Beneesh Jose v. Siva.R. & Ors.; National Insurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN & THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** **WEDNESDAY, THE 2ND DAY OF MARCH 2016/12TH PHALGUNA, 1937** **MACA.No. 1560 of 2007 ( ) --------------------------** **AGAINST THE AWARD IN OPMV.NO. 87/2003 of MOTOR ACCIDENTS CLAIMS TRIBUNAL,THODUPUZHA DATED 27-02-2007** **APPELLANT/PETITIONER:** **--------------------** **BENEESH JOSE, S/O.JOSE, KOCHEETHRA HOUSE RAMAKKALMEDU, RAMAKKALMEDU VILLAGE.** **BY ADVS.SRI.C.M.TOMY** **SRI.MATHEW SKARIA SRI.AGINOV MATHAPPAN** ## **RESPONDENTS/RESPONDENTS:** **-----------------------** **1. SIVA.R., S/O.RAJU R., 3/39,CHEEKODE STREET, NARAYANATHEVANPPATTY, UTHAMAPALAYAM TALUK THENI DISTRICT, TAMIL NADU.** **2. R.SURULI, S/O.RAMASWAMI NAIKER, CHOKKADI ST, NARAYANA-TK, THEVANPATTY CUMBUM, THENI DISTRICT, TAMIL NADU.** **3. NATIONAL INSURANCE CO. LTD, REP. BY ITS DIVISIONAL MANAGER, TRIPUNITHURA.** **R3 BY ADV. SRI.M.A.GEORGE** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 02-03-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **P.N.RAVINDRAN & K.RAMAKRISHNAN, JJ.** ------------------------------------------------------- ## **M.A.C.A. No.1560 of 2007** -------------------------------------------------------------Dated this the 2[nd] day of March, 2016 ## **JUDGMENT** ## **K.RAMAKRISHNAN, J** Claimant in O.P.(M.V.)No.87/2003 on the file of the Motor Accidents Claims Tribunal, Thodupuzha is the appellant herein. The appellant filed the claim petition for compensation on account of the personal injury sustained by him in a motor vehicle accident happened on 02.07.2001. According to the claimant, while he was driving the jeep with Reg.No.KEF/2453 on 02.07.2001 at about 8.30 p.m when it reached the place of occurrence the tractor and trailor with No.TDA-640 and TDA/641, owned by the second respondent, driven by the first respondent and insured with the third respondent came from the opposite _**M.A.C.A. No.1560 of 2007**_ 2 direction and hit against the vehicle. He sustained severe injuries. According to the claimant, the accident occurred due to the negligence of the first respondentHe was a driver by profession and getting 5,000/- per month. He claimed a₹ total compensation of 4,00,000/- on various heads. ₹ 2. Respondents 1 and 2 remained absent. Third respondent entered appearance and filed a statement admitting the insurance of the vehicle involved in the accident, but they denied negligence on the part of the first respondent. According to them, the accident occurred due to the negligence of the petitioner himself. They denied the occupation, income etc., of the injured and according to them the total compensation claimed is also exorbitant. They prayed for dismissal of the application. 3. The petitioner was examined as PW1 and Exts. A1 to A11 were marked on his side. No evidence either oral or documentary was adduced on the side of the third _**M.A.C.A. No.1560 of 2007**_ 3 respondent. After considering the evidence on record, the court below found that the accident occurred due to the negligent driving of the tractor cum trailor by first respondent and assessed a total compensation of ₹1,28,422/- on various heads as follows: |**_Heads_**|**_Amount_**| |---|---| |Loss of earning|₹6,000| |Transportation expenses|₹3,000| |Extra nourishment|₹2,000| |Bystander expenses|₹3,000| |Treatment expenses|₹35,222| |Pain and suffering|₹18,000| |Disability ( 2,000x12x17x16/100)<br>₹|₹61,200| |Total|₹1,28,422| The tribunal directed the third respondent insurance company to pay the amount with 6% interest from the date of petition till payment. Dissatisfied with the quantum of compensation awarded, the present appeal has been preferred by the appellant/claimant before the court below. 4. Heard Sri.Mathew Skaria, counsel appearing for the appellant and Sri.M.A. George, counsel appearing for the third respondent. _**M.A.C.A. No.1560 of 2007**_ 4 5. The counsel for the appellant submitted that the Medical Board had assessed 22% disability, but the court below had taken only 15% for the purpose of assessing compensation. Though he was a driver by profession, the court below had taken only 2,000/- as his₹ monthly income, which is very low. No future prospects have been taken into consideration while fixing the compensation under the head permanent disability. According to him, the total compensation awarded is less and disproportionate to the disability suffered and he prayed for enhancement on all heads. 