Jose, S/o Thomas v. A.B. Santosh Kumar, Devadas, National Insurance Co. Ltd., V.C. Jose, Dileep, The Oriental Insurance Co. Ltd. (MACA No. 648 of 2007)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN** **& THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** **TUESDAY, THE 23RD DAY OF FEBRUARY 2016/4TH PHALGUNA, 1937** **MACA.No. 648 of 2007 ( )** **------------------------AGAINST THE AWARD IN OPMV 888/2001 of MACT, IRINJALAKUDA, DATED 11-10-2006.** **APPELLANT(S)/APPELLANT: -----------------------** **JOSE, S/O.THOMAS, KURISHINKAL HOUSE, P.O. VADAMA, MALA, THRISSUR.** **BY ADV. SRI.P.V.CHANDRAMOHAN** ## **RESPONDENT(S):** **-------------** **1. A.B.SANTHOSH KUMAR, S/O.BALAN, ALAYIL HOUSE, KOTHAPARAMBU, THRISSUR.** **2. DEVADAS, S/O. KUNJIKARAPPAN, MULLANGATH HOUSE, KOOLUMUTTAM, PAPPINIVATTOM P.O., THRISSUR.** **3. NATIONAL INSURANCE CO. LTD., BRANCH OFFICE, IRINJALAKUDA.** **4. V.C. JOSE, S/O. CHACKO, VAZHAKOOTTATHIL HOUSE, P.O. POYYA, THRISSUR.** **5. DILEEP, S/O. PARAMESWARAN, ERIMMAN HOUSE, KURUVILASSERY P.O., THRISSUR.** **6. THE ORIENTAL INSURANCE CO. LTD., BRANCH OFFICE, KODUNGALLUR.** **R3 BY ADV. SRI.E.M.JOSEPH R6 BY ADV. DR.ELIZABETH VARKEY** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 23-02-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ss ## **P.N.RAVINDRAN & K.RAMAKRISHNAN, JJ.** ------------------------------------------------------- ## **M.A.C.A. No.648 of 2007** -------------------------------------------------------------Dated this the 23[rd] day of February, 2016 ## **JUDGMENT** ## **K.RAMAKRISHNAN, J** Claimant in O.P.(MV)No.888/2001 on the file of the Motor Accidents Claims Tribunal, Irinjalakkuda is the appellant herein. The appellant filed the claim petition claiming compensation for the personal injury sustained by him in a motor vehicle accident occurred on 05.02.2001 at 7.30 a.m at Thumboor. The claimant was travelling in the bus bearing registration No.KEF/253 through VellangalloreThumboor public road and when it reached the place of occurrence, a lorry with No.KL-8G/5313 came from the opposite direction in a rash and negligent manner without observing the traffic rules and hit against the front side of the bus. Due to which he sustained severe injuries. The accident occurred due to the rash and negligent driving of _**M.A.C.A. No.648 of 2007**_ 2 the lorry by the 2[nd] respondent, owned by the first respondent and insured with the third respondent. Respondents 4, 5 and 6 are the owner, driver and insurer of the bus in which the petitioner was travelling as a passenger. He was a concrete worker, aged 48 years, getting Rs.4,500/- per month. He suffered permanent disability, incapacitating him from perusing his employment as concrete worker. He claimed a total compensation of Rs.2,45,000/- on various heads. 2. Respondents 4 and 5 remained absent. Respondents 1 and 2 filed written statement contending that the petition is not maintainable and there was no negligence on the part of the second respondent. So they are not liable to pay any compensation. 3. Third respondent filed written statement admitting the insurance of the lorry involved in the accident, but according to them the accident occurred due to the _**M.A.C.A. No.648 of 2007**_ 3 negligence of the driver of the bus and there was no negligence on the part of the driver of the lorry. They denied the occupation, income, nature of injury sustained and disability etc., claimed by the petitioner. According to them, the total compensation claimed is exorbitant. They prayed for dismissal of the application. 