Kerala High Court
Joy T.K vs The Oriental Insurance Company Ltd on 7 January, 2025
2025:KER:1241
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE C.PRATHEEP KUMAR
TUESDAY, THE 7TH DAY OF JANUARY 2025 / 17TH POUSHA, 1946
MACA NO. 3413 OF 2015
AGAINST THE AWARD DATED 08.07.2015 IN OP (MV) NO.1386 OF 2012
OF ADDITIONAL MOTOR ACCIDENTS CLAIMS TRIBUNAL, PATHANAMTHITTA
APPELLANT/4TH RESPONDENT :-
THE ORIENTAL INSURANCE CO.LTD
KOTTARAKKARA,REPRESENTED BY ITS REGIONAL OFFICE,
ERNAKULAM NORTH,KOCHI-18.
BY ADVS.
GEORGE CHERIAN (SR.)
LATHA SUSAN CHERIAN
K.S.SANTHI
RESPONDENT/CLAIMANT :-
JOY T.K, S/O.YOHANNANKUTTY,
THOOMPINAL,THEKKETHIL,MUTTOM.P.O, THUMPAMON-689502.
BY ADV SRI.A.N.SANTHOSH
SRI. GEORGE A CHERIAN
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY
HEARD ON 07.01.2025, ALONG WITH CO.149/2023, THE COURT ON THE
SAME DAY DELIVERED THE FOLLOWING:
MACA NO. 3413 OF 2015 & CO NO. 149 OF 2023
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2025:KER:1241
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE C.PRATHEEP KUMAR
TUESDAY, THE 7TH DAY OF JANUARY 2025 / 17TH POUSHA, 1946
CO NO. 149 OF 2023
AGAINST THE AWARD DATED 08.07.2015 IN OP (MV) NO.1386 OF 2012
OF ADDITIONAL MOTOR ACCIDENTS CLAIMS TRIBUNAL, PATHANAMTHITTA
CROSS OBJECTOR/RESPONDENT :-
JOY T.K, AGED 56 YEARS
D/O. YOHANANKUTTY, THOOMPINAL THEKKETHIL,
MUTTOM P.O, THUMPAMON,
PATHANAMTHITTA DISTRICT, PIN - 685587
BY ADV A.N.SANTHOSH
RESPONDENT/APPELLANT :-
THE ORIENTAL INSURANCE COMPANY LTD
KOTTARAKKARA, REPRESENTED BY ITS REGIONAL MANAGER,
REGIONAL OFFICE, ERNAKULAM NORTH, KOCHI, PIN -
682018
THIS CROSS OBJECTION/CROSS APPEAL HAVING BEEN FINALLY
HEARD ON 07.01.2025, ALONG WITH MACA.3413/2015, THE COURT ON
THE SAME DAY DELIVERED THE FOLLOWING:
MACA NO. 3413 OF 2015 & CO NO. 149 OF 2023
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2025:KER:1241
JUDGMENT
[MACA No.3413/2015 & CO No.149/2023]
The 4th respondent in the OP(MV).1386/2012 on the file of the
Additional Motor Accidents Claims Tribunal -IV, Pathanamthitta is the
appellant and the petitioner therein is the cross objector. (For the purpose of
convenience, the parties are hereafter referred to as per their rank before the
Tribunal)
2. According to the petitioner, on 30.10.2012 at about 07.30 a.m,
while he was walking through the Kaipatoor-Pandalam Pubic Road, a
motorcycle bearing Registration No.KL-02/G-5714 ridden by the 1st respondent
in a rash and negligent manner knocked him down. As a result of which, he
sustained serious injuries. The 1st respondent is the driver, the 2nd respondent is
the owner and 3rd respondent is the Policy holder and 4th respondent is the
insurer of the offending vehicle. According to the him, the accident occurred
due to the negligence of the driver of the offending vehicle. Therefore, he filed
the OP claiming a compensation of Rs..49,80,000/-.
3. The respondents 1 to 3 remained ex-parte. The 4 th
respondent/insurer filed a written statement, admitting the policy and disputing
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the negligence on the part of the driver of the offending vehicle. It was further
contended that the accident occurred due to the negligence of the petitioner.
4. The evidence in the case consists of the oral testimony of PW1
and documentary evidence Exts.A1 to A14. No evidence was adduced by the
respondents.
5. After evaluating the evidence on record, the Tribunal awarded a
total compensation of Rs.47,01,948/-.
6. Aggrieved by the quantum of compensation awarded by the
Tribunal, the 4th respondent preferred this appeal.
7. Heard Sri.George A Cherian, the learned Counsel Standing
Counsel appearing for the appellant/inurance company, and Sri.A.N.Santhosh,
learned counsel appearing for the respondent/cross objector..
