Jose Tom v. George Jerald & Others / The New India Assurance Company Limited & Others

## `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ## `THE HONOURABLE MRS. JUSTICE MARY JOSEPH` ``` FRIDAY, THE 18[TH] DAY OF NOVEMBER 2022 / 27TH KARTHIKA, 1944 ``` ## `MACA NO. 878 OF 2014` ``` AGAINST THE ORDER/JUDGMENT IN OP(MV) 1152/2010 OF MOTOR ACCIDENT CLAIMS ``` ``` TRIBUNAL, IRINJALAKUDA ``` ## `APPELLANT :-` ``` JOSE TOM AGED 21 YEARS S/O.TOM JOSE, RESIDING AT MALIAKKAL HOUSE, P.O.KADANAD, PALA, KOTTAYAM DISTRICT. ``` ``` BY ADVS. SRI.T.C.SURESH MENON SRI.A.R.NIMOD ``` ## `RESPONDENTS / RESPONDENTS :-` - `1 GEROGE JERALD S/O.PAUL GEORGE, RESIDING AT PANDARAPARAMBIL HOUSE, PALLIKAVU ROAD, MUVATTUPUZHA, ERNAKULAM DISTRICT PIN.686 661` - `2 KOCHURANI ROBI W/O.ROBI MATHEW, RESIDING AT KURISINGAL HOUSE VAZHAPPILLYKARA, VELLURKUNNAM VILLAGE, ERNAKULAM DISTRICT, PIN.686 103` - `3 THE NEW INDIA ASSURANCE COMPANY LIMITED POOZHIKALA BUILDING, M.G.ROAD, EATTUMANOOR, PIN.686631` - `4 FAIZAL K.E. S/O.IBRAHIM, RESIDING AT KOVILAKATH HOUSE, K.M.P.NAGAR, KUSUMAGIRI, P.O.KAKKANAD, ERNAKULAM DISTRICT, PIN.682 030` - `5 VIDYADHARAN SO.VELAYUDHAN RESIDING AT KALLIKAD HOUSE, MATTANCHERY, RAMESWARAM (VIA), ERNAKULAM DISTRICT, PIN.682 002.` - `6 THE ORIENTAL INSURANCE COMPANY LIMITED JYOTHI SUPER BAZAR, THODUPUZHA, PIN.685 584` ``` BY ADVS. GEORGE CHERIAN (SR.) ALEXY AUGUSTINE GEORGE A.CHERIAN SMT.K.S.SANTHI, SC ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON ``` ``` 18.11.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING ``` ``` M.A.C.A.No.878 of 2014 ``` ``` 2 ``` ## **JUDGMENT** ## **Dated this the 18[th] day of November, 2022** This appeal is filed challenging an award passed by Motor Accidents Claims Tribunal, Irinjalakuda (for short ‘the Tribunal’) on 18.06.2013 in O.P (M.V) No.1152/2010. The appellant herein is the petitioner before the Tribunal in whose favour a sum of Rs.3,96,185/- stands awarded with interest at the rate of 7.5% per annum from 28.10.2010, the date of filing of the Original Petition till the date of realisation. Aggrieved by the quantum of compensation stands awarded by the Tribunal, the petitioner before the Tribunal has approached this Court in the appeal on hand seeking for enhancement. For the sake of convenience, the parties to this appeal will hereinafter be referred to as the petitioner and respondent Nos.1 to 6 in accordance with their status in the Original Petition. ``` M.A.C.A.No.878 of 2014 ``` ``` 3 ``` 2. It is contended by Sri.T.C.Suresh Menon, the learned counsel for the petitioner that loss of future prospects has not been considered in the case of the petitioner while computing compensation for disability. According to him, the petitioner had sustained fractures on left frontal bone, left lateral wall and roof of orbit, nasal bone, both maxilla, right mastoid bone and left radius. A lacerated wound was also caused on frontal scalp 4x1 cm. Eye vision of left eye was also lost due to the injuries sustained in the motor accident. The disability suffered by the petitioner was assessed by various doctors and certificates issued were marked in evidence respectively as Exts.A19, A24 and A25. According to him, the neurological disability of the petitioner was assessed by a Neuro Surgeon as 25%, the Orthopedic disability by an Orthopedic Surgeon as 8% and mild conclusive hearing loss was assessed by an ENT Surgeon as 30%. The Doctors who issued certificates were also examined before the Tribunal as PWs 1 to 3. Despite adducing oral as well as documentary evidence in the above manner, the Tribunal failed to award any compensation for future prospects. ``` M.A.C.A.No.878 of 2014 ``` ``` 4 ``` According to him, the monthly income was fixed as Rs.2,500/notionally and that is too low. 3. The learned counsel for the petitioner has also pointed out that grant of compensation under various other heads are also on the lower side and called for interference. The learned counsel also canvassed for modification of the compensations stand granted under the heads bystander expenses, extra nourishment, pain and suffering and loss of amenities and enjoyments in life. He also canvassed for award of a higher sum as compensation towards loss of marriage prospects. 4. The learned counsel for the 3[rd] respondent urged that loss of future prospects are not liable to be considered in case of injuries. According to her, the petitioner was a plus one student aged 18 years at the relevant time of accident and therefore, the Tribunal is justified in fixing Rs.2,500/- as his monthly income notionally and re-fixation is unwarranted. 