Gilbert Thomas v. Sivadasan and The Oriental Insurance Company Ltd

``` 2025:KER:25178 ``` ``` MACA NO.464 OF 2015 ``` ``` 1 ``` **==> picture [58 x 57] intentionally omitted <==** ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE C.PRATHEEP KUMAR`** ``` FRIDAY, THE 14[TH] DAY OF MARCH 2025 / 23RD PHALGUNA, 1946 ``` ## **`MACA NO. 464 OF 2015`** ``` AGAINST THE ORDER/JUDGMENT DATED 28.10.2014 IN OPMV NO.623 OF 2009 OF MOTOR ACCIDENT CLAIMS TRIBUNAL , ``` ## **`IRINJALAKUDA`** ## **`APPELLANT/PETITIONER:`** ``` GILBERT THOMAS ``` ``` S/O.THOMAS, CHULLI HOUSE, MUDAPUZHA DESOM, KORATTY KIZHAKKUM MURI VILLAGE, KORATTY EAST P.O., MUKUNDAPURAM TALUK, THRISSUR DISTRICT. ``` ``` BY ADV SRI.P.V.BABY ``` ## **`RESPONDENTS/RESPONDENTS 1 AND 3:`** - **`1 SIVADASAN S/O.KRISHNANKUTTY, R/444, KIZHAKKE HOUSE, VITHANASSERY, NENMARA P.O., PALAKKAD - 678 508.`** - **`2 THE ORIENTAL INSURANCE COMPANY LTD SHOBA TSM COMPLEX, R.S.ROAD, PALAKKAD - 678 001.`** ``` BY ADVS. SRI.GEORGE CHERIAN SR. SMT.LATHA SUSAN CHERIAN SMT.K.S.SANTHI ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 14.03.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` 2025:KER:25178 ``` ``` MACA NO.464 OF 2015 ``` ``` 2 ``` **==> picture [58 x 57] intentionally omitted <==** ## **J U D G M E N T** The petitioner in O.P.(M.V.) No.623/2009 on the file of the Motor Accident Claims Tribunal, Irinjalakuda, is the appellant herein. (For the purpose of convenience, the parties are hereafter referred to as per their rank before the Tribunal). 2. The petitioner filed the above O.P. under Section 166 of the Motor Vehicles Act, 1988, claiming compensation for the injuries sustained in a motor vehicle accident that occurred on 9.12.2008. According to the petitioner, on 9.12.2008 at about 8.30 p.m., while he was riding pillion on a motorcycle driven by his brother, a pick up van bearing reg.no.KL-49/2945 driven by the 2[nd] respondent in a rash and negligent manner with excessive speed, hit against the motorcycle and as a result of the accident, the petitioner fell down and sustained serious injuries. 3. The 1[st] respondent is the owner, the 2[nd] respondent is the driver and 3[rd] respondent is the insurer of the offending vehicle. According to the petitioner, the accident occurred due to the negligence of the driver of the offending vehicle. The quantum of compensation claimed in the O.P. is Rs.7,20,000/- limited to Rs.5,00,000/. ``` MACA NO.464 OF 2015 ``` ``` 3 ``` **==> picture [58 x 57] intentionally omitted <==** ``` 2025:KER:25178 ``` 4. The insurance company filed a written statement, admitting the accident as well as policy, but disputing the negligence on the part of the driver of the offending vehicle. 5. The evidence in the case consists of the oral testimonies of PW1and PW2 and documentary evidence Exts.A1 to A22. No evidence was adduced by the respondents. 6. After evaluating the evidence on record, the Tribunal found negligence on the part of the driver of the offending vehicle, awarded a total compensation of Rs.2,10,700/- and directed the insurer to pay the same. 7. Aggrieved by the quantum of compensation awarded by the Tribunal, the petitioner preferred this appeal. 8. Now the point that arises for consideration is the following: _Whether the quantum of compensation awarded by the Tribunal is just and reasonable?_ 9. Heard Sri.P.V. Baby, the learned Counsel appearing for the petitioner/appellant, and Smt. Latha Susan Cherian, the learned Standing Counsel for the 3[rd ] respondent. 10. The Point: In this case the accident as well as valid insurance policy of the offending vehicle are admitted. One of the contentions **==> picture [58 x 57] intentionally omitted <==** ``` 2025:KER:25178 ``` ``` MACA NO.464 OF 2015 ``` **==> picture [8 x 9] intentionally omitted <==** raised by the learned counsel for the petitioner is regarding the income of the petitioner as fixed by the Tribunal. According to him, the petitioner was a Bsc nurse, earning Rs.6000/- per month, but the Tribunal fixed his monthly income at Rs.3500/-. The learned counsel for the insurer would argue that the income fixed by the tribunal is reasonable. 11. It is true that the petitioner could not prove his income, as claimed in the OP. However from Ext.A20 Bsc Nursing certificate it is proved that the petitioner was a Bsc nurse. As per the dictum laid down by the Hon’ble Supreme Court in the decision in _**Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Co. Ltd.**_ [2011 (13) SCC 236], the notional income of a coolie, in the 2008 will come to Rs.6500/-. Therefore, the petitioner being nurse by profession, his notional income is fixed at Rs. 8000./-, for the purpose of computing the loss of disability. 