Jose Joseph v. K.C. Jose and Oriental Insurance Company Limited

``` 2025:KER:24712 ``` **==> picture [58 x 58] intentionally omitted <==** ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE C.PRATHEEP KUMAR ``` ``` MONDAY, THE 3[RD] DAY OF MARCH 2025 / 12TH PHALGUNA, 1946 ``` ``` MACA NO. 2686 OF 2014 ``` ``` AGAINST THE AWARD DATED 25.07.2013 IN OPMV NO.832 OF 2008 OF ``` ``` MOTOR ACCIDENT CLAIMS TRIBUNAL VADAKARA ``` ## **`APPELLANT:`** ``` JOSE JOSEPH AGED 43 YEARS, RESIDING AT THOTTAPLAKKIL HOUSE, KOOTTUMUGHAM (PO), PANNIYAL, SREEKANDAPURAM, KANNUR - 670631 ``` ``` BY ADVS. V.S.CHANDRASEKHARAN M.V.DAS ``` ## **`RESPONDENTS:`** ``` 1K.C.JOSE S/O.CHUMMAR, AGE NOT KNOWN, RESIDING AT 6/587, KIZHAKKEPURATH HOUSE, VALAYANKUNDU, CHEMPARI, KANNUR - 670632 ``` ``` 2ORIENTAL INSURANCE COMPANY LIMITED KPK RIALTO, NEAR KOTTANCHERY PUMB, THANA, KANNUR - 670012 ``` ``` BY ADVS. SRI.MATHEWS JACOB (SR.) SRI. P.JACOB MATHEW- SC ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ``` ``` ON ON 03.03.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA NO. 2686 OF 2014 2 ``` **==> picture [58 x 58] intentionally omitted <==** ``` 2025:KER:24712 ``` ## **J U D G M E N T** Dated this the 3[rd] day of March, 2025 The petitioner in O.P.(M.V.) No.832/2008 on the file of the Motor Accident Claims Tribunal, Vatakara, is the appellant herein. (For the purpose of convenience, the parties are hereafter referred to as per their rank before the Tribunal). 2. The petitioner filed the above O.P. under Sections 140 and 166 of the Motor Vehicles Act, 1988, claiming compensation for the injuries sustained in a motor vehicle accident that occurred on 09.07.2007. According to the petitioner, on 09.07.2007 at about 6.45 a.m., while he was standing on the road margin, a lorry bearing Reg.No. KL 59-6545 driven by the 2[nd] respondent in a rash and negligent manner locked him down and as a result of the accident, the petitioner sustained serious injuries. 3. The 1[st] respondent is the owner, the 2[nd] respondent is the driver and 3[rd] respondent is the insurer of the offending vehicle. According to the petitioner, the accident occurred due to the negligence of the driver of the offending vehicle. The quantum of compensation claimed in the O.P. is Rs.16,21,000/- 4. The insurance company filed a written statement, admitting the ``` MACA NO. 2686 OF 2014 3 ``` **==> picture [58 x 58] intentionally omitted <==** ``` 2025:KER:24712 ``` accident as well as policy, but disputing the negligence on the part of the driver of the offending vehicle. 5. The evidence in the case consists of the documentary evidence Exts.A1 to A13 and B1. 6. After evaluating the evidence on record, the Tribunal found negligence on the part of the driver of the offending vehicle, awarded a total compensation of Rs. 10,89,300/- and directed the insurer to pay the same. 7. Aggrieved by the quantum of compensation awarded by the Tribunal, the petitioner preferred this appeal. 8. Now the point that arises for consideration is the following: _Whether the quantum of compensation awarded by the Tribunal is just and reasonable?_ 9. Heard Sri. Chandrasekharan, the learned Counsel appearing for the petitioner/appellant, and Sri.P. Jacob Mathew, the learned Standing Counsel for the 3[rd ] respondent. 10. The Point: In this case the accident as well as valid insurance policy of the offending vehicle are admitted. One of the contentions raised by the learned counsel for the petitioner is regarding the income of the petitioner as fixed by the Tribunal. According to him, the petitioner was working as ``` MACA NO. 2686 OF 2014 4 ``` **==> picture [58 x 58] intentionally omitted <==** `2025:KER:24712` rubber tapper and driver, earning Rs.9,500/- per month, but the Tribunal fixed his monthly income at Rs.4500./-. The learned counsel for the insurer would argue that the income fixed by the tribunal is reasonable. As per the dictum laid down by the Hon’ble Supreme Court in the decision in _**Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Co. Ltd.**_ [2011 (13) SCC 236], the notional income of a coolie, in the year 2007 will come to Rs.6000/-. Since the petitioner could not prove his job or income as claimed in the OP, in the light of a dictum laid down in the decision of the Hon’ble Supreme Court in **Ramachandrappa (supra)** , his notional income is liable to be fixed as that of a coolie, at Rs.6000/-. 