Kerala High Court

Sasi vs Oriental Insurance Co.Ltd on 24 February, 2025

                                                  2025:KER:17655


           IN THE HIGH COURT OF KERALA AT ERNAKULAM

                              PRESENT

         THE HONOURABLE MR. JUSTICE C.PRATHEEP KUMAR

  MONDAY, THE 24TH DAY OF FEBRUARY 2025 / 5TH PHALGUNA,

                               1946

                       MACA NO. 3024 OF 2016

     AGAINST THE ORDER/JUDGMENT DATED 07.01.2015 IN OPMV

NO.252     OF   2009   OF   MOTOR   ACCIDENT   CLAIMS   TRIBUNAL,

PALAKKAD

APPELLANT:

            SASI,
            AGED 42 YEARS,
            S/O. GANGADHARAN, AGED 42 YEARS,
            VALUVECHAPARA, KALINGALPADAM, PANNIYANKARA
            P.O., ALATHUR TALUK, PALAKKAD DISTRICT,
            REP. BY NEXT FRIEND, WIFE SASIKALA


            BY ADV SRI.BABY MATHEW


RESPONDENT:


            ORIENTAL INSURANCE CO.LTD,
            SHOBHA T S M COMPLEX, RAILWAY STATION ROAD,
            PALAKKAD (INSURER OF AUTO TEMPO VAN
            REG NO. KL 9/E-7628)(POLICY NO. 2008/4998)
            VALID FROM 03-07-2007 TO 02-07-2008).


            BY ADV DR.ELIZABETH VARKEY
 M.A.C.A.No.3024 of 2016



                                                        2025:KER:17655
                                     -2-

      THIS    MOTOR       ACCIDENT    CLAIMS   APPEAL    HAVING   BEEN
FINALLY HEARD ON 24.02.2025, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
 M.A.C.A.No.3024 of 2016



                                                              2025:KER:17655
                                        -3-

                                   JUDGMENT

Dated this the 24th day of February, 2025

The petitioner in O.P.(M.V.) No.252/2009 on the file of

the Motor Accident Claims Tribunal, Palakkad is the appellant

herein. (For the purpose of convenience, the parties are hereafter

referred to as per their rank before the Tribunal)

2. The petitioner filed the above O.P. under

Section 166 of the Motor Vehicles Act, 1988, claiming

compensation for the injuries sustained in a motor vehicle

accident that occurred on 17.11.2007. According to the

petitioner, on 17.11.2007 at about 6.45 p.m., while he was riding

pillion on a motorcycle, a tempo van bearing Registration No.KL-

9/E-7628 driven by the 2nd respondent came in a rash and

negligent manner and hit him down. As a result of the accident,

the petitioner sustained serious injuries.

3. The 1st respondent is the owner and the 3 rd

respondent is the insurer of the offending vehicle. According to

the petitioner, the accident occurred due to the negligence of the

driver of the offending vehicle. The quantum of compensation

claimed in the O.P. is Rs.16,00,000/-.

4. The insurance company filed a written

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statement, admitting the accident as well as policy, but disputing

the negligence on the part of the driver of the offending vehicle.

5. The evidence in the case consists of

documentary evidence Exts.A1 to A11 and X1. No evidence was

adduced by the respondents.

6. After evaluating the evidence on record, the

Tribunal found negligence on the part of the driver of the

offending vehicle, awarded a total compensation of Rs.15,79,300/-

and directed the insurer to pay the same.

7. Aggrieved by the quantum of compensation

awarded by the Tribunal, the petitioner preferred this appeal.

8. Now the point that arises for consideration is

the following:

Whether the quantum of compensation awarded by the

Tribunal is just and reasonable?

9. Heard Sri.Baby Mathew, the learned Counsel

appearing for the petitioner/appellant, and Smt.Dr.Elizabeth

Varkey, the learned Standing Counsel for the 3rd respondent.

10. The Point: In this case the accident as well as

valid policy of the offending vehicle are admitted. One of the

contentions raised by the learned counsel for the petitioner is

regarding the income of the petitioner as fixed by the Tribunal.

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According to the petitioner, he was working as rubber tapper by

profession, earning Rs.4,500/- per month. The Tribunal fixed his

monthly income at Rs.5,000/-.

11. As per the dictum laid down by the Hon'ble

Supreme Court in the decision in Ramachandrappa v. Manager,

Royal Sundaram Alliance Insurance Co. Ltd. [2011 (13) SCC

236], the notional income of a coolie, in the year 2007 will come to

Rs.6,000/-. Therefore, the learned counsel prayed for fixing the

notional income at Rs.6000/-. The learned counsel for the insurer

would argue that the income fixed by the tribunal is reasonable.

Since the notional income of a coolie, in the year 2007 will come to

Rs.6,000/-, in order to award just and reasonable compensation, in

the light of a dictum laid down in the decision of the Hon'ble

Supreme Court in Ramachandrappa (supra), the notional

income of the petitioner is liable to be fixed as that of a coolie, at

Rs.6,000/-.

