Johnson Jose v. T.O.George, The Secretary, Edapally Block Panchayath, and Kerala State Insurance Department

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MRS. JUSTICE MARY JOSEPH`** ``` MONDAY, THE 18[TH] DAY OF MARCH 2024 / 28TH PHALGUNA, 1945 ``` ``` MACA NO. 1377 OF 2022 ``` ``` AGAINST THE AWARD DATED 25.06.2020 IN OPMV NO.1009 OF 2017 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, ERNAKULAM APPELLANT/CLAIMANT: ``` ``` JOHNSON JOSE AGED 34 YEARS S/O.P.V.JOSE, PANJIKKARAN HOUSE, POYYA P.O. MALA, THRISSUR DISTRICT-680 733 NOW PRACTISING AS AN ADVOCATE AT HIGH COURT OF KERALA, ERNAKULAM, PIN – 680 733 BY ADVS.T.V.AJAYAKUMAR RIMJU P.H. ``` ## **`RESPONDENTS/RESPONDENTS:`** - **`1 T.O.GEORGE S/O.OUSEPHUKUTTY, THYCOTTATHIL HOUSE, KARTHEDAM KARA ELAKUNNAPUZHA P.O. PIN 682 511, PIN – 682,511`** - **`2 THE SECRETARY THE SECRETARY, EDAPALLY BLOCK PANCHAYATH, KUSUMAGIRI P.O. KAKKANAD 682030, PIN – 682 030.`** - **`3 KERALA STATE INSURANCE DEPARTMENT DISTRICT INSURANCE OFFICE, C.JACOB & SONS BUILDING, ALAPPAT ROAD, KOCHI ERNAKULAM-682 016 REPRESENTED BY INSURANCE DIRECTOR.`** ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY ``` ``` HEARD ON 06.12.2023, THE COURT ON 18.03.2024 DELIVERED THE FOLLOWING: ``` MACA No.1377 of 2022 -:2:- ## **MARY JOSEPH, J.** - - - - - - - - - - - - - - - - - - - - - - - - - - - - M.A.C.A. No. 1377 of 2022 - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 18[th] day of March, 2024 ## **JUDGMENT** The appeal on hand is originated from an award passed by Motor Accidents Claims Tribunal, Ernakulam (for short ‘the Tribunal’) on 25.06.2020 in OP(MV) No.1009/2017. The appellant is the petitioner before the Tribunal. He seeks for enhancement of the sum stood awarded by the Tribunal as compensation for the reason that it is unjust, inadequate and unreasonable. 2. For the sake of convenience, the parties to this appeal will hereinafter be referred to as the petitioner and respondents 1 to 3 in accordance with their status in the Original Petition. 3. As per the averments in the Original Petition, the motor accident in question was occurred at about 2.45 p.m. on 20.08.2016, when a Mahindra Xylo Car bearing Registration No.KL-7/BT 9199 hit against a motorcycle bearing Registration MACA No.1377 of 2022 -:3:- No.KL-47F-5384, ridden by the petitioner through Kothad-Aster service road. He sustained serious injuries due to the rash and negligent driving of the car by its driver, who was arrayed as the 1[st] respondent in the Original Petition. The registered owner and the insurer of the car were also arrayed respectively as respondents 2 and 3. Raising a claim for `1,02,00,000/- as compensation against respondents 1 to 3 jointly and severally, the above Original Petition was filed. 4. Notice was issued from the Tribunal to all respondents. Despite service of notice, respondents 1 and 2 did not turn up to contest the Original Petition and therefore, were declared as ex parte by the Tribunal. The 3[rd] respondent filed written statement admitting issuance of a certificate of insurance for the Mahindra car bearing registration No.KL-7/BT 9199 covering the date of the motor accident. Negligence alleged against the 1[st] respondent was denied and sought to be attributed to the petitioner. Claims of the petitioner regarding his age, occupation, monthly income, nature of injuries sustained, treatment undergone and disability suffered were disputed. The validity of the vehicular documents MACA No.1377 of 2022 -:4:- i.e., R.C, driving licence, badge and authorization for the 1[st] respondent to drive car at the time of the motor accident were also disputed. Amount claimed as compensation was also disputed for being excessive, exaggerated and arbitrary. 5. Petitioner himself deposed as PW1 and a witness as PW2. Exts.A1 to A47 and X1 to X3 were marked from the side of the petitioner. Respondents abstained from adducing evidence of any nature. 6. The Tribunal placed reliance on Ext.A1 and Ext.A4, which are nothing but the FIR and the final report to arrive at a finding that the motor accident in question was occurred due to the rash and negligent driving of the Mahindra car bearing Registration No.KL-7/BT 9199 by the 1[st] respondent. It also got convinced from the wound certificate marked in evidence as Ext.A3 that the petitioner sustained comminuted fracture of right calcaneum, mid third shaft of tibia and fibula and a laceration on right thigh with deformity of lower limb. He underwent procedures like wound debridement, fasciotomy (right leg), open reduction of fracture, illizarov ring fixation of right tibia, bone grafting of right MACA No.1377 of 2022 -:5:- leg, distraction followed by compression at fracture site, removal of illizarov ring fixator and right hind foot arthrodesis. Petitioner was treated as inpatient at Aster Medicity and Medical Trust Hospital, Ernakulam for 7 different spells. The nature and the duration of the treatment undergone by the petitioner were established from the discharge summaries marked in evidence as Exts.A9 to A12, A25, A26 and A38. On the basis of those, the Tribunal calculated the compensation payable to the petitioner as `47,64,500/-. 