6. On the other hand, learned counsel appearing for the insurance company submitted that the court below had considered all the aspects in the right perspective and rightly justified in not relying on Ext.A9 disability certificate and rightly reduced the disability to 15% for the purpose of assessing compensation. _**M.A.C.A. No.1560 of 2007**_ 5 7. The case of the petitioner in the petition was that, while he was driving the jeep, he met with an accident. This fact was not denied. So it can be presumed that he was a driver by profession, but he had not produced any document to prove his income. Considering the circumstances we feel that the amount of 2,000/- fixed by₹ the court below appears to be on the lower side and we refix the same as 2,500/- per month. He had suffered type-₹ III open comminuted fracture of right humerous lower third and type -III open comminuted fracture of both bones of right forearm. He was treated as inpatient for nearly 36 days on various occasions and he had to undergo an operation in the year 2002, though the accident occurred in the year 2001 for correcting the malunuion of the fracture. So considering these aspects he could not have gone for his work for at least one year. So he is entitled to get a compensation of 30,000/- under the head loss of earning₹ _**M.A.C.A. No.1560 of 2007**_ 6 instead of 6,000/- awarded by the tribunal and thereby he₹ is entitled to get 24,000/- as additional compensation₹ under that head. The court below had awarded only ₹18,000/- under the head pain and suffering. Considering the fact that he sustained two fractures and he had to undergo inpatient treatment for more than 36 days and undergo two or more surgeries, the amount awarded under the head pain and suffering appears to be on the lower side and we are inclined to enhance the same to 30,000/- from₹ ₹18,000/- awarded by the tribunal, thereby he will be entitled to get an additional compensation of 12,000/-₹ under that head. 8. In the decision reported in _**Rajesh v. Rajbir Singh**_ [2013(3) KLT 89 (SC)], the Supreme Court has held that, even in the case where there is no permanent income, future prospects will have to be taken into consideration and up to the age of 40 years, 50% will have to be taken for _**M.A.C.A. No.1560 of 2007**_ 7 future prospects. In the decision reported in [AIR 2014 (SC) 1052] _**Syed Sadiq v. Divisional Manager, United India Insurance Company** ,_ the Supreme Court had held that the same principle can be applied in the case of personal injury as well for the purpose of assessing compensation under the head loss of earning capacity. 9. It is true that Ext.A9 disability certificate shows that he is having 22% disability. It is not known as to whether it is only disability in respect of that particular limb or whole body disability. It is settled law that if the court below is not satisfied with the disability assessed by the Medical Board and on seeing the petitioner, if the court can re-assess the incapacity caused on account of the injury sustained, Court is entitled to re-fix the disability for the purpose of assessing compensation under the head loss of earning capacity. This was so held in the decisions reported in _**A.P. SRTC v. P. Thirupal Reddy**_ [(2005) 12 SCC 189], _**M.A.C.A. No.1560 of 2007**_ 8 _**Rajesh Kumar @ Raju v. Yudhvir Singh and Another**_ [2008 ACJ 2131], _**Raj Kumar v. Ajay Kumar**_ [2011(1) KLT 620 (SC)] and _**Akhil v. Kerala State Road Transport Corporation**_ [2015 (1) KLT 291(FB)]. So under the circumstances, court below was perfectly justified in fixing the percentage of disability as 15% for the purpose of assessing compensation under the head loss of earning capacity. In view of the above materials, if a re-calculation is made, the appellant will be entitled to get a compensation of 1,14,750/- (2,500x150% = 3,750x12x17x15%) instead₹ of 61,200/- awarded by the tribunal, thereby he is entitled₹ to get an additional amount of 53,550/- under the head₹ loss of earning capacity/permanent disability. 10. Even in the case where the disability has affected his earning capacity, he will be entitled to get a reasonable amount under the head loss of amenities in life which has caused on account of the disability, which the _**M.A.C.A. No.1560 of 2007**_ 9 claimant has to suffer for the remaining period of his life. The disability certificate shows that there is numbness and weakness to his right forearm and there is restriction of movement as well. He is aged only 27 years at the time of accident. He will have to be with this disability for the remaining period of his life. So considering this aspects, we feel that an amount of 30,000/- will be reasonable as₹ compensation under the head loss of amenities in life and we are inclined to award this amount under the head. The claimant is not entitled to get any additional amount under other heads, as the tribunal had awarded just and fair compensation on all other heads. So the appellant will be entitled to get an additional compensation of 1,19,550/-,₹ which the third respondent insurance company is liable to pay with 9% interest for the enhanced amount from the date of petition till date of payment. Three months time is granted to the insurance company to deposit this amount. _**M.A.C.A. No.1560 of 2007**_ 10 If the amount is deposited the petitioner is entitled to withdraw this amount from the tribunal. With the above modification of the impugned award of the tribunal, the appeal is allowed in part and disposed of accordingly. _Sd/-_ **P.N.RAVINDRAN (JUDGE)** _Sd/-_ **K.RAMAKRISHNAN (JUDGE)** // True Copy// P.A. to Judge ss