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IN THE HIGH COURT OF KERALA AT ERNAKULAM
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## `PRESENT`
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THE HONOURABLE MRS. JUSTICE MARY JOSEPH
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MONDAY, THE 18[TH] DAY OF MARCH 2024 / 28TH PHALGUNA, 1945
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MACA NO. 747 OF 2021
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AGAINST THE AWARD DATED 12.10.2020 IN OP(MV) NO.2492/2018 OF ADDITIONAL
MOTOR ACCIDENTS CLAIMS TRIBUNAL,ERNAKULAM
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## `APPELLANT/PETITIONER:`
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BABU T.V.,
AGED 51 YEARS,
S/O. VARKEY, RESIDING AT THADATHIL PUTHENPURA,
ARUNOOTTIMANGALAM, VAIKOM, KOTTAYAM-NOW RESIDING AT HOUSE
NO.7, JOURNALISTS COLONY, KALOOR P.O., PIN-686668,
ERNAKULAM DISTRICT.
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BY ADV.SRI. V.S.CHANDRASEKHARAN
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## `RESPONDENT/3RD RESPONDENT:`
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MANAGER,
MAGAMA HDI GENERAL INSURANCE CO.LTD., JAIN TOWER, GROUND
FLOOR, NH-47, BYE PASS ROAD, POWER HOUSE JUNCTION, VYTILA,
ERNAKULAM-682019
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BY ADV.SRI.P.JACOB MATHEW
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THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON
28.11.2023, THE COURT ON 18.03.2024 DELIVERED THE FOLLOWING:
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M.A.C.A.No.747 of 2021 2
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## **JUDGMENT**
Dated this the 18[th] day of March, 2024
The appeal on hand is originated from an award passed by Additional Motor Accidents Claims Tribunal, Ernakulam (for short ‘the Tribunal’) on 12.10.2020 in O.P.(MV) No.2492/2018. The appellant is the claimant before the Tribunal.
2. For the sake of convenience, the parties to this appeal will hereinafter be referred to as the petitioner and the 3[rd] respondent in accordance with their status in the original petition.
3. As against the claim of compensation raised by the petitioner before the Tribunal for a sum of `1,00,00,000/- the Tribunal has awarded `13,48,869/-. The Tribunal directed the 3[rd] respondent to deposit the same with interest at the rate of 8% per annum from the date of filing of the Original Petition till the date of realisation. Proportionate costs was also allowed to be realised. Aggrieved by the quantum of compensation stood awarded by the Tribunal, the petitioner has approached this Court seeking enhancement of the same.
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M.A.C.A.No.747 of 2021 3
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4. The facts of the case in brief are as follows:
On 19.08.2018 at about 6:00 a.m., petitioner who was riding his scooter bearing Registration No.KL-7-CE-3038, was hit by a jeep bearing Registration No.KL-42-J-984 at Ponnurunni and thereby he sustained serious injuries. The driver, the registered owner and the insurer of the offending jeep were arrayed respectively as respondents 1 to 3 in the Original Petition.
5. Notice was issued to all respondents from the Tribunal. Respondents 1 and 2 though served with notice, did not turn up to contest the original petition, and therefore were declared as _ex-parte._ 3[rd] respondent filed written statement admitting issuance of a policy for the jeep bearing Registration No.KL-42/J-984 covering the date of the motor accident in question but denied negligence of the 1[st] respondent in causing the motor accident. It was contended further that since the petitioner was riding the scooter in a careless and negligent manner, he had also contributed to the motor accident in question. It was contended furthermore that since the 3[rd] respondent had not been given opportunity to verify the
## **`M.A.C.A.No.747 of 2021 4`**
driving licence and badge of the 1[st] respondent and fitness certificate of the jeep, it is not liable to indemnify the insured. Claims of the petitioner regarding his age, occupation and monthly income were disputed. The nature of injuries sustained, disability suffered and the compensation claimed under various heads were also disputed.
6. PW1 was examined and Exts.A1 to A15 and X1 were marked from the side of the petitioner. Respondent did not adduce any evidence. On the basis of Ext.A1, Tribunal found that the motor accident in question was occurred due to the rash and negligent driving of the jeep by the 1[st] respondent.
7. According to the learned counsel for the petitioner, the Tribunal failed to award just and reasonable compensation under the heads loss of earnings, partial loss of earnings and also loss of earning power. According to him, the Tribunal ought to have taken `21,451/- as the monthly income of the petitioner on the basis of Ext.A3 and Ext.A12, the salary certificate and salary slip respectively. It is contended furthermore that the compensation stood awarded by the Tribunal towards transportation expenses, extra nourishment,
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bystander expenses, damages to clothing, treatment expenses and permanent disability also are on the lower side. It was contended that despite the requirement of the petitioner to undergo surgical procedures for removal of implants established from the evidence on record, the Tribunal awarded only a very meagre sum towards future treatment expenses. Thus he canvassed for interference with the impugned award on all those counts.
8. The learned counsel relied on **Robin Babu v. Kunajppan and Others [2015 (4) KHC 91]** where this Court has enhanced the compensation stood awarded by the Tribunal from `1,00,000/- to `2,00,000/- considering the requirement of the victim of the motor accident to have the artificial limb changed periodically.
