Alant Joseph vs Wilson Mathew
2024 Latest Caselaw 27980 Ker

Kerala High Court

Alant Joseph vs Wilson Mathew on 23 September, 2024

MACA NO. 274 OF 2021

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                                                      2024:KER:70925

           IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                PRESENT

               THE HONOURABLE MR. JUSTICE EASWARAN S.

 MONDAY, THE 23RD DAY OF SEPTEMBER 2024 / 1ST ASWINA, 1946

                        MACA NO. 274 OF 2021

        AGAINST THE ORDER/JUDGMENT DATED 13.10.2020 IN OP(MV)

NO.183    OF    2016   OF   ADDITIONAL    .DISTRICT   COURT   &   MOTOR

ACCIDENT CLAIMS TRIBUNAL ,THODUPUZHA

APPELLANT:

           ALANT JOSEPH
           AGED 23 YEARS
           S/O. JOSEPH, PALAMATTATHIL HOUSE, ERATTAYAR KARA,
           KATTADIKAVALA BHAGOM, ERATTAYAR VILLAGE,
           PIN-685 514.

           BY ADV S.SACHITHANANDA PAI


RESPONDENTS:

    1      WILSON MATHEW
           S/O. MATHEW, CHOORANOLIL HOUSE, CHAKKAKANAM
           BHAGOM, UPPUKANDOM KARA, ERATTAYAR VILLAGE,
           UPPUKANDOM P.O. (DRIVER), PIN 685 514.

    2      SHAIJU V. THOMAS
           S/O. THOMAS, VAZHAPARAMBIL HOUSE,
           UPPUKANDOM P.O., ERATTAYAR VILLAGE, (OWNER)
           PIN-685 514.

    3      SHINTO T.T.
           THEKKEDATHU HOUSE, PERUMTHOTTY P.O., VATHIKUDY,
           IDUKKI, PIN-685 606.

    4      THE NEW INDIA ASSURANCE CO. LTD.
           DIVISIONAL OFFICE, KOTTAYAM, REPRESENTED BY ITS
           DIVISIONAL MANAGER, KOTTAYAM-686 001.
 MACA NO. 274 OF 2021

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                                             2024:KER:70925


         BY ADV SEBASTIAN VARGHESE(K/141/2000)


     THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY
HEAR ON 23.09.2024, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
 MACA NO. 274 OF 2021

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                                           2024:KER:70925

                       JUDGMENT

The claimant in OP (MV) No. 183/2016 is the

appellant. On 02.08.2015 when the petitioner was

riding a motorcycle bearing registration No. KL-06-E-

8572 from Erattayar to Kattady kavala through the

Erattayar-Valiyathovala road, a jeep bearing

registration No. KL-07-AD-1507 was proceeding in

front of the aforesaid vehicle. When the motorcycle

reached in front of Pampakuda Avarachan's house, the

appellant applied horn and the driver of the jeep gave

signal to the petitioner for overtaking the jeep. When

the motorcycle reached the right side of the jeep, the

driver of the jeep, without giving any signal swerved

the jeep rightwards. Thus, the jeep hit on the left side

of the motorcycle. Due to the impact of the hit, the

appellant and the pillion rider fell on the road and

sustained injuries. On behalf of the claimant Exts.A1 to

A12 were produced and Ext.X1 is the disability

certificate issued by the Government Medical College, MACA NO. 274 OF 2021

2024:KER:70925

Kottayam.

2. The insurance company entered appearance

and contested the claim. It was contented that the

accident was due to the rash and negligent driving of

the vehicle bearing registration No. KL-06-E-8572 by

the petitioner and therefore the Insurance company

denied the liability. The Tribunal on appreciation of the

evidence on record found that the injury suffered by the

claimant was serious. Ext.A4 discharge summary issued

by the Caritas Hospital would reveal the claimant

suffered following injuries:-

"Alleged history of RTA with head injury.

Left frontal compound depressed fracture with

underlying contusion.

Left temporal extradural haemorrhage.

Type III compound fracture BB left leg

Multiple skull base fractures (ACF & MCF) with

CSF rhinorrhoea.

