BABU K.M v. JOSEPH P and THE UNITED INDIA INSURANCE COMPANY LIMITED

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN FRIDAY, THE 11[TH] DAY OF FEBRUARY 2022 / 22ND MAGHA, 1943 ``` ## **`MACA NO. 635 OF 2016`** ``` AGAINST THE AWARD DATED 16.1.2015 IN O.P.(MV) No.1057/2012 ON THE FILES OF THE MOTOR ACCIDENT CLAIMS TRIBUNAL, KOTTAYAM ``` ## **`APPELLANT/PETITIONER:`** ``` BABU K.M, KEERRIKATTEL (KANNUVETTIYIL) HOUSE, KOTHANALLOOR P.O., VAIKOM, KOTTAYAM DISTRICT. ``` ``` BY ADVS. SRI.JAI GEORGE SMT.DAISY A.PHILIPOSE ``` ## **`RESPONDENTS/RESPONDENTS:`** ``` 1JOSEPH P, PULICKEEL HOUSE, PAZHUTHURUTHU, THIRUVANBADY POST, KADUTHURUTHY 686 006 ``` ``` 2THE UNITED INDIA INSURANCE COMPANY LIMITED KOTTAYAM 686 001 REPRESENTED BY ITS BRANCH MANGER ``` ``` BY ADVS. SRI.P.K.MANOJKUMAR - SC SRI.RAJESH THOMAS SMT.ALICE THOMAS FOR UNITED INDIA INSURANCE ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 11.02.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` MACA 635/16 2 ## JUDGMENT The claimant in OP(MV)No.1057/2012 on the files of the Motor Accidents Claims Tribunal, Kottayam, has filed this appeal dissatisfied with the amount awarded by the Tribunal as compensation for the injuries sustained by him in the accident. The parties are referred to as per their status in the claim petition. 2. The petitioner, while riding a scooter on 19.08.2011, sustained injuries when a car bearing Reg. No.KL-36-A/7182, driven by the 1[st] respondent rashly and negligently, hit on the scooter from behind. The petitioner sustained serious injuries and underwent treatment as an in-patient in the hospital from 19.08.2011 to 01.09.2011. The petitioner is a ‘Tailor’ MACA 635/16 3 and was aged 49 years at the time of the accident and was earning Rs.6,500/- per month. He is a physically and he claimed an amount of challenged person Rs.4,00,000/- which was limited to Rs.3,00,000/- as total compensation for the injuries sustained in the accident. 3. The 1[st] respondent-driver of the car remained ex parte before the Tribunal. The 2[nd] respondent – Insurance Company entered appearance and filed a written statement admitting that the offending vehicle was having a valid policy of insurance at the time of the accident; however, disputing the nature of injuries, period of treatment, occupation and income of the petitioner. The Insurance Company also contended that the amount of compensation claimed is excessive. Exts.A1 to A12 series were marked on the side of the MACA 635/16 4 petitioner and Ext.X1 was marked on the side of the 2[nd] respondent. No oral evidence was adduced from either side. 4. The Tribunal found that the accident happened due to the rash and negligent driving of the car by the 1[st] respondent. The Tribunal awarded an amount of Rs.2,00,000/- as compensation with 8.5% interest and proportionate costs under various heads as follows: - Sl. Head of Claim Amount Amount Basic Vital Details in No. Claimed Awarded a nut shell 1 Loss of earnings 50,000 30,000 Rs.6,000 x 5 2 Partial loss of5,000 Nil Loss of earning earnings allowed - 3. Transport to4,000 3,000 In view of the visits Hospital to hospital on several occasions - 4 Extra nourishment 5,000 2,000 In view of the IP treatment and nature of the injuries - 5 Damage to clothing1,000 500 Nominal amount and articles MACA 635/16 5 - 6 Bystander expenses 10,000 6,000 In view of the IP treatment and nature of the injuries - 7 Medicines and75,000 42,500 Relying on Ext.A9 treatment series - 8 Pain and sufferings 50,000 30,000 In view of the nature of the injuries - 9 Loss of amenities50,000 20,000 ….. do ….. and inconvenience in life - 10 Loss of earning1,50,000 65,520 Taking the multiplier capacity as ‘13’ and loss of earning capacity as 7% - TOTAL 4,00,000 1,99,520 ………………… limited