Jose v. United India Insurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE SYAM KUMAR V.M.** **TUESDAY, THE 23[RD] DAY OF JULY 2024 / 1ST SRAVANA, 1946** ## **MACA NO.47 OF 2018** **ARISING OUT OF THE JUDGMENT DATED 18.08.2017 IN OP(MV) NO.650 OF 2014 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, IRINJALAKUDA** ## **APPELLANT:** **JOSE** **S/O OUSEPH, PUTHUSSERIPADY HOUSE,MANNUMPETTA DESOM, AMBALLUR VILLAGE,VARAKKARA P.O, THRISSUR DISTRICT.** **BY ADVS. SRI.P.V.BABY SRI.A.N.SANTHOSH** **RESPONDENT:** **UNITED INDIA INSURANCE COMPANY LTD CHALAKUDY-680 307, REPRESENTED BY ITS MANAGER.** **BY ADV SRI.M.HARISHARMA** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 15.07.2024, THE COURT ON 23.07.2024 DELIVERED THE FOLLOWING:** MACA No.47/2018 2 ## **JUDGMENT** _Dated this the 23[rd] day of July, 2024_ Aggrieved by the quantum of compensation awarded in O.P. (M.V.)No.650 of 2014 by the Motor Accident Claims Tribunal, Irinjalakuda, vide Award dated 18.08.2017, this appeal is filed by the appellant who was the petitioner therein. ## 2. **Facts in Brief:** Appellant suffered injuries in an accident that occurred on 22.04.2014, at about 9.00 A.M. He was riding a motorcycle bearing No. KL–45/K-2554 through Amballur –Chalakudy NH47. Another motorcycle bearing No.KL-8/AL-302 driven by the 1[st] respondent collided with the appellant’s motorcycle. Appellant suffered injuries to his right ankle and was taken to St.James Hospital Chalakudy. He was treated there as an inpatient. He alleges that the accident happened due to negligence on the part of the offending motorcycle insured with the respondent insurance company. Appellant was aged 62 years at the time of the accident. He is claimed to have been earning a monthly income of Rs.22,000/- working as Personal Secretary to Project Director, Thrissur Express Way Ltd. (KMC). Appellant filed O.P.(MV) seeking a MACA No.47/2018 3 compensation of Rs.2,00,000/-. The respondent insurer of the offending motorcycle filed a written statement _inter alia_ contending that negligence was on the part of the appellant and that the compensation claimed is excessive and exorbitant. 3. Tribunal framed three issues and the parties went to trial. Neither side examined any witnesses. Appellant produced and marked Exts.A1 to A19 and the respondent marked Ext.B1 document in evidence. 4. The Tribunal rendered an award for Rs.1,09,200/- with interest @ 9% with proportionate cost. The said award is challenged by the appellant in the above M.A.C.A. 5. Heard Sri.A.N.Santhosh, learned counsel appearing for the appellant and Sri.M.Hari Sharma, learned counsel appearing for the respondent Insurance Company. ## 6. **Appellant's contentions in brief:** - ●The FI statement produced as Ext.A1 document reveals that the appellant was employed in M/s.KMC Construction Ltd. Ext.A18 salary certificate buttresses his contention regarding salary. The Tribunal failed to duly appreciate the same. MACA No.47/2018 4 - ●The Bank Account statement Ext.A19 would reveal that the appellant was deriving a monthly salary of Rs.22,000/-. The same read with the salary certificate (Ext.A18) evidences appellant's monthly salary. - The Bank account statement would reveal that the appellant had been remitting an EMI of Rs.8,694/- at regular intervals. This reveals that the appellant was having a regular income and buttresses the income stated in Ext.A18 salary certificate. - ●The Tribunal erred in fixing the monthly income of the appellant at Rs.7,000/- per month. There was no reason or basis to ignore Ext.A18 salary certificate and Ext.A19 Bank account statement. - ●Appellant was a skilled person as evidenced by Ext.A9 shorthand certificate, Ext.A10 work experience certificate, Ext.A11 service records and Exts.A13 & A14 experience certificates. - ●The amount of Rs.20,000/- awarded by the Tribunal under the head of pain and suffering is on the lower side. Appellant had claimed an amount of Rs.50,000/- under the said head. The said amount ought to have been granted taking note of the injury suffered. MACA No.47/2018 5 - ●The Tribunal erred in taking the disability at 6% instead of 9.9% as revealed by Ext.A17 disability certificate produced by the