Aneesh v. United India Insurance Co. Ltd.

MACA.No.116/2019 1 _IN THE HIGH COURT OF KERALA AT ERNAKULAM_ ## _PRESENT_ _THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. MONDAY, THE 9[TH] DAY OF OCTOBER 2023 / 17TH ASWINA, 1945 MACA NO. 116 OF 2019_ _AGAINST THE ORDER/JUDGMENT OP 1839/2014 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,KOLLAM_ ## _APPELLANT/CLAIMANT:_ _ANEESH, AGED 24 YEARS, S/O.NATESAN, KODIYATTUVILA VADAKKATHIL, THRIKKOVILVATTOM, MUKHATHALA.P.O, KOLLAM, PIN-691 572._ _BY ADVS. K.SIJU RENY ANTO_ ## _RESPONDENT/3RD RESPONDENT:_ _THE BRANCH MANAGER, M/S.UNITED INDIA INSURANCE CO.LTD., CHATHANNOOR.P.O, KOLLAM, PIN-691 572._ _BY ADV SRI.S.K.AJAY KUMAR_ _THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 09.10.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:_ MACA.No.116/2019 2 ## **J U D G M E N T** The appellant is the petitioner in O.P.(MV).No.1839 of 2014 on the file of the Motor Accidents Claims Tribunal, Kollam. The said claim petition was submitted by him seeking compensation for the injuries sustained to him in a motor accident that occurred on 04.09.2014. 2. According to the appellant, the accident occurred when the motorcycle ridden by the petitioner through the ParavurThirumukku Road was hit by a private bus bearing Registration No.KL-02 AQ/6335. The said vehicle was insured with the respondent herein. The 2[nd] respondent in the claim petition was the driver of the said bus, and the 1[st] respondent therein was its owner. 3. The driver and the owner remained ex-parte. The respondent herein alone contested the matter by filing a written statement wherein they admitted the coverage of the policy. However, the liability was disputed by them. The negligence on the part of the driver of the bus and the quantum of the compensation claimed by the appellant were also disputed. 4. The evidence in this case consists of oral evidence of PW1 and PW2 and documentary evidence in the form of MACA.No.116/2019 3 Annexure-A1 to A19 from the side of the appellant. No evidence was adduced from the side of the respondents. After examining the materials placed on record, the Tribunal concluded that the accident occurred due to the negligence on the part of the driver of the bus and the respondent herein was held responsible for paying the compensation. The quantum of compensation awarded by the Tribunal was Rs.9,12,155/- and the said amount was directed to be deposited by the respondent Insurance Company with interest at the rate of 7% per annum from the date of petition till realization. This appeal is submitted by the appellant, being dissatisfied with the quantum of compensation. 5. Heard Sri.Siju Kamalasanan, learned counsel for the appellant and Sri.S.K.Ajay Kumar, learned counsel for the respondent, Insurance Company. 6. The main contention put forward by the learned counsel for the appellant is with regard to the inadequacy of the quantum of compensation awarded. It was pointed out that the appellant was aged 20 years at the time of the accident, and based on the application submitted by him in the year 2013, he was selected for appointment to the post of Constable (GD) in BSF and to substantiate the same, Ext.A14 appointment letter was MACA.No.116/2019 4 produced. However, as the petitioner sustained serious injuries, it resulted in the amputation of his leg below the knee. After examining the appellant's medical records, the BSF authorities declared him unfit for the said job. Therefore, the appellant could not join the BSF. Even though the above aspects were brought to the notice of the Tribunal and claimed compensation based on the same, it was rejected by the Tribunal. Therefore, the learned counsel for the appellant contends that the compensation ought to have been assessed, taking note of the income which he would have earned from the said post if his appointment had materialized. 7. The learned counsel for the Insurance Company would oppose the aforesaid contention by pointing out that, admittedly, the appellant never joined the BSF so as to claim the compensation based on the salary he was expecting from the said institution. Since the appellant was not working with BSF at the time of the accident, he cannot claim compensation based on such salary. It was also pointed out that, as per the Ext.A14 appointment letter, he was supposed to undergo a probation period of two years, and only after the satisfactory completion of such period he would have got a permanent appointment. MACA.No.116/2019 5 Therefore, under no circumstances the compensation can be assessed based on the possibility of employment in the BSF. 8. I have carefully gone through the contentions raised by both sides and also the records relied on by either party. To substantiate the contention of the appellant, the learned counsel placed reliance upon the decision rendered in **Valsamma and Another v. V.A.Baiju and Other [2018(1) KHC 153 ].