3[rd] respondent being the insurer of the offending car was directed to deposit the compensation, with interest ordered at the rate of 9% per annum from the date of filing of the Original Petition, till the date of realization. 7. It is contended by the learned counsel for the petitioner that the compensation stood awarded by the Tribunal towards loss of earning, bystander expenses, pain and sufferings and loss of earning power are not just and reasonable. According to him, eventhough the expenses incurred by the petitioner for physiotherapy is established from Exts.A31 and A32 and supported further by A33 certificate issued by the doctor, the MACA No.1377 of 2022 -:6:- Tribunal failed to consider those while awarding compensation. He also urged for grant of a reasonable sum as compensation towards continuing physical permanent disability and future loss of income. 8. The learned counsel for the petitioner also relied on various decisions of the Honb’le Apex Court including **National Insurance Co.Ltd. v. Pranay Sethi and others** [2017 (4) KLT 662(SC)] and **Pappu Deo Yadav v. Naresh Kumar and Others** [2020 AIR(SC) 4424] and canvassed for consideration of loss of future prospects in his case by adding 40% to the monthly income fixed. 9. **Abhimanyu Partap Singh v. Namita Sekhon & Another** [2022 (8) SCC 489] and **N.Manjegowda v. The Manager, United India Insurance Co. Ltd** [2014 (3) SCC 584] were also relied on by the learned counsel to contend that the appellant, in view of the whole body disability assessed as 50% would find it very difficult to pursue his avocation as a lawyer and compete with others commanding confidence and acceptability by general clients. The learned counsel urged giving emphasis MACA No.1377 of 2022 -:7:- to the observations made there, “A young Advocate is bound to suffer huge professional loss on account of injuries as have been sustained by the appellant and the condition in which the Doctor found him.” Accordingly the loss of earning was taken as 70% and the loss of income due to disability was enhanced as `4,00,000/-. 10. In **Abhimanyu** supra the appeal was considered in the year 2022 and it was observed that a physiotherapist would charge atleast `150/- per day in 2016, when the motor accident was occurred. Thus the Apex Court found `54,000/-, as the sum payable annually and adopting the multiplier method of calculation, `9,72,000/- was awarded as expenses for physiotherapy. 11. It is noticed from the impugned award that the monthly income of the petitioner was notionally fixed as `25,000/- and it being a reasonable sum is maintained. It is pertinent to note that the Tribunal failed to add 40% to the monthly income in consideration of his loss of future prospects. Petitioner was aged 28 years at the relevant time and the MACA No.1377 of 2022 -:8:- Tribunal adopted 17, as the multiplier which is correct. It is revealed from the certificate issued by a Medical Board that the petitioner suffered 56% permanent loco-motor disability. When 40% is added to the monthly income fixed for the petitioner in consideration of loss of future prospects, `35,000/- (`25,000/- + 40% of `25,000/-) is arrived at. In the re-fixation, the petitioner will get `39,98,400/- (`35,000/- x 12 x 17 x 56/100) as compensation towards permanent disability. `28,56,000/stood awarded by the Tribunal, when adjusted against the sum now arrived at, the petitioner will get `11,42,400/- (`39,98,400/- `28,56,000/-) as additional compensation under that head. 12. It is established from Exts.A31, A32 and A33 that petitioner had incurred `70,350/- towards treatment expenses. In the light of the discussions made hereinabove, this Court finds it reasonable to grant `70,350/- towards treatment expenses. Ext.A22 is the marriage invitation card of the petitioner, wherefrom it is seen that the marriage of the petitioner was proposed to be conducted on 08.09.2016 and only due to the the motor accident occurred on 20.08.2016 that the marriage MACA No.1377 of 2022 -:9:- was called off. It is pertinent to note that the petitioner still remains a bachelor, evenafter passing of 7 years from the date of the motor accident. Therefore, this Court finds justification in awarding `3,00,000/- as compensation towards loss of marriage prospects. `3,00,000/- stood awarded by the Tribunal as compensation towards loss of earning being reasonable is also maintained. 13. In the above manner of calculation afresh, petitioner will get `15,12,750/- (`11,42,400/- + `70,350/- + `3,00,000/-) (Rupees Fifteen lakhs twelve thousand and seven fifty only) as additional compensation. The said amount will also carry interest at the rate of 7.5% per annum from the date of filing of the Original Petition till the date of realisation. 3[rd] respondent being the insurer of the offending vehicle shall pay `15,12,750/arrived at as additional compensation alongwith interest accrued on it at the rate fixed as above, within a period of two months from the date on which a certified copy of this judgment is received. The disbursal of the sum shall be in accordance with MACA No.1377 of 2022 -:10:- the guidelines issued by this Court in Circular No.03/2019 dated 06.09.2019. M.A.C.A is allowed in part accordingly. Sd/- **MARY JOSEPH, JUDGE.** ttb