Kerala High Court
Nadarajan vs Gimmy George on 7 March, 2025
2025:KER:20483
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE JOBIN SEBASTIAN
FRIDAY, THE 7TH DAY OF MARCH 2025 / 16TH PHALGUNA, 1946
MACA NO. 321 OF 2018
AGAINST THE AWARD DATED 20.12.2016 IN OPMV NO.1463
OF 2009 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, ALAPPUZHA
APPELLANT/S:
NADARAJAN, AGED 52 YEARS,S/O.NANU,KONKERIL
HOUSE,VALAMANGALAM OUTH.P.O,THURAVOOR,
ALAPPUZHA-688532.
BY ADV SRI.V.A.VINOD
RESPONDENT/S:
1 GIMMY GEORGE, S/O THOMAS GEORGE,THIRUVALIL
VEEDU,PUNNAMOODU BHAGAM,MAVELIKKARA
MUNICIPALITY,WARD-18,MAVELIKKARA TALUK-690101.
2 THOMAS GEORGE, THIRUVALIL VEEDU, PUNNAMOODU
BHAGAM,MAVELIKKARA MUNICIPALITY,
WARD-18,MAVELIKKARA TALUK-690101.
3 CHOLAMANDALAM MS GENERAL AND INSURANCE CO.LTD
DARE HOUSE,2ND FLOOR,BSC BOSE ROAD,CHENNAI-600001.
BY ADV SRI.O.V.MANIPRASAD
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP
FOR ADMISSION ON 07.03.2025, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
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JUDGMENT
The petitioner in O.P.(M.V.) No. 1463/2009 on the file of
the Motor Accident Claims Tribunal, Alappuzha has filed this
appeal seeking enhancement of compensation awarded by the
Tribunal on account of the injuries sustained by him in a
motor accident that occurred on 14.09.2009.
2. The case of the petitioner in brief is as follows:-
On 14.09.2009, at 7.45 a.m., while the petitioner was
riding a motorcycle through Alappuzha - Ernakulam National
Highway, and when he reached near Chanthiroor Bridge, a car
bearing registration No. KL-31-A-4747 driven by the first
respondent in a rash and negligent manner hit on the
motorcycle which the petitioner was riding. Due to the impact
of the hit, the petitioner was thrown to the road causing him
severe injuries.
3. The driver and owner of the car bearing
registration number KL-31-A-4747 were arrayed as the first
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and second respondents respectively, whereas, the Insurer of
the offending car was arrayed as the third respondent.
4. The third respondent contested the petition by
filing a written statement mainly disputing the quantum of
compensation claimed, despite admitting insurance coverage
for the car involved in the accident. The petitioner's evidence
consists of Exts. A1 to A12. From the side of the respondents,
no evidence, whatsoever, was adduced.
5. After trial, the tribunal came to a conclusion that
the accident occurred solely due to the rash and negligent
driving of the car by the first respondent, and being the
insurer, the third respondent was held liable to pay the
compensation. The quantum of compensation was fixed at
Rs. 5,94,078/-, with interest at the rate of 9% per annum
from the date of petition till realization with proportionate
costs. Dissatisfied by the compensation awarded, the
petitioner has come up with this appeal.
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6. Heard Sri.V.A.Vinod, the learned counsel appearing
for the appellant, and Sri. P.Jacob Mathew, the learned
counsel appearing for the third respondent, the Insurance
Company.
7. From the rival contentions raised by the learned
counsel for both sides, it is discernible that the main dispute
that revolves around this appeal is with respect to the
quantum of compensation awarded. The learned counsel for
the petitioner would submit that the compensation awarded
by the Tribunal under various heads is too meager and the
impugned award was passed without considering the gravity
and the nature of the injuries sustained to the petitioner in
the accident as well as the consequent hardships and
inconveniences caused to him. Per contra, the learned
counsel for the respondent submitted that the compensation
awarded by the Tribunal is reasonable and no interference is
hence warranted.
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8. From a perusal of the award, it is apparent that
there is some merit in the contention of the learned counsel
for the petitioner. For the purpose of determining the
compensation under the head of permanent disability, the
Tribunal assessed the monthly income of the petitioner at
Rs.4,000/-. Though in the petition, it was claimed that the
petitioner was a chef in a five-star hotel earning a monthly
income of Rs. 9,000/-, no convincing evidence is adduced
from the side of the petitioner to substantiate his actual
occupation and income. It is true that a salary certificate
showing that the petitioner is getting a monthly salary of Rs.
9,000/- was produced from the side of the petitioner and the
same was marked as Ext.A6 subject to proof. However,
serious objections were raised from the side of the learned
counsel for the respondent regarding the acceptability of the
said salary certificate. Even then no steps were taken by the
petitioner to examine the employer, who issued the salary
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certificate. Therefore, it is liable to be held that the salary
certificate produced by the petitioner cannot be relied upon in
assessing the monthly income of the petitioner. However, it is
an admitted fact that the accident occurred in the year 2009.
Therefore, in view of the decision in Ramachandrappa v.
