Antony s/o Pappy v. Shemeer s/o Muhammed and Shriram General Insurance Company Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR SATURDAY, THE 27[TH] DAY OF NOVEMBER 2021/6TH AGRAHAYANA, 1943 MACA NO. 751 OF 2016** **AGAINST THE AWARD DATED 27.10.2015 IN O.P.(MV) NO.860 OF 2011 OF MOTOR ACCIDENT CLAIMS TRIBUNAL,PERUMBAVOOR APPELLANT:** **ANTONY S/O.PAPPY, PALAKKAPARAMBIL HOUSE, NEERKODE, ALANGAD VILLAGE, ALUVA TALUK. BY ADVS. SRI.A.N.SANTHOSH SMT.P.N.SINDHU** ## **RESPONDENTS:** **1 SHEMEER S/O.MUHAMMED, MEPPIKKATTIL, 5, AMBUNADU,KIZHAKKAMBALAM P.O. - 683562. 2 SHRIRAM GENERAL INSURANCE COMPANY LTD. 10003, E8, RIICO, INDUSTRIAL AREA, SITAPURA, JAIPUR, RAJASTHAN -302 022. BY ADVS. SRI.MATHEWS JACOB (SR.) SRI.P.JACOB MATHEW** ## **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP** **FOR FINAL HEARING ON 20.11.2021, THE COURT ON 27.11.2021 DELIVERED THE FOLLOWING:** 2 M.A.C.A.No.751 of 2016 ## **P.G. AJITHKUMAR, J.** **-----------------------------------------------------------** **M.A.C.A.No. 751 of 2016** **----------------------------------------------------------Dated this the 27[th] day of November, 2021** ## **JUDGMENT** Appeal under Section 173 of the Motor Vehicles Act, 1988. The appellant was the petitioner in O.P.(MV) No.860 of 2011 on the file of the Motor Accidents Claims Tribunal, Perumbavoor. The respondents in the appeal were respondents 1 and 4 before the Tribunal. 2. The appellant had filed the claim petition under Section 166 of the Act, claiming compensation on account of the injuries that he sustained in an accident on 27.05.2011. On that day at 8.45 a.m. the appellant was riding his motorcycle bearing Reg.No.KL-07-AB-5196 along Perumbavoor-Aluva road from west to east. When he reached Vazhakulam, the tipper lorry bearing Reg.No.KL-07-Y-1951 came in the opposite direction and hit against the appellant’s motorcycle. As a result of driving of the tipper lorry in a rash and negligent manner, the incident occurred. The appellant sustained serious injuries in the incident. The 1[st] respondent is the insured-owner of the tipper lorry. 3 ## M.A.C.A.No.751 of 2016 3. The appellant is a mason by profession and has been earning a monthly income of Rs.8,000/-. 4. The 2[nd] respondent had filed a written statement in the claim petition refuting the allegations. The 2[nd] respondent also disputed the age, income and occupation of the appellant in the claim petition. However, the 2[nd] respondent admitted that the vehicle had a valid insurance coverage. 5. The evidence in the case consists of oral testimony of PW1, the appellant and documentary evidence, Exts.A1 to A10, B1 and C1. 6. The Tribunal, after analysing the pleadings and materials on record, by its award dated 27.10.2015, allowed the claim petition in part, by permitting the appellant to recover from the 2[nd] respondent an amount of Rs.5,43,836/-, with interest and costs. 7. Dissatisfied with the quantum of compensation awarded by the Tribunal, the appellant is in appeal. 8. Heard the learned counsel appearing for the appellant and the learned counsel appearing for the 2[nd] respondent. 4 M.A.C.A.No.751 of 2016 9. The sole question that arises for consideration in this appeal is whether the quantum of compensation awarded by the Tribunal is just and reasonable. 10. The learned counsel for the appellant contended that the Tribunal went wrong in fixing the monthly income of the appellant, assessing the percentage of disability and quantifying the compensation under the head 'loss of amenities' and 'pain and suffering'. The learned counsel also submitted that compensation for loss of future prospects at the rate of at least 40% should have been given. The learned counsel placing reliance on the decision in **Mukhopandhaya v. Gopala Gowda [AIR 2014 SC 1052]** and **Erudhaya Priya v. State Express Transport Corporation Ltd. [2020 (4) KLT 730 (SC)]** and an unreported decision of this Court in MACA No.1860 of 2015 ( **Manager, Universal Sompo General Insurance Co.Ltd. v. Suja George & others)** , contended that compensation for future prospects at the rate of at least 40% should have been given. 