Johnson v. B. Arumughamm Pillai, Chargieeland T.T.P. Ltd., Thiruvananthapuram; Jojo John K.; The Oriental Insurance Co Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN & THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** **TUESDAY, THE 8TH DAY OF MARCH 2016/18TH PHALGUNA, 1937** **MACA.No. 1893 of 2005 ( ) --------------------------** **AGAINST THE AWARD IN OPMV 1468/1998 of MACT, IRINJALAKUDA DATED 03-05-2005** **APPELLANT/PETITIONER: --------------------** **JOHNSON, AGED 32, S/O.PORINCHU, CHEVIDAN HOUSE, PUDUKKAD THRISSUR.** **BY ADVS.SRI.T.C.SURESH MENON SRI.P.S.APPU SRI.A.R.NIMOD** **RESPONDENTS/RESPONDENTS:** **-----------------------** **1. B.ARUMUGHAM PILLAI, CHARGIEELAND T.T.P. LTD., THIRUVANANTHAPURAM.** **2. JOJO JOHN K., S/O.JOHNY, KODIYIL HOUSE, ARITTATHUR.** **3. THE ORIENTAL INSURANCE CO LTD., BRANCH OFFICE, CITY HEIGHTS BUILDINGS, CHALAKUDY.** **R3 BY ADV. SMT.REKHA NAIR R3 BY SMT. K.S.SANTHI** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 08-03-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **P.N. RAVINDRAN & K. RAMAKRISHNAN, JJ.** .................................................. M.A.C.A.No.1893 of 2005 ....................................................... Dated this the 8[th] day of March, 2016. ## **JUDGMENT** ## **K. RAMAKRISHNAN, J:** The claimant in O.P.(M.V.)No.1468 of 1998 on the file of the Motor Accidents Claims Tribunal, Irinjalakuda is the appellant herein. The claimant filed the claim petition before the tribunal claiming compensation for the injuries sustained in the motor vehicle accident occurred on 21.9.1998 at 6.30. a.m. According to the claimant, while he was walking along the side of the road, a scooter with registration No.KBV 2806 driven by the second respondent, owned by the first respondent and insured by the third respondent came in a negligent manner and hit against him causing severe injuries to him. He was aged 32 years and a coolie by profession and earning Rs.4,000/- per month. On account of the injuries, permanent disability caused to him and he claimed a total compensation of Rs.1,50,000/- on various heads. 2. Respondents 1 and 2 entered appearance, but no statement was filed. The third respondent entered appearance and admitted insurance but denied negligence on the part of of the first respondent. According to them, the accident occurred on 21.9.1998, but he was admitted in the hospital on 30.9.1998. So disputed the nature of injury sustained in the accident. They also denied age, occupation, monthly MACA.No.1893/05 2 income, disability etc and according to them, the amount claimed is exorbitant and they prayed for dismissal of the application. 3. The appellant was examined as PW1 and two doctors were examined as PWs 2 and 3 and Exts.A1 to A12 and X1 and X2 were marked on their side. No evidence was adduced on the side of the respondents. After considering the evidence on record, the tribunal found that the accident occurred due to the negligence of the first respondent and assessed the total compensation of Rs.47,556/- as follows: |Medical expenses|: Rs.1556/-| |---|---| |Transport to hospital|: Rs.300/-| |Attendant expenses|: Rs.3,900/-| |Loss of earnings|: Rs.4,500/-| |Pain and sufferings|: Rs.5,000/-| |Loss of amenities in life|: Rs.2,000/-| |Compensation for permanent disability : Rs.30,600/-|| ||-------------| |Total|Rs.47,556/-| ||========| The Tribunal directed respondents 1 to 3 to pay the amount with interest at the rate of 6% from the date of petition till payment. MACA.No.1893/05 3 Dissatisfied with the quantum of compensation awarded, the present appeal has been preferred by the appellant/claimant before the tribunal. 4. We have dispensed with notice to respondents 1 and 2 as insurance company admitted their liability to indemnify the owner. 5. Heard Sri.Appu, learned counsel representing Sri.Suresh Menon and Smt. Rekha Nair, learned counsel appearing for the third respondent. 6. Learned counsel for the appellant submitted that the tribunal has erred in fixing the monthly income at Rs.1,500/- per month. No amount was awarded for future prospects. Further, tribunal had reduced the percentage of disability suffered by the injured as 10% from 15% without any basis. So total compensation awarded is very low. He is entitled to enhancement under all heads. 7. On the other hand, learned counsel for the insurance company submitted that the amount awarded by the tribunal is just and proper. 