Francis v. Chandran, G. Aruchamy & Oriental Insurance Co. Ltd.

MACA.No.2351/2014 1 ``` IN THE HIGH COURT OF KERALA AT ERNAKULAM ``` ``` PRESENT ``` ## **`THE HONOURABLE MR.JUSTICE BASANT BALAJI`** ``` MONDAY, THE 18[TH] DAY OF JULY 2022 / 27TH ASHADHA, 1944 ``` ``` MACA NO. 2351 OF 2014 ``` ``` OF MOTOR ACCIDENT CLAIMS TRIBUNAL, IRINJALAKUDA) ``` ## **`APPELLANT/APPLICANT:`** ``` FRANCIS, S/O.VARU, PULLIYANI HOUSE, V.R.PURAM DESOM, PERAMBRA VILLAGE, REPRESENTED BY WIFE ROSILY FRANCIS AS NEXT FRIEND AND GUARDIAN. BY ADV A.N.SANTHOSH ``` ## **`RESPONDENTS/RESPONDENTS:`** ``` 1CHANDRAN, S/O. ARUMUGAN, KUNDUKKADU HOUSE, KUNDUKKADU DESOM, ALATHUR TALUK, PALAKKAD DISTRICT. 2G.ARUCHAMY, S/O. GAUDAPPA GOUNDER, 13/217, CHANDRAPURAM, WALAYAR POST, PALAKKAD. 3THE MANAGER, ORIENTAL INSURANCE CO.LTD, SUGUNA BUILDINGS, 707 AVANASHI ROAD, COIMBATORE - 641 018. BY ADVS. SRI.K.ANAND SRI.VPK.PANICKER ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 18.07.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` MACA.No.2351/2014 2 ## **JUDGMENT** (Dated: 18[th] July, 2022) Aggrieved by the quantum of compensation awarded in O.P.(M.V.) No.321 of 2007 by the Motor Accidents Claims Tribunal, Irinjalakuda, the appellant/petitioner has filed this appeal (the parties are referred to as they are arrayed in the petition). 2. The original petition was filed under Section 166 of the M.V. Act, claiming compensation for the injuries sustained in a motor vehicle accident that occurred on 09.08.2006 at about 12.10 p.m, while the petitioner was riding his motorcycle bearing Reg. No.KL-7/E-8419 through Thrissur-Ernakulam NH from north to south from Potta to his house and when he reached near Chalakudy Magistrate Court, a lorry bearing Reg. No.KL-9/S-4536 came from the same direction driven by the MACA.No.2351/2014 3 1[st] respondent in a rash and negligent manner and hit the petitioner causing injuries. 2[nd] respondent is the owner of the lorry and 3[rd] respondent is the insurer. 3. Respondents 1 and 2 remained ex-parte and the 3[rd] respondent alone filed a written statement. The 3[rd] respondent insurance company admits the valid insurance policy of the lorry bearing Reg.No.KL-9/S-4536. The accident itself is denied in the written statement. It was contended that the 1[st] respondent has no valid insurance policy, no valid driving licence and badge and without paying tax. There is a violation of policy conditions. 4. The Tribunal relied on Exts.A1 to A13, Ext.B1 and Ext.X1 and were marked. The Tribunal awarded total compensation of Rs.4,53,343/- with 7.5% interest per annum from the date of the petition. Aggrieved by this award, the appellant/petitioner has filed this appeal. MACA.No.2351/2014 **==> picture [9 x 8] intentionally omitted <==** 5. Adv.A.N.Santhosh, learned counsel representing Adv.K.B.Gangesh, for the appellant/petitioner submits that the Tribunal has taken the monthly income for calculating the compensation at Rs.3,000/- per month, wherein he claims that he is a self-employed businessman getting Rs.10,000/- as monthly income. To prove his employment no evidence was produced, so Rs.3,000/- has been taken as the notional income by the Tribunal for arriving at the compensation. Going by the decision reported in _**Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited (2011 (13) SCC 236)**_ , for an accident that occurred in the year 2006, the notional income to be taken is Rs.5,500/-. The counsel for the appellant submits that the injury sustained was very serious nature and the disability certificate produced shows that the petitioner has a total disability of 45.5%, which comprised 40% permanent neurological disability and 10% orthopedic MACA.No.2351/2014 5 disability. He is entitled to future prospects at the rate of 25%. The injuries sustained by the appellant/petitioner are as follows: _(i) Lacerated wound over right pavilion part of head( 3x5) cm,_ _(ii) Haematoma around the wound (2 cm),_ _(iii) Fracture of occipital and left temporal bones,_ _(iv) Extra axial