8. The Point: In this case the accident and valid policy of the
offending vehicle are admitted. Though in the written statement the 4th
respondent has contended that the accident occurred due to the negligence of
the petitioner, at the time of arguments such a contention was not taken. The
petitioner has produced Ext.A5, copy of the Final Report involved in the crime
registered against the driver of the offending vehicle, in respect to the above
accident. In the light of the above charge sheet, negligence on the part of the
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driver of the offending vehicle stands proved. Therefore, the 4th respondent,
being the insurer, is liable to indemnify the compensation, which is liable to be
awarded against the owner of the offending vehicle.
9. In the claim petition, the petitioner claimed that he was aged 45
years as on the date of the accident on 30.10.2012. The above age of the
petitioner was disputed by the learned counsel for the 4 th respondent. In order to
substantiate the above contention, he has relied upon the age of the petitioner
given in Ext.A1, copy of FIR. It is true that in Ext.A1, the age of the petitioner is
shown as 50. The petitioner has not adduced any other evidence to prove the age
and therefore, I am inclined to accept the age of the petitioner as shown in
Ext.A1 i.e., 50.
10. According to the petitioner, he was working in a sawmill and
earning a monthly income of Rs.20,000/-. In order to prove the same, the
petitioner examined his daughter as PW1. She said that her father used to get an
income of Rs.1,000/- per day. After evaluating the evidence on record, the
Tribunal fixed his income at Rs.12,000/-.
11. The learned counsel for the 4 th respondent would argue that even
as per the dictum laid down in the decision of the Hon'ble Supreme Court in
Ramachandrappa v. Manger, Royal Sundaram Alliance Insurance Co.
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Ltd. [2011 (13) SCC 236], the notional income of a coolie will come to only
Rs.8,500/- during 2012. Therefore, according to him, Rs.12,000/- as fixed by
the tribunal is on the higher side.
12. On the other hand, the learned counsel for the petitioner would
argue that as per the evidence of PW1, the monthly income of the petitioner is
to be further enhanced.
13. It is true that, PW1, the daughter of the petitioner has
categorically deposed that the petitioner was getting an income of Rs.1,000/-
per day. However, the petitioner was not examined in the case as a witness. The
learned counsel would submit that at the time of evidence, the petitioner was
incapable of giving evidence. The petitioner also could not produce any
documentary evidence to prove his income. The evidence of PW1 that the
petitioner was getting a sum of Rs.1,000/- per day was not seriously challenged
during cross-examination. During the cross-examination, PW1 claimed that her
father used to get job on all days in the month. Since the evidence of PW1
regarding the income of the petitioner is not seriously controverted during the
cross-examination, and her evidence is not direct, I hold that the monthly
income of the petitioner can be fixed at Rs.15,000/-.
14. In the accident, the petitioner sustained the following injuries :
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"Fracture both bone (R) leg, Fracture Bimalleolar (L) leg, (R) occipital lobe
Hemorrhagic contusion, fracture (L) frontal involving root of orbit, fracture
medial wall of (L) orbit, Loss of three upper incisors and multiple lacerated
wound (L) ankle joint."
15. As per Ext.A13 - disability certificate issued by the Medical
Board, General Hospital, Pathanamthitta, his permanent physical disability was
assessed as 70%. The Tribunal has taken his functional disability as 95%. Since
the percentage of disability of the petitioner was seriously challenged in the
appeal filed by the 4th respondent he was again examined by a Medical Board
constituted by the Superintendent, Government Medical College Hospital,
Kottayam. As per the disability certificate dated 06.12.2023 produced by the
Superintendent, Government Medical College Hospital, Kottayam, the
petitioner's permanent disability is fixed at 88%, which includes
ophthalmology disability 30%, and Orthopedics disability 87%. (The said
certificate is marked as Ext.X1 for reference). Therefore, the learned counsel
for the petitioner would argue that the functional disability of the petitioner is to
be fixed at 100% as he is unable to do any work. Considering the nature of
injuries sustained by the petitioner and in the light of the above disability
certificate issued by the Medical Board, Medical College Hospital, Kottayam, I
hold that the functional disability of the petitioner can be fixed at 100% Since
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the petitioner was aged 50 years on the date of the accident, 10% of the income
which to the added towards future prospects and the multiplier to be applied is
13. Therefore, the loss of disability would come to Rs.25,74,000/-.
16. Towards 'loss of earnings', the Tribunal has awarded a sum of
Rs.5,76,000/-, being the income for a period of 48 months. Since the functional
disability of the petitioner is fixed at 100%, I hold that further compensation on
the head loss of earnings cannot be awarded. Therefore, Rs.5,76,000/- awarded
on the head loss of earning is to be deducted.