12. In the accident the petitioner sustained the following injuries: Abrasion (L) knee, (L) frontal acute subdural hematoma, fracture (L) parietal bone, (L) frontal, temporal contusion, fracture (L) patella, fracture (L) 2nd metacarpal. Ext.All is the discharge summary showing the nature of head injury and the treatment underwent and the CT brain shows (L) basifrontal contusion, left frontal acute subdural hematoma and (L) parietal ``` MACA NO.464 OF 2015 ``` ``` 5 ``` **==> picture [58 x 57] intentionally omitted <==** ``` 2025:KER:25178 ``` fracture. 13. Ext. A19 disability certificate shows that the petitioner suffered 23.5% permanent physical disability. It was issued by PW2. The Tribunal, however, scaled down the percentage of disability of the petitioner to 15%, without assigning valid and cogent reasons. The law is settled that, if the Tribunal is not satisfied with the disability certificate produced by the petitioner, the remedy is to refer him to a medical board or higher Authority. (See **Manikantan G. v. Janardhanan Nair and Others** , 2021 (5)KHC 305). Having not done so, the Tribunal was not justified in scaling down the percentage of disability from what is shown in the disability certificate. I do find any grounds to disbelieve the said disability and as such the permanent physical disability of the petitioner is fixed as 23.5%. 14. On the date of accident, the petitioner was aged 24 years. Therefore, 40% of the monthly income is to be added towards future prospects, as held in the decision in **National Insurance Co. Ltd v. Pranay Sethi** [(2017) 16 SCC 680] and the multiplier to be applied is 18, as held in **Sarla Verma v. Delhi Transport Corporation,** [(2009) 6 SCC 121]. In the above circumstances, the loss of disability will come to Rs.568512/-. 15. Towards loss of earning, the tribunal has awarded only **==> picture [58 x 57] intentionally omitted <==** ``` 2025:KER:25178 ``` ``` MACA NO.464 OF 2015 ``` ``` 6 ``` Rs.10500/- being the income for 3 months @ Rs.3500/-. Considering the nature of the injuries sustained and the percentage of disability suffered by the petitioner, the petitioner might have lost income at least for a period of 6 months. Therefore, towards 'loss of income' the petitioner is entitled to get a sum of Rs.48000/- (8000 x 6 months). 16. Towards the head ‘pain and sufferings’, the Tribunal has awarded Rs.25000/-. Towards 'loss of amenities of life' Rs.20000/- was awarded, towards ‘personal assistance’ Rs.3000/- was awarded and towards 'extra nourishment' Rs.500/- was awarded. According to the learned counsel for the petitioner, the compensation awarded on those heads are on the lower side. 17. The petitioner sustained serious injuries in the accident and was treated as inpatient for 20 days. Because of the injuries sustained, the percentage of disability suffered and the length of treatment undergone by the petitioner, I hold that the compensation awarded by the Tribunal on the heads ‘pain and sufferings’, 'loss of amenities of life', personal assistance’ and 'extra nourishment' are on the lower side and hence they are enhanced to Rs.75000/-, Rs.50000/-, Rs.4000/- and Rs.7500/- respectively. 18. No change is required, in the amounts awarded on other heads, ``` 2025:KER:25178 ``` ``` MACA NO.464 OF 2015 ``` ``` 7 ``` **==> picture [58 x 57] intentionally omitted <==** as the compensation awarded on those heads appears to be just and reasonable. 19. Therefore, the petitioners/appellants are entitled to get a total compensation of Rs.7,97,612/-, as modified and recalculated above and given in the table below, for easy reference: |**Sl.**<br>**No.**|**Head of Claim**|**Amount awarded by**<br>**Tribunal (in Rs.)**|**Amount Awarded in**<br>**Appeal (in Rs.)**| |---|---|---|---| |1|Loss of earning|10500|48000| |2|Transport to hospital|1000|1000| |3|Damage to clothing and articles|500|500| |4|Extra nourishment|500|7500| |5|Medical expense|43100|43100| |6|Personal assistance|3000|4000| |7|Pain and suffering|25000|75000| |8|Permanent disability|107100|568512| |9|Loss of amenities|20000|50000| ||||| ||**Total**|**210700**|**797612**| ||Enhanced**586912**||| 20. In the result, this Appeal is allowed in part, and Respondent No.3 is directed to deposit a total sum of Rs.7,97,612/- (Rupees Seven Lakhs Ninety Seven Thousand Six Hundred and Twelve only), less the amount already deposited, if any, along with interest @ 8% per annum from the date ``` MACA NO.464 OF 2015 ``` ``` 8 ``` **==> picture [58 x 57] intentionally omitted <==** ``` 2025:KER:25178 ``` of the petition till deposit/realisation, with proportionate costs, within a period of two months from today. On depositing the aforesaid amount, the Tribunal shall disburse the entire amount to the petitioner, excluding court fee payable, if any, without delay, as per rules. **Sd/C. PRATHEEP KUMAR, JUDGE** Pvv