4. The 6[th] respondent filed a written statement, admitting the insurance of the bus with No.KEF/253, but denied the allegation that the accident occurred due to the negligence of the driver of the bus. According to them the accident occurred due to the negligence of the driver of the lorry and as such there is no liability for them to pay any compensation to the petitioner. They also denied the age, income, occupation, nature of injury sustained, disability etc., claimed by the petitioner. They also contended that the total compensation is exorbitant and they prayed for dismissal of the application. _**M.A.C.A. No.648 of 2007**_ 4 5. The claimant was examined as PW1 and the doctor who issued the disability certificate was examined as PW2 and Exts.A1 to A9 were marked on the side of the petitioner. No oral evidence was adduced on the side of the respondents, but Exts.B1 and B2 the respective policies were marked. After considering the evidence on record, the Tribunal found that the accident occurred due to the composite negligence of both the drivers of the vehicles and assessed a total compensation of Rs.53,551/- on various heads as follows: |as follows:|| |---|---| |**_Heads_**|**_Amount_**| |Cost of extra nourishment and wages<br>to attendants|2200| |Transportation charges|500| |Medical expenses|11951| |Loss of earnings|4500| |Pain and suffering|8000| |Loss of amenities and happiness in life|3000| |Permanent disability|23400| |Total|53551| Dissatisfied with the quantum of compensation awarded, the claimant has filed this appeal. 5 ## _**M.A.C.A. No.648 of 2007**_ 6. Heard Sri.P.V.Chandramohan, learned counsel appearing for the appellant and Sri.E.M.Joseph, counsel appearing for the third respondent and Smt.Dr.Elizabath Varkey, counsel appearing for the sixth respondent. 7. The counsel for the appellant submitted that the petitioner was a concrete worker/a skilled labour and getting Rs.4,500/- per month, but the court below had grossly fixed his monthly income as Rs.1,500/- per month, which is very low. Further the future prospects of the injured was not taken into account for the purpose of assessing compensation. The doctor had assessed 22% permanent disability and also he had given evidence regarding this aspect as well. But the court below had taken only 10% disability for the purpose of assessing compensation under the head loss of earning capacity. The amounts awarded under various heads including pain and _**M.A.C.A. No.648 of 2007**_ 6 suffering, loss of amenities in life, extra nourishment and wages, attendance, loss of earning etc., are on the lower side. So according to the counsel for the appellant, the claimant is entitled to enhancement on all heads. 8. On the other hand, the learned counsel appearing for both the insurance company submitted that the court below had considered all the aspects in the right perspective and assessed a just and proper compensation and as such he is not entitled to get any enhancement. 9. The case of the claimant in the claim petition was that he was a concrete worker, getting Rs.4,500/- per month. If he is a construction worker, there will be some documents to prove that fact. He had not produced any document to show that he is a construction worker getting an income of Rs.4,500/- per month. But the legislature had in the year 1994 had taken the annual income of a nonearning member as Rs.15,000/- per annum. Accident in _**M.A.C.A. No.648 of 2007**_ 7 this case occurred in the year 2001 and the injured was aged 48 years at the time of accident. Considering these aspects, we feel that the amount of Rs.1,500/- taken by the court below is very law and we are inclined to re-fix the same as Rs.2,000/- per month. 10. The petitioner sustained crush injury involving ring, middle and index fingers, right hand crush injury, fracture involving second, third and fourth finger at multiple level and he was treated with wound debridement and internal fixation. His middle finger of the right hand and tip of index finger were amputated. So with these injuries, he could not have worked for at least four months and he is entitled to get an amount of Rs.8,000/- under the head loss of earning instead of Rs.4,500/- awarded by the court below. Thereby he will be entitled to get an additional compensation of Rs.3,500/- under the head loss of earning. 11. The court below had awarded only Rs.8,000/- _**M.A.C.A. No.648 of 2007**_ 8 under the head pain and suffering. Considering the nature of injury sustained and also the period of treatment and nature of treatment undergone by him, the amount awarded under the head appears to be on the lower side and we are inclined to enhance the same to Rs.20,000/- from Rs.8,000/-. Thereby he is entitled to get an additional amount of Rs.12,000/- under the head pain and suffering. 