Jomon v. Cholamandalam MS General Insurance

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ``` PRESENT ``` ``` THE HONOURABLE MRS. JUSTICE MARY JOSEPH MONDAY, THE 1[ST] DAY OF APRIL 2024 / 12TH CHAITHRA, 1946 ``` ``` MACA NO. 2878 OF 2022 ``` ``` AGAINST THE AWARD DATED 15.02.2022 IN O.P(M.V) NO.978 OF 2018 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, THODUPUZHA ``` ## **`APPELLANT/4TH RESPONDENT:`** ``` THE MANAGER, CHOLAMANDALAM MS GENERAL INSURANCE, NO.76A/7, BYPASS ROAD, MSR COMPLEX, SRIVILLIPUTHUR, VIRUDHA NAGAR, TAMILNADU, NOW REPRESENTED BY ITS DEPUTY MANAGER - CLAIMS, ACEL ESTATE, IYYATTIL JUNCTION, CHITTOOR ROAD, KOCHI., PIN – 682 011 ``` ``` BY ADVS. P.JACOB MATHEW.P MATHEWS JACOB (SR.) ``` ## **`RESPONDENT/PETITIONER:`** ``` JOMON, AGED 45 YEARS, S/O JOSE, MANGAPPALLIYIL.HOUSE, KOCHERA KARA.P.O, CHETTUKUZHY BHAGOM, ANAKKARA VILLEGE, IDUKKI.DISTRICT., PIN – 685 551 ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR HEARING ON 01.04.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA NO.2878/2022 ``` ``` 2 ``` ## **JUDGMENT** ## **Dated this the 01[st ] day of April, 2024.** The appeal on hand is originated from an award passed by Motor Accidents Claims Tribunal, Thodupuzha (for short, ‘the Tribunal’) on 15.02.2022 in O.P (M.V) No.978 of 2018. The appellant is the 4[th] respondent, who is none other than the insurer of the allegedly offending vehicle involved in the motor accident. Challenge was raised by the appellant against the quantum of compensation stood awarded by the Tribunal, for the reason that it is exorbitant. According to him, interference of this Court is warranted to make the compensation just and reasonable. 2. For the sake of convenience, the parties to this appeal will hereinafter be referred to as the petitioner and respondents 1 to 4 in accordance with their status in the Original Petition. 3. Before adverting to the contentions raised by the learned counsel for the 4[th] respondent, it is appropriate to have a brief discussion about the facts of the case and that is made ``` MACA NO.2878/2022 ``` ``` 3 ``` hereunder.:- Petitioner had sustained injuries in a motor accident occurred on 31.08.2018, when the motorcycle ridden by him was dashed by a lorry bearing Registration No.TN 60 V 8802. He was rushed to St.John’s Hospital Kattappana for treatment. He sustained head injuries in the motor accident. Treatment was availed from different hospitals and had also spent a lot of money towards treatment. For the personal injuries sustained by him and the disability suffered on account of those, the Tribunal was approached seeking for a total sum of `50,00,000/- as compensation. 4. The driver, the owner, the insured and the insurer of the offending lorry were arrayed as respondents 1 to 4 in the Original Petition. All respondents were issued with notice from the Tribunal but respondents 1 to 3 did not turn up to contest the Original Petition, despite receipt of notice. 4[th] respondent filed written statement admitting issuance of a valid certificate of insurance for the lorry bearing Registration No.TN 60 V 8802 covering the date of accident. Negligence alleged against ``` MACA NO.2878/2022 ``` ``` 4 ``` the 1[st] respondent was denied and it was sought to be attributed to the petitioner. Petitioner was contended as not holding a valid driving licence to ride the motorcycle and wearing a helmet at the relevant time of the motor accident. The claims of the petitioner regarding the age, occupation, monthly income, nature of injuries sustained and the treatment procedures undergone were disputed. Amount claimed as compensation is also disputed for its exorbitance. 5. Before the Tribunal, petitioner examined his wife as PW1 and employer as PW2. Exts.A1 to A25 and Exts.X1 to X3 were also marked on his side. Respondents did not adduce any evidence. 6. On the basis of the evidence adduced as above, the Tribunal arrived at a finding that the motor accident in question was occurred due to the rash and negligent driving of the lorry bearing Registration No. TN 60 V 8802 by its driver, who was arrayed as the 1[st] respondent in the Original Petition. The Tribunal also found that serious injuries were caused to the petitioner in the motor accident and therefore he is entitled to get ``` MACA NO.2878/2022 ``` ``` 5 ``` compensation from respondents 1 to 4 jointly and severally. The 4[th] respondent being the insurer of the offending vehicle was made liable to indemnify the 3[rd] respondent. A sum of `36,14,777/- was also arrived at as the compensation payable in favour of the petitioner. Interest at the rate of 6% per annum was also ordered to be paid for the amount awarded as compensation from the date of the Original Petition till the date of realisation. 