Kerala High Court
Prasannan vs The Divisional Manager, M/S. Oriental ... on 11 November, 2024
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M.A.C.A. No. 3081/2014 :1:
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE JOHNSON JOHN
MONDAY, THE 11TH DAY OF NOVEMBER 2024 / 20TH KARTHIKA, 1946
MACA NO. 3081 OF 2014
AWARD DATED 03.04.2014 IN OP(MV) NO.245 OF 2009 OF I ADDITIONAL
MOTOR ACCIDENT CLAIMS TRIBUNAL, KOLLAM
APPELLANT/PETITIONER:
PRASANNAN,
AGED 29 YEARS, S/O.KESAVAN, CHARUVILA, KUTTIYIL VEEDU,
KADAPPA, MYNAGAPPALLY.
BY ADVS.
SRI.K.SIJU
SMT.S.SEETHA
RESPONDENT/3RD RESPONDENT:
1 THE DIVISIONAL MANAGER, M/S. ORIENTAL INSURANCE CO. LTD.,
MALIACKAL GALAZY, OPP, MSM COLLEGE, KAYAMKULAM - 690 361.
ADDL. R2 & R3 IMPLEADED:
2 RETNAN K.T,
S/O, THANKAPPAN, KALEECKAL, THEKKATHIL, KARIAMPALLY,
KAYAMKULAM - 690 502.
3 SANTH0SH KUMAR,
S/O PURUSHOTHAMAN, SAMBHU BHAVANAM VEEDU, ADINADU NORTH,
KULASEKHARAPURAM VILLAGE, KOLLAM DISTRICT - 690 544.
(THE OWNER AND DRIVER OF THE OFFENDING VEHICLE BEARING NO.
KL 4/C5176 ARE IMPLEADED AS ADDL. R2 AND R3 AS PER ORDER
DATED 26/10/2019 IN IA. NO. 1/2019.)
BY ADV SMT. A.SREEKALA
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON
08.11.2024, THE COURT ON 11.11.2024 DELIVERED THE FOLLOWING:
M.A.C.A. No. 3081/2014 :2:
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JOHNSON JOHN, J.
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M.A.C.A No. 3081 of 2014
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Dated this the 11th day of November, 2024.
JUDGMENT
The appellant was the petitioner in O.P. (MV) No. 245 of 2009 on
the file of the Motor Accident Claims Tribunal Kollam.
2. The appellant who sustained injuries in a motor accident
occurred on 09.05.2007 approached the Tribunal seeking compensation.
According to the appellant, while he was walking along the side of
Puthiyacavu-Chirappuram Public Road, goods carriage vehicle bearing
registration No. KL-4/C 5176 driven by the 2 nd respondent in a rash and
negligent manner caused to hit him and he sustained serious injuries.
The 1st respondent is the owner of the vehicle and 3 rd respondent is the
insurer.
3. At the time of trial, Exhibits A1 to A18 were marked from the
side of the appellant and Exhibit B1, copy of policy of insurance is
marked from the side of the 3rd respondent.
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4. After trial and hearing both sides, the Tribunal came to the
conclusion that the accident occurred due to the negligence on the part
of the 2nd respondent and that the respondents are jointly and severally
liable to pay the compensation to the appellant. The Tribunal awarded a
compensation of Rs.1,78,145/- to the appellant.
5. The appellant is seeking enhancement of compensation on the
ground that the Tribunal has not fixed the monthly income of the
appellant correctly and also failed to grant compensation for future
prospects while granting compensation for permanent disability. It
is also argued that compensation granted by the Tribunal on other heads
are also on the lower side.
6. Heard Sri. Siju Kamalasanan, the learned counsel appearing for
the appellant and Smt. Anjali G. Krishnan, the learned counsel
representing the learned counsel appearing for the 3rd respondent.
7. According to the appellant, at the time of the accident, he was
a road tarring worker and earning a monthly income of Rs.6,000/-. On
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the ground that no evidence is adduced to prove the occupation and
income of the petitioner, the Tribunal fixed his monthly notional income
at Rs.3,500/-.
8. The principles laid down by the Honourable Supreme Court in
the decisions in Ramachandrappa v. Royal Sundaram Alliance
Insurance Co. Ltd. [(2011) 13 SCC 236] and Syed Sadiq and Others
v. Divisional Manager, United India Insurance Company [(2014) 2
SCC 735 = 2014 KHC 4027], shows that even in the absence of any
evidence, the monthly income of an ordinary worker has to be fixed as
Rs.4500/- in respect of the accident occurred in the year 2004 and for
the subsequent years, the monthly income could be reckoned by adding
Rs.500/- each per year. Considering the facts and circumstances, I am of
the view that the monthly income of the appellant can be calculated by
adopting the said method and therefore, the monthly income of the
appellant in the year 2007 can be fixed as Rs.6,000/-.
