Joseph S/o Antony v. George Mathew Olickal; Ajithkumar K.K; Oriental Insurance Co. Ltd; Binny Varghese

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN ``` ``` THURSDAY, THE 6[TH] DAY OF JULY 2023 / 15TH ASHADHA, 1945 ``` ## **`MACA NO. 2096 OF 2014`** ``` AGAINST THE AWARD DATED 19.02.2014 IN OPMV 50/2007 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, THODUPUZHA ``` ## **`APPELLANT/PETITIONER:`** ``` JOSEPH S/O. ANTONY, PEELIYANICKAL HOUSE, KAPPITHOTTAM BHAGOM, KARIKODE VILLAGE, THODUPUZHA TALUK. ``` ``` BY ADVS. SRI.T.V.GEORGE SRI.JIMMY GEORGE THADATHIL ``` ## **`RESPONDENTS/RESPONDENTS/ADDL. 4TH RESPONDENT:`** - **`1 GEORGE MATHEW OLICKAL HOUSE, KALAYANTHANI, THODUPUZHA – 685 588.`** - **`2 AJITHKUMAR K. K KATHIYANIKKAL HOUSE, KODIKULAM P. O, THODUPUZHA – 685 582.`** - **`3 ORIENTAL INSURANCE CO.LTD REPRESENTED BY ITS DIVISIONAL MANAGER, DIVISIONAL OFFICER NO.III, RUKIYABAGH, RAVIPURAM, M.G ROAD, KOCHI – 16.`** - **`4 BINNY VARGHESE S/O. VARGHESE, KORIYEKUNNEL HOUSE, ILLICHUVADU BHAGAM, PARAPUZHA KARA, KODIKULAM VILLAGE, THODUPUZHA TALUK – 685 582.`** ``` BY ADVS. SRI. I.DINESH MENON SRI. TITUS MANI - SC ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 06.07.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA NO.2096 of 2014 ``` ``` 2 ``` ## **`JUDGMENT`** This appeal is preferred by the petitioner in O.P. (MV) No.50 of 2007 on the file of the Motor Accidents Claims Tribunal, Thodupuzha dissatisfied with the quantum of compensation awarded by the Tribunal. The parties are referred to as per their status in the claim petition. 2. According to the petitioner, on 07.02.2006, while he was riding his bicycle, it was hit by a bus driven by the 4[th] respondent and the petitioner sustained injuries. The 3[rd] respondent is the insurer of the bus. The petitioner was treated as an inpatient for 39 days and his right leg was amputated above the knee. He claimed an amount of Rs.10,00,000/as total compensation for the injuries sustained in the accident. 3. Respondents 1, 2 and 4 remained ex-parte ``` MACA NO.2096 of 2014 ``` ``` 3 ``` before the Tribunal and the 3[rd] respondent Insurance Company filed a written statement contending that the amount claimed is excessive. They admitted the existence of valid insurance policy with respect to the offending vehicle. 4. The Tribunal found that the accident happened due to the negligence of the driver of the bus and awarded an amount of Rs.4,38,545/- as total compensation with 8.5% interest per annum from the date of filing the petition till realisation and proportionate costs. 5. The compensation awarded by the Tribunal under various heads is as follows:- |Sl.<br>No.|Head of claim|Amount<br>claimed<br>(in Rs.)|Amount<br>Awarded<br>(in Rs.)|Basis-vital<br>details in a<br>nut shell| |---|---|---|---|---| |1.|Bystander<br>Expense|20,000|7,800|200 x 39 days<br>x 1 person| |2.|Addl. Bystander<br>exp.|-|4,000|2,000x2<br>months| |3.|Loss of earning|50,000|28,000|4,000x7<br>months| |4.|Transportation<br>expense|15,000|3,500|No bills<br>produced| ``` MACA NO.2096 of 2014 ``` ``` 4 ``` |5.|Extra<br>nourishment|15,000|2,500|-| |---|---|---|---|---| |6.|Medical expenses|2,00,000|86,445|Bills produced| |7.|Damage to<br>clothing|5,000|500|-| |8.|Pain and suffering|1,50,000|50,000|injuries| |9.|Loss of amenities|50,000|25,000|-| |10.|Disability|6,60,000|1,72,800|4,000x12x9x<br>40/100| |11.|Artificial limb|-|58,000|-| |12.|Total|Limited to<br>10,00,000|4,38,545|Rs.4,38,545<br>along with<br>interest at the<br>rate 8.5% per<br>annum from<br>17.1.2007 till<br>realisation.| 6. The 3[rd] respondent Insurance Company was directed to satisfy the award. 7. Contending that the amount awarded as compensation is totally inadequate, the petitioner has preferred this appeal. 8. According to the petitioner, he was a Salesman in a private establishment and was receiving an amount of Rs.5,000/- as monthly income. He was aged 52 years at the time of the ``` MACA NO.2096 of 20145 ``` accident. As per Ext.A13 disability certificate issued by the Medical Board, Taluk Head Quarters Hospital, Thodupuzha, he suffered 55% permanent disability. Ext.X1 is the disability certificate issued by the Medical Board constituted by the Superintendent of Medical College Hospital, Kottayam as directed by the Tribunal, certifying the percentage of whole body disability of the petitioner as 40%. 