11. It is true that in MACA No.1860 of 2015 this Court approved the award of the Tribunal ordering compensation for 5 M.A.C.A.No.751 of 2016 loss of future prospects at the rate of 30% of the notional income. In the peculiar fact situation of that case only the court did not upset the award of the learned Tribunal. In a totally different fact settings of this case, the said decision cannot be followed as a precedent. 12. **Mukhopandhaya v. Gopala Gowda (supra)** is a case where the claimant sustained serious injuries namely amputation of lower arm. In **Erudhaya Priya (supra)** the claimant sustained disability of 31.1% of the whole body. Only on taking into account the serious nature of the injury sustained by the respective claimants and their total inability to pursue any serious avocation in future, the Apex Court held that the respective claimants were entitled to get compensation towards future prospects. So those decisions cannot also be taken as a guideline for deciding compensation as regards future prospects in this case where the physical disability of the appellant was assessed as 22% by the Medical Board. 13. The Tribunal has fixed Rs.5,000/- as the monthly income of the appellant. The learned counsel appearing for 6 M.A.C.A.No.751 of 2016 the appellant contended that in the light of the principles laid down in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited [(2011) 13 SCC 236]** and as explained the principle in **Gopinathan A. and others v. Afzal Basha and another [2020 3 KHC 666]** , the Tribunal ought to have fixed the notional monthly income as Rs.8,000/-. Going by the principle in **Ramachandrappa's** case and **Gopinathan A.'s** case **,** the notional income of the appellant should be fixed at Rs.8,000/-, having the accident occurred in 2011. 14. The appellant sustained soft tissue loss over distal arm cubital forsa and proximal 3[rd] of forearm, fracture shaft of humerus, median nerve avulsion injury at cubital forsa with partial nerve injury and flexor tendon origin was erased partially from the bone. Rs.50,000/- was awarded by the Tribunal as compensation for 'pain and suffering'. In the nature of the injuries, in my view, the compensation for ‘pain and sufferings’ need not have any enhancement. 15. Nature of injuries were such that the appellant must have thrived hard to follow his ordinary pursuits in life. 7 ## M.A.C.A.No.751 of 2016 It should have continued for a long period. Taking that into account, the compensation for loss of amenities is refixed as Rs.40,000/-, an enhancement of Rs.20,000/-. 16. The learned counsel appearing for the appellant contended that the percentage of disability should have been fixed at more than 25%. The learned Tribunal after considering Ext.C1, the certificate issued by the medical board, as which the physical disability was assessed as 22%, and examining PW1, arrived at a conclusion that the functional disability of the claimant was 25%. I do not find any reason to interfere with that finding. 17. In view of what are stated above, the compensation quantified by the learned Tribunal requires refixation as follows:- |Sl.<br>No|Head of claim<br>Compensation for|Amount<br>awarded by<br>the Tribunal|Enhanced<br>compensation| |---|---|---|---| |1|Loss of earnings|60,000<br>(5000x12)|36,000<br>(8000-<br>5000=3000x12)| |2|Transport to hospital|10,000|-| |3|Extra nourishment|1,500|-| |4|Damage to clothes|1,000|-| 8 M.A.C.A.No.751 of 2016 |5|Medical expenses|1,15,586|-| |---|---|---|---| |6|Pain and suffering|50,000|-| |7|Loss of amenities|20,000|20,000| |8|Permanent disability|2,55,000|1,53,000<br>(8000-5000=3000<br>x12x17x 25%)| |9|Attendance charge|5,750|-| |10|Future treatment|-|-| |11|Disfiguration|25,000|-| ||Total|5,43,836|2,09,000| ## 18. With respect to other heads of compensation, I find that the Tribunal has awarded reasonable and just compensation. In the result, the appeal is allowed in part, by enhancing the compensation by an amount of Rs.2,09,000/with interest at the rate of 7.5% per annum on the enhanced amount, from the date of petition till the date of deposit, and a costs of Rs.4,000/-. The 2[nd] respondent is ordered to make payment of the enhanced compensation with interest and costs through the Tribunal within sixty days from the date of receipt of a certified copy of the judgment. The Tribunal shall see that the amount of enhanced compensation is duly disbursed to the appellant 9 M.A.C.A.No.751 of 2016 in accordance with law. SD/- **P.G. AJITHKUMAR, JUDGE** dkr