** In the said decision a Division Bench of this Court considered a similar situation with respect to death that occurred in a motor accident. In that case, the person concerned died when he was selected to be appointed to Government Service. The Tribunal awarded compensation based on the salary which he was supposed to get, if he joined, and when the same was challenged, this Court upheld the finding of the Tribunal with the following observations. “We are of the considered opinion that the method adopted by the Tribunal is not vitiated in any manner. Going by the documents it is evident that the person died had secured a job under the State Government and he was issued with an order of appointment, about few months prior to the date of the accident. Therefore there existed a certainty with respect to his employment as Excise Guard, had he been alive. But for the accident, he would have definitely joined in the said job and continued under the employment. MACA.No.116/2019 6 Therefore we find no fault in the method adopted by the Tribunal in fixing the multiplicand.” 9. Thus, in the light of the aforesaid observations, I am of the view that the contention put forward by the learned counsel for the appellant is only to be accepted. This is particularly because, it is evident from Annexure-A14 that he was selected for the said post, and Annexure-A15 would further show that consequent to the physical disability sustained by him, the BSF declared him unfit for the said post. Thus, only because of the disability resulting from the injuries sustained in the accident, the appellant was deprived of his employment, which was otherwise certain. Therefore, while computing the compensation for loss of income due to disability, the income that he ought to have received from the said application should be taken into consideration. Of course, it is true that he was supposed to undergo probation had he been appointed, but that by itself cannot be a ground to discard the contention of the appellant. Termination of service during probation was not an ordinary affair, but it is only an exception. There is yet another aspect. As the provisions of the Motor Vehicles Act, 1988 regarding the adjudication of claims arising from motor accidents are part of MACA.No.116/2019 7 welfare legislation, when two possibilities are there, the possibility that advances the purpose of legislation is to be accepted. Therefore, when the adjudication necessitates considering the chances of the probation being declared, unless there are specific materials, it is to be assumed that the probation shall be declared in favour of the claimant. Hence, this court has no hesitation to hold that the compensation in this has to be calculated by taking the probable monthly income that he would have earned from the said employment had he been appointed. 10. The next question is as to the amount of the monthly income. When going to the said question, the evidence of PW2, Authorized Officer of the BSF, is to be considered. In the deposition, he stated that, had the appellant joined the BSF, he would have received Rs.30,000/- as monthly salary. However, in Ext.A14, the pay scale is prescribed as Rs.5,200-20,200/- plus grade pay of Rs.2,000/-. In such circumstances, after considering the entire materials placed on record, I deem it appropriate to fix the monthly income for the purpose of computing the compensation as Rs.25,000/-. 11. It is discernible from Ext.A11 disability certificate issued by the Standing Disability Assessment Board that the MACA.No.116/2019 8 percentage of disability of the petitioner was certified as 60%. The appellant had undergone amputation below the knee. The learned counsel for the respondent, however, objected to the Ext.A1 disability certificate by pointing out that the same was issued by the Standing Disability Assessment Board and not the Medical Board. However, it is seen from the said certificate that the assessment was made by a panel of five medical practitioners. So long there is no discrepancy or the lack of competence of such doctors to certify the same could be pointed out, I am of the view that the contention put forward by the learned counsel for the respondent cannot be entertained. Moreover, this is a case in which there is amputation of a leg and the consequence thereof includeed the denial of employment in BSF, which was otherwise certain, but for the accident. Therefore, I am of the view that the percentage of disability as certified in the said certificate can be accepted. 