5. It is noticed that the petitioner was aged 18 years and was a Plus one student at the relevant time of accident. The ``` M.A.C.A.No.878 of 2014 ``` ``` 5 ``` Tribunal has declined to consider his loss of future prospects on account of the injuries sustained. The reason for the Tribunal’s reluctance was want of evidence driving to such a consideration. _**Satheesh E vs. The New India Assurance Co. LTD.ETC**_ (Civil Appeal Nos.8059-8060 of 2022 arising out of SLP (C) Nos.775776 of 2022) is relied on by the learned counsel to content that the Tribunal is also empowered to consider loss of future prospects even in injury cases. The Apex Court in the judgment relied on accepted the argument advanced by the learned counsel before it and granted compensation on the basis of loss of future prospects. The dictum of the Constitutional Bench in _**National Insurance Company Ltd. vs. Pranay Sethi and Others**_ **[(2017) 16 SCC 680]** wherein loss of future prospects was taken in the case of a deceased was followed. The appellant in the case cited was a man aged 48 years and had suffered 25% of permanent disability. The appeal before the Apex Court was against a judgment of the Single Court declining to grant compensation for loss of future prospects in an injury case. ``` M.A.C.A.No.878 of 2014 ``` ``` 6 ``` 6. The learned counsel urged that the disability of the petitioner being 40%, future prospects can also be considered while fixing the monthly income. It is canvassed that the victim boy being aged 18 years at the relevant time of accident and 40% being the permanent disability assessed in his case, loss of future prospects can be considered in his case, in accordance with the dictum in **Pranay Sethi** supra. 7. This Court finds merits in the argument advanced. As already stated, the monthly income was notionally fixed by the Tribunal as Rs.2,500/-. The Apex Court in _**Ramachandrappa v.**_ _**Royal Sundaram Alliance Insurance Co.Ltd**_ **[(2011) 13 SCC 236]** has fixed the monthly income in the case of a coolie worker who had met with a motor accident in the year 2004 as Rs.4,500/-. This Court is inclined to re-fix the monthly income as Rs.4,500/- on the basis of the fixation in _**Ramachandrappa** supra._ 40% is added towards future prospects and therefore, the amount would be Rs.6,300/-. The Tribunal had taken 40% as the whole body disability of the petitioner. In the absence of any challenge on the ``` M.A.C.A.No.878 of 2014 ``` ``` 7 ``` fixation, this Court is inclined to follow that. 18 is the multiplier applicable. When compensation for disability is reassessed Rs.5,44,320/- (6,300x12x18x40%) is payable under the head. Rs.2,04,000/- being the sum already stands awarded by the Tribunal under the head, the petitioner will get Rs.3,40,320/- as additional compensation. 8. Towards bystander expenses, the Tribunal had fixed Rs.150/- per day for 44 days. The accident being in the year 2008, this Court is inclined to take Rs.200/- per day, being reasonable. When Rs.200/- is taken for 44 days, Rs.8,800/- is payable. Rs.6,600/- being the sum stands awarded by the Tribunal, the petitioner will get Rs.2,200/- as additional compensation. Under the head extra nourishment, Rs.100/- per day being the sum fixed, this Court is inclined to enhance it to Rs.150/-. The said sum when calculated for 44 days, Rs.6,600/- is arrived at. Rs.3,500/- being the sum stands awarded by the Tribunal, the petitioner will get Rs.3,100/- as additional compensation. ``` M.A.C.A.No.878 of 2014 ``` ``` 8 ``` 9. The injuries sustained by the petitioner were already discussed with. This Court is convinced that multiple fractures have been caused to the petitioner in the motor accident. The several procedures undergone by the petitioner is also evidenced. Viewed in the above backdrop, Rs.25,000/- stands awarded under the head pain and suffering and Rs.15,000/- stands awarded under the head loss of amenities and enjoyments in life are found on the lower side. This Court is inclined to enhance the compensation for pain and suffering and loss of amenities and enjoyments in life respectively to Rs.50,000/- and Rs.25,000/- and therefore, the petitioner will get Rs.25,000/- and Rs.10,000/- as additional compensation under the respective heads. In the above manner of reassessment of compensation, the petitioner will get Rs.3,80,620/- (Rupees Three lakhs eighty thousand six hundred and twenty only), which would carry interest @ 7.5% per annuam from the date of filing of the Original Petition till the date of realisation, excluding the period of delay occurred, for which period the insurer stands exonerated from payment of ``` M.A.C.A.No.878 of 2014 ``` ``` 9 ``` interest by an order passed by this Court on 12.01.2022 in C.M.A. No.1/2014. Therefore, the third respondent shall deposit the sum arrived at as additional compensation with interest fixed as above, within a period of two months from the date of receipt of a certified copy of this judgment. MACA stands allowed accordingly. Sd/- **MARY JOSEPH JUDGE** SMA