11. In the accident the petitioner sustained spinal cord injury with posterior dislocation and quadriplegia and lacerated wound on the scalp. 12. As per Exhibit A11 disability certificate the petitioner suffered 100% permanent physical disability. It was issued by the medical board. The Tribunal, has accepted the permanent physical disability of the petitioner as such and hence, I do not find any grounds to interfere with the same. Therefore, the permanent physical disability of the petitioner is accepted as 100%, as fixed by the Tribunal. ``` MACA NO. 2686 OF 2014 5 ``` **==> picture [58 x 58] intentionally omitted <==** `2025:KER:24712` 13. On the date of accident, the petitioner was aged 43 years. Therefore, 25% of the monthly income is to be added towards future prospects, as held in the decision in **National Insurance Co. Ltd v. Pranay Sethi** [(2017) 16 SCC 680] and the multiplier to be applied is 14, as held in **Sarla Verma v. Delhi Transport Corporation,** [(2009) 6 SCC 121]. In the above circumstances, the loss of disability will come to Rs.12,60,000/- 14. Towards ‘loss of earning’, the tribunal has awarded Rs.50,000/-. Since the functional disability of the petitioner was taken as 100%, no further compensation on the head ‘loss of earning’ is required. Therefore the Rs.50,000/- awarded on the loss of earning will be deducted. 15. The learned counsel for the appellant submitted that, the petitioner is completely bedridden since the date of the accident and even for collecting urine and excretion, he requires the assistance of other persons. In the impugned award the tribunal also noted, that the petitioner cannot stand or walk and he requires assistance for any kind of movement and he is confined to the bed. Therefore, the petitioner requires a considerable amount towards ‘bystander expenses’. In the decision in **Kajal v. Jagadish Chand and Others,** AIR 2020 SC 776=[(2020) 4SCC413], in the case of a 12 year ``` MACA NO. 2686 OF 2014 6 ``` **==> picture [58 x 58] intentionally omitted <==** `2025:KER:24712` old child suffering from 100% disability, the Hon’ble Apex court has awarded the expense of two bystanders at the rate of Rs.5,000/- each per month, for 18 years. Since, in the instant case also the petitioner requires the help of bystander for all his daily necessities I hold that, as in the case of **Kajal** _(supra), t_ he petitioner also entitled to get bystander expenses at the rate of Rs.10,000/- for the rest of his life. Since he was aged 43 and the multiplier to be applied is 14, he is entitled to get bystander expenses for a period of 14 years. Therefore towards ‘bystander expense’ he is entitled to get a sum of Rs.10,000x12x14= **16,80,000/-** 16. Towards the head ‘pain and sufferings’, the Tribunal has awarded Rs.40,000/-. Towards 'loss of amenities of life' Rs. 25,000/- was awarded. The learned counsel appearing for the 3[rd] respondent would argue that, the claim was only Rs.40,000/- towards ‘pain and suffering’ and only Rs.15,000/- was claimed on the head ‘loss of amenities’. It is true that the petitioner has claimed only Rs.40,000/- on the had pain and suffering and Rs.15,000/- on the head loss of amenities. In the decision **Kajal** (supra), the Hon’ble Supreme Court has awarded sum of Rs.15,00,000/- towards pain and suffering and loss of amenities. In the decision in **Benson George v Reliance General Insurance Co. Ltd. (2022) 13 SCC 142,** in the case of an 8 year old ``` MACA NO. 2686 OF 2014 7 ``` **==> picture [58 x 58] intentionally omitted <==** `2025:KER:24712` child bedridden for the rest of his life, a sum of Rs.10,00,000/- each was awarded on the heads pain and suffering and loss of amenities. Since it is a duty of this Court to award just and reasonable compensation to the victims of road traffic accidents, considering the fact that the petitioner was aged 43 at the time of accident I hold that, the petitioner is entitled to get at least Rs.5,00,000/- each towards the heads ‘pain and suffering and ‘loss of amenities’. 21. Towards ‘extra nourishment’ the tribunal has awarded only Rs.7,500/-. considering the nature of injuries sustained by the petitioner and the percentage of disability suffered by the him, I hold that, compensation awarded on the head ‘extra nourishment’ is on the lower side and hence it is enhanced at Rs.50,000/-. 