A.P. Chacko v. Manav Joy and The Reliance General Insurance Company Ltd

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. MONDAY, THE 27[TH] DAY OF NOVEMBER 2023/6TH AGRAHAYANA, 1945 ``` ## **`MACA NO. 2862 OF 2018`** ## **`AGAINST THE ORDER/JUDGMENT OPMV 460/2016 OF MOTOR ACCIDENT`** ## **`CLAIMS TRIBUNAL, MUVATTUPUZHA`** ## **`APPELLANT/S:`** ``` A.P.CHACKO, AGED 70 YEARS S/O PAILY, AGED 70 YEARS,AMMINISSERIYIL HOUSE, KAKKAD KARA, PIRAVOM VILLAGE BY ADVS. ``` ``` SRI. ABRAHAM VAKKANAL VINEETHA SUSAN THOMAS SAMPATH V. TOMS ``` ## **`RESPONDENT/S:`** ``` 1MANAV JOY S/O JOY, MANAV NIVAS, 2ND CORSS, RAVEENDRA NAGAR, DOOR NO.EW-9-5433/1, HASSAN, KARNATAKA-573201 2THE RELIANCE GENERAL INSURANCE COMPANY LTD, UNNATI ARCADE, 5/111 AND 6/112,IST FLOOR, IST BLOCK, DR. RAJKUMAR ROAD, (IST MAIN ROAD) RAJAJI NAGAR, BANGALORE-560010,KARNATAKA. BY ADVS. R.AJITH KUMAR (128/84) TAPAS VARMA A. ``` ## **`OTHER PRESENT:`** ``` SC TAPAS VARMA A. ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 27.11.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` M.A.C.A. No.2862/2018 : 2 : ## JUDGMENT The appellant is the petitioner in OP(MV) No.460/16 on the files of the Motor Accident Claims Tribunal, Moovattupuzha, 2. The said claim petition was submitted by the appellants seeking compensation for the injuries sustained to him in a motor accident that occurred on 01.01.2016. According to him, the accident occurred when the motorcycle bearing registration No.KA-13-EG/1316, ridden by the 1[st] respondent, hit him while walking through the road. The 1[st] respondent owned the said motorcycle, and the 2[nd] respondent was the insurer. 3. Consequent to the accident, he sustained severe injuries, which resulted in the amputation of his right leg below the knee. He was 68 years old at the time of the accident and was a labourer in a farm. The claim petition was submitted in such circumstances, seeking compensation of Rs.7,50,000/-. The 2[nd] respondent submitted a written statement wherein they admitted the coverage of the policy but disputed the liability on various grounds. They also disputed the quantum of compensation. M.A.C.A. No.2862/2018 : 3 : 4. The evidence in this case consists of Exts.A1 to A10 from the side of the appellant, and no evidence was adduced from the side of the respondents. 5. After the trial, the tribunal came to the conclusion that the accident occurred due to negligence on the part of the 1[st] respondent in riding the motorcycle and being the insurer of the said vehicle, the 2[nd] respondent was held liable to pay the compensation. The quantum of compensation was fixed as Rs.7,80,550/- and the 2[nd] respondent was directed to deposit the said amount along with interest at the rate of 6% per annum from the date of petition till realisation. This appeal is submitted in such circumstances seeking enhancement of compensation. 6. Heard Sri. Abraham Vakkanal, the learned counsel appearing for the appellant and Sri.Tapas Varma, the learned counsel appearing for the 2[nd] respondent insurance company. 7. The learned counsel specifically contends that the amount awarded by the tribunal is grossly inadequate. He mainly disputes the compensation awarded under the head of disability. It was pointed out that he was a farm worker, and consequent to the disabilities, he became unfit to perform his duties. It was M.A.C.A. No.2862/2018 : 4 : pointed out that the monthly income taken by the tribunal is also on the lower side. The learned counsel for the 2[nd] respondent/insurance company opposes the said contention by pointing out that a reasonable amount has been awarded by the tribunal. 8. After carefully going through the materials placed on record, I find some force in the contentions put forward by the learned counsel. As regards the monthly income, it is seen that even though an amount of Rs.15,000/- was claimed, the tribunal accepted only Rs.8,000/-, which appears to be on the lower side. Of course, it is true that there is absolutely no evidence indicating the income which he used to earn from his avocation. Even if the standards prevailed in the year 2016, the year in which the accident occurred, is taken into consideration the amount of Rs.8,000/- appears to be on the lower side. It is to be noted that when the method of computation evolved from the principles laid down in Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Co.Ltd [(2011) 13 SCC 236] and Syed Sadiq v. Divisional Manager, United India Insurance Company [(2014) 2 SCC 735], is considered, an amount of Rs.10,500/- can be fixed M.A.C.A. No.2862/2018 : 5 : as a reasonable monthly income in respect of the accident occurred in the year 2016 ( by fixing the basic monthly income as Rs 4,500/- for the year 2004 and making an addition of Rs 500/per year for the subsequent years). Therefore, I am of the view that the said amount can be accepted as the monthly income in this case. 9. The next element to be considered is the percentage of