A.V. Thomas v. Johney Joseph Vazhooppadickal House and Oriental Insurance Co. Ltd. (MACA 1207 of 2015)

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. TUESDAY, THE 9[TH] DAY OF JANUARY 2024 / 19TH POUSHA, 1945** **MACA NO. 1207 OF 2015** **AGAINST THE AWARD OP(MV) NO.158/2007 DATED 19.05.2014 ON THE FILES OF THE ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL** ## **THALASSERY** ## **APPELLANT/PETITIONER:** A.V.THOMAS S/O. VARGHESE, ATTUPURATH HOUSE, CHUZHALI, CHEMPANTHOTTY BY ADV SRI.P.V.BABY ## **RESPONDENT/RESPONDENTS 2 AND 3:** 1 JOHNEY JOSEPH VAZHOOPPADICKAL HOUSE, CHUZHALI PO, CHEMPANTHOTTY 673517 2 ORIENTAL INSURANCE CO.LTD MAVOOR ROAD JUNCTION, CALICUT 673001 BY ADVS. SRI.GEORGE CHERIAN SR. SMT.LATHA SUSAN CHERIAN SMT.K.S.SANTHI THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 09.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.A.C.A No. 1207 of 2015 2 ## **JUDGMENT** The appellant was the petitioner in O.P.(M.V) No. 158/2007 on the files of the Additional Motor Accidents Claims Tribunal, Thalassery. The said claim petition was submitted by him seeking compensation for the injuries sustained to him in a motor accident that occurred on 25.04.2006. 2. The accident occurred when the Tata Scorpio car bearing registration No. KL-13/P 2500, in which the injured were travelling, was hit on a wall of an arch, thereby causing serious injuries to the appellant. The said vehicle was being driven by the 1st respondent, owned by the 2nd respondent and was insured with the 3rd respondent. The appellant was 46 years old at the time of the accident, and he was an LIC agent with a monthly income of Rs.50,000/-. Consequent to the injuries, he suffered serious physical disablement as well. The claim petition was submitted in such circumstances seeking compensation for an amount of Rs.20,00,000/-. 3. The 1[st] and 2[nd] respondent filed a joint written statement admitting the accident but denying the negligence on the part of the 1[st] respondent. The 3[rd] respondent/insurance M.A.C.A No. 1207 of 2015 3 company filed a written statement, admitting the existence of a valid insurance policy for the vehicle. However, they disputed the liability on various grounds. They also contended that there was violation of policy conditions as the vehicle was carrying 8 passengers at the time of the accident as against the permitted seating capacity of 5 passengers. The said claim petition was tried along with O.P.(M.V) Nos.159 and 162 of 2007 which arose from the very same accident. 4. The evidence in this case consists of oral testimonies of PWs 1 and 2 and Exts. A1 to A24 from the side of the claimants. The disability certificate as well as the Case sheet of the petitioner from Medical Trust Hospital, Ernakulam were marked as Ext.X1. After the trial, the Tribunal came to the conclusion that the accident occurred due to the negligence on the part of the driver of the car in which the appellant was travelling and being the insurer of the said vehicle the 3[rd] respondent was held liable to pay the compensation. The quantum of compensation was fixed as Rs.17,60,500/- and the said amount was directed to be deposited by the 3[rd] respondent along with interest at the rate of 8% per annum from the date of petition till realisation. This M.A.C.A No. 1207 of 2015 **==> picture [7 x 9] intentionally omitted <==** appeal is submitted in such circumstances seeking enhancement of compensation. 5. Heard Sri. A.N Santhosh, the learned counsel appearing for the appellant and Sri. George Cherian, Thiruvalla, the learned senior counsel appearing for the 3[rd] respondent. 6. The main contest in this case relates to the quantum of compensation particularly under the head of disability. The learned counsel for the appellant points out that, the Tribunal committed serious error in taking the monthly income and also failed to take note of the functional disability owing to the physical disability sustained by the appellant due to the injuries. Therefore, he seeks for interference under both these heads. 