Kerala High Court

Joji Dominic vs The Manager, United India Insurance ... on 26 September, 2024

               IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                PRESENT

              THE HONOURABLE MR. JUSTICE SYAM KUMAR V.M.

      TUESDAY, THE 23RD DAY OF JULY 2024 / 1ST SRAVANA, 1946

                          MACA NO.47 OF 2018

 ARISING OUT OF THE JUDGMENT DATED 18.08.2017 IN OP(MV) NO.650 OF
       2014 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, IRINJALAKUDA

APPELLANT:


             JOSE
             S/O OUSEPH, PUTHUSSERIPADY HOUSE,MANNUMPETTA DESOM,
             AMBALLUR VILLAGE,VARAKKARA P.O, THRISSUR DISTRICT.

             BY ADVS.
             SRI.P.V.BABY
             SRI.A.N.SANTHOSH


RESPONDENT:

             UNITED INDIA INSURANCE COMPANY LTD
             CHALAKUDY-680 307, REPRESENTED BY ITS MANAGER.

             BY ADV SRI.M.HARISHARMA


     THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD
ON 15.07.2024, THE COURT ON 23.07.2024 DELIVERED THE FOLLOWING:
 MACA No.47/2018                        2




                              JUDGMENT

Dated this the 23rd day of July, 2024

Aggrieved by the quantum of compensation awarded in O.P.

(M.V.)No.650 of 2014 by the Motor Accident Claims Tribunal,

Irinjalakuda, vide Award dated 18.08.2017, this appeal is filed by the

appellant who was the petitioner therein.

2. Facts in Brief:

Appellant suffered injuries in an accident that occurred on

22.04.2014, at about 9.00 A.M. He was riding a motorcycle bearing No.

KL-45/K-2554 through Amballur -Chalakudy NH47. Another motorcycle

bearing No.KL-8/AL-302 driven by the 1 st respondent collided with the

appellant's motorcycle. Appellant suffered injuries to his right ankle and

was taken to St.James Hospital Chalakudy. He was treated there as an

inpatient. He alleges that the accident happened due to negligence on

the part of the offending motorcycle insured with the respondent

insurance company. Appellant was aged 62 years at the time of the

accident. He is claimed to have been earning a monthly income of

Rs.22,000/- working as Personal Secretary to Project Director, Thrissur

Express Way Ltd. (KMC). Appellant filed O.P.(MV) seeking a

compensation of Rs.2,00,000/-. The respondent insurer of the offending

motorcycle filed a written statement inter alia contending that negligence

was on the part of the appellant and that the compensation claimed is

excessive and exorbitant.

3. Tribunal framed three issues and the parties went to trial.

Neither side examined any witnesses. Appellant produced and marked

Exts.A1 to A19 and the respondent marked Ext.B1 document in

evidence.

4. The Tribunal rendered an award for Rs.1,09,200/- with

interest @ 9% with proportionate cost. The said award is challenged by

the appellant in the above M.A.C.A.

5. Heard Sri.A.N.Santhosh, learned counsel appearing for the

appellant and Sri.M.Hari Sharma, learned counsel appearing for the

respondent Insurance Company.

6. Appellant's contentions in brief:

● The FI statement produced as Ext.A1 document reveals that the

appellant was employed in M/s.KMC Construction Ltd. Ext.A18

salary certificate buttresses his contention regarding salary. The

Tribunal failed to duly appreciate the same.

● The Bank Account statement Ext.A19 would reveal that the

appellant was deriving a monthly salary of Rs.22,000/-. The same

read with the salary certificate (Ext.A18) evidences appellant's

monthly salary.

● The Bank account statement would reveal that the appellant had

been remitting an EMI of Rs.8,694/- at regular intervals. This

reveals that the appellant was having a regular income and

buttresses the income stated in Ext.A18 salary certificate.

● The Tribunal erred in fixing the monthly income of the appellant at

Rs.7,000/- per month. There was no reason or basis to ignore

Ext.A18 salary certificate and Ext.A19 Bank account statement.

● Appellant was a skilled person as evidenced by Ext.A9 shorthand

certificate, Ext.A10 work experience certificate, Ext.A11 service

records and Exts.A13 & A14 experience certificates.