8. Since the tribunal had found that the accident occurred due to the negligence of the first respondent and that fact has not been disputed, we are not repeating the same in this judgment. The case of the claimant was that he was a collie aged 32 years and earning MACA.No.1893/05 4 Rs.4,000/- per month. Except his interested testimony, there is no other document to prove his income. It is true that it is not possible to prove the income of a collie by producing document. So considering the fact that the accident occurred in year 1998 and the legislature has taken annual income of a non earning member in the year 1994 as Rs.15,000/-, we are of the opinion that monthly income can be fixed at Rs.2,000/- per month. In _**Rajesh v. Rajbir Singh** [2013 (3) KLT 89(SC)]_ , the Supreme Court has held that even in the case of persons having no permanent income, future prospects will have to be taken into consideration for fixing compensation for loss of dependency. The said principle has been extended in the case of personal injury cases as well in _**Syed Sadiq etc. v. Divisional Manager, United India Ins.Co. (AIR 2014 SC 1052)**_ for assessing compensation under the head loss of earning capacity _**.**_ He is aged only 32 years, up to 40 years, future prospects will have to be taken as 50% of the monthly income. As per _**Sarla Verma (Smt) and others v. Delhi Transport Corporation and another** (2009(6)SCC 121)_ , the multiplier applicable to age group of 32 years is 16. The doctor who issued Ext.A8 disability certificate deposed that he was having 15% disability and it is seen from the disability certificate that he is having stiffness of right knee with limitation last 30[o] of flexion and 5[0] MACA.No.1893/05 5 extension and he is having stiffness to right hip with limitation of 25[0] . He is having difficulty in squatting and running, waisting etc. So considering this aspect it may have some impact in his work as a collie as well. So we think that entire 15% can be taken for the purpose of assessing compensation under the head loss of earning capacity. If a recalculation is made on that basis, he will be entitled to get Rs.86400/-=[(2000x150%)=3,000x12x15x15%] instead Rs.30,600/- awarded by the tribunal, thereby the claimant will be entitled to an additional compensation of Rs.55,800/- under the head loss of earning capacity and we award that amount under the head. 9. He was treated as an in patient for 39 days. Considering the nature of disability, he could not have worked for at lest four months instead three months taken by the tribunal during which period he will not be able to get income. So we award Rs.8,000/under the head of loss of earnings instead of Rs.4,500/- awarded by the tribunal, thereby the claimant will be entitled to get Rs.3,500/more under the head loss of earning capacity during the period of treatment. The tribunal has awarded Rs.5,000/- under the head pain and sufferings. Since he suffered fracture to femur and also treated as in patient for 39 days, we feel that amount of Rs.5,000/- MACA.No.1893/05 6 awarded by the tribunal for pain and suffering is on the lower side and we enhance the same to Rs.15,000/-, thereby the claimant will be entitled to get an additional amount of Rs.10,000/- under that head, which we award accordingly. 10. The tribunal has awarded Rs.2,000/- under the head loss of amenities in life. He suffered 15% disability. He is having difficulty in squatting, running and limitation to move his leg. He was aged 32 years at the time of the accident. This will have some impact on his personal life. It is settled law that even if the claimant is entitled to get compensation under loss of earning capacity, some reasonable amount will have to be awarded under the head loss of amenities in life if it had caused inconvenience to his personal life. Considering the circumstances, we feel that Rs.20,000/- can be awarded under the head loss of amenities in life instead of Rs.2,000/- awarded by the tribunal, thereby the claimant is entitled to get an additional amount of Rs.18,000/- under that head. We are not inclined to enhance the amount in other heads as it appears just and proper. So the claimant is entitled to get an additional amount of Rs.87,300/- which the third respondent insurance company is liable to pay with 9% interest from the date of petition till payment. Three months time is granted to the insurance company to deposit the amount. If the amount is deposited, MACA.No.1893/05 7 the claimant is entitled to withdraw the amount. With the above modifications of the impugned award, the appeal is allowed in part and disposed of accordingly. Sd/- ## **P.N. RAVINDRAN, JUDGE.** Sd/- **K. RAMAKRISHNAN, JUDGE.** cl /true copy/ P.S to Judge The figures “Rs.86,400/- and Rs.55,800/- occurring in paragraph 8 at page 5 and “Rs.87,300/-” occurring in paragraph 10 at page 6 of the judgment dated 8.3.2016 in M.A.C.A.No.1893/2005 are corrected and substituted as “Rs.81,000/-, Rs.50,400/- and Rs.81,900” respectively, vide order dated 29.6.2016 in I.A.No.1880/2016 in M.A.C.A.No.1893/2005. Sd/- **Registrar (Judicial)** MACA.No.1893/05 8 MACA.No.1893/05 9