17. The learned counsel for the petitioner would submit that, the petitioner has to spend at least Rs.10,000/- per month towards future medical expenses. Since the petitioner is completely bedridden and catheter is provided for collecting urine, it is to be changed periodically. In order to avoid bedsores etc. physiotherapy and medical assistance will be required for the rest of his life. 18. The learned senior counsel for the 3[rd] respondent would argue ``` MACA NO. 2686 OF 2014 8 ``` **==> picture [58 x 58] intentionally omitted <==** `2025:KER:24712` that, the petitioner has not produced any evidence to prove the actual expenses towards ‘future medical expenses.’ It is true that the petitioner has not produce any documents to prove the amount spent towards medical expenses after passing the award. Even then, considering the nature of the injuries sustained by the petitioner and his pathetic condition, it can be presumed that, he will require continuous medical treatment for the rest of his life. In the above circumstances, I hold that a sum of Rs.5,00,000/- can be awarded towards ‘future medical expenses’ which will carry interest only from the date of the judgment,. 19. As argued by the learned counsel for the petitioner towards the cost of diaper, glouse, cleaning materials etc, the petitioner requires a considerable amount and as such a sum of Rs.2,00,000/- is awarded on the above head. 20. No change is required, in the amounts awarded on other heads, as the compensation awarded on those heads appears to be just and reasonable. The tribunal has awarded interest at the rate of 7.5%, considering the fact, I hold that interest at the rate of 8% will be a reasonable. 21. Therefore, the petitioners/appellants are entitled to get a total compensation of **Rs.47,00,800/-,** as modified and recalculated above ``` MACA NO. 2686 OF 2014 9 ``` **==> picture [58 x 58] intentionally omitted <==** ``` 2025:KER:24712 ``` ## and given in the table below, for easy reference: |**Sl.**<br>**No.**|**Head of Claim**|**Amount awarded by**<br>**Tribunal (in Rs.)**|**Amount Awarded in**<br>**Appeal (in Rs.)**| |---|---|---|---| |1|Loss of earning|Rs.50,000/-|NIL| |2|Transport to hospital|Rs.10,000/-|Rs.10,000/-| |3|Extra nourishment|Rs.7,500/-|Rs.50,000/-| |4|Damage to clothing& articles|Rs.800/-|Rs.800/-| |5|English medicine & by stander<br>expenses|Rs.2,00,000/-|Rs.16,80,000/-<br>(10,000x12x14)| |6|Compensation for pain and<br>suffering|Rs.40,000/-|Rs.5,00,000/-| |7|Compensation for continuing or<br>permanent disability|Rs.7,56,000/-|Rs.12,60,000/-| |8|Compensation for loss of<br>amenities|Rs.25,000/-|Rs.5,00,000/-| |9|Future medical expenses|NIL|Rs.5,00,000/-| |10|Cost of paper, glouse and<br>treating materials|NIL|Rs.2,00,000/-| ||**Total**|Rs.10,89,300/-|**Rs.47,00,800/-**| ||**Enhanced**|**Rs.36,11,500/-**|| 22. In the result, this Appeal is allowed in part, and 3[rd] respondent is directed to deposit a total sum of **Rs.47,00,800/-** (Rupees Forty Seven lakhs eight hundred only), less the amount already deposited, if any, along with interest @ 8% per annum , from the date of the petition till deposit/realisation, excluding interest for a period of 330 days, the period of delay in filing the appeal, with proportionate costs, within a period of two months from today. ``` MACA NO. 2686 OF 2014 10 ``` **==> picture [58 x 58] intentionally omitted <==** `2025:KER:24712` 23. On depositing the aforesaid amount, the Tribunal shall disburse 50% of the entire amount, excluding court fee payable, if any, to the petitioner, forthwith. 24. The Tribunal is permitted to decide, after considering the welfare, well being and the best interest of the petitioner, whether the balance amount is to be disbursed in full, forthwith or in installments or to be deposited in a Nationalised bank in fixed deposit in the name of the petitioner and to permit withdrawal of interest alone for the time being. Sd/- **C. PRATHEEP KUMAR, JUDGE** vnk/- ``` MACA NO. 2686 OF 2014 11 ``` **==> picture [58 x 58] intentionally omitted <==** ``` 2025:KER:24712 ``` ## **`APPENDIX OF MACA 2686/2014`** ``` PETITIONER ANNEXURES ``` ``` ANNEXURE A1 ``` ``` COPIES OF LATEST TWO PHOTOGRAPHS, PROVIDED BY THE PETITIONER NOW, ```