Lata graft and fat."

MACA NO. 274 OF 2021

2024:KER:70925

Ext.A5, CT scan of the brain also shows that

the claimant suffered the following injuries:-

"1. Comminuted fractures noted involving the

left frontal calvarium extending to the

anterior and posterior wall of left frontal

sinus with hemo-sinus.

2. Minimally displaced fractures are noted

involving the basisphenoid bilaterally and

floor of the anterior cranial fossa.

3. There is mild deformity of the left lamina

papyracea, concerning for a fracture.

4. Large fluid levels are noted in both sphenoid

sinuses suggestive of hemo-siñus.

5. Multiple acute haemorrhage contusions are

noted involving the left frontal lobe with

surroundings oedema.

6. Acute epidural haematoma is noted in the left

frontal convexity measuring about 6-7 mum in

maximum thickness."

MACA NO. 274 OF 2021

2024:KER:70925

3. On the basis of the aforesaid documents, the

Tribunal awarded the following compensation:-

Sl. Head of Claim Compensation Amount Particulars No Claimed determin (Rs) ed (Rs.) 1 Transport to 45,000 15,000 Reasonable hospital assessment 2 Extra 5,000 5,000 Claimed nourishment amount 3 Damage to 1,000 1,000 Claimed clothing and amount articles 4 Hospital and 4,50,000 3,86,125 Ext.A11 treatment series expenses medical bills Rs.3,86,125 5 Salary of 5,000 5,000 Claimed bystander amount 6 Expense 1,50,000 10,000 Reasonable anticipating for assessment future treatment 7 Loss of studies 50,000 Not allowed 8 Compensation 2,00,000 1,00,000 Reasonable for pain and assessment sufferings 9 Compensation 5,40,000 2,30,256 Rs.10,000 x for continuing 18 x 12 x or permanent 10.66/100= disability 2,30,256/-

10    Compensation            2,00,000     25,000 Reasonable
      for the loss of                             assessment
      enjoyment and
 MACA NO. 274 OF 2021



                                             2024:KER:70925

     amenities of life
11   Compensation             1,00,000       Not
     for the future                      allowed
     prospects of the
     petitioner
     Total               Limited to Rs.     Rs.
                            16,00,000 7,77,381

Dissatisfied with the awarding of the compensation, the

claimant has approached this Court with the present

appeal.

4. I have heard Sri. Sachithananda Pai, learned

counsel appearing for the appellant/ Claimant and Sri.

Sebastian Varghese, learned counsel appearing for the

4th respondent Insurance company.

5. The learned counsel appearing for the

appellant pointed out that the notional income fixed by

the Tribunal at Rs. 10,000/- was totally improper. The

claimant was studying at 1st year diploma course in

(Auto-mobile) at SBM Engineering and Technology

Dindigal, Tamil Nadu. According to the learned counsel

for the appellant, going by the principles laid down MACA NO. 274 OF 2021

2024:KER:70925

by this Court in National Insurance Company Ltd.

v. Madhusoodhanan Pillai and Others

[2022(1)KHC 405] and also in Basanti Devi and

Another v. Divisional Manager, New India

Assurance Company Ltd. And Others [2021 KHC

6888 (SC)], the notional income of an engineering

student was fixed at Rs. 20,000/- per month. Therefore

the learned counsel submitted that the claimant's

notional income ought to have been fixed by the

Tribunal at Rs.20,000/- per month. Similarly under

various non conventional heads also, according to the

learned counsel for the appellant, the awarding of

compensation is not sufficient.

6. On the other hand, the learned counsel

appearing for the Insurance company would point out

that no doubt that the judgment of this Court as well as

the Supreme Court, the notional income of an

engineering student has been taken at around

Rs.20,000/- . However, the said principle and yardstick MACA NO. 274 OF 2021

2024:KER:70925

cannot apply to the present case especially since the

claimant was only a student of diploma course and

therefore same parameters cannot be applied.

According to the learned counsel for the Insurance

company, the compensation awarded by the Tribunal is

just and proper and does not require any interference

by this Court in the present appeal.

7. I have considered the rival submissions

raised across the Bar.