7. The main challenge raised by the learned Senior Counsel on behalf of the 4[th] respondent was against the consideration by the Tribunal of loss of future prospects while calculating compensation for disability. According to him, the Tribunal ought not to have made an addition of 25% to the monthly income in consideration of loss of future prospects. According to him, the Tribunal is totally erred and unjustified in doing so. 8. The learned counsel contended furthermore that the Tribunal took 80% as the occupational disability of the petitioner, though a certificate issued by the Medical Board of ``` MACA NO.2878/2022 ``` ``` 6 ``` Medical College Hospital, Kottayam was marked in evidence as Ext.X3 by the petitioner, where only 32% was certified. According to him, the Tribunal is totally erred and unjustified in considering 80% as the occupational disability of the petitioner when evidence in that regard was not forthcoming. According to him, the petitioner even failed to mount the witness box to depose so. 9. The learned counsel has also pointed out that any members of the Medical Board, who had signed Ext.X3 was not examined by the petitioner to establish that the permanent disability certified in Ext.X3 made him disabled to do the work in which he was engaged or work of any other nature. Accordingly the compensation stood awarded on the basis of 80% occupational disability is sought to be set aside. 10. The learned counsel contended furthermore that the Tribunal has awarded compensation for loss of earning for one year. According to him, the Tribunal ought not to have awarded compensation for such a long period. The learned counsel seeks for a modification of the compensation stood awarded by ``` MACA NO.2878/2022 ``` ``` 7 ``` the Tribunal by interfering with the period for which loss of earning was calculated. 11. Petitioner did not turn up to argue the matter despite service of notice on him. As already stated, the wife of the petitioner gave oral evidence as PW1 and his employer as PW2. As per the claims raised by the petitioner in the Original Petition, he was working as a driver in a Private Limited Company and PW2 was it’s branch manager. A certificate is marked in evidence as Ext.A9. It was issued by PW2 and certified that the petitioner was drawing a monthly salary of `15,000/-. Ext.A9 having been proved through PW2, the Tribunal relied on it for fixation of the monthly income as `15,000/-. It is pertinent to note that challenge was also not raised against the marking of that document in evidence by the learned counsel for the 4[th] respondent/appellant. 12. 25% was found added by the Tribunal to the monthly income in consideration of loss of future prospects. There cannot be any dispute about the factum that the petitioner sustained head injury involving his brain and the permanent ``` MACA NO.2878/2022 ``` ``` 8 ``` disability was certified as 32%. There is every reason for the petitioner with 32% permanent disability affecting his brain to have loss of future prospects. The Tribunal has added 25% to the monthly income fixed by it in consideration of loss of future prospects and it undoubtedly is justified in doing so, in view of **National Insurance Company Ltd. v. Pranay Sethi and Others [2017 (4) KLT 662 (SC)]** . This Court is hesitant to interfere with the addition of 25% to the monthly income in consideration of loss of future prospects. 13. As per Ext.A7, the accident register cum wound certificate marked in evidence, petitioner had sustained Traumatic brain injury sequelae, diffuse axonal injury and lacerated wound on right knee. Ext.A8 and A10 are two certificates, where the treatments undergone by the petitioner are discussed with in detail. Exts.A9 and A11 are discharge summaries, Exts. A12 and A13 are medical certificates, Ext.A14 is the scan report, Ext.A15 is the MRI scan report and Exts.A20 to A24 are medical bills marked in evidence from the side of the petitioner. Records relating to the treatment of the petitioner ``` MACA NO.2878/2022 ``` ``` 9 ``` were also summoned from St.John’s hospital, Kattpana and marked in evidence as Ext.X1. Treatment was also continued by the petitioner at Rajagiri hospital and the treatment records were also summoned therefrom and marked in evidence as Ext.X2. Petitioner was examined by the Medical Board of Medical College hospital, Kottayam and his permanent disability was assessed. Certifying that a certificate was also issued therefrom, which is marked in evidence as Ext.X3. 