Kerala High Court

Subash Chandra (Expired) vs The Oriental Insurance Co. Ltd on 30 January, 2025

MACA.2914/2017



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            IN THE HIGH COURT OF KERALA AT ERNAKULAM
                             PRESENT
           THE HONOURABLE MR. JUSTICE C.PRATHEEP KUMAR
 THURSDAY, THE 30TH DAY OF JANUARY 2025 / 10TH MAGHA, 1946
                      MACA NO. 2914 OF 2017
             OPMV NO.136 OF 2015 OF MOTOR ACCIDENT CLAIMS
                      TRIBUNAL, TALIPARAMBA

APPELLANT/PETITIONER

     1      SUBASH CHANDRA (EXPIRED)
            AGED 48 YEARS, S/O APPU,RESIDING AT CHOORAKODE
            HOUSE, VELLORA P.O,TALIPARAMBA, KANNUR DISTRICT,
            REP. BY POA HOLDER LEELA K, AGED 39 YEARS,
            RESIDING AT CHOORAKODE HOUSE, VELLORA P.O.,
            TALIPARAMBA, KANNUR DISTRICT.[ EXPIRED.
            ADDL.APPELLANTS 2 TO 5 IMPLEADED ]

  ADDL.2    LEELA.K, AGED 44 YEARS, W/O.LATE SUBHASH
            CHANDRAN, RESIDING AT CHOORAKODE HOUSE,
            VELLORA.P.O., TALIPARAMBA, KANNUR DISTRICT -
            670141

  ADDL.3    AMALESH, AGED 24 YEARS, S/O.LATE SUBHASH CHANDRA,
            RESIDING AT CHOORAKODE HOUSE, VELLORA .P.O.,
            TALIPARAMBA, KANNUR DISTRICT - 670141

  ADDL.4    AMRITA.C.SUBHASH
            AGED 20 YEARS, D/O.LATE SUBHASH CHANDRA, RESIDING
            AT CHOORAKODE HOUSE, VELLORA.P.O., TALIPARAMBA,
            KANNUR DISTRICT - 670141.

  ADDL.5    GOURI.N.K.
            AGED 85 YEARS, W/O.LATE APPU, RESIDING AT
            CHOORAKODE HOUSE, VELLORA.P.O., TALIPARAMBA,
            KANNUR DISTRICT - 670141. (ARE IMPLEADED AS THE
            LR'S OF THE DECEASED FIRST APPELLANT AS PER ORDER
            DATED 23/12/2021 IN IA.1/21 IN MACA 2914/2017)


            BY ADVS.
            SUNIL NAIR PALAKKAT
            K.N.ABHILASH
 MACA.2914/2017



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RESPONDENT/2ND RESPONDENT

            THE ORIENTAL INSURANCE CO. LTD.
            BRANCH OFFICE, JYOTHI SUPER BAZAR,THODUPUZHA,
            PIN-685584.


            BY ADV SRI.VPK.PANICKER-SC


    THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN
FINALLY HEARD ON 22.1.2025, THE COURT ON 30.01.2025
DELIVERED THE FOLLOWING:
 MACA.2914/2017



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                                                             2025:KER:7388

                                JUDGMENT

Dated : 30th January, 2025

The petitioner in O.P.(M.V.).No. 136/2015 on the file of the Motor

Accident Claims Tribunal, Taliparamba is the appellant herein. The 2 nd

respondent in the O.P. is the 1st respondent herein. 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 19.12.2005

2. According to the petitioner, on 19.12.2005 at about 8:30 a.m., while

he was travelling in the Autorikshaw bearing Reg. No. KL-13-M-8639 from

Kariappally to Pedena driven by the 1 st respondent in a rash and negligent

manner and as a result of which autorikshaw capsized and he sustained

injuries. The 2nd respondent is the insurer of the autorikshaw.

3. The 1st respondent remained ex-parte. The 2nd respondent filed a

written statement admitting the accident and valid insurance policy.