● The amount of Rs.20,000/- awarded by the Tribunal under the

head of pain and suffering is on the lower side. Appellant had

claimed an amount of Rs.50,000/- under the said head. The said

amount ought to have been granted taking note of the injury

suffered.

● The Tribunal erred in taking the disability at 6% instead of 9.9% as

revealed by Ext.A17 disability certificate produced by the

appellant. Assuming that the Tribunal was not satisfied with the

Ext.A17 then the Tribunal ought to have referred the appellant to a

Medical Board instead of taking him unawares by rejecting the

document. Reliance is placed on Manikantan G. v.

K.Janardhanan Nair and others (2021 (5) KHC 305)

● Amounts awarded towards pain and suffering, transportation and

extra nourishment are grossly insufficient considering the facts

and circumstances of the appellant's accident and injury suffered

by him.

● While deciding cases arising out of motor vehicle accident and the

standard of proof to be borne in mind must be of preponderance

of probability and not strict standard of proof beyond all

reasonable doubt which is followed in criminal cases. Reliance is

placed on Rajwati @ Rajjo v. United India Insurance Co. Ltd.

(2022 KHC 7265). Tribunal erred in this respect.

7. Respondent's contentions in brief:

● Taking note of the nature of the injury suffered by the appellant

viz., a fracture of his bimalleolar right ankle, the compensation of

Rs.1,09,200/- awarded by the Tribunal for the total claim of

Rs.2,00,000/- is just, fair and reasonable and does not call for any

interference in appeal.

● Ext.A18 salary certificate was not properly proved by the

appellant. Rs.22,000/- claimed as salary in Ext.A18 has not been

substantiated and cannot be relied upon.

● Ext.A19 statement of bank account produced to buttress Ext.A18

does not reveal a consistent monthly salary payment. It only

shows that certain consolidated sums were received, without any

regular periodicity, into the account of the appellant from the

relevant company wherein he claims to have been employed.

● Ext.A18 certificate evidences that the appellant had continued

employment subsequent to the incident. The minor nature of the

injury occasioned is revealed therefrom.

● Admittedly the appellant had only been kept off from employment

for a period of 4 months. Due compensation has been awarded by

the Tribunal taking note of the said period.

● Amounts awarded by the Tribunal towards pain and suffering,

transportation and extra nourishment are adequate and

commensurate to the period of hospitalisation and injury.

Discussion and findings:

8. Since Ext.A18 salary certificate is heavily relied on by the

learned counsel for the appellant to substantiate monthly income of the

appellant and such reliance is vehemently objected to by the counsel for

the respondent Insurance Company pointing out that Ext.A18 is

unreliable, the said document and other exhibits used to buttress the

same require close scrutiny. Ext.A18 is stated to have been issued by

M/s.KMC Construction Ltd. wherein the appellant claims to be employed

and his salary is stated as Rs.22,000/- per month. The contents of

Ext.A18 especially the amounts mentioned therein are sought to be

substantiated by placing reliance on Ext.A1 and Ext.A19 documents.

Ext.A1 is an FIR given to the police after the injury which mentions that

the appellant is employed in M/s. KMC Construction Ltd. Ext.A19 is a

Bank account statement of the account of the appellant. However,

Exts.A1, A18 and A19 falls short of substantiating the averment of the

appellant that his monthly salary is Rs.22,000/-. Ext.A1 FIR given to the

police is only a self serving statement and cannot be pressed in to prove

the monthly income of the appellant. As regards Ext.A18, its contents

have not been proved in the manner acceptable to law by examining its

author or any one from the office of the employer of the appellant.

Regarding Ext.A19 Bank statement, the same only shows that during

certain months from the year 2013 to 2016, a consolidated amount was

paid to the appellant's account. The same falls short of proving a

monthly salary of the appellant. No witnesses were examined from the

side of the appellant. Even the appellant had not entered the box to

depose regarding his monthly salary. In view of the above, the Tribunal

cannot be found at fault for not accepting salary at Rs.22,000/- per

month as mentioned in Ext.A18.

