NO.495 OF 2016 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, IRINJALAKUDA


APPELLANT/PETITIONER:

              JIJO, AGED 32 YEARS, S/O. JOSE, POOVATHINGAL HOUSE,
              MENNAMPETTA DESOM, VARAKKARA P.O. 680 302, AMBALLUR
              VILLAGE , MUKUNDAPURAM TALUK.


              BY ADVS.
              SAIGI JACOB PALATTY
              SMT.ANU S NAIR


RESPONDENTS/RESPONDENTS:

     1        SAJEEVAN, AGED 40 YEARS, S/O. MOHANAN, KARODEN HOUSE
              MENNAMPETTA DESOM, VATTANTHRA P.O. 680 302, AMBALLUR
              VILLAGE, MUKUNDAPURAM TALUK (OWNER KL45 C 5628).

     2        NIKHIL, AGED 25 YEARS, S/O. NANDAKUMAR, MARAVANCHERY HOUSE,
              MENNAMPETTA DESOM, VATTANTHRA P.O. 680 302, AMBALLUR
              VILLAGE, MUKUNDAPURAM TALUK (RIDER KL45 C 5628).

     3        THE BRANCH MANAGER, THE ORIENTAL INSURANCE COMPANY LIMITED,
              SREEKRISHNA COMPLEX, AMABALLUR DESOM AND VILLAGE THRISSUR
              DISTRICT (INSURER KL45C5628).

              BY ADVS.
              SRI.R.PADMARAJ
              SRI.P.J.ANTONY JOSEPH MARIADAS
              SRI.JOMY GEORGE
              SRI.DEEPAK MOHAN



     THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR HEARING ON
07.11.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
                                                             2024:KER:84020
MACA No.933/2021
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                                JUDGMENT

This appeal has been filed by the claimant in OP(MV) No. 495 of

2016 on the file of the Motor Accidents Claims Tribunal, Pala. The

respondents herein were the respondents before the tribunal.

2. The case of the appellant/claimant is that on

03.08.2014, while he was riding a motorcycle bearing Reg.No.KL-45-G-

9810 from Amballur to Mannampetta, a motorcycle bearing Reg.No.KL-

45-C-5628 ridden by the second respondent in a rash and negligent

manner, hit against the motorcycle ridden by the appellant, whereby he

sustained serious injuries. He approached the tribunal claiming a total

compensation of ₹25,00,000/-.

3. Respondents 1 and 2 remained ex parte before the

tribunal. The respondent insurer filed a written statement, admitting the

policy coverage for the offending vehicle, but disputing the liability and

quantum of compensation claimed. Before the tribunal, Exts.A1 to A13

were marked on the side of the appellant/claimant, Exts.B1 to B3 on the

side of the respondent insurer, and Exts.X1 and X2 as court exhibits.

The tribunal, after analysing the pleadings and materials on record, held 2024:KER:84020

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that the accident took place on account of the negligence of the rider of

the offending vehicle and awarded a sum of ₹6,85,283/-, rounded off to

₹6,85,300/- as compensation under different heads against the third

respondent being the insurer. Dissatisfied with the quantum of

compensation awarded by the tribunal, the claimant has come up in

appeal.

4. I have 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 under the following heads:

5.1. Notional income - The learned counsel for the appellant

submits that for assessing compensation, the tribunal has taken only a

meagre amount of ₹10,000/- as the notional monthly income, whereas

the appellant was earning an amount of ₹30,000/- per month at the time

of the accident. The appellant produced before the tribunal Ext.A5 pay

slip for the month of October, 2017, which shows that he was having a

gross salary of ₹63,920/- in October, 2017. The accident was in the year

2014. In Raju Sebastian v. United India Insurance Co. Ltd. [2021 (6) KLT

136], it has been held by this Court that for permanent employees,

criteria to be adopted for computation of monthly income should be by 2024:KER:84020

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keeping in mind economic standards prevailing at the time of

retirement. It was further held that probable monthly income after

retirement should be fixed by taking 50% of the income of the person

concerned while he was in service unless there are valid reasons to

adopt another method. Therefore, I find that the amount of ₹10,000/-

fixed by the tribunal as the notional income of the appellant during the

retirement period is very low. It is a fact that the appellant was aged 28

years at the time of the accident and there was no certainty as to the

income, which the petitioner will be getting after his retirement.

Therefore, I am of the opinion that fixing an amount of ₹15,000/- as the

notional monthly income of the appellant will be just and proper.

Accordingly, I refix the notional monthly income of the appellant at

₹15,000/-.

5.2. Permanent disability - Since the notional monthly

income of the appellant is refixed at ₹15,000/-, the compensation

towards permanent disability has to be recalculated. It is seen that

while assessing compensation, the tribunal had adopted the split

multiplier '9', considering that the appellant was a permanent

employee. The learned counsel for the appellant, relying on the

judgment in Erudhaya Priya v. State Express Transport Corporation Ltd.

