James Xavier v. Reliance General Insurance Co. Ltd.

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN`** ``` THURSDAY, THE 4[TH] DAY OF JULY 2024 / 13TH ASHADHA, 1946 ``` ``` MACA NO. 2 OF 2019 ``` ``` AGAINST THE AWARD DATED 17.07.2018 IN OPMV NO.656 OF 2014 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, PATHANAMTHITTA APPELLANT/PETITIONER IN THE O.P.(MV): ``` ``` JAMES XAVIER AGED 55 YEARS S/O.CHACKO XAVIER, KUNNEPARAMBIL PALLICKACHIRA P.O., PAIPPADU, CHANGANASSERY, KOTTAYAM DISTRICT. BY ADVS. T.K.BIJU (MANJINIKARA) SMT.ANNIE M.ABRAHAM ``` ## **`RESPONDENT/3RD RESPONDENT IN THE O.P.(MV):`** ``` RELIANCE GENERAL INSURANCE CO.LTD. REPRESENTED BY ITS MANAGER, KABEER PLAZA, ALAPPUZHA-688001. BY ADVS. SRI.GEORGE CHERIAN (SR.) SMT.K.S.SANTHI SMT.LATHA SUSAN CHERIAN SRI.ALEXY AUGUSTINE ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 04.07.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA NO. 2 OF 2019 ``` ``` 2 ``` ## **JUDGMENT** ## **Dated this the 4[th] day of July, 2024** This appeal has been filed by the claimant in OP(MV) No.656/2014 on the file of the Motor Accidents Claims Tribunal, Pathanamthitta. The respondent herein is the third respondent before the Tribunal. 2. According to the appellant, on 09.06.2014 at about 8.00 a.m., while the appellant was driving an auto-rickshaw bearing registration No.KL-05-M-4172 through the Paippadu – Changanacherry road, a car bearing registration No.KL-27-C4820 driven by the second respondent in a rash and negligent manner through the Ezhuvanthanam – Kochupally road, hit against the auto-rickshaw, due to which the appellant sustained serious injuries. The appellant approached the Tribunal claiming a total compensation of ₹10,00,000/-, which is limited to ₹5,00,000/-. 3. The respondent-insurer filed a written statement, admitting the insurance policy, but disputing the quantum of compensation claimed. Before the Tribunal, no oral evidence was adduced on the side of the petitioner. Exts.A1 to A12 were ``` MACA NO. 2 OF 2019 ``` ``` 3 ``` marked on the side of the appellant. No oral and documentary evidence were adduced from the side of the respondent. The Tribunal, after analysing the pleadings and materials on record, awarded a sum of ₹1,57,480/- as compensation under different heads with interest @ 9% per annum from the date of petition till realization, against the respondent being the insurer. Dissatisfied with the quantum of compensation awarded by the Tribunal, the claimant has come up in appeal. 4. Heard the learned counsel for the appellant and the learned Standing Counsel for the respondent insurer. 5. The learned counsel for the appellant claims enhancement mainly under the following heads:- ## I. **Notional income** The learned Counsel for the appellant submits that the appellant was an autorickshaw driver and was earning a monthly income of ₹10,000/- per month. But the Tribunal had taken only ₹7,000/- as his monthly notional income. Going by the judgment in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Co. Ltd. [2011 (13) SCC 236],** the monthly income ought to have been taken at ₹9,500/-. ## **Sundaram Alliance Insurance Co. Ltd. [2011 (13) SCC** ``` MACA NO. 2 OF 2019 ``` ``` 4 ``` Considering the fact that he was an autorickshaw driver, I refix the monthly notional income of the appellant at **₹10,000/-** (Rupees Ten Thousand Only). ## **II. Loss of earnings** The learned Counsel for the appellant submits that due to the injuries sustained by the appellant, he could not go for work for almost one year. The Tribunal had taken only six months for awarding compensation under the head of loss of earnings, taking into consideration ₹7,000/- as his notional income. Considering the nature of the injuries as well as the age of the appellant, I find that a period of seven months can be taken for awarding compensation under the head loss of earnings. Thus, compensation under the head loss of earnings is re-calculated, totalling to an amount of ₹70,000/- (10,000 x 7). Hence, there will be an additional amount of ₹ **28,000/-** (Rupees Twenty Eight Thousand Only) granted under the said head. ## **III. Bystander expenses** The learned Counsel for the appellant submits that the Tribunal had taken only ₹250 per day for 6 days towards bystander expenses. Since the accident was in the year 2014, ``` MACA NO. 2 OF 2019 ``` ``` 5 ``` I find that an amount of ₹300 per day can be granted as bystander expenses, totalling to an amount of ₹1,800/-. Accordingly, there will be an additional amount of **₹300/-** (Rupees Three Hundred Only) under the said head. ## **IV. Pain and suferings** Though the appellant had claimed an amount of ₹2,00,000/- under this head, only an amount of ₹25,000 was awarded by the Tribunal. ## Following are the injuries sustained by the appellant: 1. Head injury with loss of speech power and paralysis of the left side. 2. Undisplaced fracture C4 left articular process (collar applied) 3. Multiple patchy areas of diffusion restriction noted in left insula, left basal ganglia, left frontal operculum, left corona radiata and cortical and subcortical regions of left temporal lobe - suggestive recent infarcts in left MCA territory. 