Ashokan Geetha Bhavanam v. Jeevan Baby Anaswarya Veedu, Saleem Kunju Pattathu Vadakkathil, Oriental Insurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE BASANT BALAJI** **WEDNESDAY, THE 17[TH] DAY OF AUGUST 2022 / 26TH SRAVANA, 1944 MACA NO. 124 OF 2018** **OPMV 423/2012 OF ADDITIONAL DISTRICT COURT-II & IST ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL , MAVELIKKARA APPELLANT/S:** ASHOKAN GEETHA BHAVANAM, (KARIMPATIL THEKKATHIL)ARINALLOOR P.O,THEVALAKKARA BY ADVS. SRI.GEORGE VARGHESE(PERUMPALLIKUTTIYIL) SRI.P.J.JOE PAUL ## **RESPONDENT/S:** 1 JEEVAN BABY ANASWARYA VEEDU,KOTTACKUPURAM MURI,KULASEKHARAPURAM 690 544 2 SALEEM KUNJU PATTATHU VADAKKATHIL,ADINADU NORTH, CLAPPANA P.O,KARUNAGAPPALLY 690 525 3 THE ORIENTAL INSURANCE CO.LTD REPRESENTED BY ITS BRANCH MANAGERBRANCH OFFICE, KAYAMKULAM 690 502 BY ADVS. SMT.A.SREEKALA SRI.RAJESH THOMAS THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 17.08.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **MACA NO. 124 OF 2018** ## **JUDGMENT** (Dated this the 17[th] day of August 2022) The petitioner in O.P.(MV) No.423 of 2012 on the files of the Motor Accidents Claims Tribunal, Mavelikkara is the appellant herein. Respondent Nos.1 to 3 therein are the respondents herein. 2. On 22.8.2010 at about 4.15 pm., the appellant was travelling in a mini bus bearing Reg.No.KL 01 AN 9189 along with NH 47 and when the bus reached near Kuttivattam, it overturned and the appellant along with other passengers in the bus sustained injuries. The appellant was immediately taken to the Government Hospital Kollam and from there referred to Medical College Hospital, Thiruvananthapuram. After undergoing treatment for a **MACA NO. 124 OF 2018** -3- period of two months, his left leg was amputated below knee due to infection. 3. The driver of the mini bus had driven the bus in a rash and negligent manner and 2[nd] respondent being the owner of the bus and the 3[rd] respondent being the insurer are liable to pay compensation to the appellant. The appellant claimed Rs.12,00,000/- as compensation. 4. The 3[rd] respondent alone filed written statement and respondent Nos.1 and 2 remained ex-parte. The 3[rd] respondent contended that the appeal is not maintainable either in law or facts. The mini bus involved in the incident had a valid insurance policy on the date of accident. The negligence attributed to the driver of the mini bus was denied. There was no valid permit to the said bus to ply on **MACA NO. 124 OF 2018** the date of accident. The 1[st] respondent did not have a valid driving license to drive the vehicle and hence, the 3[rd] respondent is not liable to indemnify the 2[nd] respondent. It was further contended that the appellant has not sustained as alleged and no disability was caused due to the injuries sustained to him. 4. The Tribunal, on an appreciation of the facts and circumstances of the case as well as Ext.Nos.1 to 10, Ext.B1 and the oral evidence of PW1, awarded a compensation of Rs.6,41,000/- with 7.5% interest from the date of petition till the date of realisation. Aggrieved by the amount of compensation awarded by the Tribunal, this appeal is filed by the appellant. 5. Heard. **MACA NO. 124 OF 2018** **==> picture [220 x 9] intentionally omitted <==** 6. The learned counsel for the appellant contends that the Tribunal erred in fixing the monthly income of the appellant as Rs.5,000/-. Moreover, though the Medical Board assessed 75% permanent disability, the Tribunal has scaled down the same to 45% without any reason. For pain and suffering, though claimed Rs.75,000/-only Rs.50,000/was awarded. Similarly, only Rs.50,000/- was granted as against the claim of Rs.1,00,000/- under the head of loss of amenities. The counsel further contends that since left leg of the appellant was amputated, he needs to fix an artificial leg and for the same, compensation for future treatment was claimed. But the Tribunal failed to award any compensation under the head. 7. The counsel for the respondent submits that the **MACA NO. 124 OF 2018** -6- Tribunal was right in reducing the disability from 75% to 45% for the reason that though the leg is amputated, he could carry on some other or lesser scale of activities and functions to continue his livelihood. The counsel further submits that just and fair compensation was awarded by the Tribunal, taking note of the injuries sustained and hence, no interference warranted. 8. The accident happened in the year 2010. Going **v.** through the decision reported in _**Ramachandrappa Manager, Royal Sundaram Alliance Insurance Company Limited**_ [(2011) 13 SCC 236] the monthly income of a coolie, who met with an accident which happened in the year 2010, is to be taken as Rs.7,500/-. The appellant is a driver by profession and he has produced a copy of his **MACA NO. 124 OF 2018** -7- driving license, which shows that he obtained license for driving for transport and non-transport vehicles. The Tribunal found that he is a driver by profession. In the said circumstances, though the monthly income fixed for a coolie is Rs.7,500/-, a driver will be earning much more than that. Hence, the monthly income of the appellant is fixed as Rs.9,000/-. Since his leg has been amputated below knee and the Medical Board assessed permanent disability at 75% and the appellant being a driver by profession who is not in a position to continue his occupation as a driver, 30% has to be added towards future prospects, hence the monthly salary would be 9000 + 2700(9000x30%) = 11,700/-. 