Anson v. National Insurance Co. Ltd. and Popular Vehicles and Services

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN** **& THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** **WEDNESDAY, THE 8TH DAY OF JUNE 2016/18TH JYAISHTA, 1938** **MACA.No.2141 of 2012 ()** **------------------------AGAINST THE AWARD IN OPMV 979/2006 of M.A.C.T, NORTH PARAVUR, DATED 07-12-2011.** **APPELLANT(S)/APPELLANT/(PETITIONER IN O.P(M.V.)NO.979/06): ----------------------------------------------------------** **ANSON, AGED 33 YEARS, S/O. ANTONY, ARAKKAL HOUSE, MUNAMBAM, PALLIPPURAM.** **BY ADVS.SRI.REJI GEORGE SRI.GOPAKUMAR G. (ALUVA) SMT.ANUPAMA JOHNY SMT.R.REMJI** **RESPONDENT(S)/RESPONDENT (RESPONDENT NO.2 IN O.P.(M.V.)NO.979/06): --------------------------------------------------------------------** **THE NATIONAL INSURANCE CO.LTD., POPULAR VEHICLES AND SERVICES, PERUMANNOOR, ELAMAKKARA-682 026.** **BY ADV.SRI.PMM.NAJEEB KHAN** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 08-06-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ss ## **P.N.RAVINDRAN & K.RAMAKRISHNAN, JJ.** ----------------------------------------------------- ## **M.A.C.A. No.2141 of 2012** ------------------------------------------------- Dated this the 8[th] day of June, 2016 ## **JUDGMENT** ## **K.RAMAKRISHNAN, J** Claimant in O.P.(M.V.)No.976/2006 on the file of the Motor Accidents Claims Tribunal, North Paravur is the appellant herein. The claim petition was filed by the claimant for compensation for the injuries and disability suffered by him in a motor accident occurred on 19.8.2006. According to the claimant, he was driving the autorickshaw with No.KL-07/AK-1633 through Vypin Munambam road from north to south and reached near AEO office at Edavanakkad, a van with No. KL07/AV-8683 driven by the second respondent, owned by the first respondent and insured with the third respondent came from the opposite direction and hit against the autorickshaw driven by the injured. The accident occurred due to the negligent driving of the second respondent and so the respondents 1 to 3 are jointly and severally liable to pay the compensation. He was aged 27 years, and getting a monthly income of Rs.5,000/- per month. He claimed a total compensation of Rs.5,80,000/- on various heads, but restricted his claim to Rs.4,00,000/-. 2. Respondents 1 and 2 remained absent. 3. Third respondent entered appearance and filed written statement admitting the insurance of the van involved in the _**M.A.C.A. No.2141 of 2012**_ 2 accident, but according to them, there was no negligence on the part of the second respondent, but the accident occurred due to the negligent driving of the goods autorickshaw by the petitioner. They denied the age, income, occupation of the petitioner and according to them, the total compensation claimed is exorbitant and they prayed for dismissal of the application. 4. They also filed I.A.No.789/2010 under section 170 of the Motor Vehicles Act, to contest the case on all grounds available to the insured and the same was allowed. The claimant was examined as PW1 and Exts.A1 to A10 series were marked on his side. No oral or documentary evidence was adduced on the side of the respondents. After considering the evidence on record, the tribunal found that the accident occurred due to the negligent driving of the van by the second respondent and awarded a total compensation of Rs.2,82,810/- on various heads as follows: |**_Heads_**|**_Heads_**|**_Amount_**| |---|---|---| |_Pain and suffering_||_25,000/-_| |_Medical and treatment_|_expenses_|_24,410/-_| |_Loss of amenities of_|_life, discomforts and_|_25,000/-_| |_inconvenience caused._||| |_Transportation expenses_||_1,500/-_| |_Bystander expenses_||_1,000/-_| |_Damage to clothings_||_500/-_| |_Loss of earning for three months_||_9,000/-_| |_Extra nourishment_||_1,000/-_| |_30% disability caused_||_1,94,400/-_| ||_Total_|_2,82,810/-_| The tribunal also held that respondents 1 and 3 are jointly and severally liable to pay the compensation and directed the third _**M.A.C.A. No.2141 of 2012**_ 3 respondent insurance company to pay the amount. Dissatisfied with the quantum of compensation awarded, the present appeal has been preferred by the appellant, claimant before the tribunal. 5. Heard Smt.Anupama Johny, counsel appearing for the appellant and Sri.P.M.M. Najeeb Khan, counsel appearing for the third respondent and notice to the respondents 1 and 2 is dispensed with as the liability to indemnify the insured has been admitted by the third respondent insurance company. 6. The counsel for the appellant submitted that the evidence will go to show that he was a goods autorickshaw driver, aged only 27 years and he claimed only Rs.5,000/- as his monthly income which is reasonable as the accident occurred in the year 2012. He was aged only 27 years and he has lost the vision of one eye and the amount awarded under the head loss of amenities in life, pain and suffering etc. are on the lower side. According to the learned counsel, the claimant is entitled to get enhancement on all heads. 7. On the other hand, the learned counsel for the insurance company submitted that the tribunal has considered all the aspects in right perspective and the total compensation awarded is just and proper. 