9. On the basis of the age recorded in Exts.A7 and A9, the petitioner contends that his age at the time of the accident was 52 years and the Tribunal has wrongly taken as 59 years. The petitioner has produced Annexure-A1 Aadhaar card before this Court which shows his year of birth as 1954. Going by Exts.A6, A7 and Annexure-A1, the age of the petitioner as on the date of the accident is 52 years. Accordingly, the multiplier has to be re-fixed as 11 in the light of **Sarla Verma & Ors. V. Delhi Transport Corporation & Anr.** [2010 (2) KLT 802 (SC)]. ``` MACA NO.2096 of 2014 ``` ``` 6 ``` 10. In the absence of any other evidence, the Tribunal has taken the income of the petitioner as Rs.4,000/- notionally. Going by the guidelines issued by the Apex Court in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited [2011 (13) SCC 236]** , the notional monthly income of the petitioner in the year 2006 has to be taken as Rs.5,500/-. The Medical Board has assessed the disability of the petitioner as 40%. Since the right leg of the petitioner was amputated above the knee, the functional disability of the petitioner cannot be equated to that of his permanent disability. Accordingly, I fix the functional disability of the petitioner for the purpose of compensation as 55%. In the light of the said factors, the compensation for permanent disability is re-worked as Rs.3,99,300/- (5,500x12x11x55%). Since the petitioner has already been awarded an amount of Rs.1,72,800/-, he will be entitled for an ``` MACA NO.2096 of 2014 ``` ``` 7 ``` enhanced amount of **Rs.2,26,500/-** (3,99,300 – 1,72,800) under the said head. 11. Towards loss of earning, the Tribunal has awarded an amount of Rs.28,000/- (4,000x7 months). Since I have already re-fixed the monthly income as Rs.5,500/-, the petitioner is entitled for an amount of Rs.38,500/- (5,500x7) under the head loss of earning resulting in an enhanced amount of **Rs.10,500/-** (38,500 – 28,000) under the said head. 12. Towards pain and suffering, though the petitioner claimed an amount of Rs.1,50,000/-, only an amount of Rs.50,000/- has been awarded. Taking note of the injuries sustained by the petitioner and the prolonged period of treatment, I find that he is entitled for an amount of Rs.60,000/- under the head pain and suffering. Accordingly, an additional amount of **Rs.10,000/-** is awarded. 13. Towards loss of amenities, only an amount of Rs.25,000/- has been awarded. The right leg of ``` MACA NO.2096 of 2014 ``` ``` 8 ``` the petitioner has been amputated above the knee. I find that an amount of Rs.50,000/- will be a just and reasonable compensation under the head loss of amenities. Therefore, **Rs.25,000/-** (50,000 - 25,000) is granted additionally. 14. An amount of Rs.58,000/- was awarded by the Tribunal for purchase of artificial limb in terms of the invoice produced by the petitioner. However, the tribunal has not awarded any amount towards purchase of its accessories or other incidental charges. Taking note of the expenses that would be incurred by the petitioner for purchase of artificial limb, its accessories and incidental expenses, I award an amount of Rs.1,00,000/- under the head future treatment expenses. Since an amount of Rs.58,000 is already awarded, the petitioner will be entitled for an additional amount of **Rs** . **42,000/-** (1,00,000 - 58,000) under the head future treatment expenses/artificial limb. ``` MACA NO.2096 of 2014 ``` ``` 9 ``` Accordingly, the petitioner is entitled for an enhanced amount of **Rs.3,14,000/-** (2,26,500 + 10,500 + 10,000 + 25,000 + 42,000). The Insurance Company shall deposit the said amount with 8.5% interest per annum from the date of petition till realisation and proportionate costs before the Tribunal within a period of two months from the date of receipt of a certified copy of this judgment. The amount of Rs.42,000/- awarded under the head future treatment expenses/artificial limb will carry interest only from the date of the award. The appeal is allowed as above. ## **`Sd/-`** ``` MURALI PURUSHOTHAMAN JUDGE ``` SPR