Biju v. Laison George and HDFC General Insurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE N.NAGARESH** **MONDAY, THE 06TH DAY OF JULY 2020 / 15TH ASHADHA, 1942** ## **MACA.No.880 OF 2016(D)** **AGAINST THE AWARD IN OP(MV)NO.14/2011 DATED 04-11-2015 ON THE FILE OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, PERUMBAVOOR** ## **APPELLANT/PETITIONER:** **BIJU, S/O.THANKAPPAN, NAGLIKATTU HOUSE, VENGOOR VILLAGE, VENGOOR KARA.** **BY ADVS. SRI.ELSON SIMON SRI.PRAMOD KOCHUTHOMMEN.E.** ## **RESPONDENTS/RESPONDENTS:** **1 LAISON GEORGE, S/O.GEORGE, ERUMALAYIL HOUSE, VENGOOR WEST VILLAGE, THURUTHY P.O.-683545. 2 HDFC GENERAL INSURANCE CO.LTD. BRANCH OFFICE, KOTTAYAM-686001.** **R1 BY ADV. SRI.BASIL KURIAKOSE R1 BY ADV. SRI.TITTO THOMAS R2 BY ADV. SRI.K.B.RAMANAND** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 06-07-2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA.No.880/2016(D)** **:2:** ## **J U D G M E N T** ~ ~ ~ ~ ~ ~ ~ ~ ~ ## _**Dated this the 6[th] day of July, 2020**_ The petitioner in OP(MV) No.14/2011 on the files of the Motor Accidents Claims Tribunal, Perumbavoor is in appeal invoking Section 173 of the Motor Vehicles Act, 1988, aggrieved by Award dated 04.11.2015. 2. In his petition under Section 166 of the Motor Vehicles Act, 1988, the appellant stated that while the appellant was riding his motorcycle through the AM Road, Pattal on 27.06.2010, a car driven by the 1[st] respondent in a rash and negligent manner came from the opposite direction and hit the appellant's motorcycle. The appellant was thrown on the road and sustained serious injuries. The appellant was taken to MOSC Medical College Hospital, Kolenchery, where **MACA.No.880/2016(D)** **:3:** he had to be treated for 40 days. The appellant stated that he is a carpenter by profession earning ₹7,000/- per month. The accident occurred due to the rash and negligent driving of the offending vehicle by the 1[st] respondent which was insured by the 2[nd] respondent. 3. Respondents 1 and 2 appeared before the Tribunal. The 2[nd] respondent-insurer alone filed written statement. The insurance of the offending car was admitted. The 2[nd] respondent, however, stated that the 1[st] respondent was driving the car with due care and caution and it is the negligence of the appellant that resulted in the accident. The 2[nd] respondent also denied the claims made by the appellant for compensation under various heads. 4. The appellant produced Exts.A1 to A12 documents and examined one Dr. Suma Mary as PW1. The Tribunal found that the accident occurred due to the rash and negligent driving by the 1[st] respondent. Though the Medical Board assessed the whole body disability of the appellant as 55%, **MACA.No.880/2016(D)** **:4:** the Tribunal fixed functional disability of the appellant as 10%. In the absence of any positive evidence to prove the monthly income, the Tribunal fixed ₹5,000/- as the monthly income of the appellant. The Tribunal passed an Award granting ₹2,98,159/- as compensation under various heads as indicated below: |**Sl.**<br>**No.**|**Head of claim**<br>**Compensation for**|**Amount**<br>**claimed**<br>**(in**`**)**|**Amount**<br>**allowed**<br>**(in**`**)**|**Basis-vital details in**<br>**a nut-shell**| |---|---|---|---|---| |1|Loss of earnings|2,00,000/-|30,000/-|`5000 x 6 months| |2|Partial loss of earnings|5,000/-|Nil|| |3|Transport to hospital|5,000/-|1,000/-|1 admission + review| |4|Extra nourishment|5,000/-|1,500/-|| |5|Payment to bystander|50,000/-|9,750/-|`250 x 39 days| |6|Damage to clothes|2,000/-|1,000/-|| |7|Medical expenses|5,00,000/-|99,909/-|Actual medical bills| |8|Pain and suffering|2,00,000/-|45,000/-|| |9|Loss of amenities etc.|2,00,000/-|20,000/-|| |10|Permanent disability|2,00,000/-|90,000/-|5000 x 12 x 15 x 10%| |11|Loss of earning power|2,00,000/-|Nil|| ||**Total**|**15,67,000/-**<br>limited to<br>10,00,000/-|**2,98,159/-**<br>**=========**|| The Tribunal granted 9% interest per annum from the date of the OP(MV). The 2[nd] respondent-insurer was directed to **MACA.No.880/2016(D)** **:5:** despot the amount. 5. The learned counsel for the appellant argued that the appellant was a Carpenter aged 36 years at the time of the accident. The Tribunal had no reason to disbelieve the monthly income of the appellant and assess his notional monthly income at a reduced rate. Due to the accident which resulted in 39 days hospitalisation, the right hand of the appellant was totally disabled. The Board assessed the disability at 55%. However, considering the avocation of the appellant, the functional disability of the appellant should be treated as 100%. The counsel for the appellant relied on an unreported judgment of a Division Bench of this Court in MACA No.940/2014, wherein in similar circumstances, though the Board fixed the disability as 11%, the Division Bench, considering the fact that the appellant therein was a Carpenter and also that his hands are disabled, fixed the functional disability at 100%. The said judgment of this Court would squarely apply to the case of the appellant also, contended **MACA.No.880/2016(D)** **:6:** learned counsel for the appellant. 6. The learned counsel for the appellant further argued that compensation granted by the Tribunal towards loss of earnings and extra nourishment also require upward revision. 7. The learned Standing Counsel for the 2[nd] respondent-insurer vehemently opposed the arguments of the counsel for the appellant. The Standing Counsel stated that there is nothing on record to prove the avocation and alleged income of the appellant. The disability aspect was properly considered by the Tribunal and accordingly, the functional disability was fixed as 10%. There is nothing wrong in the findings of the Tribunal, argued the learned Standing Counsel for the 2[nd] respondent. The compensation awarded under various heads by the Tribunal is just and reasonable. No interference is warranted in the Award of the Tribunal and the MACA is liable to be rejected, it was contended. 