8 Since the question of liability to indemnify the insured etc., are not in dispute, we are not going into those aspects in _**M.A.C.A. No.2141 of 2012**_ 4 this appeal. According to the claimant he was aged 27 years and working as an autorickshaw driver and getting Rs.5,000/- per month. It is true that he had not produced any document to prove his income. But the fact that he was a driver (goods autorickshaw) is proved by the circumstances of the case itself as the accident occurred at the time when he was driving a goods autorickshaw at the relevant time. So considering those aspects and also considering the fact that the accident occurred in the year 2012, the amount of Rs.3,000/- taken by the tribunal for his monthly income appears to be on the lower side. So we are inclined to enhance the same to Rs.4,000/- per month in the absence of any convincing evidence adduced on the side of the claimant on this aspect except his interested testimony as PW1. 9. Ext.A9 will go to show that he had lost his vision of the left eye on account of the injury sustained and it also shows that he is having 30% permanent disability. Being a driver it may have some impact on his earning capacity as such. He may not be able to drive the vehicle, but he may engage in some other employment and earn his livelihood, that will have taken into consideration while awarding compensation under the head loss of earning capacity. In the decision reported in _**Rajesh v. Rajbir Singh**_ [2013(3) KLT 89 (SC)], the Supreme Court has held that, future prospects will be have to be taken into consideration for the purpose of assessing _**M.A.C.A. No.2141 of 2012**_ 5 compensation even in cases where the persons having no permanent income and the age group up to 40 years, 50% will have to be taken for future prospects and up to the age of 50 years, 30% and up to 60 years 15% will be added for that purpose. But it was a case where the Hon'ble Supreme Court has considering the question while considering the amount to be awarded under the head loss of depedancy. The same principle has been extended in the case of injury also in _**Syed**_ ## _**Sadiq v. Divisional Manager, United India Insurance Company**_ [AIR 2014 (SC) 1052]. But the tribunal has not taken any amount for future prospects while awarding compensation under the head loss of earning capacity. So 50% of his income has to be added for future prospects for this purpose. 10. Further there is some force in the submission made by the counsel for the insurance company regarding the multiplier taken. The tribunal has taken 18 as the multiplier. As per _**Sarla**_ ## _**Verma (Smt) and Others v. Delhi Transport Corporation and**_ _**Another**_ (2009 (6) SCC 121), the multiplier applicable to the age group of 25 to 30 is 17 and not 18. If a recalculation is made on that basis, the claimant will be entitled to get an amount of Rs.3,67,200/(4,000x150% =6,000x12x17x30%) instead of Rs.1,94,400/- awarded by the tribunal, thereby he will be entitled to get an additional amount of Rs.1,72,800/- under the head loss of earning capacity. _**M.A.C.A. No.2141 of 2012**_ 6 11. It is settled law that even in cases where disability resulted in loss of earning capacity, it may have some impact on his personal life as well. He will have to be with that difficulty for the remaining period of his life. So a just and reasonable compensation has to be awarded under the head loss of amenities in life and discomfort. In this case an youngster aged 27 years has lost his vision of his left eye and he will have to be with this difficulty for the remaining period of his life. The tribunal has awarded only Rs.25,000/under the head loss of amenities in life, which appears to be on the lower side. We are inclined to enhance the same to Rs.1,00,000/-, thereby he is entitled to get and additional amount of Rs.75,000/under that head. 12. The tribunal has awarded only Rs.25,000/- under the head pain and suffering, which we feel, it is on the lower side and we are inclined to enhance the same to Rs.30,000/-, thereby he will be entitled to get an additional amount of Rs.5,000/- under that head. The tribunal has taken Rs.3,000/- per month and taken three months for awarding compensation under the head loss of earning during the period of treatment. But considering the nature of treatment undergone and also the injury sustained, he could not have attended his work for four months, we have enhanced the monthly income to Rs.4,000/-. If a recalculation is made on that basis he will be entitled _**M.A.C.A. No.2141 of 2012**_ 7 to get an amount of Rs.16,000/- under the head loss of earning during the period of treatment instead of Rs.9,000/- awarded by the tribunal, thereby he will be entitled to get an additional amount of Rs.7,000/under that head. We are not inclined to enhance any amount under other heads as the amounts awarded under other heads are just and proper. So the appellant will be entitled to get an additional compensation of Rs.2,59,800/- over and above the compensation awarded by the tribunal which the third respondent insurance company is liable to pay with 9% interest from the date of petition till date of payment. Considering the circumstances the petitioner is permitted to withdraw the amount if the amount is deposited by the insurance company. Three months time is granted to the insurance company to deposit the amount. Parties are directed to bear their respective costs in the appeal. With the above modification of the impugned award passed by the tribunal, the appeal is allowed in part and disposed of accordingly. _Sd/-_ **( P.N. Ravindran, Judge)** _Sd/-_ **(K. Ramakrishnan, Judge)** //True Copy// P.A. to Judge ss