4. The evidence in the case consists of the oral testimony of PW1 and

documentary evidence Exts.A1 to A8, and X1. No evidence was adduced by

the respondents.

5. After evaluating the evidence on record, the Tribunal awarded a

total compensation of Rs. 17,23,900/-.

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6. Dissatisfied with the quantum of compensation awarded by the

Tribunal, the petitioner preferred this appeal.

7. Now the point that arises for consideration is the following:

Whether the quantum of compensation awarded by the Tribunal is just and reasonable.

8. Heard Sri. Sunil Nair Palakkad and Sri. K.N. Abhilash, the learned

Counsel appearing for the appellant, and Sri. V.P.K. Panicker, learned

Standing Counsel for the 3rd respondent.

9. The Point: During the pendency of the appeal, the original

petitioner died on 30.03.2020 and his wife, children and mother are

impleaded as additional appellants 2 to 5.

10. One of the contentions raised by learned counsel for the petitioner

is that the petitioner was a rubber tapper by profession and getting a

monthly income of Rs.15,000/-. In order to prove that he was a rubber

tapper by profession and to prove his income, his wife was examined as

PW1. PW1 deposed that her husband is a rubber tapper by profession

getting more than Rs.15,000/- per month. During the cross examination of

PW1, the only suggestion put was to the effect that no documents were

produced to prove the income of the petitioner. It is true that the petitioner

has not produced any documents to prove his income. However, the fact

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remains that he was a rubber tapper by profession. Regarding the income of

the petitioner also no serious challenge was made during the cross

examination. 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. Ltd. [2011 (13) SCC 236], the notional

income of a Coolie during the year 2005 will come to Rs.5,000/-.

Considering the fact that, the petitioner is a rubber tapper by profession, his

notional income is liable to be fixed as Rs.6,000/-.

11. In the accident, the petitioner sustained very serious injuries. As

per Ext.A2 wound certificate, the petitioner sustained abrasions, wound with

scab over left anterior part of leg; C6-7 dislocation with fracture C7 right

superior articular fracture, fracture anterior superior edge of body of C7

vertebra. As per Ext.A3 series, the petitioner was admitted in the hospital

on 19.12.2005 and discharged on 25.03.2005 and again treated as outpatient,

on various occasions till 21.09.2015. In Ext.X1 disability certificate, after

evaluating the condition of the petitioner, his permanent physical disability

was assessed as 100%.

12. Since, on the date of accident, he was aged 40 years, 25% of his

income is to be added towards future prospects, and the multiplier to be

applied is 15. Therefore, loss due to disability will come to Rs.13,50,000/-.

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13. Towards loss of earning, the tribunal has awarded a sum of

Rs.1,44,000/- being his income for a period of 3 years. Learned counsel for

the 2nd respondent would argue that since the functional disability of the

petitioner is taken as 100%, further compensation on the head 'loss of

earning' is to be denied. It is true that the permanent physical disability of

the petitioner was assessed at 100% and as such, further compensation on

the head 'loss of earning' is not required. Therefore, Rs.1,44,000/- awarded

on the head loss of earning will be deducted.

14. Towards the head 'pain and sufferings', the Tribunal has awarded

Rs.2,00,000/-, towards the head compensation for loss of amenities, the

Tribunal has awarded Rs.2,00,000/-, and towards bystanders expense, the

tribunal awarded only Rs.31,800/-. Towards extra nourishment, the tribunal

has awarded Rs.72,000/-. The learned counsel for the petitioner would argue

that the compensation awarded by the tribunal on the above heads are on the

lower side.

