Kerala High Court
The Branch Manager vs Geogy Samuel on 27 January, 2025
MACA. Nos.2474/2015 & 2989/2015
1
2025:KER:13207
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE C.PRATHEEP KUMAR
MONDAY, THE 27TH DAY OF JANUARY 2025 / 7TH MAGHA, 1946
MACA NO. 2474 OF 2015
OPMV NO.1196 OF 2007 OF MOTOR ACCIDENTS CLAIMS
TRIBUNAL,PATHANAMTHITTA
APPELLANT/2ND RESPONDENT
THE BRANCH MANAGER
ICICI LOMBARD GENERAL INSURANCE CO. LTD.,
COCHIN, THROUGH THE LEGAL MANAGER,
ICICI LOMBARD GENERAL INSURANCE CO,
KANNANKERY ESTATE, 3RD FLOOR,
SHANKUGHAM ROAD, MARINE DRIVE, KOCHI-682301.
BY ADV SRI.LATHEESH SEBASTIAN-SC
RESPONDENTS/PETITIONER & 1ST RESPONDENT
1 GEOGY SAMUEL
AGED 40, S/O K.V.SAMUEL, CHEENICKALAYIL HOSUE,
VELLAPPARA P.O., PRAMADOM VILLAGE, PATHANAMTHITTA
DISTRICT-689705.
2 JAMES JOSEPH
PARAKKAL HOSUE, CHITTAR P.O., KULATHUNKAL
JUNCTION, CHITTAR, PATHANAMTHITTA DISTRICT-689663.
(RESPONDENT No.2 IS REMOVED FROM THE PARTY ARRAY SUO
MOTU AS PER ORDER DATED 22/07/2024 IN MACA 2474/2015)
BY ADV SRI.A.N.SANTHOSH
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY
HEARD ON 27.01.2025, ALONG WITH MACA.2989/2015, ALONG WITH
MACA 2989/2015, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
MACA. Nos.2474/2015 & 2989/2015
2
2025:KER:13207
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE C.PRATHEEP KUMAR
MONDAY, THE 27TH DAY OF JANUARY 2025 / 7TH MAGHA, 1946
MACA NO. 2989 OF 2015
OPMV NO.1196 OF 2007 OF MOTOR ACCIDENTS CLAIMS
TRIBUNAL, PATHANAMTHITTA
APPELLANT/PETITIONER
GEOGY SAMUEL,
S/O.K.V.SAMUEL, CHEENIKALAYIL HOUSE,
VELLAPPARA P.O, PRAMADOM VILLAGE,
PATHANAMTHITTA DISTRICT.
BY ADV SRI.A.N.SANTHOSH
RESPONDENTS/RESPONDENTS
1 JAMES JOSEPH
PARAKKAL HOUSE, CHITTAR P.O,
KULATHUNGAL JUNCTION, CHITTAR 689 663.
2 THE BRANCH MANAGER
ICICI LOMBARD GENERAL INSURANCE CO. LTD,
COCHIN 682 016.
BY ADV LATHEESH SEBASTIAN-SC
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY
HEARD ON 27.01.2025, ALONG WITH MACA.2474/2015, THE COURT ON
THE SAME DAY DELIVERED THE FOLLOWING:
MACA. Nos.2474/2015 & 2989/2015
3
2025:KER:13207
JUDGMENT
Dated this the 27th day of January, 2025
The petitioner in O.P.(M.V.) No.1196/2007 on the file of the Motor
Accident Claims Tribunal, Pathanamthitta is the appellant in MACA
No.2989 of 2015 and the 2nd respondent in the said OP is the appellant in
MACA. No.2474 of 2015. (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 30.6.2007.
According to the petitioner, on 30.6.2007 at about 2.30 p.m., while he
was travelling in a Tata Sumo bearing Registration No. KL3K 4807
owned and driven by the 1st respondent, in a rash and negligent manner
dashed first against an autorickshaw and then hit against a tree and as a
result of which he sustained serious injuries.
3. The 2nd respondent is the insurer of the Tata Sumo. According to
the petitioner, the accident occurred due to the negligence of the 1st
MACA. Nos.2474/2015 & 2989/2015
2025:KER:13207
respondent. The quantum of compensation claimed in the O.P. is
Rs.20,27,000/-.
4. The insurance company filed a written 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 the oral testimony of PW1
and documentary evidence Exts.A1 to A47 series, and B1 series.
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.15,25,848/- and directed the insurer to pay the
same.
7. Aggrieved by the quantum of compensation awarded by the
Tribunal, the petitioner preferred MACA. No.2989/2015 and
Respondent No. 2 preferred MACA. No.2474/2015.
8. Now the point that arises for consideration is the following:
Whether the quantum of compensation awarded by the
Tribunal is just and reasonable?