12. In the accident the petitioner sustained the

following injuries:

Severe head injury in the form of left temporo-parietal

extra-dural hematoma, subdural hematoma, bi frontal

hemorrhagic contusion, left temporal bone fracture, bi-frontal

compound comminuted depressed fracture, right parieto-occipital

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subdural h ematoma, pneumoncephalus, diffuse SAH, right hemo-

pneumothorax and exposure keratitis right eye.

13. As per Ext.X1 disability certificate issued by the

Medical Board his permanent physical disability due to cognitive

dysfunction was assessed as 25%, permanent disability due to

residual right hemiparesis with difficulty in walking was assessed

as 25% and neuroligical disability was assessed as 57.81%. After

examining the petitioner, the tribunal noted that the petitioner

was not responding to questions, was not able to walk on his own

and was seen not alert to the sorroundings. In the light of Ext.X1

disability certificate and the report of the Medical Board, the

Tribunal concluded that the petitioner was totally disabled for the

rest of his life and reduced to total dependant on others even for

his daily chores and taken his functional disability as 100%, which

is not under challenge.

14. On the date of accident, the petitioner was aged

35 years. Therefore, 40% of the monthly income is to be added

towards future prospects, as held in the decision in National

Insurance Co.Ltd v Pranay Sethi [(2017) 16 SCC 680] and the

multiplier to be applied is 16, as held in Sarla Verma v. Delhi

Transport Corporation, (2009) 6 SCC 121. In the above

circumstances, the loss of disability will come to Rs.16,12,800/-.

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15. One of the contentions raised by the learned

counsel for the petitioner is regarding the compensation awarded

the heads pain and sufferings and loss of amenities. Relying upon

the decision of a single Bench of this Court in Ramshad P.V v.

Afsal 2025 KHC 93, the learned counsel would argue that to a

20 year old victim suffering from 100% permanent disability

involved in a motor vehicle accident, the learned Single Judge has

awarded Rs.10,00,000/- each on the head pain and sufferings and

loss of amenities. In the decision in Benson George v. Reliance

General Insurance Co. Ltd, and Another (2022 (13) SCC

142), in the case of a 29 year old victim of road traffic accident in

coma stage, the Hon'ble Supreme Court has awarded

compensation of the heads pain and sufferings and loss of

amenities at Rs.10,00,000/- each.

16. In this case the petitioner sustained very

serious injuries and he suffered 100% disability and he could not

even walk with the help of a bystander. Considering the nature of

injuries sustained by the petitioner and the percentage of

disability suffered by him, I hold that towards pain and sufferings

and loss of amenities, compensation awarded by the tribunal

namely Rs.35000/- and Rs.2,50,000/- respectively are on the lower

side and hence they are enhanced to Rs.5,00,000/- each.

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17. Another contentions raised by the learned

counsel for the petitioner is regarding the bystander expense.

Though the tribunal found that the petitioner is suffering from

100% functional disability, and he could not even walk without

the help of others, the tribunal has awarded only Rs.4,300/-

towards bystander expense.

18. In the decision in Kajal for a 12 year old child

suffering from paraplegic condition, the expense of two bystanders

was awarded by the Hon'ble Apex Court, at the rate of Rs.5,000/-

per bystander per month. In the instant case, the petitioner could

walk with the help of a bystander. Moreover, the accident involved

in this case is of the year 2007. Therefore, considering the entire

facts, I hold that in the instant case, the expense of one bystander

at the rate of Rs.5,000/- per month will be a reasonable one. Since

the petitioner was aged 35 on the date of the accident, the

multiplier to be applied is 16. Therefore, towards bystander

expenses he is entitled to get a sum of Rs.960,000/- (5000 x

12x16).

19. No change is required, in the amounts awarded

on other heads, as the compensation awarded on those heads

appears to be just and reasonable.

20. Therefore, the petitioners/appellants are

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entitled to get a total compensation of Rs.37,82,800/-, as modified

and recalculated above and given in the table below, for easy

reference.

Sl.

 No        Head of Claim        Amount awarded                Amount
  .                              by Tribunal (in            Awarded in
                                          Rs.)                Appeal
                                                              (in Rs.)
  1 Medical expenses                   1,00,000/-            1,00,000/-
  2 Bystander expenses                  4,300/-              9,60,000/-
  3 Transportation                      5,000/-               5,000/-
  4 Extra-nourishment                   5,000/-               5,000/-
  5 Pain and suffering                 35,000/-              5,00,000/-
  6 Loss of amenities and              2,50,000/-            5,00,000/-
    convenience of life
  7 Loss of earning power          10,80,000/-              16,12,800/-
  8 Future treatment and               1,00,000/-            1,00,000/-
    bystander expenses
       Total                       15,79,300/-              37,82,800/-
       Enhanced Rs.22,03,500/-

21. In the result, this Appeal is allowed in part, and

Respondent No.3 is directed to deposit a total sum of

Rs.37,82,800/- (Rupees thirty seven lakhs eighty two thousand

and eight hundred Only), less the amount already deposited, if

any, along with interest @ 9% per annum, from the date of the

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petition till deposit/realisation, excluding interest for a period of

465 days, the period of delay in filing the appeal, with

proportionate costs, within a period of two months from today

(enhanced compensation will carry interest @8%).

22. On depositing the aforesaid amount, the

Tribunal shall disburse the entire amount to the petitioner,