Johnson Mathew v. Joby, Sunil Kumar and The United India Insurance Co. Ltd.

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.`** ``` THURSDAY, THE 14[TH] DAY OF MARCH 2024 / 24TH PHALGUNA, 1945 MACA NO. 1965 OF 2013 ``` ``` APPEAL FILED AGAINST THE AWARD DATED 31.01.2013 IN O.P (MV) NO.734/2009 OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, PALA ``` ## **`APPELLANT/PETITIONER:`** ## **`JOHNSON MATHEW, S/O.MATHEW, PARANKULANGARA HOUSE, KEEZHAMBRA, KONDOOR VILLAGE, KOTTAYAM DISTRICT.`** ## **`BY ADVS. ABRAHAM MATHEW (VETTOOR) ELIZABETH OLIVER`** ## **`RESPONDENTS/RESPONDENTS:`** - **`1 JOBY, S/O. RAJAPPAN, MECHERIL HOUSE, KODUVAZHANGA, ALALANGADU VILLAGE, PARAVUR TALUK, ERNAKULAM DISTRICT, PIN-683 511.`** - **`2 SUNIL KUMAR, PLAMKUDY HOUSE, THAIKATTUKARA P.O., ALWAYE, ERNAKULAM, PIN-683 106.`** - **`3 THE UNITED INDIA INSURANCE CO. LTD., REPRESENTED BY ITS DIVISIONAL MANAGER, KOTTAYAM, PIN – 686 001.`** ## **`R3 BY ADV S.ARUN RAJ`** ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 14.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA NO. 1965 OF 2013 ``` ``` 2 ``` ## **`JUDGMENT`** The appellant was the petitioner in O.P.(M.V.) No.734/2009 on the files of the Motor Accidents Claims Tribunal, Pala. The said claim petition was submitted by him seeking compensation for the injuries sustained in a motor accident that occurred on 23.04.2009. 2. According to the appellant, the accident occurred when he was travelling in a lorry accompanying the goods carried in the said vehicle; it hit on a palm tree, and due to the impact, the appellant sustained serious injuries. The appellant was 42 years old at the relevant time, and according to him, he was a farmercum-businessman with a monthly income of Rs.13,000/-. He sustained serious injuries, which resulted in physical disability as well. The claim petition was submitted in such circumstances. 3. The 1[st] and 2[nd] respondents, the driver and registered owner of the said lorry were set ex parte. The 3rd respondent filed a written statement admitting the coverage of the policy. However, they contended that the petitioner was a passenger in the goods vehicle, and therefore, no coverage was available for the risk of ``` MACA NO. 1965 OF 2013 ``` ``` 3 ``` the appellant. However, the 3rd respondent admitted the existence of a valid policy for the said vehicle. The said claim petition was tried along with O.P.(M.V.) No.679/2000. 4. The evidence in this case consists of oral testimony of PW1 and Exts.A1 to A12. The disability certificate was marked as Ext.X1. From the side of the insurer, Exts.B1 to B3 were marked. After the trial, the Tribunal found that the accident occurred due to the negligence on the part of the 1[st] respondent in driving the said vehicle. However, the Tribunal found that there was violation of policy conditions, and hence, even though the 3[rd] respondent was imposed with the liability to pay the compensation initially, they were permitted to recover the said compensation from the 1[st] and 2[nd] respondents. The quantum of compensation was fixed as Rs.1,26,516/- and the same was directed to be deposited by the 3[rd] respondent with interest @ 7.5% per annum from the date of petition till realisation and with proportionate cost, subject to the right of recovery granted to them. This appeal is submitted by the appellant in such circumstances seeking enhancement of compensation. ``` MACA NO. 1965 OF 2013 ``` ``` 4 ``` 5. Heard Sri.Abraham Mathew, learned counsel appearing for the appellant and Sri.S. Arunraj, learned counsel appearing for the 3[rd] respondent. 6. The only question that arises for consideration in this appeal is whether enhancement of compensation as claimed in the appeal is to be granted or not. On carefully going through the records, I find that, in some of the heads, the amount awarded by the Tribunal is too meagre and requires reconsideration. The first aspect to be noticed is with respect to the compensation awarded by the Tribunal for disability and consequential loss of earning capacity. The Tribunal took the monthly income as Rs.4,500/- as against the claim of Rs.13,000/-. Similarly, the percentage of disability certified in Ext.X1 was 7%, but, the same was scaled down to 5%. 7. As far as the monthly income of Rs.4,500/- is concerned, the same appears to be too meagre in respect of an accident that occurred in the year 2009. To substantiate the monthly income, the appellant placed reliance upon Ext.A10 and Ext.A11. Ext.10 is the certificate issued by M/s.South Indian ``` MACA NO. 1965 OF 2013 ``` ``` 5 ``` Fertilizers to the effect that the appellant was working as a commission agent with them from 2003 onwards and during 2008 and 2009, he received a total commission of Rs.1,45,000/-. Ext.A11 are the order forms which according to the appellant, were obtained by him for the purchase of various fertilizers from the said institution by various customers and according to the appellant, the said sales were arranged by the appellant. However, none of the said documents