Dheeresh P.N. v. The Divisional Manager, National Insurance Company Limited

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE N.NAGARESH** **FRIDAY, THE 03RD DAY OF JULY 2020 / 12TH ASHADHA, 1942** **MACA.No.171 OF 2013** **AGAINST THE AWARD IN OP(MV)No.1066/2004 DATED 11-10-2012 OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL ,THIRUVANANTHAPURAM** ## **APPELLANT/PETITIONER:** **DHEERESH P.N, S/O. PURUSHAN.N.B., RESIDING AT ANCHERINILAMMIKATHIL, POONTHOPPU WARD, AVALOORKUNNU.P.O., ALAPPUZHA-688006, NOW RESIDING AT AMMU, 119, C.S.M. NAGAR, EDAPPAZHINJI, SASTHAMANGALAM.P.O., THIRUVANANTHAPURAM.** **BY ADVS. SRI.T.C.SURESH MENON SRI.P.S.APPU SRI.A.R.NIMOD** ## **RESPONDENTS/RESPONDENTS:** **1 K.MONY, W/O. P. NATARAJAN, RESIDING AT NO. 608, SANKARDOSS STREET, PONDICHERRY DISTRICT, PONDICHERY.P.O – 605001, (DELETED) [RESPONDENT NO.1 IS DELETED FROM PARTY ARRAY AS PER ORDER DATED 13/11/2018 IN IA NO.1/18 IN MACA 171/13] 2 THE DIVISIONAL MANAGER, NATIONAL INSURANCE COMPANY LIMITED, DIVISIONAL OFFICE, THIRUVANANTHAPURAM-695001, POLICY ISSUED FROM UTHRADAM BUILDINGS, P.B.NO.5, Q.S. ROAD, PULAMON.P.O., KOTTARAKKARA-691531.** **R2 BY ADV. SRI.P.K.MANOJKUMAR** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 03-07-2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA.No.171/2013** **:2:** ## **J U D G M E N T** ~ ~ ~ ~ ~ ~ ~ ~ ~ ## _**Dated this the 3[rd] day of July, 2020**_ The petitioner in OP(MV) No.1066/2004 of the Motor Accidents Claims Tribunal, Thiruvananthapuram is in appeal invoking Section 173 of the Motor Vehicles Act, 1988, aggrieved by Award dated 11.10.2012. 2. Before the Tribunal, in the petition filed under Section 166 of the Motor Vehicles Act, 1988, the appellant stated that while he was riding a motorcycle on 01.08.2003 at Kollam, a Ford Escort car bearing registration No.PY-01J6989 came from the opposite direction in a rash and negligent manner and hit the appellant's motorcycle. The appellant suffered serious injuries and claimed ₹4,00,000/as compensation. **MACA.No.171/2013** **:3:** 3. The owner of the offending vehicle remained _ex parte_ . The 2[nd] respondent-insurer contested the OP(MV) filing written statement. The insurance coverage of the offending car was admitted. The 2[nd] respondent stated that there was no rashness or negligence on the part of the offending car and the accident occurred due to the irresponsible riding of motorcycle by the appellant. 4. The appellant produced Exts.A1 to A15 documents. No oral evidence was adduced by either parties. The Tribunal, after appreciating the evidence on record, awarded a compensation of ₹1,41,980/- to the appellant under the following heads:- |**Sl.**<br>**No.**|**Head of Claims**|**Amount**<br>**Claimed**<br>**(Rs.)**|**Amount**<br>**Awarded**<br>**(Rs.)**|**Basis – vital details**<br>**in a nutshell**| |---|---|---|---|---| |1.|Loss of earning from<br>01/08/2003 till date of filing|60,000|18,540|For 3 months<br>Reasonable estimate<br>made| |2.|Partial loss of earning|Nil|Nil|Not claimed| |3.|Transport to hospital|5,000|500|Reasonable estimate<br>made| |4.|Extra nourishment|10,000|500|Reasonable estimate<br>made| **MACA.No.171/2013** **:4:** |**Sl.**<br>**No.**|**Head of Claims**|**Amount**<br>**Claimed**<br>**(Rs.)**|**Amount**<br>**Awarded**<br>**(Rs.)**|**Basis – vital details**<br>**in a nutshell**| |---|---|---|---|---| |5.|Damage to clothing and<br>articles|5,000|250|Reasonable estimate<br>made| |6.|Medical expenditure already<br>incurred|50,000|Nil|Not awarded| |7.|Amount needed for future<br>treatment|75,000|Nil|Not awarded| |8.|Expenses to bystanders|5,000|400|100 x 4days x one<br>person| |9.|Compensation for pain and<br>suffering|50,000|5,000|Fracture| |10.|Compensation for continuing<br>or permanent disability|1,50,000|1,06,790|(6,180 x 12 x 18 x<br>8%)| |11.|Compensation for loss of<br>future earning power|Nil|Nil|Not claimed| |12.|Compensation for loss of<br>amenities and enjoyment of<br>future life|2,00,000|10,000|Reasonable estimate<br>made| ||**TOTAL**<br>Claim is limited to<br>₹4,00,000/- only|**6,10,000**|**1,41,980**|With interest at 9%<br>per annum from the<br>date of petition<br>(8/6/2004) till<br>realization together<br>with costs.