Baby v United India Insurance Co. Ltd.

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **WEDNESDAY, THE 15[TH] DAY OF DECEMBER 2021 / 24TH AGRAHAYANA,** **1943** **MACA NO. 1824 OF 2011** **AGAINST THE ORDER/JUDGMENT IN OPMV 158/2005 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,PERUMBAVOOR** ## **APPELLANT/S:** BABY,AGED 55 YEARS,S/O.VARGHESE NAKKUZHIKKADU HOUSE,NEDIYASALA KARA,, PURAPPUZHA VILLAGE,THODUPUZHA,IDUKKY(DIST). BY ADV SMT.ANUPAMA JOHNY ## **RESPONDENT/S:** THE UNITED INDIA INSURANCE CO.LTD. BRANCH OFFICE,ANGAMALY,PIN-683572. BY ADV SRI.T.V.AJAYAKUMAR **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 15.12.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 MACA No.1824 of 2011 ## **C.S.DIAS, J.** ## **====================== MACA No.1824 of 2011** **====================== Dated this the 15[th] day of December, 2021.** ## **JUDGMENT** The appellant was the petitioner in OP (MV) No.158/2005 on the file of the Motor Accidents Claims Tribunal, Perumbavoor. The respondent in the appeal was the third respondent/insurer before the Tribunal. As the respondent has admitted the insurance policy and its liability, the appellant has not impleaded the respondents 1 and 2 before the Tribunal as parties in the appeal. Therefore, for the sake of convenience, the parties are referred to as per their status in the claim petition. 2. The petitioner had filed the claim petition under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of the injuries he sustained in an accident on 30.5.2004. It was his case that, on the above said date, while he was standing near Karukutty, a motor 3 MACA No.1824 of 2011 cycle bearing registration No.KL-7/H 9426 (motor cycle), driven by the second respondent in a rash and negligent manner, hit the petitioner. The petitioner sustained serious injuries including a compound fracture of left leg, tibial plateau fracture right (schatzker Type V) and knee effusion. The petitioner was treated at the Medical Trust Hospital, Ernakulam, for a period of 128 days in five spells. The petitioner was a businessman by profession and earning a monthly income of Rs.25,000/-. The first respondent was the owner and the third respondent was the insurer of the motor cycle. The petitioner claimed a compensation of Rs.16,10,000/- from the respondents, which claim was limited to Rs.10,00,000/-. 3. The respondents 1 and 2 did not contest the proceedings and were set ex parte. 4. The third respondent had filed a written statement admitting that the motor cycle had a valid insurance coverage. Nevertheless, it was contended that 4 MACA No.1824 of 2011 the compensation claimed was highly excessive. 5. The petitioner examined the Doctor who issued Ext X1 disability certificate as PW1 and marked Exts A1 to A16 in evidence. The third respondent produced the insurance policy certificate, which was marked as Ext B1. 6. The Tribunal, after analysing the pleadings and materials on record, allowed the claim petition, in part, by permitting the petitioner to realise from the third respondent an amount of Rs.3,90,924/-, with interest at the rate of 8% per annum from the date of petition till the date of realization. 7. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioner is in appeal. 8. Heard; Smt.Anupama Johny, the learned counsel appearing for the appellant/petitioner and Sri.T.V Ajayakumar, the learned counsel appearing for the third respondent /insurer. 9. The sole question that emerges for consideration 5 MACA No.1824 of 2011 in the appeal is whether the quantum of compensation awarded by the Tribunal is reasonable and just. ## **Negligence and liability** 10. Ext A2 charge-sheet filed by the Angamaly Police in crime No.280/2004 substantiates that the accident occurred due to the negligence of the second respondent. Indisputably, the first respondent was the owner and the third respondent was the insurer of the motor cycle. The respondents have not let in any evidence to discredit Ext A2 charge-sheet. The third respondent has also not proved that the first respondent had violated the insurance policy conditions. Therefore, the third respondent is to indemnify the liability of the first respondent arising out of the accident. ## **Notional Income** 11. The petitioner had claimed that he was a Businessman by profession and earning a monthly income of Rs.25,000/-. For the want of materials, the Tribunal 6 MACA No.1824 of 2011 fixed the notional monthly income of the petitioner at Rs.2,500/-. 12. The Hon'ble Supreme Court in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited [(2011) 13 SCC** **236]** has fixed the notional income of a coolie worker in the year 2004 at Rs.4,500/- per month. 13. Following the yardstick in the aforecited decision and considering the fact that the accident occurred in the year 2004, I refix the notional monthly income of the petitioner at Rs.4,500/-. ## **Multiplier** 14. Admittedly, the petitioner was aged 49 years at the time of the accident. In view of the law laid down in **Sarla Verma v. Delhi Transport Corporation [(2009) 6 SCC 121]** , the relevant multiplier to be adopted is '13'. ## **Disability** 15. Pursuant to the order of the Tribunal, the 7 MACA No.1824 of 2011 petitioner was referred to a Medical Board attached to the District Medical Officer of Health, Ernakulam. A five member Medical Board, after assessing the injuries of the petitioner, fixed his permanent disability at 24%. 16. In **Raj Kumar v. Ajay Kumar [2011 (1) KLT 620(SC)]** , the Hon'ble Supreme Court has held that what needs to be looked into in an injury claim is the functional disability of the injured-claimant. 