appellant. Assuming that the Tribunal was not satisfied with the Ext.A17 then the Tribunal ought to have referred the appellant to a Medical Board instead of taking him unawares by rejecting the document. Reliance is placed on **Manikantan G. v. K.Janardhanan Nair and others** (2021 (5) KHC 305) - ●Amounts awarded towards pain and suffering, transportation and extra nourishment are grossly insufficient considering the facts and circumstances of the appellant's accident and injury suffered by him. - ●While deciding cases arising out of motor vehicle accident and the standard of proof to be borne in mind must be of preponderance of probability and not strict standard of proof beyond all reasonable doubt which is followed in criminal cases. Reliance is placed on **Rajwati @ Rajjo v. United India Insurance Co. Ltd.** (2022 KHC 7265). Tribunal erred in this respect. 7. **Respondent’s contentions in brief:** - Taking note of the nature of the injury suffered by the appellant viz., a fracture of his bimalleolar right ankle, the compensation of MACA No.47/2018 6 Rs.1,09,200/- awarded by the Tribunal for the total claim of Rs.2,00,000/- is just, fair and reasonable and does not call for any interference in appeal. - Ext.A18 salary certificate was not properly proved by the appellant. Rs.22,000/- claimed as salary in Ext.A18 has not been substantiated and cannot be relied upon. - Ext.A19 statement of bank account produced to buttress Ext.A18 does not reveal a consistent monthly salary payment. It only shows that certain consolidated sums were received, without any regular periodicity, into the account of the appellant from the relevant company wherein he claims to have been employed. - Ext.A18 certificate evidences that the appellant had continued employment subsequent to the incident. The minor nature of the injury occasioned is revealed therefrom. - Admittedly the appellant had only been kept off from employment for a period of 4 months. Due compensation has been awarded by the Tribunal taking note of the said period. - Amounts awarded by the Tribunal towards pain and suffering, transportation and extra nourishment are adequate and commensurate to the period of hospitalisation and injury. MACA No.47/2018 7 ## **Discussion and findings:** 8. Since Ext.A18 salary certificate is heavily relied on by the learned counsel for the appellant to substantiate monthly income of the appellant and such reliance is vehemently objected to by the counsel for the respondent Insurance Company pointing out that Ext.A18 is unreliable, the said document and other exhibits used to buttress the same require close scrutiny. Ext.A18 is stated to have been issued by M/s.KMC Construction Ltd. wherein the appellant claims to be employed and his salary is stated as Rs.22,000/- per month. The contents of Ext.A18 especially the amounts mentioned therein are sought to be substantiated by placing reliance on Ext.A1 and Ext.A19 documents. Ext.A1 is an FIR given to the police after the injury which mentions that the appellant is employed in M/s. KMC Construction Ltd. Ext.A19 is a Bank account statement of the account of the appellant. However, Exts.A1, A18 and A19 falls short of substantiating the averment of the appellant that his monthly salary is Rs.22,000/-. Ext.A1 FIR given to the police is only a self serving statement and cannot be pressed in to prove the monthly income of the appellant. As regards Ext.A18, its contents have not been proved in the manner acceptable to law by examining its author or any one from the office of the employer of the appellant. MACA No.47/2018 8 Regarding Ext.A19 Bank statement, the same only shows that during certain months from the year 2013 to 2016, a consolidated amount was paid to the appellant’s account. The same falls short of proving a monthly salary of the appellant. No witnesses were examined from the side of the appellant. Even the appellant had not entered the box to depose regarding his monthly salary. In view of the above, the Tribunal cannot be found at fault for not accepting salary at Rs.22,000/- per month as mentioned in Ext.A18. 