Manager, Royal Sundaram Alliance Insurance Company
Ltd. [(2011) 13 SCC 236], the Tribunal ought to have
assessed the monthly income of the petitioner at Rs. 7,000/-
notionally. The disability certificate issued from the Medical
Board which is marked as Ext.A5 shows that the petitioner
suffered a disability of 41% due to the injuries sustained to
him in the accident. Similarly, the medical records produced in
this case show that the petitioner had sustained the following
injuries:-
i) Fracture C7 vertebra with C6 over C7 dislocation with
behavioural disturbances. Lacerated wound 6 cm x 2
cm left front to parrietal region.
ii) Abrasion over right knee
iii) Abrasion over right shoulder
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iv) Abrasion over (L) foot.
v) Abrasion with contusion right tempero occipital region.
vi) Pain neck
9. A conjoint reading of the medical records as well as
the disability certificate issued by the Medical Board
persuades me to enter into a conclusion that the disability of
41% assessed by the Medical Board is justifiable. The
petitioner was aged 44 at the time of the accident. As the
petitioner, is affected with a disability of 41% due to the
injuries sustained in the accident, it can be gathered that the
injuries sustained by him and the disability suffered by him
will have a profound impact on the future earning capacity of
the petitioner. Therefore, a reasonable addition has to be
made to his actual income towards future prospects. A perusal
of the award reveals that the tribunal made an addition of
30% towards future prospects. However, in view of the
decision in National Insurance Company Ltd. v. Pranay
Sethi [2017(4) KLT 662], the tribunal ought to have limited
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the addition to 25%, as the petitioner was aged 44 at the
time of the accident. I have already found that the income of
the petitioner can be notionally fixed at Rs. 7,000/-. After
adding 25% towards future prospects, the income of the
petitioner can reasonably be fixed at Rs. 8,750/-. As the
petitioner was aged 44, in view of the decision in Sarla
Verma v. Delhi Transport Corporation [2010 (2) KLT 802
(SC)], the multiplier to be reckoned is 14. Hence, the
petitioner is entitled to get an amount of Rs. 6,02,700/- [Rs.
8,750/- x 12 x 14 x 41/100]. Already an amount of
Rs.3,58,176/- has been awarded by the tribunal under the
said head. After deducting the said amount, the petitioner is
found entitled to get an amount of Rs. 2,44,524/- (Rupees
Two Lakhs Forty Four Thousand Five Hundred and Twenty Four
only) (Rs. 6,02,700 - Rs.3,58,176) as additional
compensation under the head of permanent disability.
10. Consequent to the revision in the monthly income,
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a corresponding enhancement must be made to the
compensation awarded under the head of loss of earnings.
Considering the nature of the injuries sustained by the
petitioner, I am of the view that the petitioner would have
been prevented from doing any job or earning any income at
least for six months. The tribunal also took six months period
of loss of earnings. If that be so, the petitioner is entitled to
get an amount of Rs.42,000/- [Rs. 7,000/- x 6] under the
head of loss of earnings. After deducting the already awarded
amount of Rs. 31,200/- under the said head, the petitioner is
found entitled to get an additional compensation of
Rs.10,800/- (Rupees Ten Thousand and Eight Hundred only)
(Rs.42,000 - Rs. 31,200) under the head of loss of earnings.
11. I have already found that the petitioner sustained
very serious injuries in the accident. He had undergone
inpatient treatment for 41 days. Therefore, the pain and the
suffering endured by the petitioner due to the injuries
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sustained in the accident cannot be overlooked while awarding
compensation under the head of pain and sufferings. However,
a perusal of the award shows that only a nominal amount of
Rs. 25,000/- has been awarded under the said head by the
Tribunal. I am of the view that an amount of Rs. 80,000/- has
to be awarded under the head of pain and suffering. After
deducting the already awarded amount of Rs. 25,000/- under
the said head, the petitioner is entitled to get an amount of
Rs. 55,000/- (Rupees Fifty Thousand Only) as additional
compensation under the head of pain and suffering.
12. Similarly, the hardships and inconveniences caused
to the petitioner due to the accident also cannot go unnoticed,
while determining compensation under the head of loss of
amenities and enjoyment in life. Already an amount of Rs.
20,000/- is seen awarded by the tribunal for loss of amenities
and enjoyment in life. As already mentioned, the petitioner
had undergone 45 days of inpatient treatment. The disability
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certificate which is marked in evidence clearly shows that he
had suffered 41% of disability due to the injuries sustained in
the accident. Therefore, I am of the view that the
compensation awarded by the tribunal under the head of loss
of amenities and enjoyment in life is also on the lower side.
An amount of Rs. 50,000/- has to be awarded under the said
head as compensation. After deducting the already awarded
amount of Rs. 20,000/-, the petitioner is entitled to get an
additional amount of Rs. 30,000/- under the said head.
Therefore, an amount of Rs. 3,40,324/- (Rs.2,44,524/- +
Rs.10,800/- + Rs. 55,000/- + Rs.30,000/-) has to be added
towards the total compensation awarded.
In the light of the aforesaid observations and findings,
the appeal is allowed by enhancing the compensation by a
further amount of Rs.3,40,324/- (Rupees Three Lakhs Forty
Thousand Three Hundred and Twenty Four only) with interest
at the rate of 7.5% per annum on the enhanced compensation
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from the date of claim petition till the date of deposit after
deducting interest for a period of 317 days, i.e., the period of
delay in preferring this appeal and as directed by this Court
on 10.11.2022 in C.M.Appln.No.385/2018. The respondent
insurance company is ordered to deposit the enhanced
compensation with interest before the tribunal with
proportionate costs within a period of three months from the
date of receipt of a certified copy of the judgment.
Immediately on the compensation amount being deposited,
the tribunal shall, after deducting the liability of the
appellant/petitioner towards court fee, disburse the
compensation amount to the appellant/petitioner in
accordance with law.
Sd/-
JOBIN SEBASTIAN
JUDGE
DCS
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PETITIONER ANNEXURES
Annexure A1 TRUE COPY OF THE MEDICAL CERTIFICATE DATED
01.06.2017 ALONG WITH DISCHARGE SUMMARY AND
FOLLOW UP CERTIFICATES ISSUED FROM GOVERNMENT
MEDICAL COLLEGE, KOTTAYAM
Annexure A2 TRUE COPY OF THE DISABILITY CARD DATED
11.03.2020