| The Tribunal also directed to pay interest at the rate of 9% per annum from the date of the OP(MV). Aggrieved by the low amount of compensation awarded by the Tribunal, the appellant is before this Court. 5. The learned counsel for the appellant pointed out that the appellant was working as Medical Representative in **MACA.No.171/2013** **:5:** Mumbai during the time of the accident. The appellant was 26 years old and was earning ₹9,800/- monthly salary. The Tribunal, however, fixed his notional income as ₹6,180/-, which is improper. Similarly, the Board fixed the permanent disability of the appellant as 12%. However, the Tribunal accepted disability of 6% only. The functional disability of the appellant is liable to be taken as 12%, contended the learned counsel for the appellant. 6. The learned Standing Counsel for the insurer opposed the arguments of the counsel for the appellant. The Standing Counsel for the insurer argued that the Tribunal has given fair compensation to the appellant. Compensation granted towards loss of earnings, loss of amenities and disability, is liberal. In fact, the Tribunal has adopted the multiplier 18, whereas in view of the age of the appellant, the multiplier applicable is 17. Therefore, proportionate deduction has to be made from the compensation for disability awarded by the Tribunal. The appeal filed by the **MACA.No.171/2013** **:6:** petitioner in OP(MV), is devoid of any merit and it is liable to be dismissed, contended the Standing Counsel for the insurer. 7. I have heard the learned counsel for the appellant and the learned Standing Counsel for the respondent-insurer. 8. For assessing the adequacy or otherwise of the compensation awarded by the Tribunal to the appellant, it is necessary to ascertain whether the income of the appellant and the disability element arrived at by the Tribunal, are correct or not. As regards the income of the appellant, the Tribunal found that as per Ext.A13, the monthly earnings of the appellant for the month of July, 2003 was ₹6,810.50. The Tribunal, however, reduced the monthly income to ₹6,180/on the ground that out of the salary earnings of the appellant ₹630/- has been paid as HRA and it has to be excluded. This proposition appears not to be correct. The Hon'ble Apex Court in the judgment in _**Triveni Kodkany v. Air India** [2020 (3) KHC 50 (SC)]_ held that the bifurcation of the salary into **MACA.No.171/2013** **:7:** diverse heads may be made by the employer for a variety of reasons. In a claim for compensation, the income has to be assessed on the basis of the entitlement of the employee. In view of the judgment of the Hon'ble Apex Court, the exclusion of HRA amount made by the Tribunal has to be ignored. Accordingly, the monthly salary of the appellant has to be taken as ₹6,810.50 for the purpose of computation of compensation under various heads. Similarly, though the Medical Board assessed the disability of the appellant as 12%, the Tribunal fixed the functional disability only at 6%. 9. The appellant was a Medical Representative, though in Ext.A12 his designation was shown as Sales Officer. Either way, the avocation of the appellant includes frequent travel. From the medical documents produced by the appellant, it is evident that the appellant had functional limitation due to fracture TC-2 to spine, ribs 7[th] , 8[th] and 9[th] and scap hold. These difficulties in body function are permanent in nature. Therefore, it is evident that the **MACA.No.171/2013** **:8:** disability will affect the appellant to a substantial extent. Therefore, taking note of the available evidence in this regard, the Tribunal ought to have taken 12% as the functional disability of the appellant. 