Jose Mathew @ Jaison v. Jenson Joseph; V. U. Joserph; United India Insurance Co. Ltd

``` 2025:KER:23312 ``` **==> picture [58 x 58] intentionally omitted <==** ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE C.PRATHEEP KUMAR ``` ``` FRIDAY, THE 21[ST] DAY OF FEBRUARY 2025 / 2ND PHALGUNA, 1946 ``` ## **`MACA NO. 1377 OF 2013`** ``` AGAINST THE DATED IN OPMV NO.970 OF 2009 OF ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL, KOTTAYAM ``` ## **`APPELLANT:`** ``` JOSE MATHEW @ JAISON S/O.MATHEW, PANTHAMAMCHUVATTIL, ERAVIMANGALAM POST, MUTTUCHIRA VILLAGE, KOTTAYAM, REPRESENTED BY POWER OF ATTORNEY HOLDER, TOM MATHEW,S/O.MATHEWM, PANTHAMAMCHUVATTIL,ERTAVIMANGALAM POST, MUTTUCHIRA VILLAGE, KOTTAYAM ``` ``` BY ADVS. SRI.MATHEW JOHN (K) SRI.DOMSON J.VATTAKUZHY ``` ## **`RESPONDENTS:`** - **`1 JENSON JOSEPH S/O.JOSEPH, VENGALIL HOUSE, NEAR ADITHAPURAM TEMPLE, ERAVIMANGALAM POST, MUTTUCHURA VILLAGE, KOTTAYAM`** |**`2`**|**`V.U.JOSERPH`**| |---|---| ||**`VENGALIL HOUSE, NEAR ADITHAPURAM TEMPLE,`**| ||**`ERAVIMANGALAM POST, MUTTUCHURA VILLAGE,`**| ||**`KOTTAYAM`**| - **`3 THE UNITED INDIA INSURANCE CO.LTD REPRESENTED BY ITS DIVISIONAL MANAGER, KOTTAYAM`** ``` MACA NO. 1377 OF 2013 2 ``` **==> picture [58 x 58] intentionally omitted <==** ``` 2025:KER:23312 ``` ## **`BY ADVS. SRI.JOHN JOSEPH VETTIKAD-SC SRI.C.JOSEPH JOHNY`** ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 21.02.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA NO. 1377 OF 2013 3 ``` **==> picture [58 x 58] intentionally omitted <==** ``` 2025:KER:23312 ``` ## **J U D G M E N T** Dated this the 21[st] day of February, 2025 The petitioner in O.P.(M.V.) No. 970/2009 on the file of the Motor Accident Claims Tribunal, Kottayam, 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 Section 166 of the Motor Vehicles Act, 1988, claiming compensation for the injuries sustained in a motor vehicle accident that occurred on 16.10.2008. According to the petitioner, on 16.10.2008 at about 8.45 p.m., while he was traveling in a Maruthi Car along the Kottayam-Thalayolapparambu road, a KSRTC bearing Reg.No. KL 15/3975 driven by the 1[st] respondent in rash and negligent manner and hit against the Maruthi car. As a result of the accident, the petitioner sustained serious injuries. 3. The 1[st] respondent is the driver, the 2[nd] respondent is the owner 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.5,56,000/- ``` MACA NO. 1377 OF 2013 4 ``` **==> picture [58 x 58] intentionally omitted <==** ``` 2025:KER:23312 ``` 4. The insurance company filed a written statement, admitting the 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 A29 and X1. No evidence was adduced by the respondents. 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.3,18,642/- (rounded to 3,19,000/-) 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.Domson J. Vattakuzhy, the learned Counsel appearing for the petitioner/appellant, and Sri. John Joseph Vettikad 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 ``` MACA NO. 1377 OF 2013 5 ``` **==> picture [58 x 58] intentionally omitted <==** `2025:KER:23312` 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 Cook in Saudi Arabia, earning Rs. 15,000/- per month, but the Tribunal fixed his monthly income at Rs.5000/-. The learned counsel for the insurer would argue that the income fixed by the tribunal is reasonable. 11. The learned counsel for the petitioner had relied upon Ext.A26, copy of vacation/service leave request issued by Al Suwaiket catering & Trading Service, showing that, he had a monthly income of 1322 Saudi riyal approximately equal to Rs. 30,000/-. However Ext.A26 was not attested by the Embassy officials and as such it stands not proved. 12. It is true that the petitioner could not prove his income, as claimed in the OP. However from Ext. A26 and it is proved that the petitioner was a Cook by profession and was working abroad. 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 2008 will come to Rs.6500/-. Therefore, the petitioner being a Cook by profession, his notional income is fixed at Rs. 8000/-, for the purpose of computing the loss of disability. 