Joffin Sebastian v. Tomy Joseph and Oriental Insurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE BASANT BALAJI** **WEDNESDAY, THE 17[TH] DAY OF AUGUST 2022 / 26TH SRAVANA, 1944 MACA NO. 2821 OF 2014** **OPMV 1096/2009 OF MOTOR ACCIDENT CLAIMS TRIBUNAL PALA** ## **APPELLANT/S:** JOFFIN SEBASTIAN AGED 26 YEARS S/O.SEBASTIAN, KIZHAKKENATHU HOUSE, VELLAPPALLY VILLAGE, VELLILAPPALLY KARA, RAMAPURAM, PALA. BY ADVS. SRI.V.C.JAMES SRI.JOBY JOSEPH SRI.BABY THOMAS ## **RESPONDENT/S:** 1 TOMY JOSEPH KARINGOTTIL HOUSE, RAMAPURAM BAZAR P.O., PALA686575. 2 THE DIVISIONAL MANAGER ORIENTAL INSURANCE CO.LTD., KANJIKUZHY P.O., KOTTAYAM, 685602. THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 17.08.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **MACA NO. 2821 OF 2014** -2- ## **JUDGMENT** (Dated this the 17[th] day of August 2022) This appeal is directed against the award dated 18.4.2013 in O.P. MV No.1096 of 2009 on the files of MACT, Pala. The petitioner is a student aged 22 years, met with an accident which occurred on 23.5.2009 at about 5.30 pm, near Carmel Jyothi hostel on the side of Pala – Ramapuram Public road. The appellant was riding his motor cycle bearing Reg.No.KL-35/5552 and when he reached at the place of occurrence, a Motor bike with Reg.No.KL-5/Y 6693 ridden by the first respondent was proceeding in front of motor cycle. The driver suddenly turned his bike towards right without indicating any signal, as a result of which the appellant's bike hit on the bike of the first respondent and they were thrown away from the bike and sustained serious injuries. He was taken to Carithas hospital and underwent treatment there. Thereafter, he was treated at CMC Hospital, Velloore for 149 days. The appellant was studying for final year BCA course at MA College, Ramapuram. On account of the **MACA NO. 2821 OF 2014** accident, he could not complete the studies. He was earning an amount of Rs.4,000/- from taking tutions. The accident happened due to the rash and negligent driving of the first respondent and the 2[nd] respondent being the insurer is liable to pay the compensation to the appellant. 2. Though the first respondent entered appearance, no written statement was filed. The 2[nd] respondent alone filed written statement contending that the insurer of the offending vehicle was not made a necessary party in the petition and the petition was filed in collution with other petitioners. Compensation claimed under various heads is exorbitant and the accident occurred due to the negligent driving of the appellant himself. The appellant was not wearing protective headgear at the time of accident. Hence prayed for dismissal of the petition. 3. The Tribunal raised 3 issues and on considering the facts and circumstances of the case and relying on Ext.Nos. A1 to 20 and X1 awarded a total compensation of **MACA NO. 2821 OF 2014** Rs.13,76,953/- with 7.5% interest from the date of petition till date of deposit. Aggrieved by the quantum of compensation awarded, this appeal is filed. ## 4. Heard. 5. The main ground raised in this appeal is regarding the income taken for calculating the loss of compensation for disability. According to the appellant, he was earning Rs.4,000/- by taking tution classes, though he was a student of BCA course at the time of accident. The Tribunal took the notional monthly income of the appellant as Rs.3,000/month. on the decision in per Relying reported **v.** _**Ramachandrappa Manager, Royal Sundaram Alliance Insurance Company Limited**_ [(2011) 13 SCC 236] the notional monthly income to be taken for an accident which happened in the year 2009 is Rs.7,000/-. The appellant was aged 22 years. So the multiplier to be adopted is 18, but the Tribunal took the same as 17. The appellant was **MACA NO. 2821 OF 2014** -5- examined by a Medical Board attached to the Medical College Hospital and Ext.X1 is the disability certificate which shows that there is neurological disability of 50% on account of the injuries sustained in the road traffic accident. Since the appellant has sustained injuries and the whole body disability is more than 50%, future prospects can also be taken in this case. Relying on the decision reported in **National Insurance Company v. Pranay Sethi (2017 (16) SCC 680),** as the appellant was self employed, aged below 40 years, 40% of the income can be taken as future **.