haematoma of (L) temporal pavilion region,_ _(v) Compression left lateral ventricle,_ _(vi) Fracture two ribs left and_ _(vii) Sub dural haematoma._ As per Ext.A4 to A4(d) discharge summary shows that he was an inpatient in the hospital for 44 days. 6. The Apex Court in the decision reported in _**Raj Kumar v. Ajay Kumar and Another [(2011) 1 SCC 343]**_ held that, in cases where the injury sustained by the claimants is of grave nature and the disability is less than 50%, future prospects can be awarded taking into consideration of the disability as well as the injury he sustained. MACA.No.2351/2014 6 7. Taking note of the injury sustained by him, as well as the disability certificate issued by the Medical Board would show that there is 40% of neurological disability and his mental functions include impact cognity functions in the form of language disfunction, reduce comprehension, poor naming, impact reason memory, emotion inconsistence, normal attention registration and impact judgment. Taking note of all these facts, I am of the opinion that the appellant is entitled to future prospects at the rate of 25%, since the appellant is a selfemployed person aged between 40-50. In view of the said facts, the monthly income can be taken as Rs.5,500+25% = Rs.6,875/-. So, the compensation for permanent disability is worked out as 6875x12x13x45.5/100 = Rs.4,87,987.5/-. The Tribunal has already awarded a sum of Rs.2,08,260. 8. As regards the loss of earnings is concerned, Rs.9,000/- is awarded by the Tribunal, taking the monthly MACA.No.2351/2014 7 income as Rs.3,000/- for three months. If Rs.5,500/- is taken as monthly income for three months, which comes to Rs.16,500 – Rs.9,000 = Rs.7,500/-. 9. As regards the compensation for loss of amenities and convenience is concerned, he claimed only Rs.10,000/-, and nothing was awarded. Taking note of the neurological disability of 40% and considering the age of the person as 47 years, a sum of Rs.20,000/- is awarded. 10. As regards pain and suffering, it is seen from the records that he had undergone cranioplasty at St.James Hospital and was admitted as an inpatient in the hospital on different occasions for 44 days. Taking into consideration, the amount of compensation for the pain and suffering of the appellant, it is enhanced by another sum of Rs.20,000/-. Thus, the appellant is entitled to total compensation with 7.5% interest from the date of the petition. MACA.No.2351/2014 8 ## Accordingly, the following enhancements are made to the ## award passed by the Tribunal: |Sl. No.|Head of Claim|Amt. Awarded by<br>Tribunal (Rs.)|Amt. Enhanced in<br>appeal (Rs.)| |---|---|---|---| |1.|Pain and suffering|20,000/-|40,000/-| |2.|Loss of earning|9,000/-|16,500/-| |3|Permanent disability|2,08,260/-|4,87,987.5/-| |3.|Loss of amenities and<br>conveniences|--|20,000/-| ||Total|2,37,260/-|5,64,487.5/-| ||Amount enhanced =5,64,487.5-2,37,260 =**3,27,227.5/-**||| In the result, the appeal is allowed, and the Insurance Company shall pay interest for the amounts awarded by the Tribunal at the rate directed in the impugned award and for the enhanced amounts at the rate of 7.5% from the date of the petition. If any amounts have already been paid, the same shall be granted set off. The appellant/petitioner shall produce the details of the Bank account before the Insurance MACA.No.2351/2014 9 Company/Tribunal within one month from the date of receipt of a certified copy of this judgment and the amount shall be transferred to the Bank account directly through NEFT/RTGS mode, within a period of one month thereafter. If the Bank account is not furnished within the time stipulated, it is made clear that no interest shall run on the enhanced amount after the period stipulated by this Court. It is made clear that the appellant would not be entitled to interest for the period of delay of 630 days in filing the appeal, as per order dated 04.10.2021 in C.M.Appln.No.1 of 2014 (2722 of 2014) on the enhanced compensation. _Sd/_ - ## **BASANT BALAJI, JUDGE** ss