7. On the other hand the learned counsel for the respondent would point out that a very reasonable award has been passed by the Tribunal and there is no scope for interference. 8. I have carefully gone through the records. The monthly income claimed by the appellant was Rs.50,000/- which, according to him, he was earning from his avocation as an LIC agent. To substantiate the said monthly income, the appellant places M.A.C.A No. 1207 of 2015 5 reliance upon the Ext.A13 certificate issued by the Manager, LIC of India, Thaliparamba Branch, wherein the commission which the appellant received for the period from 2003-2004-2006-2007 is mentioned. The said documents were proved by examining PW1, the Manager of LIC of India, Thaliparamba Branch. Despite the said evidence, the Tribunal took the monthly income as Rs.10,000/- which appears to be on the lower side. It is to be noted that the accident occurred on 25.04.2006. From Ext.A13, it can be seen that, in the year 2003-2004, the appellant received a net commission after the deduction of tax of Rs.1,03,208. For the finance year 2004-2005, the said amount was Rs.4,36,369 and for 2005-2006, it was Rs.4,44,992/-. In the next year, that is, 20062007, which is after the accident, the commission was reduced to Rs.6,60,254. In 2007-2008, the amount received as commission was Rs.3,72,645. From the materials were placed on record, it was evident that he was getting a substantial amount towards commission in a progressive manner until he sustained injuries in the accident. When the average monthly commission is calculated on the basis of the commission he received for the period from 2003 to 2006 is taken into consideration, the said amount would M.A.C.A No. 1207 of 2015 6 come to Rs.27,349/-. Of course, the said amount represents the commission for the policies he managed to canvas during the said period, and for canvasing the policy, he is likely to incur expenses. Therefore, some amount has to be adjusted towards the probable expenses he was likely to incur. In such circumstances, I am of the view that, taking into account the aforesaid expenses as well, the monthly income can be reasonably fixed as Rs.20,000/- 9. The next aspect relates to the addition to be made towards future prospects. Evidently, the records would indicate that the appellant sustained very serious injuries and in Ext.X1 the disability was certified as 75%. The evidence of PW1 would indicate that consequent to the injuries sustained, the appellant was compelled to stop the LIC agency as well. Therefore, this is a case in which future prospects ought to be taken into consideration and in the light of **National Insurance Company Ltd. v. Pranay Sethi** [2017 (4) KLT 662 (SC)] , as he was aged 46 years at the time of the accident an addition of 25% of the monthly income has to be made. 10. The next element to be determined is the functional disability. In this regard, the specific contention put forward by the M.A.C.A No. 1207 of 2015 7 learned counsel for the appellant is that this is a fit case in which the functional disability has to be taken as 100%, as it is evident from the deposition of PW1 that the appellant was compelled to stop the agency on account of the physical disability sustained by him. In this regard, it is to be noted that one of the Doctors who was on the Medical Board, which issued Ext.X1 certificate, was examined as PW2. In his deposition, it was stated that the appellant had right hemi paresis and he had visual field defection right hemi anopia. He has difficulty in writing. He also clearly opined that there is no chance for recovery in the instant