4. Small patchy areas of diffusion restriction in right anterior frontal and left temporo occipital cortical/subcortical region-recent infarcts. 5. Multiple abrasions with pain all over the body and shock. ``` MACA NO. 2 OF 2019 ``` ``` 6 ``` Considering the nature of the injuries sustained by the appellant, I find that a total amount of ₹35,000/- can be granted under the said head. Thus, there will be an additional amount of **₹10,000/-** (Rupees Ten Thousand Only) under the said head. ## **V. Compensation for permanent disability** The learned Counsel for the appellant submitted that in Ext.A11 disability certificate issued by the Medical Board, Government Medical College, Kottayam, the permanent disability of the appellant is assessed at 10%. But the Tribunal had taken the disability as 5%. In **Manikantan G. v. K.Janardhanan Nair [2021 (5) KHC 305],** it is stated that the certificate issued by the Medical Board has to be taken into consideration and that if the Tribunal had any doubt, they ought to have followed the dictum laid down in **Raj Kumar v. Ajay Kumar [2011 (1) KLT 620]** . In this case, the Tribunal did not take any step to re-examine the claimant. However, I do not find any reason to disbelieve Ext.A11 disability certificate issued by the Medical Board and I, accordingly, fix the percentage of disability as 10%. Thus, the compensation payable under the said head is re-calculated, totalling to an ``` MACA NO. 2 OF 2019 ``` ``` 7 ``` amount of ₹1,32,000/- (10,000 x 12 x 11 x 10%). Thus, there will be an additional amount of **₹67,320/-** (Rupees Sixty Seven Thousand Three Hundred and Twenty Only) under the said head. ## **VI Loss of amenities and enjoyment of life** Though an amount of ₹1,60,000/- was claimed by the appellant under the head loss of amenities and enjoyment of life, only an amount of ₹5,000/- was granted by the Tribunal. Considering the nature of injuries sustained by the appellant, I find that an additional amount of **₹10,000/-** can be granted under the said head. Thus, the total compensation payable under the said head is **₹15,000/-** (Rupees Fifteen Thousand Only). Thus, the impugned award of the Tribunal is modified as ## follows: |Sl.<br>No.|Head of Claim|Amount<br>claimed<br>(in Rs.)|Amount<br>awarded by<br>the tribunal<br>(in Rs.)|Amount<br>modifed<br>in appeal<br>(in Rs.)|Total<br>compensation| |---|---|---|---|---|---| ||**Notional income**|**10,000**|**7,000**|**3,000**|**10,000**| |1|**Loss of earnings**|**1,00,000**|**42,000**|**28,000**|**70,000**| ``` MACA NO. 2 OF 2019 ``` ``` 8 ``` ||||||| |---|---|---|---|---|---| |2|Transport to<br>hospital|10,000|1,500|(not<br>modifed)|1,500| |3|Extra nourishment|8,000|1,500|(not<br>modifed)|1,500| |4|Damage to<br>clothings|2,000|1,000|(not<br>modifed)|1,000| |5|Medical expenses|20,000|15,300|(not<br>modifed)|15,300| |**6**|**Bystander’s**<br>**expenses**|**-**|**1,500**|**300**|**1,800**| |**7**|**Pain and**<br>**suferings**|**2,00,000**|**25,000**|**10,000**|**35,000**| |**8**|**Compensation**<br>**for permanent**<br>**disability**|**5,00,000**|**64,680**|**67,320**|**1,32,000**| |9|**Loss of amenities**<br>**& enjoyment of**<br>**life**|**1,60,000**|**5,000**|**10,000**|**15,000**| ||**Total**<br>**(Claim limited**<br>**to)**|**10,00,000**<br>**5,00,000**|**1,57,480**|**1,15,620**|**2,73,100**| Accordingly, the appeal is allowed in part and the appellant/claimant is awarded an additional compensation of **₹1,15,620/-** (Rupees One Lakh Fifteen Thousand Six Hundred and Twenty only) over and above the compensation awarded by the Tribunal with interest @ 8% per annum from the date of petition till realization and proportionate costs. The respondent insurer shall deposit the said amount together with interest and costs within a period of two months from the date of receipt of ``` MACA NO. 2 OF 2019 ``` ``` 9 ``` a certified copy of this judgment. The claimant shall furnish copies of the PAN Card, AADHAAR Card and bank details before the respondent insurer within a period of one month so as to enable the insurance company to make the deposit as ordered above. In case of failure to furnish details as above, it shall be open for the insurance company to deposit the said amount before the Tribunal. Upon such deposit being made, the entire amount shall be disbursed to the appellant at the earliest in accordance with law. **Sd/-** **SHOBA ANNAMMA EAPEN JUDGE** RK