13. In the accident the petitioner sustained the following injuries: ``` MACA NO. 1377 OF 2013 6 ``` **==> picture [58 x 58] intentionally omitted <==** ``` 2025:KER:23312 ``` 1) Depressed comminuted fracture frontal bone, (2) fracture maxilla bilateral (L.), (3) fracture nasal bone with nasal septum, (4) moderate traumatic brain injury, (5) brain frontal lobe contusion 10mm inside (6) sub arachnoid hemorrhage, (7) cerebral ederre, (8) lateral wall and sinuses laterally shows fracture, (9) bilateral orbital medial with superior wall fractures (10) bilateral maxillary sinuses anterior with posterior wall comminuted fractures with Haemo sinuses, (11) minimal sphenoid sinuses, (12) orbital contusion and (13) anterior frontal, orbital and anterior maxillary soft tissue swelling etc. 14. Ext. X1 disability certificate shows that the petitioner suffered 20% permanent physical disability. The Tribunal, however, scaled down the percentage of disability of the petitioner to 10%, without assigning valid and cogent reasons. The law is settled that, if the Tribunal is not satisfied with the disability certificate produced by the petitioner, the remedy is to refer him to a medical board or higher Authority.(See **Manikantan G. v. Janardhanan Nair and Others** , 2021 (5)KHC 305). Having not done so, the Tribunal was not justified in scaling down the percentage of disability from what is shown in the disability certificate. I do find any grounds to disbelieve the said disability and as such the permanent physical disability of the petitioner is fixed as 20%. 15. On the date of accident, the petitioner was aged 24years. Therefore, 40% of the monthly income is to be added towards future ``` MACA NO. 1377 OF 2013 7 ``` **==> picture [58 x 58] intentionally omitted <==** `2025:KER:23312` 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 18, 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.4,83,840/- 16. Towards loss of earning, the tribunal has awarded only Rs.30,000/- being the income for 6 months @Rs.5000/-. Since, the notional income of the petitioner is re-fixed at Rs.8000/-, towards loss of earning he is entitled to get a sum of Rs. 48,000/- (8000x 6 months). 17. Towards the head ‘pain and sufferings’, the Tribunal has awarded Rs.30,000/-. Towards 'loss of amenities of life' Rs.25,000/- was awarded and towards 'extra nourishment' Rs.2,000/- was awarded. According to the learned counsel for the petitioner, the compensation awarded on those heads are on the lower side. 18. The petitioner sustained serious injuries in the accident and was treated as inpatient for 12 days. Because of the injuries sustained, the percentage of disability suffered and the length of treatment undergone by the petitioner, I hold that the compensation awarded by the Tribunal on the heads ‘pain and sufferings’, 'loss of amenities of life' and 'extra nourishment' are on the lower side and hence they are enhanced to Rs.50,000/-, 35,000/- and ``` MACA NO. 1377 OF 2013 8 ``` **==> picture [58 x 58] intentionally omitted <==** ## `2025:KER:23312` 5000/- respectively. 19. No change is required, in the amounts awarded on other heads, as the compensation awarded on those heads appears to be just and reasonable. 20. Therefore, the petitioners/appellants are entitled to get a total compensation of **Rs.7,30,482/-** , as modified and recalculated above 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 earnings|Rs.30,000/-|Rs.48,000/-| |2|Transport to hospital|Rs.1,000/-|Rs.1,000/-| |3|Extra nourishment|Rs.2,000/-|Rs.5,000/-| |4|Dame to clothings|Rs.1,000/-|Rs.1,000/-| |5|Medical expenses|Rs.1,04,242/-|Rs.1,04,242/-| |6|Bystander’s expenses|Rs.2,400/-|Rs.2,400/-| |7|Pain and sufferings|Rs.30,000/-|Rs.50,000/-| |8|Compensation for permanent<br>disability|Rs.1,08,000/-|Rs.4,83,840/-| |9|Compensation for loss of<br>amenities|Rs.25,000/-|Rs.35,000/-| ||**Total**|**Rs.3,18,642/-**|**Rs.7,30,482/-**| ||**Enhanced**|**Rs. 4,11,840/-**|| 20. In the result, this Appeal is allowed in part, and 3[rd] respondent is directed to deposit a total sum of **Rs.7,30,482/-** (Rupees Seven lakhs thirty ``` MACA NO. 1377 OF 2013 9 ``` **==> picture [58 x 58] intentionally omitted <==** `2025:KER:23312` thousand four hundred eighty two only), less the amount already deposited, if any, along with interest @ 8% per annum from the date of the petition till deposit/realisation,with proportionate costs, within a period of two months from today. 21. On depositing the aforesaid amount, the Tribunal shall disburse the entire amount to the petitioner, excluding court fee payable, if any, without delay, as per rules. Sd/- **C. PRATHEEP KUMAR, JUDGE** vnk/-