G. Sandeep v. P.K. Shailakantan and New India Assurance Company Limited

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE N.NAGARESH** ## **TUESDAY, THE 09TH DAY OF JUNE 2020 / 19TH JYAISHTA, 1942** ## **MACA.No.163 OF 2015(E)** **AGAINST THE AWARD IN OP(MV)No. 1591/2008 DATED 23-07-2014 ON THE FILE OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, PERUMBAVOOR** ## **APPELLANT/PETITIONER:** **G.SANDEEP, S/O. GOPALAKRISHNA PILLAI, SREENIKETHAN HOUSE, EAST KADUNGALOORE, ALUVA.** **BY ADV. SRI.A.N.SANTHOSH** ## **RESPONDENTS/RESPONDENTS 1 AND 3:** **1 P.K.SHAILAKANTHAN, 9/147, MARUTHARODE, NEAR AMBUJA INDUSTRY, PALAKKAD - 678 007. 2 NEW INDIA ASSURANCE COMPANY LIMITED, P.B. NO. 43, NS TOWERS, NEAR STADIUM BUS STAND, COIMBATORE ROAD, PALAKKAD - 678013.** ## **BY ADV. SRI.P.JACOB MATHEW** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 09.06.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA.No.163 OF 2015(E)** ## **:2:** ## **J U D G M E N T** ~ ~ ~ ~ ~ ~ ~ ~ ~ _**Dated this the 9[th] day of June, 2020**_ The injured petitioner in OP(MV) No.1591/2008 on the files of the Motor Accidents Claims Tribunal, Perumbavoor, is before this Court in appeal invoking Section 173 of the Motor Vehicles Act, 1988, aggrieved by the Award dated 23.07.2014 of the Tribunal. 2. On 21.04.2008, when the appellant was riding a motorcycle on Thrissur – Chandra Nagar NH road, a tipper lorry driven by the 2[nd] respondent in OP(MV) in a rash and negligent manner hit appellant's motorcycle. In the accident, the appellant suffered grievous injuries and was taken to Paalana Institute of Medical Sciences, Palakkad. The appellant had to be treated as an in-patient for 26 days. The appellant was referred to Air Force Command Hospital **MACA.No.163 OF 2015(E)** **==> picture [23 x 9] intentionally omitted <==** Bangalore, for further treatment. The 1[st] respondent herein was the registered owner of the tipper lorry and the 2[nd] respondent is the insurer. Before the Tribunal, the appellant alleged damages of 27,20,000/- but limited his claim to ₹ ₹12 lakhs. 3. The 2[nd] respondent-insurer alone filed written statement contesting the claim. The insurance coverage on the offending tipper lorry was admitted. But, the 2[nd] respondent-insurer claimed that the accident occurred due to the negligence of the appellant himself. The 2[nd] respondent also disputed the age, occupation and income of the appellant. The compensation claimed is disproportionate to the injuries suffered by the appellant, contended the Standing Counsel for the 2[nd] respondent. 4. The Tribunal, on appreciation of evidence, concluded that the accident had occurred due to the rashness and negligence of the driver of the offending lorry. The Tribunal further examined the medical records and other **MACA.No.163 OF 2015(E)** ## **:4:** documents produced before it and awarded a compensation of 6,94,385/- to the appellant under the following heads:- |**Sl.**<br>**No.**|**Head of claim**<br>**Compensation for**|**Amount**<br>**claimed**<br>**(Rs.)**|**Amount**<br>**awarded**<br>**(Rs.)**|**Basis-vital**<br>**details in a**<br>**nutshell**| |---|---|---|---|---| |1|Loss of earning|60,000|50,000|Lumpsum<br>amount| |2|Partial loss of earning|NIL||| |3|Damage to clothes etc.|2,000|500|| |4|Transport to Hospital|25,000|25,000|Claim admitted| |5|Extra nourishment|15,000|7,500|750 x 10<br>₹<br>months| |6|Attendant charges|18,000|7,950|150 x 53 days<br>₹| |7|Medical expenses|8,00,000|74,975|Actual medical<br>bills| |8|Pain and suffering|4,00,000|1,50,000|8 # various<br>injuries| |9|Loss of amenities etc.|2,00,000|1,00,000|| |10|Disability|8,00,000|2,78,460|3500 x 12 x 15<br>₹<br>x 44.2%| |11|Loss of earning power|2,00,000|NIL|| |12|Future treatment|2,00,000|NIL|| ||Total|27,20,000<br>Limited to<br>12,00,000|6,94,385|6,94,385/-<br>₹<br>along<br>with<br>interest @ 8%<br>p.a.| The respondents were directed to pay interest at the rate of 8% per annum from the date of the petition. Respondents 1 to 3 in the OP(MV) were held jointly and severally liable to pay **MACA.No.163 OF 2015(E)** ## **:5:** the compensation amount. It is aggrieved by the amount awarded by the Tribunal that the appellant-petitioner is before this Court. 5. The counsel for the appellant stated that at the time of accident the appellant was a Clerk in Air Force and was aged 27 years. The appellant was to retire only at the age of 38. the appellant had to be treated as an in-patient in hospital for 92 days and after the treatment, his disability was assessed at 44.2%, consequent to which the appellant was decategorised by the Air Force authorities. The appellant was drawing 10,000/- per month as salary.₹ 6. The counsel for the appellant contended that the Tribunal, for the purpose of assessing disability benefits, fixed the notional income of the appellant as 3,500/- only. This₹ has seriously affected the ultimate compensation amount awarded to the appellant. Learned counsel further submitted that the amount of ₹1,50,000/- awarded by the Tribunal towards pain and suffering is insufficient if the nature of **MACA.No.163 OF 2015(E)** **==> picture [23 x 9] intentionally omitted <==** injuries suffered by the appellant is considered. The Tribunal also awarded meager amounts towards bystander expenses and extra nourishment. In the circumstances, the amount of compensation awarded by the Tribunal is to be enhanced. 