case, and the patient required lifelong support even for his daily activities. Thus, when the evidence of PW1 and PW2 are taken together, it would clearly indicate that consequent to the disability, the appellant was forced to stop his avocation as an LIC agent, and besides the same, he also requires the support of a third person to live a normal life.. It is evident from the records, as referred to above that he was an able-bodied person with a very high monthly income, which he used to earn from his avocation as a LIC agent, and it was abruptly stopped consequent to the disablement. In such circumstances, I am of the view that M.A.C.A No. 1207 of 2015 8 this is a fit case in which 100% disability ought to be taken for the purpose of assessing the compensation. The said view is fortified by another medical certificate produced by the learned counsel for the appellant along with I.A No.1/2024. The said certificate was issued by the Standing Disability Assessment Board, wherein his percentage of disability was assessed as 100%. The aforesaid certificate is marked in this appeal as Ext.A25. Thus, in the light of the aforesaid observations and also taking note of the percentage of disability as certified in Ext. A25, I deem it appropriate to take the functional disability of the appellant as 100%. Thus, while calculating the compensation with the above revised criteria, the amount would come to Rs.39,00,000/- [(20,000+25%) x 12 x 13]. The amount already awarded by the Tribunal under this head was Rs.11,70,000/- and thus the additional compensation would come to Rs.27,30,000/-. 11. Consequent to the revision of monthly income, the appellant would be entitled for an additional amount under the head of loss of earnings. The Tribunal has awarded compensation under this head for a period of six months. Therefore, a further sum of Rs.60,000/- is awarded under the said head. M.A.C.A No. 1207 of 2015 9 12. No amount is seen awarded towards loss of amenities. Considering the nature of injuries and the disablement arising therefrom, I deem it appropriate to grant a further sum of Rs.50,000/- under the said head. While fixing the said amount, I have taken note of the fact that this Court has already awarded compensation for disability by taking the functional disability as 100% and therefore, Rs.50,000/- for loss of amenities appears to be a reasonable amount. 13. The learned counsel for the appellant further submits that, the appellant is even now undergoing treatment and incurring expenses towards the same as well. A series of bills were produced by the appellant in the appeal in I.A 1/2023 and the total amount comes to Rs.49,227/-. 14. However, the learned counsel for the insurance company opposes the amounts claimed on the basis of the said medical bills, by contending that, there is absolutely no evidence to show that the entire amount covered as per the said bills are pertaining to the treatment for the injuries sustained to him in the accident. M.A.C.A No. 1207 of 2015 10 15. On careful perusal of the aforesaid bills, it can be seen that some of the bills are apparently issued for treatments unrelated to the injuries sustained in the accident as well. However, the fact that the appellant requires continuous treatment is a reality which is discernible from the materials placed on record. Therefore, some amount ought to be granted under this head. In such circumstances, a further sum of Rs. 30,000/- is granted towards the treatment expenses incurred by the appellant in connection with the injuries sustained in the accident. Thus the total additional compensation is determined as Rs.28,70,000/(27,30,000+60,000+50,000+30,000). In the light of the aforesaid observations and findings, this appeal is allowed. The award dated 19.05.2014 passed by the Additional Motor Accidents Claims Tribunal, Thalassery