Kerala High Court
Sreenath.K.R vs The Oriental Insurance Company Ltd on 7 November, 2024
MACA No.1948 of 2019 1 2024:KER:82968
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE P. KRISHNA KUMAR
THURSDAY, THE 7TH DAY OF NOVEMBER 2024 / 16TH KARTHIKA, 1946
MACA NO. 1948 OF 2019
AGAINST THE AWARD DATED IN OPMV NO.1359 OF 2016 OF MOTOR
ACCIDENT CLAIMS TRIBUNAL , IRINJALAKUDA
APPELLANT/PETITIONER:
SREENATH.K.R, AGED 28 YEARS
S/O. RAMAKRISHNAN, KIZHAKKANCHERIL HOUSE,
KOTTANELLUR VILLAGE,
THUMBUR DESOM AND P.O. DESOM AND P.O,
MUKUNDAPURAM TALUK, THRISSUR DISTRICT.
BY ADV A.N.SANTHOSH
RESPONDENT/S/3RD RESPONDENT:
THE ORIENTAL INSURANCE COMPANY LTD.
1ST FLOOR, EBENEZER GARDEN,
NEAR HIGH SCHOOL JUNCTION,
EDAPPALLY, ERNAKULAM-682 024.
BY ADV SRI.A.R.GEORGE
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD
ON 07.11.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
MACA No.1948 of 2019 2 2024:KER:82968
P.KRISHNA KUMAR, J
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MACA No.1948 of 2019
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Dated this the 7th day of November, 2024
JUDGMENT
This appeal is preferred against the award passed on
05.01.2019 by the Motor Accidents Claims Tribunal, Irinjalakkuda in
OP(MV) No.1359 of 2019, by the petitioner therein, claiming that the
amount awarded under various heads is insufficient.
2. The appellant, who claims to be a heavy vehicle driver,
suffered injury consequent to an accident that occurred on 18.08.2016,
when he was hit down by a pick-up van in a public place and
resultantly both of his lower limbs got amputated below the knee.
3. As there is no challenge against the findings of the Tribunal
regarding the cause of the motor accident, the nature of injuries
suffered, the liability of the respondent etc, the discussion hereunder is
limited to the essential aspects only.
4. Heard both sides and perused the available records.
5. As per Ext.A7 discharge card, the appellant suffered
traumatic amputation of both legs at knee level with a femur fracture
MACA No.1948 of 2019 3 2024:KER:82968
of the right leg. He was hospitalized for 25 days in two spells.
6. During the course of the argument, the learned counsel
appearing for the appellant vehemently contended that the lower limbs
of the appellant were cut below the knee level and he is completely
unable to do any job and he needs assistance of a bystander for
everything. He also pointed out that, though he was a heavy vehicle
driver, the Tribunal fixed his monthly income erroneously at
Rs.10,000/- per month. Referring to the judgment of the Honourable
Supreme Court in Manusha Sreekumar & Ors. v. United India
Insurance Co. Ltd. [2022 (4) KLJ 725], the learned counsel
contended that his income should be fixed atleast at the rate of
Rs.15,600/- per month, which was the amount fixed by the Honourable
Supreme Court in respect of an accident occurred in the year 2015. He
also cited the decisions in Jithendran v. The New Indian Assurance
Co. Ltd [2021 (4( KLJ 646], Benson George v. Reliance General
Insurance Co. Ltd and Another (2022 KHC 6232) and United
India Insurance Company Ltd. v. Dilna Dineshan [2022 (2) KHC
396] for supporting the contention that the appellant should be given a
reasonable amount under the head of bystander allowance, by taking
the multiplier as '17' and the amount of monthly charges at the rate of
Rs.5,000/-. The amounts awarded on account of pain and suffering
MACA No.1948 of 2019 4 2024:KER:82968
and the loss of amenities are also on the lower side and a just and
reasonable enhancement of compensation is thus required, it is
urged.