14. It is established satisfactorily that the petitioner had sustained serious injuries on his brain and suffered permanent disability on account of that. In Ext.X3, issued by the Medical Board, Medical College hospital, Kottayam, 32% was the permanent disability certified. Mild mental status impairment and moderate limitation of all social and interpersonal daily living functions were stated as reasons for assessing 32% as his permanent disability. 15. Petitioner’s wife gave oral evidence as PW1. She deposed about the disability of the petitioner to do any kind of work following the motor accident. According to her, the ``` MACA NO.2878/2022 ``` petitioner used to raise his voice and utter unparliamentary words. According to her, his attitude towards children was hostile after the motor accident. She would also say that his conduct has also been changed a lot after sustaining the injuries in the motor accident. The version of PW1 about the mental impairment suffered by the petitioner and inability to pursue avocations of any nature after the motor accident was not controverted in cross examination. 16. The employer of the petitioner deposed as PW2. He would say that after the motor accident, the petitioner did not join his duty as a driver in the company managed by him. PW2 was not found cross examined by the 4[th] respondent on the version tendered by him. 17. This Court is convinced from the oral evidence of PWs 1 and 2 that the petitioner in view of the injuries sustained in the motor accident lost his capacity to do the job as a driver and therefore, abandoned the same. The 4[th] respondent even failed to put a suggestion either to PW1 or PW2 about continuation of the petitioner as driver under PW2 or anywhere ``` MACA NO.2878/2022 ``` ``` 11 ``` else in any other capacity. Therefore, there is every reason for taking a view that the petitioner stopped attending his job as a driver following the motor accident in question, due to his incapacity to do it. It is stated in the impugned award that the petitioner appeared before the Tribunal in person. The Tribunal has described in the impugned award about the mental impairment suffered by him and his incapacity to do any work. 18. Therefore, on being convinced personally that the Tribunal had taken 80% as the occupational disability of the petitioner and calculated compensation on its basis. With regard to the fixation of monthly income as `15,000/-, there is no challenge from the side of the 4[th] respondent and that is maintained. When 25% is added to the monthly income fixed as above, `18,750/- (`15,000/- + 25% of `15,000/-) is arrived at. Compensation for permanent disability was calculated by the Tribunal on the basis of the above factors and therefore, interference with the quantum of compensation stood awarded by the Tribunal towards permanent disability is absolutely unwarranted. ``` MACA NO.2878/2022 ``` ``` 12 ``` 19. Loss of earning was calculated by the Tribunal for one year and that is also under challenge. It is established from the evidence that the petitioner had undergone inpatient treatment from 31.08.2018 till 11.09.2018, from 11.09.2018 till 19.10.2018 and from 19.10.2018 till 13.11.2018. The total period would come to almost three months. Treatment was also continued as out patient. The Tribunal has also taken 80% occupational disability for the petitioner and awarded compensation on it’s basis. Therefore, one year period taken by the Tribunal for awarding compensation for loss of earning is a lengthy period and this Court finds every reason to reduce the period to six months. Therefore, the petitioner will get only `90,000/- (`15,000/- x 6) as compensation towards loss of earning. 20. the interest Challenge was also raised against ordered by the Tribunal at the rate of 6% per annum for the compensation stood awarded towards future bystander expenses. That being a sum stood awarded by the Tribunal ``` MACA NO.2878/2022 ``` ``` 13 ``` anticipating the expenses likely to be incurred in future, it is not liable to carry interest and the same is set aside. In the result, the appeal on hand is allowed in part. `90,000/- is deducted from the total compensation stood awarded by the Tribunal and interest at the rate of 6% ordered to be paid for the future bystander expenses awarded is set aside. The rest of the impugned award is maintained. ``` Sd/- ``` **MARY JOSEPH** **JUDGE** JJ