7. The Standing Counsel for the 2[nd] respondent, on the other hand, justified the compensation awarded by the Tribunal. The appellant was awarded 50,000/- towards loss₹ of earning and ₹25,000/- towards transport to hospital. Though the standardised expenses for extra nourishment in the period in question were only 200/-, the ₹ appellant was awarded amount at the rate of 750/-. The ₹ appellant was also awarded attendant charges at the rate of 150/-. Actual₹ medical expenses personally incurred by the appellant was awarded by the Tribunal. The Tribunal awarded 1,50,000/-₹ towards pain and suffering and ₹1 lakh towards loss of amenities. In the circumstances, no further enhancement is warranted, contended the Standing Counsel for the 2[nd] respondent. **MACA.No.163 OF 2015(E)** **==> picture [23 x 9] intentionally omitted <==** 8. I have heard learned counsel for the appellant and learned Standing Counsel for the 2[nd] respondent. 9. As regards disability benefits, the Tribunal noted that since the appellant is permanently employed in Indian Air Force, the disability suffered will not affect appellant's earning capacity till his retirement from Air Force which was to be on 28.02.2019. The Tribunal noted that as the appellant will be retiring at the age of 38 years, the disability would certainly affect his earning capacity after retirement. Holding so, the Tribunal fixed the monthly income of the appellant as ₹3,500/-. Applying multiplier of 15 and considering disability as 44.2%, the Tribunal held that the appellant is entitled to get a sum of ₹2,78,460/- (₹3,500/- x 12 x 15 x 44.2%) as compensation for disability. It has to be stated that the said amount is much on a lower side. The appellant would be retiring at the age 38 years and at that age, the appellant will indeed the able-bodied and in a position to get alternate civil employment, in the normal course. Even in 2008, the year of **MACA.No.163 OF 2015(E)** **==> picture [23 x 9] intentionally omitted <==** accident, an able-bodied self-employed person will be earning ₹6,500/- per month, the standardised notional income arrived at by the Apex Court in _**Syed Sadiq and others v. Divisional Manager, United India Insurance Co. Ltd.** [(2014) 2 SCC 735]_ . Taking note of the afore facts, the disability benefits granted to the appellant require necessary enhancement. Accordingly, it is held that the appellant will be entitled to total disability benefits of ₹5,17,140/-. Deducting the amount already awarded by the Tribunal, the appellant will be eligible for an additional compensation of 2,38,680/- (₹ ₹6,500/- x 12 x 15 x 44.2% minus 2,78,460/- awarded by the Tribunal).₹ 10. As regards medical expenses of 8 lakhs claimed₹ by the appellant, after going through the Award in question, it is evident that the Tribunal has meticulously verified the medical bills and made adjustments towards amounts already reimbursed to the appellant by the Indian Air Force towards medical expenses. The rejection of certain bills by the Tribunal is also for defined reasons. Therefore, no **MACA.No.163 OF 2015(E)** ## **:9:** interference on that head is warranted. 11. I also find that the Tribunal has liberally awarded a just compensation of 1,50,000/- towards pain and suffering.₹ No enhancement is warranted in that regard also. The Tribunal has awarded bystander expenses at the rate of ₹150/- for 53 days. For the said period, in the normal course, the appellant will be entitled to bystander expenses/attendant charges at the rate of 200/-. The ₹ appellant has been granted attendant charges at the rate of ₹150/-. Therefore, the appellant will be held entitled to an additional compensation of ₹2,650/- (₹200/- x 53 minus 7,950/- already granted by the₹ Tribunal) towards bystander expenses. 12. The learned counsel for the appellant contended that as the appellant was aged only 27 years, the multiplier should have been taken as 17. The Tribunal has taken note of the nature of employment of the appellant and the fact that the appellant will continue in Defence Service till the age of 38, continuing to draw the salary the appellant was receiving **MACA.No.163 OF 2015(E)** **==> picture [30 x 9] intentionally omitted <==** prior to the accident. It was under such circumstances the multiplier of 15 was adopted. I find no reason to interfere with the findings of the Tribunal in that regard. Consequently, MACA is allowed in part. The appellant is declared to be entitled to additional compensation of 2,41,330/- under the following heads:-₹ - 1 Additional compensation towards dependency ₹2,38,680.00 - 2 Additional compensation towards bystander 2,650.00₹ expenses/attendant charges Total ₹2,41,330.00 The respondents are directed to pay the additional compensation of 2,41,330/- to the ₹ appellant with 8% interest from the date of the OP(MV) within a period of one month. Sd/- **N. NAGARESH, JUDGE** aks/06/06/2020