Kerala High Court
Jijo Thomas vs Anoop Varghese on 11 March, 2025
MACA NO. 2774 OF 2018 1
2025:KER:23094
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE JOBIN SEBASTIAN
TUESDAY, THE 11TH DAY OF MARCH 2025 / 20TH PHALGUNA, 1946
MACA NO. 2774 OF 2018
AGAINST THE ORDER/JUDGMENT DATED 17.01.2018 IN OPMV
NO.1057 OF 2012 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, ERNAKULAM
APPELLANT/PETITIONER:
JIJO THOMAS
AGED 32 YEARS
S/O THOMAS, POWATHIL HOUSE, KUMBALAM PO.,
ERNAKULAM, PIN - 692506
BY ADVS.
C.S.MANU
T.B.SIVAPRASAD
RESPONDENT/RESPONDENTS:
1 ANOOP VARGHESE
S/O VARGHESE, PURAKKAT HOUSE, KUMBALAM PO, ERNAKULAM,
PIN- 692506
2 NATIONAL INSURANCE COMPANY
CHITTOR ROAD, SOUTH JUNCTION, ERNAKULAM,
KOCHI - 682 016.
BY ADVS.
SRI.C.Y.VIJAY KUMAR
SMT.K.S.SANTHI
SMT.LATHA SUSAN CHERIAN
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN COME UP
FOR HEARING 11.03.2025, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
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JUDGMENT
The petitioner in O.P.(M.V.) No. 1057 of 2012 on the file
of the Motor Accident Claims Tribunal, Ernakulam has preferred
this appeal seeking enhancement of compensation awarded by
the tribunal on account of the injuries sustained by him in a motor
accident occurred on 30.04.2009.
2. The case of the petitioner in brief is as follows:-
On 30.04.2009, at 5.45 p.m., while the petitioner was
travelling as a pillion rider on a motorcycle bearing registration
No. KL-39-8433 and when he reached near Omanapuzha Church,
another motorcycle bearing registration No. KL-07-AY-3716 ridden
by the 1st respondent in a rash and negligent manner hit on the
motorcycle, in which the petitioner was on the pillion. Due to the
impact of the hit, the petitioner was thrown to the road causing
him serious injuries.
3. The owner-cum-rider of the motorcycle bearing
registration No. KL-07-AY-3716 was arrayed as the 1st respondent,
whereas, the insurer of the said motorcycle was arrayed as the 2nd
respondent.
4. The 2nd respondent contested the petition by filing a
written statement mainly disputing the quantum of compensation
claimed. However, 2nd respondent admitted insurance coverage
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for the offending motorcycle.
5. During trial, from the side of the petitioner, Exts.A1 to
A10 were marked and the disability certificate issued by the
medical board was marked as Exhibit X1. No evidence,
whatsoever, was adduced from the side of the respondent.
6. After trial, the tribunal came to a conclusion that the
accident occurred solely due to the rash and negligent riding of
the motorcycle bearing registration No.KL-07-AY-3716 by the 1st
respondent, and being the insurer, the 2nd respondent was held
liable to pay the compensation. The compensation was quantified
at Rs. 14,28,800/- with interest at the rate of 8% per annum from
the date of petition till realisation and proportionate costs.
Seeking enhancement of the compensation awarded by the
tribunal, the petitioner has come up with this appeal.
7. I heard Sri.C.S.Manu, the learned counsel appearing
for the appellant, and Sri.Latha Susan Cherian, the learned
counsel appearing for the respondent.
8. From the rival contentions raised, it is gatherable that
the main dispute that revolves around this appeal is with respect
to the quantum of compensation awarded by the tribunal. For the
purpose of determining the compensation under the head of
permanent disability and loss of earnings, the tribunal assessed
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the monthly income of the petitioner at Rs. 5,000/-. In the
petition, it was claimed that the petitioner was an apprentice in
Naval Base, Cochin and he was also an A/c mechanic. Though
such a contention was taken, no evidence, whatsoever, was
produced from the side of the petitioner to substantiate his claim
regarding his occupation and income. Nonetheless, the accident
occurred in the year 2009. Therefore, in view of the principles laid
down 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/-. The disability certificate issued by a
competent medical board which is marked in evidence as Ext.X1
reveals that the petitioner suffered a permanent disability of 41%
due to the injuries sustained in the accident. In the disability
certificate, it is specifically mentioned that the petitioner sustained
visual disability of 30%. Moreover, from the evidence, it is
established that he had sustained 100% loss of hearing of his
right ear due to the injuries sustained in the accident. Taking
note of the serious nature of the injuries sustained by the
petitioner and its profound impact on his occupation and earning
capacity, the tribunal assessed the whole-body disability of the
petitioner at 50%. I am also concurring with the decision of the
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tribunal to take 50% permanent disability to determine the
compensation under the head of permanent disability and loss of
earnings.