** prospects Accordingly, the monthly income can be calculated as 7000 + 2800(7000x40%) = Rs.9,800/-. Thus, the total compensation for permanent disability can be worked out as 9800x18x12x50/100 = 10,58,400/- 6. For loss of earning, the Tribunal has awarded a sum of Rs.36,000/- (for 12 months at the rate of Rs.3,000/-). When the income is taken as Rs.7,000/- loss of earning would come to Rs.84,000/-. **MACA NO. 2821 OF 2014** -6- 7. For extra nourishment, the Tribunal awarded only Rs.5,000/-. It is seen that the appellant was inpatient for 204 days, out of which 92 days he was in MICU. Hence, the amount of compensation for extra nourishment awarded by the Tribunal is very low and the same has to be enhanced. An amount of Rs.25,000/- is awarded under extra nourishment. 8. As far as bystander’s expenses is concerned, the Tribunal awarded only Rs.40,800/- taking 200 per day for 204 days. It is seen that the appellant was inpatient for 204 days. But in fact even though he was discharged from the hospital, he will have to be taken care by a 3[rd] person at least for 3 months, taking note of the injuries sustained. Hence, towards bystander’s expenses, the appellant is entitled to bystander's expenses for 3 more months, which comes to Rs.200x90 = Rs.18,000/-. 9. As far as pain and suffering is concerned, the claim was for Rs.2,00,000/- the Tribunal awarded only **MACA NO. 2821 OF 2014** Rs.50,000/-. It is seen from the discharge summary, neurological disability as 50% and surgical disability as 25% as the appellant had underwent multiple surgeries as enterio cutaneous fistula including bowel secretion. Thus he had to undergo so much pain and suffering more in connection with the treatment and for long life he has to suffer. Taking all these, an amount of Rs.50,000/- more is awarded under the head. 10. Towards loss of amenities, as against the claim of Rs.10,00,000/- only Rs.30,000/- was awarded. Taking into consideration of entire aspects and the injuries sustained, an amount of Rs.30,000/- more is awarded under the head. 11. It is seen from the treatment certificate as well as discharge certificate that he could not complete his studies and he had to stop his studies. For loss of future studies though claimed Rs.2,00,000/- only Rs.30,000/- was awarded. He had to stop his studies and could not complete the same. Hence, the amount of Rs.30,000/- awarded on **MACA NO. 2821 OF 2014** -8- the head for loss of future studies is on the lower side and I am inclined to grant an amount of Rs.50,000/- more under the head. 12. For future treatment, only Rs.70,000/- was awarded against the claim of Rs.2,00,000/-. Due to the spinal cord injury, four of his limbs are paralysed and so he needs prolonged treatment. Hence, a further amount of Rs.30,000/- is awarded. Accordingly, the following enhancements are made to the award passed by the Tribunal: |Sl.<br>No.|Head of Claim|Amt.<br>Awarded by<br>Tribunal (Rs.)|Amt.<br>Enhanced in<br>appeal (Rs.)| |---|---|---|---| |1|Permanent disability|3,06,000|10,58,400| |2.|Loss of earning|36,000|84,000| |3|Extra nourishment|5,000|25,000| |4|Pain and suffering|50,000|1,00,000| **MACA NO. 2821 OF 2014** -9- |5|Bystanders expenses|40,800|58,800| |---|---|---|---| |6|Loss of amenities|30,000|60,000| |7|Loss of future studies|30,000|80,000| |8|Future treatment|70,000|1,00,000| ||Total|5,67,800|15,66,200| ||Amount enhanced – 15,66,200 – 5,67,800 =**Rs.9,98,400/-**||| In the result, the appeal is allowed, and the appellant is entitled to an amount of **Rs.9,98,400 (Rupees nine lakh ninety eight thousand four hundred only** ) as enhanced compensation with interest at the rate of 7.5% from the date of petition. If any amounts have already been paid, the same shall be granted set off. The claimants shall produce the details of the Bank account before the Insurance Company/Tribunal within one month from the date of receipt of a certified copy of this judgment and amount shall be transferred to the Bank account directly through NEFT/RTGS mode, within a period of one month **MACA NO. 2821 OF 2014** -10- 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. The appellant is disentitled for interest for a period of 346 days being the delay in filing the appeal before this court, as per order of this court dated 3.4.2019. It is further made clear that the compensation towards loss of future studies and future treatment will not carry interest. **sd** **BASANT BALAJI, JUDGE** _dl/_