9. The counsel for the appellant further submits that **MACA NO. 124 OF 2018** -8- though the Medical Board has assessed 75% as the permanent disability, the Tribunal scaled down it to 45%. In fact, the functional disability is 100% and the Tribunal has failed to take note of the fact. Going through the disability certificate Ext.A10 issued by the Medical Board attached to the District Hospital, Kollam, the permanent disability is 75%. It is true that he is not able to do his professional job, but at the same time he will be able to find some avocation in life if his leg is fitted with an artificial leg. In the said circumstances, I am of the opinion that percentage of disability assessed by the Medical Board can be taken for calculating the compensation for permanent disability. 10. The appellant was aged 47 years. Hence, the **MACA NO. 124 OF 2018** -9- Tribunal has correctly taken multiplier, as 13. Accordingly, the compensation for permanent disability can be worked out as Rs.11700x12x13x75/100 = Rs.13,68,900/-. Less the amount awarded by the Tribunal under the head. 11. Loss of income was awarded by the Tribunal for 8 months at the rate of Rs.5,000/-. Since the income is taken as Rs.9,000/- loss of earning for 8 months can be worked out as Rs.9000x8 = 72,000/-. Less, 40,000/- awarded by the Tribunal under the head. 12. For pain and suffering, Tribunal awarded only Rs.50,000/- as against the claim Rs.75,000/-. The appellant was aged 47 years at the time of accident and his left leg was amputated below knee. Hence, the compensation awarded by the Tribunal on the said head is low. Taking **MACA NO. 124 OF 2018** -10- into consideration of the permanent disability of 75% and sufferings that he had to undergo in future, I am inclined to award a sum of Rs.25,000/- more. 13. As far as loss of amenities is concerned, the appellant at his prime age of 47 years, lost his leg would definitely be a loss of amenities in life. Hence, a further amount of Rs.25,000/- is awarded. 14. The appellant claims more amount for future treatment since he needs artificial leg to move around without any help of another person. The Tribunal has not awarded any amount on the said head. In the decisions reported in **Jakir Hussai v. Sabir and others [2015(7) SCC 252],** it was mentioned that the 'compensation' used under Section 166 of the M.V. Act would not only likely to be incurred for immediate treatment. But also the amount likely to be incurred by the appellant for future medical treatment also. The above view is supported in the decision **MACA NO. 124 OF 2018** -11- reported in **Nagappa v. Gurudayal Singh [2003(2) SCC 274]** also. Accordingly, though no evidence was adduced regarding the cost of the artificial limit or the amount needed for future treatment, taking note of the facts and circumstances of the case, I am of the view that an amount of Rs.2,00,000/- would be a reasonable sum against the future treatment and I award the same. Accordingly, the following enhancements are made to the award passed by the Tribunal: |Sl.<br>No.|Head of Claim|Amt. Awarded<br>by Tribunal<br>(Rs.)|Amt. Enhanced<br>in appeal (Rs.)| |---|---|---|---| |1|Compensation<br>for<br>permanent disability|4,56,300|13,68,900| |2.|Loss of income|40,000|72,000| |3.|Pain and suffering|50,000|75,000| |4|Loss of amenities|50,000|75,000| **MACA NO. 124 OF 2018** -12- |5|Compensation for future<br>treatment|….|2,00,000| |---|---|---|---| ||Total|5,96,300|17,90,900| ||Amount enhanced 17,90,900–5,96,300**=Rs.11,94,600/-**||| In the result, the appeal is allowed and The appellant is entitled to an amount of Rs.11,94,600/- (Rupees eleven lakh ninety four thousand six hundred only) as enhanced compensation with interest at the rate of 8% from the date of petition. If any amounts have already been paid, the same shall be granted set off. The claimants shall produce the details of the Bank account before the Insurance Company/Tribunal within one month from the date of receipt of a certified copy of this judgment and amount shall be transferred to the Bank account directly through NEFT/RTGS mode, within a period of one month thereafter. If the Bank account is not furnished within the time stipulated, it is made clear that no interest shall run on **MACA NO. 124 OF 2018** -13- the enhanced amount after the period stipulated by this Court. It is made clear that the compensation for future treatment granted in this appeal, will not carry the interest stated above. Sd/ **BASANT BALAJI, JUDGE** _dl/_