torounded 3,00,000 to 2,00,000 ## 5. The Tribunal directed the Insurance Company to satisfy the award. ## 6. According to the petitioner, the amount awarded by the Tribunal is totally inadequate. Though he had claimed Rs.6,500/- as his monthly income, the Tribunal has taken the same only as Rs.6,000/-. I find that the MACA 635/16 6 Tribunal ought to have taken Rs.6,500/- as the monthly income since going by the decision in Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited [2011(13) SCC 263: AIR 2011 SC 2951] , a casual labourer is entitled for Rs.8,000/- as notional monthly income. Accordingly, I re-fix the monthly income of the petitioner as Rs.6,500/-. 7. The Tribunal has awarded an amount of Rs.30,000/- under the head ‘compensation for loss of earnings’. Taking the monthly as Rs.6,500/-, the compensation under the said head is re-calculated as Rs.32,500/- (Rs.6,500/- x 5 months). After deducting the amount already awarded by the Tribunal, the petitioner will be entitled for an enhanced amount of Rs.2,500/- (Rs.32,500-30,000) on this count. MACA 635/16 7 8. With regard to the compensation for loss of amenities and inconvenience in life, the petitioner had claimed an amount of Rs.50,000/- and the Tribunal has awarded Rs.20,000/-. Taking note of the nature of injuries sustained by the petitioner stated in Ext.A7 and the period of treatment, I find that an amount of Rs.30,000/- will be a just and reasonable compensation under the head loss of amenities in life. Therefore, the petitioner is entitled for an enhanced amount of Rs.10,000/- (Rs.30,000-20,000) under the said head. 9. As per Ext.X1 Disability Certificate, the Medical Board assessed the percentage of disability of the petitioner as 10%. The Tribunal observed that the petitioner was already a physically handicapped person and it is not certain that whether the disability fixed in MACA 635/16 8 Ext.X1 is after taking into account the disability he was already suffering from. The Tribunal found that though the disability certified in Ext.X1 is 10%, the functional disability can only be 7%. I do not agree with the finding of the Tribunal regarding the functional disability arrived at. The petitioner was a ‘Tailor’. He has produced Exts.A10, A11 and A12 documents in proof of his job. In Ext.X1, the Medical Board has certified that the petitioner was having 10% partial permanent disability. When the Medical Board has assessed 10% disability, the Tribunal cannot scale down the same to 7% stating that the functional disability is only to that extent. It is to be noted that the petitioner was a Tailor and with the injuries sustained and the consequential disability arising out of the same, he will not be in a MACA 635/16 9 position to perform his work in the manner he was doing the same before the accident. Therefore, the Tribunal ought to have taken 10% as his functional disability. Accordingly, I re-fix the percentage of disability of the petitioner as 10% and the compensation under the head loss of earning capacity is re-worked as Rs.1,01,400/- (6500 x 12 x 13 x 10/100). Therefore, the petitioner is entitled for an enhanced amount of Rs.35,880/ -(Rs.1,01,400-65,520) under the said head. 10.The Tribunal has awarded just and reasonable compensation under other heads. In the result, the petitioner is entitled for an enhanced compensation of Rs.48,380/- (Rs.2500 + 10,000 + 35,880). The 2[nd] respondent – Insurance Company is MACA 635/16 10 directed to deposit the said amount with 8.5% interest from the date of filing the petition till the date of deposit with proportionate costs before the Tribunal within a period of two months from the date of receipt of a copy of this judgment. The appeal is allowed to the said extent. Sd/- RR MURALI PURUSHOTHAMAN JUDGE