Harischandran v. Parvathy M., Gopalan, Oriental Insurance Co. Ltd.

## `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ``` THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. FRIDAY, THE 10[TH] DAY OF NOVEMBER 2023 / 19TH KARTHIKA, 1945 ``` ## `MACA NO. 2252 OF 2011` ``` [AGAINST THE JUDGMENT IN OP(MV) NO.1594/2007 DATED 6.5.2011 ON THE FILE OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, IRINJALAKUDA] ``` ## `APPELLANT/PETITIONER:` ``` HARISCHANDRAN S/O. VISWAS, KIZHAKKEMADOM HOUSE, VELLANCHIRA DESOM, ALOOR VILLAGE, VELLANCHIRA.P.O., MUKUNDAPURAM, THRISSUR. BY ADVS. SRI.P.V.BABY SRI.A.N.SANTHOSH ``` ## `RESPONDENTS/RESPONDENTS:` ``` 1PARVATHY M., W/O. SANKUNNI NIAR, MADATHIL HOUSE, ALAGAPPANAGAR,.P.O., THRISSUR-680001. 2GOPALAN S/O. AYYAPPAN, AYYAMKANDATH HOUSE, MADAVAKKARA.P.O., NENMANIKKARA-680301. 3ORIENTAL INSURANCE CO.LTD. M.G.ROAD, THRISSUR-680001. BY ADVS. FOR R1 BY SRI.G.SREEKUMAR (CHELUR) SRI.P.JAYASANKAR SMT.A.SREEKALA THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 10.11.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` MACA No.2252 of 2011 2 ## `JUDGMENT` ``` The appellant is the petitioner in ``` ``` OP(MV)No.1594/2007 on the files of the Motor ``` ``` Accidents Claims Tribunal, Irinjalakuda. ``` ``` 2.The said claim petition was submitted by him seeking compensation for the injuries sustained to him in a motor accident that occurred on 12.05.2007. According to the appellant, the accident occurred when the motorcycle ridden by ``` ``` the appellant was hit by a motor car bearing ``` ``` registration No.KL-8/H 1008, driven by the 2[nd] ``` ``` respondent in a rash and negligent manner. The said car was owned by the 1[st] respondent and was ``` ``` insured with the 3[rd] respondent. According to the appellant, he was working as a Welder with a ``` ``` monthly income of Rs.4,500/-. It was also contended that consequent to the injuries ``` ``` sustained, he also suffered permanent disablement ``` MACA No.2252 of 2011 3 ``` of 22%, which was certified by the doctor. The ``` ``` claimpetitionwassubmittedinsuch ``` ``` circumstances. ``` ``` 3.Respondents 1 and 2 did not appear and ``` ``` were set ex parte. The 3[rd] respondent filed a written statement admitting the existence of a ``` ``` valid insurance policy in respect of the car. ``` ``` However, they contended that the 2[nd] respondent did ``` ``` not have a valid driving licence and badge to ``` ``` drive the vehicle, and therefore, there was a violation of policy conditions. Accordingly, they sought exoneration from the liability. ``` ``` 4.The evidence in this case consists of oral testimony of PW1, and Exhibits A1 to A9 were marked from the side of the appellant. From the side of the respondents, Exhibit B1, the copy of the policy was marked. After the trial, the ``` ``` Tribunal came to the conclusion that the accident occurred due to negligence on the part of the 2[nd] ``` ``` respondent while driving the car. The Tribunal ``` MACA No.2252 of 2011 4 ``` accepted the contention regarding the violation of ``` ``` policy conditions by the 1st respondent. Therefore, even though the 3[rd] respondent-Insurance ``` ``` Company was held liable to pay the compensation at the first instance, they were permitted to recover ``` ``` the same from the 1[st] respondent after satisfying ``` ``` the award. The quantum of compensation was fixed as Rs.1,28,970/-, which was directed to be ``` ``` deposited with interest at the rate of 7% per annum and proportionate costs. This appeal is filed by the appellant seeking enhancement of ``` ``` compensation. ``` ``` 5.Heard Sri.P.V.Baby, the learned counsel ``` ``` for the appellant and Sri.G.Sreekumar (Chelur), the learned counsel appearing for the 1[st] ``` ``` respondent. ``` ``` 6.The learned counsel for the appellant ``` ``` would contend that the amounts awarded by the Tribunal under various heads are grossly inadequate. It was pointed out that the monthly ``` MACA No.2252 of 2011 5 ``` income taken by the Tribunal was on the lower ``` ``` side. The Tribunal has taken only Rs.2,000/- as monthly income. Considering that the accident occurred in 2007, I find that the amount of Rs.2,000/- appears to be on the lower side. However, it is to be noted that the monthly income claimed by the appellant was only Rs.4,500/-. As per the method of computation evolved from the principles laid down by the Hon’ble Supreme Court in Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Co.Ltd [(2011) 13 SCC 236] and Syed Sadiq v. Divisional Manager, United India Insurance Company [(2014) 2 SCC 735], even in respect of an ordinary employee, the monthly income can be fixed as Rs.4,500/- in respect of an accident occurred during the year 2004. The monthly income could be reckoned for subsequent years by adding Rs.500/- per year. While adopting the said computation, the monthly income in this case can be fixed as Rs.6,000/- as the accident occurred in 2007. Of course, it is true that the monthly income claimed was Rs.4,500/- and the ``` MACA No.2252 of 2011 6 ``` appellant claims to be a person working as a Welder. The fact that a lesser monthly income was claimed in the claim petition by itself would not preclude the Tribunal or this Court from adopting a higher monthly income, if the facts and circumstances justify taking a higher monthly income. Here, as per the method of computation referred to above, which is consistently ``` ``` taken by this Court in the matter of fixation of the monthly income, it would come to Rs.6,000/-. Therefore, such a computation can be accepted in this case also, even though the claim was on the lower side. This is mainly because, as far as the avocation of a Welder is concerned, the monthly income generated from the said avocation may not be static as it varies from month to month. Moreover, in Minu Rout and Another v. Satyapradyumma Mohapatra and Others [(2013) 10 SCC 695], the Hon’ble Supreme Court has adopted the monthly income