12. Considering the fact that the appellant sustained such severe injuries and consequential disablement at the young age of 20 years, and as he could not join the employment to which he was selected after duly conducted selection process, future prospects shall also be taken into account while computing the MACA.No.116/2019 9 compensation. Since there was certainty in getting regular employment with regular monthly income, the addition to be made towards future prospects is 50%. Thus, while computing the compensation with the above criteria, the amount would come to Rs.48,60,000/- [(25000+50%) x 12 x 18 x 60/100]. The amount already awarded by the Tribunal under this head is Rs.5,94,000/-. After deducting the said amount, the additional amount would come to Rs.42,66,000/-. 13. Even though the learned counsel for the appellant would point out that the amount granted under the head of loss of amenities was only Rs.10,000/-, it is seen from the award that a further amount of Rs.1,00,000/- is awarded under the head of loss of expectancy of life. Since the said amount practically falls into the head of loss of amenities as well, I am of the view that no further enhancement needs to be granted, as the compensation already granted under both the said heads combined together is a reasonable amount. 14. Another contention put forward by the learned counsel for the appellant is with regard to the future treatment expenses. It is pointed out that he has to depend upon artificial limbs for his day-to-day activities. It was pointed out that even in the award, it MACA.No.116/2019 10 was observed that the appellant appeared before the Tribunal with an artificial limb. According to him, the amount awarded is only Rs.60,000/-, which is grossly inadequate. He also places reliance upon Annexure-A19 medical bills produced by him along with the appeal memorandum showing the cost of the artificial limb as 2,00,000/-. However, the crucial aspect to be noticed is that no amount was claimed towards the future treatment in the claim petition, but the Tribunal granted an amount of Rs.60,000/-. Therefore, in the absence of any materials produced before the Tribunal and the corresponding claim for the same, I am not inclined to accept the claim put forward by the appellant in its entirety. However, it is an undisputed fact that the appellant does require assistance of an artificial limb, and it may incur expenses in future. Hence, some amount is to be granted to meet such expenses. Therefore, a further amount of Rs.1,00,000/- is awarded under the said head. Apart from the above, as the accident and the consequential disabilities suffered by the appellant at the age of 20 years, some amount is to be awarded towards the loss of marriage prospects. Considering the age of the appellant and the date of the accident, I deem it appropriate to grant a further sum of Rs.75,000/- under this head. MACA.No.116/2019 11 Accordingly, the total amount receivable by the appellant as additional compensation is fixed as Rs.44,41,000/-(426600+ 100000+75000). In the light of the aforesaid findings and observations, this appeal is allowed. Award dated 21.03.2018 in O.P.(MV).No.1839 of 2014 passed by the Motor Accidents Claims Tribunal, Kollam is hereby modified by granting an additional compensation of Rs.44,41,000/-(Rupees forty four lakhs forty one thousand only) and the respondent Insurance Company is directed to deposit the amount with interest at the rate of 8% per annum from the date of petition till realization. However, as there was a delay of 165 days in filing the appeal, it is clarified that, while computing the interest, the respondent Insurance Company shall be at liberty to exclude the said period of delay. Sd/- **ZIYAD RAHMAN A.A.** **JUDGE** DG/11.10.23 MACA.No.116/2019 12 ## _APPENDIX OF MACA 116/2019_ _PETITIONER ANNEXURES_ _Annexure 2 THE ORIGINAL MEDICAL CERTIFICATE SHOWING THE ADVISE OF THE DOCTOR FOR REPLACEMENT OF ARTIFICIAL LIMB DATED 20.7.2022 ISSUED BY THE ASST. SURGEON, FAMILY HEALTH CENTER, EDAVA_ _Annexure 3 . THE ORIGINAL OF QUOTATION GIVEN BY THE SEAFIELD REHAB CENTER, KOTTIYAM FOR PROVIDING ARTIFICIAL LIMB TO THE PETITIONER_ _ANNEXURE 1_ _THE COPY OF ORIGINAL BILL ISSUED FROM THE SEAFIELD RE-HAB CENTRE, KOTTAYAM DT.05.09.2018._