7. Learned counsel appearing for the respondent submitted
that the Tribunal reached the conclusion as to the monthly income of
the appellant after carefully analysing the oral evidence. He also
argued that compensation for the bystander expense was granted by
this Court and the Honourable Supreme Court only in cases where the
claimant was completely bedridden or was unable to do anything
rationally, and on the basis of the evidence on record, there is no
scope for any such interference here.
8. There is no serious dispute as to the fact that the petitioner
is a heavy vehicle driver. His driving license shows that he was
competent to drive such vehicles during the relevant period. I find
force in the submissions made by the learned counsel appearing for
the appellant that the Tribunal ought to have fixed his monthly income
atleast at the rate of Rs.15,600/-, in view of the decision in Manusha
Sreekumar & Ors. (supra) . Paragraph 20 of the said judgment is
extracted below:-
"20. Schedule B-Category III of the Kerala Fair Wages Act
classifies a driver as a "Skilled worker". Reading this in
conjunction with the Notification that came into effect from
MACA No.1948 of 2019 5 2024:KER:82968
01.01.2015 which amended Schedule A of the Kerala Fair Wages
Act, prescribing a minimum pay scale of the workers listed in
Schedule B, it is apparent that a 'driver' in Kerala earned a
minimum of Rs. 15,600/- in 2015. It appears to us that the
aforesaid Act and the notification issued thereunder were not
brought to the notice of the Tribunal or the High Court. As a
result thereto, the High Court could not be cognizant of the
statutory mandate prescribing minimum wages for a skilled
worker like 'driver', and thus, erred in fixing the income of the
Deceased at Rs.10,000/-. We are therefore inclined to fix the
income of the Deceased notionally at Rs. 15,600/- per month. "
9. In this case, the accident occurred in the year 2016 and
hence the monthly income can be fixed at the same rate viz
Rs.15,600/-. The learned Tribunal rightly found that the loss of
earning capacity of the appellant as 100%, based on the schedule
annexed to the Employees Compensation Act, for double amputations
through the leg. If that be so, the petitioner is entitled to an additional
amount of Rs.15,99,360/- [(15600 + 6240) x 12 x 17=44,55,360 -
28,56,000 = 1599360) towards compensation for disability, including
future prospects.
10. I also find merit in the contention that the appellant is
entitled to get compensation towards bystander expenses. However,
as rightly pointed out by the learned counsel for the insurer, the
MACA No.1948 of 2019 6 2024:KER:82968
approach taken in cases in which the victims are bedridden or
completely paralized cannot be resorted to in the present matter. The
appellant is using artificial limbs and the Tribunal has awarded
sufficient amounts for the purchase of artificial limbs as well as for its
future maintenance. In that case, the bystander expenses cannot be
fixed by using a straight jacket formula as suggested by the learned
counsel, based on the multiplier method. However, it is only just and
reasonable to fix the said amount at the rate of 2,00,000/-. This Court
is of the view that the appellant deserves some more amounts towards
the pain and suffering on account of the excruciating pain due to
traumatic amputation. As he lost both his lower limbs, he would
continue to suffer pain even while using the prosthesis. Hence an
additional amount of Rs.2,00,000/- is awarded under the head 'pain
and sufferings'.
11. Learned counsel appearing for the respondent submitted
that interest should not be given for future damages, by referring to
the decision reported in R.D.Hattangadi v. M/s.Pest Control
(India) Pvt. Ltd & Others [1995 (1) SCC 551]. However, in this
case, the bystander amenities are limited to an amount of
Rs.2,00,000/-, without including the compensation for the future
inconvenience in its entirety, and further, 9 years have already elapsed
MACA No.1948 of 2019 7 2024:KER:82968
after the date of the accident and hence, the point raised by the
learned counsel for the appellant does not arise for consideration.
12. In view of the above discussion, the appeal is allowed as
follows:
The appellant is entitled to get an additional compensation
under the following heads:-
1. Permanent disability - Rs.15,99,360/-
2. Attendant expenses - Rs.2,00,000/-
3. Pain and suffering - Rs.2,00,000/-
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Total Rs.19,99,360/-
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The impugned award is modified only to the above extent.
Sd/-
P.KRISHNA KUMAR, JUDGE
dlk 7.11.2024