9. The petitioner was aged 26 years at the time of the
accident. Therefore, in view of the decision in National
Insurance Company Ltd. v. Pranay Sethi [2017(4) KLT
662], an addition of 40% is to be made to the actual income of
the petitioner towards future prospects has to be made. Hence,
after making such an addition towards future prospects, the
income of the petitioner will come to Rs.9,800/-. As the petitioner
was aged 26 at the time of the accident, in view of the decision in
Sarla Verma v. Delhi Transport Corporation [2010 (2) KLT
802 (SC)], the multiplier to be reckoned is 17. Resultantly, the
petitioner is entitled to get an amount of Rs.9,99,600/- (Rs.9,800
x 12 x 17 x 50/100) as compensation under the head of
permanent disability. Already an amount of Rs. 5,10,000/- has
been awarded by the tribunal as compensation under the said
head. After deducting the said amount, the petitioner is entitled
to get an additional compensation of Rs. 4,89,600/- (Rupees Four
Lakh Eight Nine Thousand Six Hundred only) under the head of
permanent disability.
10. Consequent to the revision in the monthly income,
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corresponding enhancement must be made to the compensation
awarded under the head of loss of earnings. For the purpose of
determining compensation under the said head, the tribunal took
loss of earnings for a period of twelve months. The petitioner had
sustained the following injuries in the accident;
Bifrontal fracture of both regions, fracture on both frontal
region and fracture apart from multiple laceration over
face, severe head injury and fracture of maxilla, birontal
EDH and subdural hygroma and meningital damages
Considering the nature of the injuries sustained by the
petitioner and the treatment procedures undergone by him, I am
of the view that he would have been prevented from doing any
work or earning any income at least for a period of twelve
months. Therefore, the petitioner is entitled to get an amount of
Rs. 84,000/- (Rs. 7,000/- x 12) under the head of loss of
earnings. After deducting the already awarded amount of
Rs.60,000/- under the said head, the petitioner is entitled to get
an amount of Rs. 24,000/- (Rupees Twenty Four Thousand only)
as additional compensation under the head of loss of earnings.
11. The medical records reveal that the petitioner had
undergone 59 days of inpatient treatment in connection with the
injuries sustained in the accident. It is apparent that the
petitioner sustained number of injuries including fractures.
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Considering the nature of the injuries and the treatment
procedures underwent by him, I am of the view that the pain and
sufferings endured by the petitioner ought not to have been
overlooked by the tribunal while awarding compensation under
the head of pain and sufferings. I am of the view that an amount
of Rs. 1,00,000/- is to be awarded under the head of pain and
sufferings, entitling the petitioner to get an additional
compensation of Rs. 20,000/- (Twenty Thousand only) under the
head of pain and sufferings.
12. The hardships and inconveniences caused to the
petitioner due to the injuries sustained in the accident could not
be overlooked while awarding compensation under the head of
loss of amenities and enjoyment in life. Considering the days of
inpatient treatment undergone by the petitioner and the nature of
injuries sustained by him, I am of the view that amount of
Rs. 1,20,000/- is to be awarded as compensation under the head
of amenities and enjoyment in life. Already an amount of
Rs. 1,00,000/- has been awarded by the tribunal under the head
of loss of amenities and enjoyment in life. After deducting the
said amount, the petitioner is entitled to get an additional
compensation of Rs. 20,000/- (Rupees Twenty Thousand only)
under the said head.
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13. The compensation awarded by the tribunal under other
heads appears to be reasonable and justifiable and no
interference is warranted. Hence, an amount of Rs. 5,53,600/-
(Rs. 4,89,600/- + Rs. 24,000/- + Rs. 20,000/- + Rs. 20,000/-)
has to be added towards the total compensation awarded by the
tribunal.
In the light of the aforesaid observations and findings, the
appeal is allowed by enhancing the compensation by a further
amount of Rs. 5,53,600/- (Rupees Five Lakhs Fifty-Three
Thousand Six Hundred only) with interest at the rate of 7.5% per
annum on the enhanced compensation from the date of claim
petition till the date of deposit, after deducting interest for a
period of 77 days, i.e., the period of delay in preferring this
appeal and as directed by this Court on 21.05.2019 in C.M. Appln.
No.1/2018. 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 the certified copy of this judgment.
Sd/-
JOBIN SEBASTIAN
JUDGE
ANS
