Babumon K.M. v. Baby S/O Madhavan, Jackson Varghese Vattayackattu? (Respondents 2) and National Insurance Co. Ltd. - MACA No. 1454 of 2014

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE A. BADHARUDEEN`** ``` FRIDAY, THE 19[TH] DAY OF AUGUST 2022 / 28TH SRAVANA, 1944 ``` ## **`MACA NO. 1454 OF 2014`** ## **`AGAINST THE AWARD IN OPMV 147/2004 OF ADDITIONAL DISTRICT COURT &`** ## **`MOTOR ACCIDENT CLAIMS TRIBUNAL, THODUPUZHA`** ## **`APPELLANT/PETITIONER:`** ``` BABUMON K.M. S/O.MADHAVAN, KAVUNGAL HOUSE, PADIJAREKODIKULAM KARA, KODIKULAM VILLAGE, THODUPUZHA TALUK. ``` ``` BY ADVS. SRI.T.K.KOSHY SRI.ANIL GEORGE ``` ## **`RESPONDENTS/RESPONDENTS 1 TO 3:`** - **`1 BABY S/O.MADHAVAN, KAVUNGAL HOUSE, EAST KODIKULAM.P.O., KOTTA BHAGOM, THODUPUZHA TALUK. PIN-682 582.`** - **`2 JACKSON VARGHESE VITAYAKKATTU HOUSE, CHATHAMATTOM.P.O., ERNAKULAM DISTRICT. PIN-686 671.`** - **`3 NATIONAL INSURANCE CO. LTD. REPRESENTED BY ITS BRANCH MANAGER, THODUPUZHA. PIN-685 584. BY ADV SRI.S.K.AJAY KUMAR`** ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 19.08.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA NO. 1454 OF 2014 ``` ``` 2 ``` ## **JUDGMENT** The petitioner in O.P.(MV).No.147/2004 on the file of the Motor Accidents Claims Tribunal, Thodupuzha, who is aggrieved by award dated 28.11.2008, has preferred this appeal under Section 173 of the Motor Vehicles Act. The respondents herein are the respondents before the Tribunal. 2. Heard both sides. 3. The brief facts of the case are as follows: The appellant, who met with an accident on 06.08.2002 at about 11.30 a.m. and sustained injuries, while travelling on a motorcycle, bearing registration No.KL.7AG/7662 with the first respondent, as pillion rider, lodged claim petition before the Tribunal canvassing Rs.7,00,000/- as compensation. According to the appellant, the accident happened due to the rash and negligent driving of the first respondent, who had ridden the ``` MACA NO. 1454 OF 2014 ``` ``` 3 ``` motorcycle at the time of accident in a rash and negligent manner. 4. The first and the second respondents were declared ex parte by the Tribunal. 5. The third respondent filed written statement denying negligence as well as quantum of compensation. It was specifically contended that the policy did not cover the risk of pillion rider. 6. The Tribunal adjudicated the matter acting on documentary evidence marked as Exts.A1 to A21 on the side of the appellant and Exts. B1 and B2 on the side of the insurer. 7. Thereafter, the Tribunal granted Rs.4,07,400/- as compensation along with 8% interest per annum from respondents 1 and 2 while exonerating the Insurance Company from paying the amount on the ground that the policy did not cover the risk of a pillion rider on the ``` MACA NO. 1454 OF 2014 ``` ``` 4 ``` motorcycle. 8. The award is put under challenge at the instance of the appellant on two grounds. The first ground is inadequacy of compensation and the second ground is the exemption given in favour of the third respondent. 9. It is submitted by the learned counsel for the appellant that the Tribunal fixed the monthly income of the appellant at Rs.3,000/- alone, though it has been specifically pleaded in the petition that he had been earning Rs.4,500/- as an autorickshaw driver, supported by documents of driving license and badge in his name to prove his competence to do so. Exts.A17 and A18 are the copies of driving license and badge in the name of the appellant. 10. Whereas the learned counsel for the Insurance Company vehemently opposed increase in the monthly income on the ground that since the accident is of the year 2002, Rs.3,000/- fixed by the Tribunal itself is ``` MACA NO. 1454 OF 2014 ``` ``` 5 ``` sufficient and normally Rs.2,500/- per month would be considered during the said period. 11. While alleviating the controversy, I am inclined to refer the decision reported in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Ltd. [(2011) 13 SCC 236],** where the Apex Court fixed Rs.4,500/- as monthly income of a person in the year 2004. Therefore, I am of the view that in this case, Rs.3,500/- can be fixed as monthly income for assessing ‘loss of earnings’ as well as ‘loss of disability’. 12. It is submitted by the learned counsel for the appellant that as per Ext.A21 disability certificate issued by the Medical Board, Taluk Head Quarters Hospital, Thodupuzha, 50% permanent disability was assessed on the finding that the appellant sustained Brachial Plexus Injury along with fracture of C7 transverse process on right side. The Tribunal accepted 40% of disability and multiplier ‘17’ was applied to arrive at the disability ``` MACA NO. 1454 OF 2014 ``` ``` 6 ``` income. According to the learned counsel for the appellant, 50% disability assessed by the Medical Board should have been accepted by the Tribunal since the injury involves brachial plexus injury and fracture of C7 transverse process. He also submitted that the appellant is not in a position to do any job and therefore, 50% as such is liable to be fixed. The learned counsel given emphasis to treatment records particularly Exts.A5 and A12. As per Ext.A12 wound certificate, the following injuries could be gathered. 