15. In this case, the petitioner was treated as inpatient for a total

period of 201 days. From the documents produced by the petitioner it is

revealed that he was treated as inpatient and otherwise till 21.09.2015. The

learned counsel would submit that even after 2015, the petitioner was

continuously treated in various hospitals till he breathed his last on

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30.03.2020. Considering the nature of the injuries sustained by the petitioner

and the percentage of disability suffered by him as well as the fact that he

was completely bedridden till he breathed his last on 30.03.2020, I hold that

the petitioner is entitled to get reasonable compensation on the head

'bystander expense'. In the decision in Kajal v. Jagadeesh Chand &

Others [2020 (4) SCC 413], in the case of a child of 12 years in 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, the petitioner was aged 40 on the date of the accident. He breathed his

last after a period of 11 years and 4 months (172 months). Considering the

entire facts, I hold that in this case towards 'bystander expense', the

petitioner is entitled to get a sum of Rs.5,000/- for 172 months. It will come

to Rs.8,60,000/- (5000x172).

16. Considering the nature of injuries sustained by the petitioner and

the permanent disability suffered by him, I hold that the compensation

awarded on the head 'pain and suffering' and 'loss of amenities' are also on

the lower side. Therefore, compensation on the head 'pain and suffering' is

enhanced to Rs.5,00,000/-.

17. Relying on the decision of the Hon'ble Supreme Court in Lalan D

@ Lal and anotherv. Oriental Insurance Company Ltd. [2020 (9) SCC

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805], the learned counsel for the 2nd respondent would argue that

compensation for 'loss of amenities' awarded by the Tribunal is on the

higher side and hence there was no scope for further enhancement on that

head. On the other hand, the learned counsel for the petitioner would argue

that since the petitioner suffered 100% permanent physical disability and he

was completely bedridden for 172 months, till he breathed his last, the

compensation on the head loss of amenities is also to be proportionately

increased.

18. It is true that in Lalan (supra) referred by the learned counsel

for the 2nd respondent, the compensation awarded on the head loss of

amenities is only Rs.10,000/-.. However in the decision in Benson George

v. Reliance General Insurance Co.Ltd., and Ors., (2022) 13 SCC 142 the

Hon'ble Supreme Court has awarded a sum of Rs.10,00,000/- on the head

'loss of amenities' to an eight year old child in coma stage. In the above

circumstances, in this case also the petitioner who is suffering from 100%

disability and almost in a vegetative stage, I hold that a sum of Rs.5,00,000/-

can be awarded on the head 'loss of amenities'.

19. Towards 'extra nourishment' the Tribunal has awarded

Rs.72,000/-. Considering the entire facts, I hold that, the compensation

awarded on the head 'extra nourishment' is also on the lower side and it is

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enhanced to Rs.1,00,000/-

20. No change is required in the amounts awarded on other heads,

as the compensation awarded on those heads appears to be just and

reasonable.

21. Therefore, the petitioner/ appellant is entitled to get a total

compensation of Rs.3659400/-, as modified and recalculated above and

given in the table below, for easy reference.


  Sl.    Head of claim                   Amount awarded by the   The amount given in
  No.                                    Tribunal(Rs)            appeal (Rs.)

  1      Loss of earning                 144000                  Nil

  2      Partial loss of earning         Nil                     Nil

  3      Transport to hospital           54700                   Nil

  4      Extra nourishment               72000                   100000

  5      Damage to clothing              2000                    2000

  6      Others :Medical bills/          347400                  347400
         bystanders expenses             31800                   860000

  7      Pain and suffering              200000                  500000

  8      Compensation for loss of          672000                1350000
         earning power/ Loss of disability

  9      Loss of Amenities               200000                  500000

         Total                           1723900                 3659400

         Amount enhanced                  1935500

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

respondent/2nd respondent in the OP is directed to deposit a total

compensation of Rs.3659400/- (Rupees thirty six lakh fifty nine thousand

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four hundred only), less the amount already deposited, if any, along with

interest as ordered by the Tribunal, from the date of the petition till

realisation, excluding interest for a period of 334 days, the period of delay

in filing the appeal, with proportionate costs, within a period of two months

from today. Interest for the enhanced amount is limited to 8%.

23. 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.