17. Towards 'pain and suffering", the Tribunal has awarded only
Rs.1,00,000/-, which, according to the learned counsel for the petitioner, is
grossly inadequate. Considering the fact that the accident was as early as on
30.10.2012 and the petitioner is still bedridden and unable to carry on any work,
and as per Ext.X1 his functional disability is fixed at 100%, I hold that the
compensation awarded on the head pain and suffering is too inadequate and
enhance it is enhanced to Rs.5,00,000/-.
18. Towards 'loss of amenities', the Tribunal has awarded only
Rs.1,00,000/-which, according to the learned counsel for the petitioner, is
grossly inadequate. Considering the fact that the accident was as early as on
30.10.2012 and he is still bedridden and unable to carry on any work, and his
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functional disability is fixed at 100%, I hold that the compensation awarded on
the head loss of amenities is too inadequate and enhance it is enhanced to
Rs.3,00,000/-.
19. Towards 'extra nourishment', the Tribunal has awarded only
Rs.10,000/-which, according to the learned counsel for the petitioner, is grossly
inadequate. Considering the fact that the accident was as early as on 30.10.2012
and he is still bedridden and unable to carry on any work, and his functional
disability is fixed at 100%, I hold that the compensation awarded on the head
extra nourishment is too inadequate and enhance it is enhanced to
Rs.1,00,000/-.
20. Towards 'compensation for future treatment', the Tribunal has
awarded a sum of Rs.9,00,000/-. Even during the pendency of the appeal, the
petitioner has not produced any future medical bills. Therefore, Rs.9,00,000/-
awarded on the head future treatment is on the higher side. The learned counsel
vehemently submitted that most of the treatments obtained by the petitioner are
from Government Hospitals and that is why the medical bills were not
produced. However, considering the fact that, towards future transportation
expense, a considerable amount will be required, I hold that a sum of
Rs.1,00,000/- can be awarded on the head future treatment, in place of
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Rs.9,00,000/- awarded by the Tribunal.
21. Towards 'attendant charges', the Tribunal has awarded
Rs.6,00,000/-, which, according to the learned counsel for the petitioner, is on
the lower side. Considering the fact that the petitioner is unable to carry on his
daily necessities and this Court already found that his functional disability is
100%, he is entitled to get reasonable compensation towards attendant charges.
In the decision is Kajal v. Jagadeesh Chand & Others [2020 (4) SCC 413], in
the case of a child in the vegetative stage, the Hon'ble Supreme Court has
awarded expenses of two bystanders at the rate of Rs.5,000/- per month for a
period of 18 years. In the instant case, since the petitioner is aged 50 years, the
multiplier to be applied is 13. Considering the fact that no positive evidence
could be adduced by the petitioner to prove the expenses on the head attendant
charges, I hold that the expense of one attendant at the rate of Rs.5,000/- for a
period of 13 years will be a reasonable one. Therefore, the compensation
towards attendant charges due to the petitioner would come to Rs.7,80,000/-
(Rs.5000 x 13 x12).
22. No change is required, in the amounts awarded on other heads,
as the compensation awarded on those heads appears to be just and reasonable.
23. Therefore, the petitioner/respondent is entitled to get a total
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compensation of Rs.44,48,028/-, as modified and recalculated above and given
in the table below, for easy reference.
Sl. No. Head of claim Amount awarded by The amount given
the Tribunal(Rs) in appeal (Rs.)
1 Loss of earnings 576000 Nil
2 Pain and suffering 100000 500000
3 Loss of amenities 100000 300000
4 Transport to hospital 19973 19973
5 Extra nourishment 10000 100000
6 Loss of earning power 2311920 2574000
7 Medical expenses 24055 24055
8 Bystander expenses 10000 780000
9 Compensation for future treatment 900000 100000
(implant removal)
11 Others : 50000 50000
Wheel chair
Total 4701948 44,48,028
Amount reduced 2,53,920 (-)
24. In the result, this Appeal and cross objection is disposed of
accordingly, and the 4th respondent is directed to deposit a total compensation of
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Rs.44,48,028/- (Rupees Forty Four Lakh Forty Eight Thousand and Twenty
Eighty Only), less the amount already deposited, if any, along with interest @
9% per annum, from the date of the petition till realisation, with proportionate
costs, within a period of two months from today.
25. On depositing the aforesaid amount, the Tribunal shall disburse
the entire amount to the petitioner, excluding court fee payable, if any, without
delay, as per rules.
Sd/-
C. PRATHEEP KUMAR,
JUDGE
SMA