disability. The specific contention put forward by the learned counsel for the appellant is that he was a farm worker and, consequent to the injuries, his right leg was amputated below the knee. This would prevent him from pursuing employment; therefore, this is a case in which 100% disability is to be taken. The said contention cannot be brushed aside. The Hon'ble Supreme Court in Syed Sadiq's case has observed that when the nature of injuries adversely affects the employment of the victim and when it prevents him from pursuing his employment, the functional disability should be taken. In this case, from the nature of the injuries sustained and consequential disability, it is evident that it may not be possible to continue his employment as a farm worker. He was 68 years old at the time of the accident. Finding M.A.C.A. No.2862/2018 : 6 : alternate employment at the advanced stage may not be possible; therefore, I am of the view that this is a case in which 100% disability has to be taken. Thus, while reassessing the monthly income of Rs.10,500/- and the disability as 100%, the compensation receivable by the appellant under this head would come to Rs.6,30,000/- (10500 x 12 x 5). The amount already awarded under this head is 1,92,000/- and the additional amount receivable would come to Rs.4,38,000/-. 10. In addition to the above, the appellant has produced Exts.A11, 12 and 13 bills, which show the expenditure he incurred expenses towards medicines as part of the treatment for the injuries he sustained, at a later point of time. After perusing the said medical bills, I am inclined to grant a further sum of Rs.74,036/-, which is covered by the said bills as medical expenses. 11. Similarly, the learned counsel further points out that the appellant depends on artificial limbs and incurs periodic maintenance expenses. Some amounts need to be granted to cover the said expenses as well. He places reliance upon the certificate issued by Lakeshore Hospital dated 06.07.2018 as M.A.C.A. No.2862/2018 : 7 : Ext.P15. The said contention cannot be discarded as it is a fact that since the appellant depends on an artificial limb, it may require periodic maintenance and expenses. Therefore, considering the age of the appellant and other relevant circumstances, I deem it appropriate to grant a further sum of Rs.1,00,000/- for expenses incurred for maintaining the artificial limb. Thus, the additional compensation receivable by the appellant is determined to be Rs.6,12,036/[438000+74036+100000]. In the light of the aforesaid observations and findings, this appeal is allowed. The award dated 08.01.2018 in OP(MV) No.460/2016 passed by the Motor Accident Claims Tribunal, Muvattupuzha is modified by granting an additional amount of Rs.6,12,036/- (Rupees six lakhs twelve thousand and thirty six only). Out of the said amount, the appellant can recover an amount of Rs.4,38,000/- along with interest at the rate of 7.5% from the 2[nd] respondent from the date of petition till realisation. As far as the remaining amount of Rs.1,74,036/- (subsequent medical expenses and maintenance charges for artificial limbs) is concerned, the interest shall be payable by the 2[nd] respondent at M.A.C.A. No.2862/2018 : 8 : the rate mentioned above from the date of this judgment. The said amount along with proportionate costs shall be deposited by the 2[nd] respondent within three months from the date of receipt of a copy of this judgment. Sd/ZIYAD RAHMAN A.A. JUDGE ncd : 9 : ## M.A.C.A. No.2862/2018 ## **`APPENDIX OF MACA 2862/2018`** - `Annexure A4 TRUE COPY OF THE RECEIPT GST VOUCHER NO. 270 DT: 10-10-2019 FOR RS.8,000/ISSUED BY ENDOLITE INDIA LIMITED - ERNAKULAM CENTRE.` - `Annexure A4(a) TRUE COPY OF THE RECEIPT GST VOUCHER NO. 277 DT: 15-10-2019 FOR RS.9,325/ISSUED BY ENDOLITE INDIA LIMITED - ERNAKULAM CENTRE.` - `Annexure A5 TRUE COPY OF THE RECEIPT GST VOUCHER NO. 196 DT: 7-10-2022 FOR RS.5,000/ISSUED BY ENDOLITE INDIA LIMITED - ERNAKULAM.` - `Annexure A5(a) TRUE COPY OF THE RECEIPT GST VOUCHER NO. 229 DT: 21-10-2022 FOR RS.13,711/ISSUED BY ENDOLITE INDIA LIMITED - ERNAKULAM.` - `Annexure A6 TRUE COPY OF THE RECEIPT GST VOUCHER NO. 240 DT: 28-10-2023 FOR RS.20,000/ISSUED BY ENDOLITE INDIA LIMITED - ERNAKULAM.` - `Annexure A6(a) TRUE COPY OF THE RECEIPT GST VOUCHER NO. 241 DT: 28-10-2023 FOR RS.18,000/ISSUED BY ENDOLITE INDIA LIMITED - ERNAKULAM.` - `Annexure A7 ORIGINAL INVOICE NO. 215 DT: 15-102019 FOR RS.17,325/- ISSUED BY ENDOLITE INDIA LIMITED - ERNAKULAM CENTRE.` - `Annexure A8 ORIGINAL INVOICE NO. 224 DT: 07-112022 FOR RS.18,711/- ISSUED BY ENDOLITE INDIA LIMITED - ERNAKULAM.` - `Annexure A9 ORIGINAL INVOICE NO. 204 DT: 28-102023 FOR RS.38,000/- ISSUED BY ENDOLITE INDIA LIMITED - ERNAKULAM.` - `ANNEXURE A3 ORIGINAL CERTIFICATE ISSUED BY THE M/S.ENDOLITE INDIA LIMITED` ``` ANNEXURE A2ORIGINAL CERTIFICATE ISSUED BY THE DR.BIBIN THERUVIL. ``` ``` ANNEXURE A1ORIGINAL CERTIFICATE ISSUED BY THE MUNICIPAL CHAIRMAN, PIRAVOM. ```