Biju Viswam v. M. Saleem and Others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. MONDAY, THE 4[TH] DAY OF DECEMBER 2023 / 13TH AGRAHAYANA, 1945 MACA NO. 1774 OF 2010** **AGAINST THE ORDER/JUDGMENT OPMV 1969/1994 OF MOTOR ACCIDENT** **CLAIMS TRIBUNAL, THRISSUR** ## **APPELLANT/PETITIONER:** BIJU VISWAM, S/O T.S VISWAMBHARAN, THERAMBIL HOUSE,XXI/314,POOTHOLE.P.O,THRISSUR. BY ADV SRI.T.C.SURESH MENON ## **RESPONDENTS/RESPONDENTS:** 1 M.SALEEM AND OTHERS CALLARATHI,KOZHINJAPARA,PALAKKAD DISTRICT. (THE NAME OF THE 'R1' IS DELETED FROM THE PARTY ARRAY AT THE RISK OF THE APPELLANT VIDE ORDER DATED 07.12.2018 IN I.A NO 1/2018) 2 SHAJAHANSO.KAMALUDHEENHOUSE NO.C80 A C.T.C.COLONY,KOTTOOR ROAD,POLLACHI. 3 THE DIRECTOR OF INSURANCEKERALA STATE INSURANCE DEPARTMENT,TRIVANDRUM. 4 K.K.AMMINITHERAMBIL HOUSEPOOTHOLE.P.O THRISSUR-4. 5 RAJU RAJANSO.T.S.RAJANTHERAMBIL HOUSE THRITHALLUR.P.O,CHAVAKKAD TALUK. 6 THE DIRECTOR OF INSURANCEKERALA STATE INSURANCE DEPARTMENT,TRIVANDRUM. THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 04.12.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.A.C.A No. 1774 of 2010 2 ## **JUDGMENT** The appellant was the petitioner in O.P(M.V) No. 1969/1994 on the files of the Motor Accidents Claims Tribunal, Thrissur. The said claim petition was submitted by him seeking compensation for the injuries sustained to him in a motor accident that occurred on 08.07.1994. 2. The accident occurred when the car in which the appellant was travelling was hit by a lorry driven by the 2nd respondent, owned by the 1st respondent and insured with the 3rd respondent. The vehicle in which the appellant was travelling was owned by the 4th respondent, driven by the 5th respondent and was insured with the 6th respondent. According to the appellant, at the relevant time, he was 23 years old and was an engineering graduate. Consequent to the injuries, he sustained a permanent disablement, which was certified as 45% by the Medical Board. The claim petition was submitted in such circumstances seeking compensation. 3. The main contest was from the part of the 3[rd] respondent by filing a written statement wherein they admitted the coverage of policy for the lorry, but they contended that the M.A.C.A No. 1774 of 2010 3 accident occurred due to the negligence on the part of the driver of the car. Initially, the Tribunal passed an award on 20.04.2001, holding the driver of the lorry responsible for the accident and imposing liability upon the 3[rd] respondent, the insurer of the said vehicle. The quantum of compensation was fixed as Rs.1,23,000/with interest at the rate of 9% per annum. The said award was challenged by the appellant before this Court by filing a M.F.A 1430/2001 and the said award was set aside by remanding the matter back to the Tribunal for fresh consideration. The present award was passed after such a remand. 4. The evidence in this case consists of oral testimonies of PWs 1 to 4 and Exts.A1 to A26. No evidence was adduced from the side of the respondents. The conclusion of the Tribunal was to the effect that the accident occurred due to the negligence on the part of the driver of the lorry and the 3[rd] respondent/insurance company was thus held liable to pay the compensation. The quantum of compensation was fixed as Rs.14,17,550/- and the said amount was directed to be deposited along with interest at the rate of 9% per annum from 31.12.1994 till 20.04.2001 and thereafter at the rate of 7% per annum till the date of realisation with proportionate M.A.C.A No. 1774 of 2010 **==> picture [7 x 9] intentionally omitted <==** cost. This appeal is submitted by the appellant in such circumstances. 5. Heard, Sri. T.C Suresh Menon, the learned counsel appearing for the appellant and Sri.Jacob E Simon, the learned Government Pleader appearing for the 3[rd] respondent/insurance company. 