9. The injuries sustained, the procedures of treatment undergone by him and the duration of treatment were established from Ext.A2 wound certificate, Ext.A4 discharge summary and Exts.A10, A13 and A15 medical certificates. From the above it was established that the petitioner had sustained polytrauma, closed fracture dislocation of right hip
## **`M.A.C.A.No.747 of 2021 6`**
with acetabular minor rim fracture and infrafoveal fracture head of femur, closed displaced fracture of both bones of right leg, segmental fracture of neck and shaft of left femur, head injury and fracture of right side of L2 transverse process. The petitioner was also treated as inpatient at Medical Trust Hospital, Ernakulam from 19.10.2018 till 15.11.2018.
10. Petitioner had undergone PFN of left femur, IMIL nailing of right tibia, CMR of right hip and skeletal traction for lower femur and left upper tibia. It is certified in Ext.A10 medical certificate that the petitioner had to spent `1,50,000/(approximately) for removal of multiple implants from femur and tibia. It is certified in Ext.A13 issued by a doctor of ESI Hospital, Ernakulam that the petitioner requires total hip replacement in view of loss of function and chronic pain successive procedures are required to be done for postoperative complications. It is also certified that in view of the prolonged rehabilitation period required on account of polytrauma and multiple fractures resulted from the motor accident in question the petitioner is incapacitated to attend the job he was doing then. Further, the chronic pain of right
## **`M.A.C.A.No.747 of 2021 7`**
hip and reduced range of motion of the right hip restrains him from being active. There is uncertainty on resumption of work as a driver in future in spite of the procedures and physiotherapy underwent by him. It is certified in Ext.A15, a medical certificate issued by a doctor of Mary Queens Mission Hospital, Kottayam that the petitioner has 20% permanent locomotor disability. He has also recorded observations similar to those made in Ext.13 certificate.
11. The gross salary of the petitioner is certified in Ext.A3 as `18,958/- and CTC as `21,451/-. As per Ext.A12 salary slip, total earnings of the petitioner in June 2018 was `17,125/and that in July 2018 was `18,958/-. The HR Manager of the establishment where the petitioner was employed when examined as PW1, deposed that the petitioner was given `21,450/- as salary. The amount shown in the salary slip is calculated after deducting the loan repayment amount of `3,000/-, PF, ESI, LWF, corporation tax and leave availed, if any. According to him CTC shown in Ext.A3 is salary + employer’s contribution. Therefore, this Court finds justification in taking `21,285/- as the monthly income of the petitioner
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M.A.C.A.No.747 of 2021 8
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(amount certified in Ext.A3 salary certificate after deducting `166/- towards profession tax). Petitioner was aged 49 years and therefore, the Tribunal adopted 13 as the multiplier. It being correct is maintained. Since it is established from the evidence on record that the petitioner is unable to resume his work, having due regard to his age at the relevant time, 25% is added to the monthly income in consideration of loss of future prospects. Thus, `26,606/- ( `21,285/- + `5,321/-) is arrived at. Compensation for permanent disability when recalculated on the basis of the modified monthly income, `8,30,107/- (`26,606/-x 12 x 13 x 20/100) is arrived at. `5,86,310/- stood awarded by the Tribunal when adjusted against, petitioner will get `2,43,797/- (`8,30,107/- - `5,86,310/-) as compensation towards permanent disability.
12. Having due regard to the injuries sustained and the period of treatment undergone by the petitioner stood established from Exts.A2, A4, A10, A13 and A15, this Court finds it reasonable to consider six months for awarding compensation for loss of earning. Thus, the petitioner will get `1,27,710/- (`21,285/-x6) as compensation. `28,000/- stood
## **`M.A.C.A.No.747 of 2021 9`**
awarded by the Tribunal as compensation towards extra nourishment and bystander expenses being reasonable are maintained. It is revealed from Ext.A10 medical certificate that `1,50,000/- is the approximate expenditure for removal of multiple implants from femur and tibia. It undoubtedly is a reasonable sum and therefore, is allowed. `75,000/- stood awarded by the Tribunal when adjusted against the sum now found payable, the petitioner will get `75,000/- (`1,50,000/- - `75,000/-) as additional compensation under that head.
13. In the above manner of calculation afresh, the petitioner will get `4,46,507/- (`2,43,797/- + `1,27,710/- + `75,000/-) (Rupees four lakhs forty six thousand five hundred and seven only) as additional compensation. The compensation payable except that was awarded towards future treatment expenses will carry interest at the rate of 7.5% per annum from the date of filing of the Original Petition till the date of realisation. 3[rd] respondent shall pay the modified compensation with interest fixed as above, within a period of two months from the date on which a certified copy of this judgment is received. The disbursal of the amount shall be in accordance
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with the directions issued by the Tribunal in the impugned award and also the guidelines issued by this Court in Circular No.03/2019 dated 06.09.2019.
MACA stands allowed in part.
Sd/- **MARY JOSEPH JUDGE**
MJL