in O.P. (M.V) NO. 158/2007 is hereby modified by granting an additional compensation of Rs.28,70,000/- (Rupees twenty eight lakhs and seventy thousand only). Out of the said amount, an amount of Rs.28,40,000/- shall be deposited by the 2[nd] respondent/ insurance company with interest at the rate of 8% per annum from the date of petition till realisation. The remaining M.A.C.A No. 1207 of 2015 **==> picture [12 x 9] intentionally omitted <==** Rs.30,000/-, which is granted towards medical expenses, shall carry interest from the date of this judgment till realisation. The deposit of the amount in the manner as mentioned above shall be made by the 2[nd] respondent within a period of three months from the date of receipt of a copy of this judgment. Sd/- **ZIYAD RAHMAN A.A. JUDGE** rpk M.A.C.A No. 1207 of 2015 12 ## **APPENDIX OF MACA 1207/2015** PETITIONER ANNEXURES Annexure A1 ORIGINAL BILL DATED 12/3/2015 FOR RS. 200/Annexure A2 ORIGINAL BILL DATED 11/7/2016 FOR RS. 2700/Annexure A3 ORIGINAL BILL DATED 11/7/2016 FOR RS. 300/Annexure A4 ORIGINAL BILL DATED 11/7/2016 FOR RS. 200/Annexure A5 ORIGINAL BILL DATED 13/7/2016FOR RS. 3456/Annexure A6 ORIGINAL BILL DATED 13/7/2016FOR RS. 30/Annexure A7 ORIGINAL BILL DATED 6/4/2021 FOR RS. 2500/Annexure A8 ORIGINAL BILL DATED 6/4/2021 FOR RS. 3000/Annexure A9 ORIGINAL BILL DATED 5/4/2022 FOR RS. 250/Annexure A10 ORIGINAL BILL DATED 5/4/2022 FOR RS. 3750/Annexure A11 ORIGINAL BILL DATED 5/4/2022 FOR RS. 100/Annexure A12 ORIGINAL BILL DATED 5/4/2022 FOR RS. 200/Annexure A13 ORIGINAL BILL DATED 5/4/2022 FOR RS. 600/Annexure A14 ORIGINAL BILL DATED 6/4/2022 FOR RS. M.A.C.A No. 1207 of 2015 13 1100/- |Annexure A15|ORIGINAL BILL DATED|6/4/2022 FOR RS.| |---|---|---| ||1100/-|| |Annexure A16|ORIGINAL BILL DATED|15/7/2022 FOR RS.| ||605/-|| |Annexure A17|ORIGINAL BILL DATED|15/7/2022 FOR RS.| ||250/-|| |Annexure A18|ORIGINAL BILL DATED|19/7/2022 FOR RS.| ||524/-|| |Annexure A19|ORIGINAL BILL DATED|19/7/2022 FOR RS.| ||485/-|| |Annexure A20|ORIGINAL BILL DATED|19/7/2022 FOR RS.| ||12000/-|| |Annexure A21|ORIGINAL BILL DATED|8/4/2022 FOR RS.| ||15/-|| |Annexure A22|ORIGINAL BILL DATED|10/8/2022 FOR RS.| ||100/-|| |Annexure A23|ORIGINAL BILL DATED|10/8/2022 FOR RS.| ||300/-|| |Annexure A24|ORIGINAL BILL DATED|10/8/2022 FOR RS.| ||706/-|| |Annexure A25|ORIGINAL BILL DATED|11/8/2022 FOR RS.| ||2000/-|| |Annexure A26|ORIGINAL BILL DATED|11/8/2022 FOR RS.| ||250/-|| |Annexure A27|ORIGINAL BILL DATED|13/1/2023 FOR RS.| ||540/-|| |Annexure A28|ORIGINAL BILL DATED|12/1/2023 FOR RS.| ||1000/-|| |Annexure A29|ORIGINAL BILL DATED|12/1/2023 FOR RS.| M.A.C.A No. 1207 of 2015 14 300/- |Annexure A30|ORIGINAL BILL DATED|12/1/2023 FOR RS.| |---|---|---| ||189/-|| |Annexure A31|ORIGINAL BILL DATED|13/1/2023 FOR RS.| ||300/-|| |Annexure A32|ORIGINAL BILL DATED|13/1/2023 FOR RS.| ||3305/-|| |Annexure A33|ORIGINAL BILL DATED|13/1/2023 FOR RS.| ||900/-|| |Annexure A34|ORIGINAL BILL DATED|14/1/2023 FOR RS.| ||404/-|| |Annexure A35|ORIGINAL BILL DATED|14/1/2023 FOR RS.| ||300/-|| |Annexure A36|ORIGINAL BILL DATED|3/3/2023 FOR RS.| ||155/-|| |Annexure A37|ORIGINAL BILL DATED|3/3/2023 FOR RS.| ||612/-|| |Annexure A38|ORIGINAL BILL DATED|3/3/2023 FOR RS.| ||197/-|| |Annexure A39|ORIGINAL BILL DATED|3/3/2023 FOR RS.| ||325/-|| |Annexure A40|ORIGINAL BILL DATED|3/3/2023 FOR RS.| ||1000/-|| |Annexure A41|ORIGINAL BILL DATED|3/4/2023 FOR RS.| ||474/-|| |Annexure A42|ORIGINAL BILL DATED|3/4/2023 FOR RS.| ||90/-|| |Annexure A43|ORIGINAL BILL DATED|3/5/2023 FOR RS.| ||300/-|| |Annexure A44|ORIGINAL BILL DATED|3/5/2023 FOR RS.| M.A.C.A No. 1207 of 2015 15 83/- Annexure A45 ORIGINAL BILL DATED 4/5/2023 FOR RS. 2042/- STATEMENT STATEMENT OF BILLS Annexure A46 ORIGINAL DISABILITY CERTIFICATE DATED 18/5/2016 ISSUED FROM THE MEDICAL BOARD, GOVERNMENT TALUK H.Q HOSPITAL, THALIPARAMBA