8. I have heard the learned counsel for the appellant and learned Standing Counsel for the 2[nd] respondent. **MACA.No.880/2016(D)** **:7:** 9. The Tribunal in its Award held that there is no proof to establish the monthly income of the appellant and hence, fixed the monthly income at ₹5,000/-. However, a reading of the Award would show that the Tribunal has not disbelieved the avocation of the appellant as Carpenter. The learned counsel for the appellant also made available for the perusal of this Court a copy of the Registration Certificate issued by the Kerala Building and Other Construction Workers Welfare Board. 10. In _**Syed Sadiq and others v. Divisional Manager, United India Insurance Co. Ltd.** [(2014) 2 SCC 735]_ , the Hon'ble Apex Court held that in the absence of any proof of income, the monthly income of a self-employed person in the year 2008 should be taken as ₹6,500/-. Giving reasonable yearly enhancement to the said figure, the income of a selfemployed person in the year 2010 would be about ₹7,500/-. The appellant has claimed his income in the year 2010 to be ₹7,000/- only. In the light of the judgment of the Apex Court, **MACA.No.880/2016(D)** **:8:** the appellant's monthly income should be taken as ₹7,000/-. The appellant will be entitled to consequential revision in the compensation amounts awarded. 11. As regards the disability aspects, the Division Bench judgment of this Court in MACA No.940/2014 also related to a Carpenter aged 31 years. In the said case, the Medical Board fixed the disability at 11%. Relying on the judgment of the Apex Court, in _**Basappa, S/o Sanganabasappa Bahvikatti v. T. Ramesh, S/o Tangavelu and another** [2014 SAR (Civil) 1145],_ the Division Bench of this Court held that the disability of the appellant therein should be treated as 100% for pursuing his profession. 12. As stated earlier, the profession of the appellant as Carpenter is not in dispute. His right hand is disabled to a substantial extent, is also proven. The Tribunal has fixed his functional disability at 10%. While considering the applicability of the Division Bench judgment of this Court in MACA No.940/2014, it has to be noted that in the case of the **MACA.No.880/2016(D)** **:9:** appellant therein, consequent to the accident, he was having a clawed right hand which totally denied him continuance of the job as a Carpenter. The Division Bench of this Court specifically noted that he has lost mobility of fingers and movements of fingers were restricted and painful. It was under such circumstances that the Division Bench of this Court found that the functional disability of the appellant therein, he being a Carpenter, is 100%. 13. In the present case, the appellant did not opt to examine himself. PW1, who is the Orthopaedic Surgeon who examined the appellant and who was a member of the Medical Board, only stated that the appellant finds disability to move the upper limb. Ext.A10 Disability Certificate would show that the locomotor disability of the appellant is 55% and the condition is not likely to improve. In view of the afore facts, it is evident that the disability incurred by the appellant would definitely affect his avocation as a Carpenter. But, no material is available to show that the disability will be 100%. In the **MACA.No.880/2016(D)** **:10:** circumstances, with the available material on record, it would only be just and reasonable to fix the functional disability of the appellant also as 55%. Therefore, the compensation amount for disability to which the appellant will be entitled to taking into account his future prospects as 40%, is fixed as ₹9,70,200/((₹7,000 + ₹2,800) x 12 x 15 x 55/100). The Tribunal has awarded an amount of ₹90,000/- as compensation for permanent disability. Accordingly, it is declared that the appellant will be entitled to an additional compensation of **₹8,80,200/-** (₹9,70,200 – ₹90,000) under this head. 14. In view of the fixation of monthly income of the appellant as ₹7,000/-, the compensation towards loss of earning of ₹30,000/- granted by the Tribunal would stand enhanced to ₹42,000/-. Therefore, the appellant will be entitled to an additional compensation of **₹12,000/-** (₹42,000 - ₹30,000 already granted by the Tribunal) under this head. 15. From the Award, it is seen that the appellant has been granted compensation for extra nourishment of ₹1,500/-. **MACA.No.880/2016(D)** **:11:** The appellant was inpatient in the hospital for 39 days. He should be eligible for a reasonable enhancement towards extra nourishment. The appellant therefore is held entitled to a total compensation of ₹7,800/- (200 x 39 days) under this head. Accordingly, the additional compensation to which the appellant will be entitled under the head extra nourishment will be **₹6,300/-** (₹7,800 – ₹1,500 already granted by the Tribunal). 16. In view of the above, it is declared that the appellant will be entitled to a total additional compensation of **₹8,98,500/-** under the following heads:- |(i)|Additional compensation towards permanent|Additional compensation towards permanent|₹8,80,200/-| |---|---|---|---| ||disability||| |(ii)|Additional compensation towards loss of||₹12,000/-| ||earning||| |(iii)|Additional|compensation towards extra|₹6,300/-| ||nourishment||| |||**Total**|**₹8,98,500/-**| ||||**========**| The 2[nd] respondent is directed to deposit the said amount with **MACA.No.880/2016(D)** **:12:** 9% interest per annum from the date of the OP(MV), within a period of one month. MACA is allowed in part. Sd/- **N. NAGARESH, JUDGE** aks/03/07/2020