8. The perusal of the award rendered by the

Tribunal would show that the Tribunal has taken the

notional income of the claimant at Rs. 10,000/-. The

accident was in the year 2015 and the injury sustained

by the claimant was serious. This aspect has already

been taken note by the Tribunal. But it still proceeded

to fix the notional income at Rs. 10,000/-. The claim of

the appellant is for a fixation of the notional income at

Rs. 20,000/-. However, this Court finds force in the

argument of the learned counsel for the Insurance MACA NO. 274 OF 2021

2024:KER:70925

Company that the claim of a Diploma student cannot be

equated that of graduate student in Engineering. But,

at the same time, this Court cannot ignore the fact that

the Diploma course is certainly a job oriented course

and had the appellant passed the course successfully,

certainly the job prospects for such courses were

bright. However, at the same time, the request of the

learned counsel for the appellant to fix the notional

income of the student at the same rate that has been

fixed by the Hon'ble Apex Court as well as by this

Court in relation to the engineering student cannot be

accepted. Therefore, there has to be certainly a

balance between these two aspects. Considering the

fact that the claimant was a student of Diploma course

(Auto-mobile) in SBM Engineering and Technology

Dindigal, Tamil Nadu, this Court finds it appropriate to

fix the notional income of the appellant at Rs.15,000/-

per month.

9. Coming back to Ext.X1 disability certificate MACA NO. 274 OF 2021

2024:KER:70925

issued by the Government Medical College, Kottayam,

it certainly shows the total disability of the

claimant/appellant fixed at 12% by the board.

However, for evaluation of the coordinate activity the

Tribunal adopted a formula as follows:-

"a+b (90-a)/90= 10+2 (90-10)/90"

and made it as 10.66%. This Court cannot accept the

formula adopted by the Tribunal in the light of the

judgment rendered by this Court in Thresiamma

Sebastian v. Dr. Renu Swamidas [2024 KLT

Online 2073] in which it was held that once the

disability has been fixed by the Medical Board, the

Tribunal has no power to tinker with the percentage of

disability fixed by the Medical Board. Hence it is

declared that the appellant is entitled to have the

disability calculated at 12%. Under the non

conventional heads also, the appellant is entitled for an

appropriate enhancement in the compensation.

10. On consideration of the entire facts and MACA NO. 274 OF 2021

2024:KER:70925

circumstances, this Court is of the considered view

that the appellant is entitled to succeed. Thus, the

appeal is allowed and the compensation is enhanced as

follows:-

Sl. Head of Claim Compensat Amount Enhanced by No ion determi this Court Claimed ned (Rs.) (Rs.) (Rs) 1 Transport to 45,000 15,000 5,000 hospital 2 Extra nourishment 5,000 5,000 3 Damage to 1,000 1,000 clothing and articles 4 Hospital and 4,50,000 3,86,125 treatment expenses 5 Salary of 5,000 5,000 bystander 6 Expense 1,50,000 10,000 10,000 anticipating for future treatment 7 Loss of studies 50,000 Not allowed 8 Compensation for 2,00,000 1,00,000 20,000 pain and sufferings 9 Compensation for 5,40,000 2,30,256 1,58,544 continuing or (3,88,800-

      permanent                                       2,30,256)
      disability
10    Compensation for        2,00,000     25,000       20,000
      the loss of
      enjoyment and
 MACA NO. 274 OF 2021



                                           2024:KER:70925

      amenities of life
11    Compensation for     1,00,000       Not
      the future                      allowed
      prospects of the
      petitioner
      Total                                     Rs.2,13,544

Thus the appellant is entitled for a total compensation

of Rs.2,13,544/-. The aforesaid amount will carry an

interest at 7.5% from the date of the application till

realization with proportionate costs on the enhanced

compensation. The Insurance Company shall deposit

the enhanced compensation together with interest and

proportionate costs within a period of one month from

the date of receipt of a copy of this judgment. The

claimant shall furnish the details of the bank account to

the Insurance Company for transfer of the amount. The

appeal is ordered accordingly. No order as to costs.

Sd/-

EASWARAN S. JUDGE ASH