more than the amount claimed in the claim petition. Therefore, to ensure “just compensation” to the victim, this Court deem it appropriate to take a higher monthly income ``` MACA No.2252 of 2011 7 ``` in tune with the method of computation as referred to above. Thus, the monthly income is fixed as Rs.6,000/-. ``` ``` 7.Another aspect highlighted by the learned ``` ``` counsel for the appellant is related to the physical disability. Exhibit A7 is the disability certificate as per which whole body disability was certified as 22%. The doctor who issued the said certificate was examined as PW1. In his deposition, he stated that considering the nature of the avocation of the appellant, the functional disability could be taken note of. According to him, the functional disability suffered by the appellant is 49% and whole body disability is 22%.The learned counselfor the ``` ``` appellant,by placing reliance upon Exhibit A7 and the deposition of PW1, contends that this is a fit case in which 100% disability ought to have been taken, as ``` ``` theappellant was not in a position to continue the avocation as a Welder. However, after carefully going through the contents of the disability certificate and the evidence of PW1, I am not inclined to accept ``` MACA No.2252 of 2011 8 ``` that contention. It is true that PW1 has deposed that he hassuffered 100% functional disability as a Welder. However, the reasons for making such an ``` ``` assessment are conspicuously absent in the aforesaid deposition and in the disability certificate also, no such evaluation is seen made. The nature of injuries sustained by the appellant and the disability arising therefrom, as certified in Exhibit A7, also may not justify taking the physical disability as 100% in this case, particularly because there is no neurological disability or other disabilities which would affect the appellant from pursuing any other avocation. From the nature of the injuries, the ``` ``` possibility of continuing the avocation as a Welder cannot be ruled out. Of course, the appellant would be having some difficulties while pursuing his avocation as the Welder and therefore, the same has to be compensated. This is particularly because he probably needs to put more effort into his duties, and his productivity may also be lower. This would certainly affect the earning capacity, and therefore, ``` MACA No.2252 of 2011 9 ``` I am of the view that a slightly higher functional disability than the physical disability as certified in Exhibit A7 can be accepted. In the facts and ``` ``` circumstances of the case, I deem it appropriate to ``` ``` fix it as 35%. As the appellant's age was 27 at the time of the accident, the multiplier to be adopted in this case is 17 instead of 18. When re-assessing ``` ``` the compensation as above, the compensation under theheadwouldcometoRs.4,28,400/- ``` ``` [Rs.6,000x12x17x35%]. After deducting the amount already granted under this head, the additional ``` ``` amount receivable by the appellant under this head would come to Rs.3,85,200/- [Rs.4,28,400-43,200]. ``` ``` 8.Another contention raised by the learned counsel for the appellant relates to the compensation for loss of earnings. The Tribunal has awarded ``` ``` compensation under this head for a period of five months. The learned counsel for the appellant would point out that, consequent to the injuries, he had undergone treatment for a period of 117 days, and ``` ``` even thereafter, he was undergoing treatment for the ``` MACA No.2252 of 2011 10 ``` injuries he sustained in the accident. Therefore, he ``` ``` seeks compensation for loss of earnings for a period of one year. However, considering the facts and circumstances of the case, compensation under this head can be granted for six months. When the said compensation is determined with the monthly income of ``` ``` Rs.6,000/- for the said period, the additional compensation receivable by the appellant under this head would come to Rs.26,000/- [Rs.6000x6-10000]. ``` ``` While considering the compensation granted under the other heads, it can be seen that the amount awarded by the Tribunal for pain and suffering is Rs.25,000/-. It is discernible from the award that, he sustained severe injuries and total period of hospitalization would come to 117 days at different ``` ``` spells. Thus, considering the nature of the injuries ``` ``` and prolonged treatment availed by the appellant, I am of the view that, a further sum of Rs.10,000/- is to be granted under the said head. Similarly, the amount awarded under the head of loss of amenities is only Rs.5,000/-. As mentioned above, he suffered ``` MACA No.2252 of 2011 11 ``` severe injuries, which necessitated inpatient treatment for 117 days and resulted in physical disability of 22%. The appellant was a person working as a Welder, which requires physical exertion. Therefore, I am of the view that, considering the aforesaid aspect, a further sum of Rs.25,000/- can be granted under the said head. Thus, an additional amount receivable by the appellant would come to Rs.4,46,200/-[ Rs.3,85,200+26,000+10,000+25,000]. ``` ``` In view of the above observations and findings, this appeal is allowed. The award dated 6.5.2011 passed in OP(MV) No.1594/2007 by the Motor Accidents Claims Tribunal, Irinjalakuda is modified by granting an additional compensation ofRs.4,46,200/- (Rupees ``` ``` Four lakhs Forty six thousand and Two hundred only) and the 3[rd] respondent- Insurance Company shall deposit the said amount along with interest at the rate of 7% per annum from the date of petition till ``` ``` realization. It is further clarified that, as this Court has not interfered with the finding of the Tribunal with regard to the recovery rights granted ``` MACA No.2252 of 2011 12 ``` to the 3[rd] respondent, it shall be open for the 3[rd] respondent to recover the additional compensation from the 1[st] respondent. ``` ``` Sd/- ``` ``` ZIYAD RAHMAN A.A. JUDGE ``` pkk