1. Loss of sensation below right elbow. 2. Pain on right side of neck 3. Brachial plexus injury and 4. Abrasion on right cheek, right side of neck, tenderness on body of right side of mandible, swelling on right side of neck and medial end of left clavicle. 13. Ext.A12 shows right brachial plexus injury supported by fracture C7 transverse process on the right ``` MACA NO. 1454 OF 2014 ``` ``` 7 ``` side with fracture left clavicle, fracture left second rib and fracture mandible. Prolonged treatment starting from the date of accident could be gathered from Exts.A6 to A16 documents. In view of the matter, there is no justification to reduce the percentage of disability shown as 50% in this case and therefore, 50% disability is accepted. In this matter, the appellant is aged 27 years at the time of accident as borne out from Ext.A17 driving license. So the multiplier is ‘17’ following the ratio in **Sarla Verma (Smt)** **& Ors v. Delhi Transport Corporation & Anr. [2010 (2) KLT 802 (SC)].** Therefore, the loss of disability income is re-calculated as under: 3,500 x 12 x 17 x 50% = 3,57,000/- Out of which, Rs.2,44,800/- was granted by the Tribunal. Thus, **Rs.1,12,200/-** more is granted under the head ‘loss of disability income’. 14. Apart from that, it is submitted by the learned counsel for the appellant that ‘loss of earnings’ granted by ``` MACA NO. 1454 OF 2014 ``` ``` 8 ``` the Tribunal to the tune of Rs.15,000/- is on lower side. I am inclined to grant the same for a period of 10 months at the rate of Rs.3,500/-. Thus, the appellant is entitled to get Rs.35,000/-. Accordingly, **Rs.20,000/-** (35,000 – 15,000) more is granted under the head ‘loss of earnings’. 15. It is noticed that no amount granted towards ‘loss of amenities’ as rightly pointed out by the learned counsel for the appellant. Therefore, I am inclined to grant **Rs.25,000/-** more under the head ‘loss of amenities’. 16. The second challenge in this appeal is not a dispute now, since it is admitted by the learned counsel for the insurer that Ext.B1 policy issued in this case would cover the risk of pillion rider also, since additional premium to cover the risk of pillion rider was collected. Ext.B1, in fact, would establish the same. In view of the matter, finding of the Tribunal fastening liability on respondents 1 and 2 stands set aside and it is ordered that the entire amount of compensation granted in this matter ``` MACA NO. 1454 OF 2014 ``` ``` 9 ``` shall be paid by respondents 1 to 3 jointly and severally and the third respondent shall indemnify the insured and deposit the amount. In the result, this appeal stands allowed. It is ordered that the appellant is entitled to get Rs.5,64,600/- as compensation, out of which Rs.4,07,400/- was granted by the Tribunal and the balance of **Rs.1,57,200/-** (Rupees one lakh fifty seven thousand and two hundred only) is granted as enhanced compensation with the same rate of interest awarded by the Tribunal, payable by respondents 1 to 3 and the third respondent Insurance Company is liable to pay the same, from the date of petition till the date of deposit or realisation, excluding interest for a period of 1905 days specifically excluded by this Court as per order dated 14.12.2017 in C.M.Appl.No.1669 of 2014 while condoning the delay in filing this appeal. Hence, the third respondent Insurance Company is directed to deposit Rs.6,373/- in the name of Motor ``` 10 ``` ## **`MACA NO. 1454 OF 2014`** Accidents Claims Tribunal towards court fee and deposit the balance in the name of the appellant, within two months from today. On deposit, the appellant can withdraw the same. ## **Sd/-** **A. BADHARUDEEN JUDGE** nkr ``` MACA NO. 1454 OF 2014 ``` ``` 11 ``` The judgment dated 19.08.2022 in MACA 1454/2014 stands corrected as follows as per order dated 25/10/2022 in I.A.No.2/2022 in MACA 1454/2014. “It is ordered that the amount granted by the Tribunal shown in the judgment of this Court shall be read as Rs.4,04,400/- instead of Rs.4,07,400/- and consequently, the enhanced amount granted as per the judgment in MACA No.1454/2014 is corrected as Rs.1,60,200/- instead of Rs.1,57,200/-. Therefore, the insurer shall deposit Rs.1,60,200/- as enhanced compensation”. **Sd/-** **JOINT REGISTRAR**