2024:KER:84020

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[AIR 2020 SCC 4282], submitted that in Erudhaya Priya (supra), the

percentage of disability was only 31.1% and the apex court has added

future prospects to the notional income fixed and the multiplier adopted

was '18' since the injured was 23 years. Hence, according to the learned

counsel for the appellant, in the present case also, future prospects is to

be added to the refixed notional monthly income since the injured is

aged 28 years and the percentage of disability is fixed as 38%. It is seen

that in Erudhaya Priya (supra), the injured was not a permanent

employee and serious injuries (seven fractures) were sustained though

the percentage of disability was assessed as 31.1%. The photographs of

the injured were perused by the apex court and it is after knowing the

physical state of the appellant that the judgment was rendered,

whereas, the injuries sustained to the appellant herein are, (1) Type III

C compound comminuted intercondylar supra condylar fracture of right

femur with fracture mandible and maxilla (both) with undisplaced

fracture patella; and (2) abrasion over forehead and bleeding from nose

with swelling over nose and buckling. Further, the appellant herein is a

permanent employee working in the South Indian Bank Ltd. Ext.A5 pay

slip for the month of October, 2017, reveals that he was earning a gross

salary of ₹63,920/-; and hence, admittedly, neither the injuries sustained

nor the disability affected his earning capacity. Consequently, I see no 2024:KER:84020

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justification to depart from the tribunal's determination of the multiplier

as '9' and its decision not to include future prospects in the income

fixed. Accordingly, following the judgments in National Insurance

Co.Ltd. v. Pranay Sethi [2017(4) KLT 662(SC)] and Sarla Verma v. Delhi

Transport Corporation [2010(2) KLT 802(SC)], the appellant will be

entitled to get a total compensation of ₹6,15,600/- (15000 x 12 x 9 x

38%) towards permanent disability. Hence, there will be an additional

amount of ₹2,05,200/- under the head of permanent disability.

5.3. Pain and suffering - The learned counsel for the

appellant submits that though the appellant claimed ₹2,00,000/- towards

pain and suffering, the tribunal awarded only ₹1,00,000/-. On a perusal

of the impugned award as well as Ext.A9 discharge summary, it is seen

that the appellant had sustained serious injuries. Therefore, considering

the injuries sustained by him and the sufferings that he had undergone,

I am inclined to grant an amount of ₹1,30,000/- to the appellant as total

compensation towards pain and suffering. Thus, the appellant will be

entitled to get an additional amount of ₹30,000/- as compensation

towards pain and suffering.

5.4. Transportation expenses - Though the appellant

claimed an amount of ₹40,000/- under this head, the tribunal awarded 2024:KER:84020

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only an amount of ₹10,000/-, which, according to the appellant, is on the

lower side. Ext.A10 series are the ambulance receipts, totalling to an

amount of ₹16,320/-. On a perusal of the treatment undergone and the

bills produced, it appears that the appellant had availed services of

Karunya ambulance and that the bills are genuine. As regards Ext.A11

series of trip sheets, they are pertaining to the trips from the residence

of the appellant to Coimbatore and they do not tally with the treatment

undergone by the appellant. According to the learned counsel for the

appellant, the appellant had taken ayurvedic treatment twice or thrice.

Considering all these aspects, I deem it appropriate to award a total

compensation of ₹25,000/- towards transportation expenses. Thus, the

appellant will be entitled to get an additional amount of ₹15,000/-

towards loss of amenities.

5.6. Extra nourishment - Though the appellant claimed an

amount of ₹20,000/- under this head, the tribunal awarded only an

amount of ₹2,000/-, which, according to the appellant, is on the lower

side. The learned counsel for the appellant submits that the appellant

had undergone inpatient treatment for a period of 145 days.

Considering the above, I deem it appropriate to award a total

compensation of ₹20,000/- towards extra nourishment. Thus, the 2024:KER:84020

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appellant will be entitled to get an additional amount of ₹18,000/-

towards loss of amenities.

5.7. Bystander expenses - The learned counsel for the

appellant submits the tribunal awarded only ₹300/- per day for 145 days

towards bystander expenses, which is on the lower side. Considering

the fact that the accident was of the year 2014 and the appellant had

undergone intermittent inpatient treatment for a period of 145 days, I

am of the opinion that bystander expenses can be awarded @ ₹350/- per

day, totalling to an amount of ₹50,750/- (350 x 145). Since the tribunal

already awarded an amount of ₹43,500/-, there will be additional

compensation of ₹7,250/- under this head.

5.8. Deformity - The learned counsel for the appellant seeks

compensation towards deformity, stating that the injuries caused are

mainly to the face of the appellant resulting in deformity. Ext.A8 is the

treatment certificate in respect of the appellant issued by an Oral &

Maxillofacial Surgeon, which states that there was facial deformity and

nasal bone deviation. Considering the fact that the appellant was only

28 years at the time of the accident, I deem it appropriate to award a

total compensation of ₹30,000/- towards deformity.

6. Though the appellant claimed enhancement of 2024:KER:84020

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compensation under other heads, on a perusal of the records available, I

am not inclined to interfere with the compensation awarded by the

tribunal under other heads since it appears to be just and reasonable.

Thus, the impugned award of the tribunal is modified as follows:

Sl.

 No.     Head of Claim      Amount     Amount      Modified       Total
                            claimed    awarded    in appeal    compensation
                              (in ₹)    by the       (in ₹)       (in ₹)
                                       tribunal
                                         (in ₹)
1.     Loss of earnings     180000
2.     Transportation        40000      10000      15000          25000
       expenses
3.     Damage to             5000       2000                       2000
       clothing
4.     Extra nourishment     20000       2000      18000          20000
5.     Medical expenses     600000      17383                     17383
6.     Bystander's           80000      43500       7250          50750
       expenses
7.     Pain and suffering    200000    100000       30000         130000
8.     Permanent            1000000    410400      205200         615600
       disability
9.     Loss of amenities    500000     100000                     100000
10.    Deformity                                   30000           30000
       Total                2625000    685283      305450         990733
                             limited
                                to
                            2500000

Accordingly, the appeal is allowed in part and the appellant is

awarded an additional compensation of ₹3,05,450/- (Rupees three lakh

five thousand four hundred and fifty only) over and above the 2024:KER:84020

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compensation awarded by the tribunal with interest @ 8% 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 appellant 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 details as above, it shall be open for the insurance company to

deposit the said amount before the tribunal. Upon such deposit being

made, the entire amount shall be disbursed to the appellant at the

earliest in accordance with law.