9. The learned counsel for the appellant invited my attention to
Exhibit A18 disability certificate issued to the petitioner from
Government Medical College Hospital, Thiruvananthapuram and pointed
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out that the doctor assessed 100% temporary disability for a period of
15 months and 20% permanent disability as per Mc Bride's scale.
10. The learned counsel for the appellant also invited my attention
to the findings of the Tribunal in paragraph 9 of the impugned judgment
to show that the Tribunal has found that the disability assessed in
Exhibit A18 certificate is within the permissible limits. But, in spite of the
said finding, on the reasoning that the appellant has not proved his
occupation and income, the Tribunal has not calculated the
compensation for permanent disability on the basis of Exhibit A18.
11. The specific case of the appellant/petitioner is that he is a
road tarring worker. From Exhibit A18, it can be seen that the appellant
sustained the following injuries:
1. Limitation of supination of both fore arm by 30 degrees.
2. Scar on posterior aspect of left leg.
3. Wasting of gastronemus musle and soleus musle.
4. Weakness of plantar flexion by one grade < 4/5>
5. Difficulty of palmar and dorsiflexion of both wrist by 15 degrees.
6. Angular deformity of rt forearm to radial side.
7. Difficulty of grip on both hands.
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8. Post traumatic arthritis of both wrist.
12. Taking note of the nature of injuries sustained by the
appellant, the parts of the body on which such injuries were sustained
and the percentage of disability, I am of the view that 20% functional
disability can be accepted for calculating the compensation for
permanent disability. In Exhibit A18, the age of the appellant is shown as
40 years. The decisions of the Honourable Supreme Court in National
Insurance Co. Ltd. v. Pranay Sethi [(2017) 16 SCC 680] and
Jagdish v. Mohan [(2018) 4 SCC 571] shows that an addition of 25%
of the established income can be made towards future prospects where
the victim was between the age of 40-50 years and that the benefit of
future prospects should not be confined only to those who have a
permanent job and would extend to self employed individuals.
13. The Tribunal granted compensation for loss of earnings for
a period of 12 months at the rate of Rs.3,500/- per month. But, as
per Exhibit A18, the temporary disability of the appellant was 100%
for a period of 15 months. Therefore, I find that the appellant is
entitled for loss of earnings for a period of 15 months at the rate of
Rs.6,000/- per month. Accordingly, a further sum of Rs.48,000/- is
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awarded towards loss of earnings. When the amount payable to the
appellant towards compensation for permanent disability is calculated as
per the revised criteria, the same would come to Rs.2,70,000/- [(6000 +
25%) x 12 x 15 x 20/100]. The amount already awarded by the Tribunal
is Rs.30,000/- and thus, the additional compensation would come to
Rs.2,40,000/-.
14. The learned counsel for the appellant pointed out that Exhibits
A6 to A9, discharge cards, would show that the appellant has undergone
inpatient treatment for 40 days. But, the Tribunal calculated the
bystander's expenses for 32 days at the rate of Rs.150/- per day and the
same is on the lower side. Considering the nature of injuries and the
period of treatment undergone by the appellant, I find that an additional
amount of Rs.3,000/- can be granted towards bystander's expenses. The
Tribunal granted only Rs.5,000/- towards loss of amenities in life. Taking
note of the nature of injuries and disability, I am of the view that an
amount of Rs.5,000/- has to be granted additionally under the head of
loss of amenities in life.
15. Accordingly, the appellant is entitled to the enhanced
compensation as given below:
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Particulars Compensation awarded Additional
by the Tribunal (Rs.) amount
granted by this
Court (Rs.)
Loss of earnings 42,000/- 48,000/-
Loss of amenities 5,000/- 5000/-
Bystander's expenses 4,800/- 3,000/-
Compensation for 30,000/- 2,40,000/-
permanent disability
Total enhanced compensation 2,96,000/-
16. Thus, a total amount of Rs.2,96,000/- (Rupees Two Lakhs
Ninety Six Thousand only) is awarded as enhanced compensation. The
said amount shall carry interest @ 7.5% per annum from the date of the
application till realization. The appellant would also be entitled to
proportionate costs in the case. The claimants shall furnish the details of
the bank account to the insurance company for transfer of the amount.
The appeal is allowed as above.
sd/-
JOHNSON JOHN,
JUDGE.
Rv