9. As regards disability of 6% taken by the Tribunal, the

contention that if, the Tribunal was not satisfied with Ext. A17 disability

certificate produced by the appellant, then it ought to have referred the

appellant to a Medical board based on the dictum in Manikantan G.

(supra), I note that in the facts and circumstances of the case, the

Tribunal was justified in taking note of the fact that the only injury that

had occasioned to the appellant was to his right ankle, and hence fixing

the disability at 6% was proper.

10. In view of the above, guided by the principles laid down by

the Supreme Court in Ramachandrappa v. Manager, Royal Sundaram

Alliance Insurance Co. Ltd. [(2011) 13 SCC 236], I deem it fair and

reasonable to recompute and fix the monthly income of the appellant at

Rs.10,000/-. Appellant is thus entitled to loss of earnings for 4 months

computed on the said monthly income of Rs.10,000/-. The loss of

earnings would be thus recalculated and re-fixed at Rs.40,000/-

(10,000x4=40,000/-.)

11. It is trite and settled law, as laid down by the Hon'ble

Supreme Court in Benson George v. Reliance General Insurance Co.

Ltd. and another [2022 KHC 6232] that there cannot be a straight

jacket formula regarding compensation to be awarded under the heads

of pain and suffering and loss of amenities. It depends on the

circumstances of each case and it varies from person to person who

has suffered due to the accident. Considering the nature of the injuries

of the appellant and also taking into consideration his age, it would be

fair and reasonable that the compensation under the head of pain and

suffering is varied from Rs.20,000/- granted by the Tribunal to

Rs.30,000/-.

12. Bearing in mind the dictum laid down by the Hon'ble

Supreme Court in K.Suresh v. New India Assurance Company Ltd.

and another [(2012) 12 SCC 274)] that "The quintessentiality lies on

the pragmatic computation of the loss sustained which has to be in the

realm of realistic approximation". It is just, fit and proper that an amount

of Rs.2,500/- is allowed to the appellant towards extra nourishment. On

the very same reasoning, it is fair and reasonable to fix the amount

awarded under the head transportation at Rs.2,000/- .

13. As regards compensation towards permanent disability, the

same is recalculated taking the monthly income of the appellant as

Rs.10,000/-. Compensation towards permanent disability is thus arrived

at Rs.50,400/-. (10,000 x 12x 7x 6%= 50,400/-.)

14. After hearing both sides and on appreciation of the

pleadings, materials on record and the settled law as per the precedents

cited above, I conclude that the appellant is entitled for enhancement of

compensation as modified and re-calculated above, and as per the table

below.

      Sl.   Head of Claim                 Amount            Amount modified
      No.                                 awarded by the    and recalculated
                                          Tribunal (Rs.)    by this Court (Rs.)
      1     Loss of earnings                    28,000/-              40,000/-
      2     Transportation expenses              1,500/-               2,000/-
      3     Extra nourishment                    1,000/-               2,500/-
      4     Damage to clothing &                 1,000/-               1,000/-
            articles
      5     Attendant expenses                    2,400/-              2,400/-
      6     Medical expenses                     15,100/-             15,100/-
      7     Pain and suffering                   20,000/-             30,000/-
      8     Permanent disability                 25,200/-             50,400/-
      9     Loss of earning power                     Nil                  Nil
      10    Loss of amenities                    15,000/-             15,000/-
      11    Future medical expenses                   Nil                  Nil
      12    Mental dejection                          Nil                  Nil
                                  Total        1,09,200/-           1,58,400/-

15. The Award of the Tribunal is modified to the above extent

entitling the appellant to a total amount of Rs.1,58,400/- (Rs.1,09,200/-

awarded by the Tribunal + Rs.49,200/- enhanced in appeal) under the

respective heads as tabulated above. Amounts granted under other

heads in the Award remain unaltered. Appellant will be entitled to

interest @ 9% per annum on the enhanced amount. The respondent

Insurance Company shall deposit before the Tribunal amounts payable

as per the Award, less the amounts already deposited, if any, within a

month from the date this judgment. The Tribunal shall disburse the

enhanced compensation with interest and cost to the appellant in

accordance with law.

M.A.C.A. stands disposed of as above.