12. The doctor who examined the injured had given Ext.A9 disability certificate, where he had assessed the permanent disability at 24%, but occupational disability as 22%, but court below had taken only 10% for the purpose of assessing compensation under the head loss of earning capacity. Considering the nature of injury sustained and also considering the evidence of the doctor, we feel that 20% disability can be taken for the purpose of assessing compensation under the head loss of earning capacity. As a coolie, loss of middle finger and tip of two fingers of the _**M.A.C.A. No.648 of 2007**_ 9 right hand with weakness of right palm will affect his earning capacity considerably. Further no future prospects has been taken into consideration by the tribunal for the purpose of assessing compensation under this head. 13. In the decision reported in _**Rajesh v. Rajbir Sing** h_ [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 account for the purpose of assessing compensation and the same can be applied to persons sustained injury as well in the decision reported in _**Syed Sadiq v. Divisional Manager, United India Insurance Company**_ [AIR 2014 (SC) 1052] _._ It has been held in the decision for the age group of 30 - 50, 30% will have to be taken as future prospects for the purpose of considering the compensation to be awarded under the head loss of earning capacity. That principle is applied, then Rs.2,600/- has to be taken for the purpose of _**M.A.C.A. No.648 of 2007**_ 10 assessing compensation under the head loss of earning capacity. As per the decision reported in _**Sarla Verma (Smt) and Others v. Delhi Transport Corporation and Another**_ (2009 (6) SCC 121), the multiplier applicable to such age group is 13. If a recalculation is made, taking 20% as disability, Rs.2,600/- as monthly income including future prospects and 13 as multiplier, the appellant will be entitled to get an amount of Rs.81,120/-(2000x130% =2600x12x13x20%) instead of Rs.23,400/- awarded by the tribunal and thereby he will be entitled to get an additional compensation of Rs.57,720/-, which we award under the head loss of earning capacity. The court below awarded only Rs.3,000/- under the head loss of amenities in life. Considering the fact that he suffered 22% permanent disability and also having impairment of his right hand with some disability, he will have to live with this disability for the remaining period of his life. So considering this aspect, _**M.A.C.A. No.648 of 2007**_ 11 we are enhancing the same to Rs.30,000/- from Rs.3,000/under the head loss of amenities in life. Therefore he is entitled to get an additional compensation of Rs.27,000/more under the head loss of amenities in life. Similarly, the amount awarded under the head pain and suffering is also very low and we enhance the same to Rs.20,000/- from Rs.8,000/-. He is entitled to get an additional compensation of Rs.12,000/- under that head. The court below had awarded a consolidated amount of Rs.2,200/- under the head extra nourishment and bystanders expenses. He was treated as inpatient for 22 days. So considering these aspects, we enhance the same to Rs.5,000/- under that head. Thereby he will be entitled to get an additional compensation of Rs.2,800/- under that head. We are not inclined to enhance compensation under other heads as the court below had considered all the aspects properly and awarded just and proper compensation under other heads. _**M.A.C.A. No.648 of 2007**_ 12 In all, the petitioner will get an additional compensation of Rs.1,03,020/-, over and above the compensation awarded by the court below, which respondents 3 and 6 are equally liable to pay together with interest at 9% per annum from the date of petition till date of payment. Three months time is grated to the insurance companies to deposit this amount. If the amount is deposited, petitioner is permitted to withdraw the amount. With the above modification of the impugned award passed by the tribunal, the appeal is allowed in part and disposed of accordingly. _Sd/-_ **P.N.RAVINDRAN (JUDGE)** _Sd/-_ **K.RAMAKRISHNAN (JUDGE)** //True Copy// P.A. to Judge ss