were properly proved by examining any competent person in this regard. Apart from the same, no documents relating to the transaction of the amounts referred to in Ext.A10 were also not produced. In such circumstances, I am of the view that the amount referred to in Ext.A10 as such, cannot be accepted. However, even if that be so, the monthly income of Rs.4,500/- is on the lower side. If the method of monthly income evolved from the principles laid down 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] is taken into account, monthly income for an ordinary ``` MACA NO. 1965 OF 2013 ``` ``` 6 ``` worker could be fixed as Rs.7,000/- pertaining to the year 2009, even in respect of an ordinary worker. In this case, the appellant asserted by mounting the box that he was working as an agent of an establishment and Ext.A10 was also relied on. Thus, there is some evidence to show that he was working as a commission agent in an establishment and considering the said fact, a slightly higher monthly income than usually taken in respect of an ordinary worker could be accepted for assessing the compensation for disability. Thus, the monthly income is fixed as Rs.8,000/-. The percentage of disability certified in Ext.X1 was 7% and without mentioning any reasons the same was scaled down by the Tribunal towards 5%. It is a well settled position of law as per **G.Manikantan v. Janardhanan Nair [2021 (6) KLT SN 362]** case that, unless there are serious discrepancies in the assessment made by the Medical Practitioner as far as the percentage of disability is concerned, the same cannot be scaled down. In this case, the certificate was issued by a Medical Board and I do not find any justifiable reason to reduce the percentage of disability certified therein. Therefore, the percentage of disability ``` MACA NO. 1965 OF 2013 ``` ``` 7 ``` of 7% is accepted. Thus, while re-assessing the compensation for disability with revised monthly income and the percentage of disability as 7%, the amount of compensation would come to Rs.94,080/- (8,000 x 12 x 14 x 7/100). The amount already awarded by the Tribunal under this head is Rs.40,500/- and thus the additional compensation comes to Rs.53,580/-. 8. Consequent to the revision of monthly income, the appellant would be entitled to additional amount under the head of loss of earnings. The Tribunal awarded compensation under this head was for a period of four months and the said period appears to be reasonable. In the light of the revision of monthly income as Rs.8,000/-, the additional amount under this head would come to Rs.14,000/-. 9. The amount awarded by the Tribunal towards pain and suffering was Rs.20,000/- which appears to be on the lower side. It is to be noted that the appellant had sustained the following injuries in the accident. 1. Lacerated wound 4 x 3 cm anterior aspect of upper 1/3rd left leg. 2. Another lacerated wound posterior aspect of ``` MACA NO. 1965 OF 2013 ``` ``` 8 ``` upper 2/3rd, lower 1/3rd junction of left leg. 3. Swelling and tenderness left ankle. 4. Fracture of left lateral malleolus. Consequent to the same, he had undergone inpatient treatment for 15 days and even after discharge, he continued the treatment. In such circumstances, I deem it appropriate to grant a further sum of Rs.20,000/- under the said head. Similarly, the amount awarded towards loss of amenities was Rs.10,000/- only and it also appears to be on the lower side. Considering the fact that the appellant sustained physical disability of 7% and other difficulties which he may have to face, a further sum of Rs.15,000/- is awarded under the said head. Thus, the total additional compensation comes to Rs. 102,580/(53580+14,000+20,000+15,000). In the result, this appeal is allowed. The award dated 31.01.2013 passed by the Motor Accidents Claims Tribunal, Pala in O.P.(M.V.) No.734/2009 is hereby modified by granting an additional compensation of Rs.1,02,580/- (Rupees one lakh two thousand five hundred and eighty only) and the said amount shall deposited by the 3rd respondent with interest at the rate as ``` MACA NO. 1965 OF 2013 ``` ``` 9 ``` ordered by the Tribunal, with proportionate costs, within a period of three months from the date of receipt of a copy of this judgment. However, it is clarified that, since the delay of 127 days in filing the appeal was condoned by this Court, subject to the condition that the appellant shall not be entitled to interest for the period of delay, the 3[rd] respondent shall be at liberty to exclude the said period while computing the interest on the additional compensation. It is further clarified that the claimant shall furnish the details of the PAN card, Aadhar Card and bank details to enable the Insurance Company to make the deposit as ordered above, within period of two months from the date of receipt of a copy of this judgment. In case, he fails to furnish the said details, it shall be open for the insurance company to deposit the said amount before the Tribunal. **Sd/-** **`ZIYAD RAHMAN A.A. JUDGE`** scs