6. The main contest in this appeal, is relating to the quantum of compensation. It was pointed out that, despite the fact that serious injuries were sustained to the appellant, which includes replacement of hip and the certification of the disability as 45% by the Medical Board, the Tribunal awarded only a meagre lump sum amount of Rs.40,000/- towards disability. After considering the materials placed on record, I find some force in the said contention. It is seen from the records that the Tribunal discarded the Ext.A22 disability certificate issued by the Medical Board merely on the grounds that the doctors who issued the said certificate were not examined. However, in **Raj Kumar vs. Ajay Kumar & Another** [2011 (1) SCC 343], the honourable Supreme Court categorically held that the examination of the Doctor need not be insisted upon in all cases. M.A.C.A No. 1774 of 2010 5 7. In this case, on perusal of Ext. A22, it can be seen that the same was issued by a panel of Doctors consisting of five experts and they, after evaluation, certified that the appellant suffered physical disability to the extent of 45%. I could not find anything to suspect the veracity of the same or the extent of disability certified therein. This is particularly because the other medical records produced before the Tribunal would clearly indicate that he suffered very serious injuries, and ultimately, it necessitated the replacement of the hip with an artificial joint. It is also a relevant factor to notice that the injuries were sustained to the appellant at a younger age of 23 years and he has to live with that disability for the entire period of his life. It is likely to affect his career as well. Therefore, I am of the view that the entire physical disability, as certified in the said certificate, has to be accepted and it is ordered accordingly. 8. The next aspect relates to the monthly income. The Tribunal neither awarded an amount towards loss of earnings and nor granted compensation for loss of earning power. Therefore, there was no finding on the question of monthly income. It is an admitted fact that the appellant was an Engineering graduate and M.A.C.A No. 1774 of 2010 6 was looking for placements at the relevant time. Considering the prospects of an Engineer in the year 1994 and the possible salary of a person with that qualification in the year 1994, I am of the view that the monthly income of Rs.7,000/- can be accepted as a reasonable monthly income in this case. Similarly, since the appellant sustained very serious injuries, which necessitated the replacement of a hip joint, I am of the view that that will certainly affect his earning capacity in a substantial manner and, therefore, while computing the compensation for future prospects also to be considered. As per **National Insurance Company Ltd. v. Pranay Sethi [2017 (4) KLT 662 (SC)],** 40% can be accepted as the future prospects. Thus, while reassessing the compensation with the monthly income of Rs.7,000/- with prospects at the rate of 40% and the extent of disability as 45%, the amount of compensation receivable under this head would come to Rs.9,52,560/-[(7,000+40%) x 12 x 18 x 45/100]. The amount already awarded by the Tribunal is Rs.40,000; thus, the additional amount would come to Rs.9,12,560/-. 9. The Tribunal did not award any compensation for loss of earnings. It is evident from the records that the appellant M.A.C.A No. 1774 of 2010 7 sustained very serious injuries and continued prolonged treatment, including treatment from abroad. Considering the fact that the major injury was sustained on his hip, evidently, he must have been prevented from carrying out any job at least for a period of six months. Therefore, compensation has to be granted for that period and thus, the amount would come to Rs.42,000/-. 10. When moving on to the other heads, taking into account the serious nature of injuries, a further sum of Rs.10,000/- is granted under the head of pain and suffering, and a further sum of 22,000/- is awarded towards loss of amenities. Thus, the total additional compensation is determined as Rs.9,86,560/- (9,12,560+42,000+10,000+22,000). In the light of the aforesaid observations and findings, this appeal is allowed. The award dated 05.01.2009 passed by the Motor Accidents Claims Tribunal, Thrissur in O.P(M.V) No.1969/1994 is modified by granting an additional compensation of Rs.9,86,560/- (Rupees nine lakhs eighty-six thousand five hundred and sixty only) and the said amount shall be deposited by the 3rd respondent herein along with interest at the rate of 7% per annum from the date of petition till realisation and M.A.C.A No. 1774 of 2010 **==> picture [7 x 9] intentionally omitted <==** proportionate cost. The said amount shall be deposited within a period of three months from the date of receipt of a copy of this judgment. Sd/- **ZIYAD RAHMAN A.A. JUDGE** rpk