10. The Tribunal granted loss of earnings for a period of three months. The learned counsel for the appellant stated that the said period should be six months taking note of the period of treatment. The Tribunal, however, has examined the medical documents produced by the appellant and found that the appellant's abstention from physical activities could be said to be only for three months. This Court do not find any material to believe otherwise. However, in view of re-fixation of the appellant's salary as ₹6,810/-, the appellant will be entitled to enhancement towards loss of earning. The appellant's salary being ₹6,810/-, he should be held entitled to ₹20,430/- towards loss of earnings. After deducting ₹18,540/- already awarded by the Tribunal, the appellant will be entitled to an additional **MACA.No.171/2013** **:9:** compensation towards loss of earning of **₹1,890/-** . 11. The Tribunal has granted ₹400/- towards bystander expenses, the hospitalisation period being four days. For the year 2003, the appellant should be entitled to compensation for bystander expenses at the rate of ₹150/-. The appellant will be therefore entitled to ₹600/- towards bystander expenses. The additional compensation under this head, would therefore be **₹200/-** . 12. The Tribunal has granted ₹500/- towards transportation expenses. As the accident occurred in the area near the hospital where he was taken, the Tribunal fixed transportation expenses as ₹500/-. This Court find no reason to interfere with the said findings. Similarly, the Tribunal awarded ₹500/- towards extra nourishment, which amount also needs no revision. The compensation of ₹250/awarded by the Tribunal towards damage to clothing is also reasonable. 13. However, as against the claim of ₹50,000/- as **MACA.No.171/2013** **:10:** compensation towards pain and suffering, the Tribunal has granted only ₹5,000/-. Since the appellant suffered serious injuries and fracture at TC-2 to spine, ribs 7[th] , 8[th] and 9[th] and scap hold, the appellant might have suffered acute pain. Therefore, this Court finds that the appellant should have been awarded ₹10,000/- as compensation towards pain and suffering. Accordingly, it is held that the appellant will be entitled to additional compensation of **₹5,000/-** towards pain and suffering. 14. In the absence of any proof of medical expenditure and future treatment, the Tribunal refused to award any amount under this head. It is evident from Exts.A3, A5, A6 and A7 that the appellant has suffered fracture, deep cut wound, contusion, abrasions and partial loss of upper incisor. With such injuries, the appellant necessarily might have undergone medical treatment. Even in the absence of medical bills, the appellant must be held entitled to some amount towards medical expenses. On a **MACA.No.171/2013** **:11:** reasonable estimate, this Court fix compensation of **₹5,000/-** to which the appellant will be entitled to towards medical expenses. 15. In view of the enhancement made in the salary of the appellant and the functional disability resulting from the accident, the disability compensation need to be necessarily modified. It is to be noted that the Tribunal has taken the multiplier of 18. As rightly pointed out by the learned Standing Counsel for the insurer, for a person aged 26 years, the appropriate multiplier is 17. Accordingly, it is declared that the appellant will be entitled to ₹1,66,709/- (₹6,810 x 12 x 17 x 12/100) as compensation for disability. Adjusting the amount already awarded by the Tribunal, it is held that the appellant will be eligible for an additional compensation of **₹59,919/-** (₹1,66,709 – ₹1,06,790 already awarded by the Tribunal). 16. It is therefore held that the appellant will be entitled to a total compensation of **₹72,009/-** under the **MACA.No.171/2013** **:12:** ## following heads:- - (i) Additional compensation towards loss of ₹1,890/earnings - (ii) Additional compensation towards bystander ₹200/expenses - (iii) Additional compensation towards pain and ₹5,000/suffering - (iv) Compensation towards medical expenses ₹5,000/(v) Additional compensation towards disability ₹59,919/- **Total ₹72,009/========** The 2[nd] respondent is directed to pay the additional compensation of **₹72,009/-** along with interest at the rate of 9% 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/02/07/2020