MACA. Nos.2474/2015 & 2989/2015
2025:KER:13207
9. Heard Sri. Latheesh Sebastian, the learned Standing Counsel
appearing for the 2nd respondent/appellant, and Sri. A.N. Santhosh, the
learned Counsel for the petitioner/appellant.
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 insurer is that the notional income of the
petitioner as fixed by the Tribunal is on the higher side. According to
the petitioner, he was working as an Aluminium Fabricator earning
Rs.15,000/- per month. The Tribunal fixed his monthly income at
Rs.10,000/-.
11. It is true that the petitioner could not prove his income, as claimed
in the OP. However from Ext.A29 and A30, it is proved that the petitioner
was an Alumimium Fabricator by profession. 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/-. In the above circumstances, the
MACA. Nos.2474/2015 & 2989/2015
2025:KER:13207
petitioner being an Aluminium Fabricator by profession, his notional
income is fixed at Rs.7,000/-, for the purpose of computing the loss of
disability.
12. In the accident the petitioner sustained the following injuries:
"Injuries on head face, fracture on middle shaft of right femur,
fracture of left zygoma, fracture frontal bone."
13. As per Ext. A28 disability certificate shows that the petitioner
suffered 50% permanent physical disability. It was issued by the medical
board. The Tribunal, however, scaled down the percentage of disability
of the petitioner to 40%. The law is settled that, if the Tribunal is not
satisfied with the disability certificate produced by the petitioner, the
remedy is to refer him to a medical board or higher Authority.(See
Manikantan G. v. Janardhanan Nair and Others, 2021 (5)KHC 305).
Having not done so, the Tribunal was not justified in scaling down the
percentage of disability from what is shown in the disability certificate.
In the accident the petitioner sustained injuries on head, face, fracture on
middle shaft of right femur, fracture of left zygoma, fracture frontal bone
MACA. Nos.2474/2015 & 2989/2015
2025:KER:13207
and he was treated an inpatient for a total period of 42 days. Since
Exhibit A28 disability certificate was issued by a medical board, the
Tribunal was not justified in scaling down the percentage of disability
from 50% to 40%. In the above circumstances, I am inclined to accept
the permanent physical disability of the petitioner as 50%.
14. On the date of accident, the petitioner was aged 32 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
15, 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.9,40,800/-.
15. Since the notional income of the petitioner is re-fixed at Rs.
7,000/-, towards loss of earning he is entitled to get a sum of Rs.56,000/-
(7000x8months).
16. Towards the head 'pain and sufferings', the Tribunal has awarded
Rs.50,000/-. Towards the heads 'extra nourishment' and 'bystander expenses',
MACA. Nos.2474/2015 & 2989/2015
2025:KER:13207
the Tribunal has awarded Rs.2,000/- and Rs.4,000/- respectively. According
to the learned counsel for the petitioner, the compensation awarded on those
heads are on the lower side.
17. The petitioner sustained very serious injuries in the accident and
was treated as inpatient for 42 days. Because of the injuries sustained, the
percentage of disability suffered and the length of treatment undergone by the
petitioner, I hold that the compensation awarded by the Tribunal on the heads
'pain and sufferings', 'and 'extra nourishment' and 'bystander expenses' are on
the lower side and hence they are enhanced to Rs.75,000/-, and Rs.6,000/-and
Rs.5,000/- respectively.
18. No change is required, in the amounts awarded on other heads,
as the compensation awarded on those heads appears to be just and
reasonable.
19. Therefore, the petitioners/appellants are entitled to get a total
compensation of Rs.13,20,648/-, as modified and recalculated above and
given in the table below, for easy reference:
MACA. Nos.2474/2015 & 2989/2015
2025:KER:13207
Sl. Head of claim Amount awarded by Amount modified
No. the Tribunal (Rs) in appeal (Rs.)
Loss of earning 80000 56,000/-
2 Transportation charges 5,000/- 5,000/-
3 Extra nourishment 2,000/- 6,000/-
4 Damage to clothing & articles 1,000/- 1,000/-
5 Medical expenses 1,81,848/- 1,81,848/-
6 Bystander expenses 4,000/- 5,000/-
7 Loss of amenities & enjoyment in life 50,000/- 50,000/-
8 Pain and suffering 50,000/- 75,000/-
9 Compensation for disability 11,52,000/- 9,40,800/-
Total 15,25,848/- 13,20,648/-
Amount reduced Rs.2,05,200/-
20. In the result, these Appeals are disposed of directing Respondent
No.2 to deposit a total sum of Rs.13,20,648/- (Rupees Thirteen Lakh Twenty
Thousand Six Hundred and Forty Eight Only), less the amount already
deposited, if any, along with interest at the rate ordered by the Tribunal, from
the date of the petition till deposit/realisation, within a period of two months
from today.
21. 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
sou.