9. As regards disability of 6% taken by the Tribunal, the contention that if, the Tribunal was not satisfied with Ext. A17 disability certificate produced by the appellant, then it ought to have referred the appellant to a Medical board based on the dictum in **Manikantan G.** (supra) **,** I note that in the facts and circumstances of the case, the Tribunal was justified in taking note of the fact that the only injury that had occasioned to the appellant was to his right ankle, and hence fixing the disability at 6% was and proper. 10. In view of the above, guided by the principles laid down by the Supreme Court in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Co. Ltd.** [(2011) 13 SCC 236], I deem it fair and reasonable to recompute and fix the monthly income of the appellant at MACA No.47/2018 9 Rs.10,000/-. Appellant is thus entitled to loss of earnings for 4 months computed on the said monthly income of Rs.10,000/-. The loss of earnings would be thus recalculated and re-fixed at Rs.40,000/(10,000x4=40,000/-.) 11. It is trite and settled law, as laid down by the Hon'ble Supreme Court in **Benson George v. Reliance General Insurance Co. Ltd. and another** [2022 KHC 6232] that there cannot be a straight jacket formula regarding compensation to be awarded under the heads of pain and suffering and loss of amenities. It depends on the circumstances of each case and it varies from person to person who has suffered due to the accident. Considering the nature of the injuries of the appellant and also taking into consideration his age, it would be fair and reasonable that the compensation under the head of pain and suffering is varied from Rs.20,000/- granted by the Tribunal to Rs.30,000/-. 12. Bearing in mind the dictum laid down by the Hon'ble Supreme Court in **K.Suresh v. New India Assurance Company Ltd. and another** [(2012) 12 SCC 274)] that _“The quintessentiality lies on the pragmatic computation of the loss sustained which has to be in the realm of realistic approximation”._ It is just, fit and proper that an amount MACA No.47/2018 10 of Rs.2,500/- is allowed to the appellant towards extra nourishment. On the very same reasoning, it is fair and reasonable to fix the amount awarded under the head transportation at Rs.2,000/- . 13. As regards compensation towards permanent disability, the same is recalculated taking the monthly income of the appellant as Rs.10,000/-. Compensation towards permanent disability is thus arrived at Rs.50,400/-. (10,000 x 12x 7x 6%= 50,400/-.) 14. After hearing both sides and on appreciation of the pleadings, materials on record and the settled law as per the precedents cited above, I conclude that the appellant is entitled for enhancement of compensation as modified and re-calculated above, and as per the table below. ||Sl.<br>No.|Head of Claim|Amount<br>awarded by the<br>Tribunal (Rs.)|Amount modified<br>and recalculated<br>by this Court (Rs.)| |---|---|---|---|---| ||1|Loss of earnings|28,000/-|40,000/-| ||2|Transportation expenses|1,500/-|2,000/-| ||3|Extra nourishment|1,000/-|2,500/-| ||4|Damage to clothing &<br>articles|1,000/-|1,000/-| ||5|Attendant expenses|2,400/-|2,400/-| ||6|Medical expenses|15,100/-|15,100/-| ||7|Pain and suffering|20,000/-|30,000/-| ||8|Permanent disability|25,200/-|50,400/-| ||9|Loss of earning power|Nil|Nil| ||10|Loss of amenities|15,000/-|15,000/-| ||11|Future medical expenses|Nil|Nil| ||12|Mental dejection|Nil|Nil| ||Total||1,09,200/-|1,58,400/-| |||||| MACA No.47/2018 11 15. The Award of the Tribunal is modified to the above extent entitling the appellant to a total amount of Rs.1,58,400/- (Rs.1,09,200/awarded by the Tribunal + Rs.49,200/- enhanced in appeal) under the respective heads as tabulated above. Amounts granted under other heads in the Award remain unaltered. Appellant will be entitled to interest @ 9% per annum on the enhanced amount. The respondent Insurance Company shall deposit before the Tribunal amounts payable as per the Award, less the amounts already deposited, if any, within a month from the date this judgment. The Tribunal shall disburse the enhanced compensation with interest and cost to the appellant in accordance with law. M.A.C.A. stands disposed of as above. Sd/- **==> picture [322 x 33] intentionally omitted <==** **SYAM KUMAR.V.M. JUDGE** csl