17. In the instant case, the petitioner had claimed that he was a businessman running a bicycle repair shop. It is evident from Ext A4 wound certificate, that the petitioner had sustained a fracture of tibial plateau extending up to M3 shaft (schatzker Type VI) and tibial plateau fracture right (schatzker Type V). In Ext A8 discharge summary issued by the Medical Trust Hospital, Ernakulam, it is found that the petitioner has shortening of his right leg by 2 cms and varus deformity 20 degrees right leg. The Medical Board has also found that the 8 MACA No.1824 of 2011 petitioner has shortening of upper ore third of the left leg, partial ankylosis of the knee and wasting of the muscles. Accordingly, the Medical Board has assessed the permanent disability of the petitioner at 24%. 18. Taking into account Ext A4 wound certificate, Ext A8 discharge summary and Ext X1 disability certificate and considering the fact that the petitioner was 49 years of age and was running a bicycle repair shop, I fix the petitioner's functional disability at 40%. 19. In **Jagdish v. Mohan and others [(2018) 4 SCC 571], Pappu Deo Yadav v. Naresh Kumar & others [AIR 2020 SC 4424]** and **Anthony @ Anthony Swamy vs The Managing Director, K.S.R.T.C [ (2020)** **7 SCC 161]** , the Hon'ble Supreme Court has held that in a case of serious injury, the injured-claimant is entitled to future prospects. 20. Taking note of the serious injuries sustained by the appellant and the fact that he had 40% functional 9 MACA No.1824 of 2011 disability and was only aged 49 years at the time of the accident, I am of the firm view that the petitioner is also entitled to future prospects. As the petitioner was aged 49 years, he is entitled to 25% future prospects on the compensation for loss due to disability. ## **Loss due to disability** 21. On a consideration of the above mentioned factors, namely, the notional monthly income of the petitioner at 4,500/-, the multiplier at 13, future prospects at 25% and functional disability at 40%, I award the petitioner an amount of **Rs.3,51,000/-** towards loss due to disability, instead of Rs.93,600/- awarded by the Tribunal. ## **Loss of earnings** 22. The Tribunal has held that the petitioner was indisposed for a period of six months. It is on record that the petitioner was treated as inpatient for a period of 128 days in five spells. Therefore, I am of the definite opinion that the petitioner was indisposed for a period of eight 10 MACA No.1824 of 2011 months as claimed in the claim petition. In view of the refixation of the notional monthly income of the petitioner at Rs.4,500/-, he is entitled to an amount of Rs.36,000/towards loss of earnings. ## **Bystander expenses and Extra Nourishment** 23. The petitioner was treated as an inpatient for a period of 128 days in five spells at the Medical Trust Hospital, Ernakulam. Although he claimed an amount of Rs.26,000/- and Rs.30,000/-, under the said heads Bystander Expenses and Extra Nourishment, respectively, the Tribunal has awarded only an amount of Rs.12,800/and Rs.3,000/-, respectively, which is on the lower side. 24. Considering the fact that the petitioner was treated as an inpatient for a period of 128 days and the accident occurred in the year 2004, I hold that the petitioner is entitled to an amount of Rs.150/- per day for a period of 128 days towards extra nourishment, which amounts to **Rs.19,200/-** and Rs.250/- per day for a period 11 MACA No.1824 of 2011 of 128 days towards bystander expenses, which works out to **Rs.32,000/** -. ## **Pain and sufferings and loss of amenities** 25. The petitioner had claimed an amount of Rs.2,00,000/- towards pain and sufferings and Rs.1,00,000/- towards loss of amenities. The Tribunal awarded an amount of Rs.28,000/- and Rs.16,000/-, respectively, under the said heads. The said amounts are also on the lower side. 26. Taking into account the fact that the petitioner has sustained functional disability of 40%, he was indisposed for a period of eight months and was treated as an inpatient for a period of 128 days, I award him an amount of **Rs.40,000/-** each towards 'pain and sufferings' and 'loss of amenities'. ## **Other heads of compensation** 27. With respect to the other heads of claim, I find that the Tribunal has awarded reasonable and just 12 MACA No.1824 of 2011 compensation. 28. On an overall re-appreciation of the pleadings, materials on record and the law referred to in the aforecited precedents, I hold that the appellant/petitioner is entitled for enhanced compensation as modified and recalculated above, and given in the table below for easy reference. |SI.<br>No|Head of claim|Amount<br>awarded by<br>the Tribunal<br>(in rupees)|Amounts<br>modified<br>and<br>recalculated<br>by<br>this<br>Court| |---|---|---|---| |1|Loss of earnings|15,000/-|36,000/-| |2|Transportation expenses|2,800/-|2,800/-| |3|Extra nourishment|3,000/-|19,200/-| |4|Bystander expenses|12,800/-|32,000/-| |5|Damage<br>to<br>golden<br>watch,spectacles etc|250/-|250/-| |6|Medical expenses|2,19,474/-|2,19,474/-| |7|Pain and sufferings|28,000/-|40,000/-| |8|Loss of amenities etc|16,000/-|40,000/-| |9|Disability|93,600/-|3,51,000/-| ||Total|3,90,924/-|7,40,724/-| In the result, the appeal is allowed by enhancing 13 MACA No.1824 of 2011 the compensation by an amount of Rs.3,49,800/(Rupees Three Lakh Forty Nine Thousand Eight Hundred only) with interest at the rate of 8% per annum on the enhanced compensation from the date of claim petition till the date of deposit, after deducting interest for a period of 179 days, viz., the period of delay in filing the appeal and as ordered by this Court on 27.9.2021 in C.M Appln No.1/2011, and proportionate cost. The third respondent/insurer is ordered to deposit the enhanced compensation with interest and costs before the Tribunal within a period of sixty days from the date of receipt of a certified copy of the judgment. Immediately on the compensation amount being deposited, the Tribunal shall disburse the compensation amount to the appellant, in accordance with law. Sd/- sks/15.12.2021 **C.S.DIAS, JUDGE**