Joseph Steve Greic v. Jinju Joseph, Siddique.M.E., Oriental Insurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **WEDNESDAY, THE 24TH DAY OF MARCH 2021 / 3RD CHAITHRA, 1943** ## **MACA.No.1754 OF 2011** ## **AGAINST THE AWARD IN OPMV 1319/2005 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,ERNAKULAM** ## **APPELLANT/S:** **JOSEPH STEVE GREIC S/O.JOSE R.C.,, STEE NESTLE, PATHADIPALAM,, EDAPPALLY NORTH P.O. BY ADVS. SRI.GEORGE THOMAS (MEVADA)(SR.) SRI.MANU GEORGE KURUVILLA SMT.RINU JOSE** ## **RESPONDENT/S:** |**1**|**JINJU JOSEPH**| |---|---| ||**PURAKKADAN HOUSE, WEST OF VATHURAKKAVU,, ALANGAD**| ||**P.O., ALANGAD VILLAGE, PIN-683 511.**| |**2**|**SIDDIQUE.M.E.**| ||**S/O.EBRAHIM, AGED ABOUT 35,, BUS OPERATOR, MUKKATH**| ||**VEEDU,, DOOR NO.8/7, BYE PASS JUNCTION, ALWAYE,,**| ||**ALUVA P.O., PIN-683 101.**| |**3**|**ORIENTAL INSURANCE CO.LTD.**| ||**RAVIPURAM BRANCH,, COCHIN-15,, REP. BY ITS BRANCH**| ||**MANAGER, ERNAKULAM SOUTH P.O. PIN-682 015.**| ||**R1 BY ADV. SRI.A.R.GEORGE**| ## **OTHER PRESENT:** **SR.ADV.SRI.GEORGE THOMAS MEVADA FOR APPELLANT, SRI.A.R.GEORGE FOR R3** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 22-03-2021, THE COURT ON 24-03-2021 DELIVERED THE FOLLOWING:** **MACA.No.1754 OF 2011** **2** ## **P.V.KUNHIKRISHNAN, J** **----------------------------------------------M.A.C.A. No.1754 of 2011 -------------------------------------Dated this the 24[th] day of March, 2021** ## **JUDGMENT** This is an appeal filed by the petitioner in O.P.(M.V.) No. 1319/2005 on the file of the Motor Accidents Claims Tribunal, Ernakulam. It is a claim petition filed under Sec.166 of the Motor Vehicles Act. (Hereinafter, the parties are mentioned in accordance to their rank before the Tribunal.) 2. The short facts are like this : The claimant is a boy aged 18, and he sustained serious injuries in a road traffic accident. On 17.5.2004 at 9.15 pm, the accident happened. He was on his way to his house by riding his two-wheeler bearing registration No.KL-12A 479. When the vehicle reached TBS junction, the offending stage carriage bus driven by the 1[st] respondent at a break neck speed hit the motor cycle and as a result of that, he was thrown away on the road and sustained serious head injuries. Hence, he claimed a sum of Rs.15 lakhs towards compensation under various heads. 3. To substantiate the case, PW1 to PW3 were examined on the side of the petitioner. Exts.A1 to A18 were marked. After going through the evidence and the documents, the Tribunal fixed a total compensation of Rs.7,47,646/- with interest at the rate of 8% per **MACA.No.1754 OF 2011** **3** annum from the date of application till realization. Aggrieved by the quantum of compensation, this appeal is filed. 4. Heard Sri.George Thomas, senior counsel for the appellant and also the counsel for the 3[rd] respondent. 5. The senior counsel submitted that the petitioner, an youngster aged 18 years, who was studying in an Engineering College, sustained very serious injuries and as per the Medical Board certificate, he sustained a disability of 31%. The learned counsel relied the judgment of the Apex Court in **Anant Son Of Sideshwar** **Dukre** v. **Pratap Son of Zhamnnappa Lamzane and anr.** [(2018) 9 SCC 450] and contended that the Tribunal has not passed a just compensation. The senior counsel also relied the judgment of this Court in **National Insurance Co.Ltd. v. Fathimath Zuhara** [2016 (3) KLT 459] in which this Court confirmed the award passed by a Tribunal, in which the Tribunal assessed the monthly income of an Engineering student in the year 2004 as Rs.12,000/-. Therefore, the counsel submitted that the amount awarded by the Tribunal in different heads is too low considering the serious nature of the injuries sustained by the appellant. 6. The counsel for the 3[rd] respondent submitted that the Tribunal after considering the entire evidence and documents, passed a just and reasonable compensation and there is nothing to interfere with the award passed by the Tribunal. **MACA.No.1754 OF 2011** **4** 7. Admittedly, the petitioner was aged 18 at the time of the accident and he was an Engineering student at the time of the accident. I perused the medical records produced by the petitioner before the Tribunal. Very serious injuries are sustained to the petitioner. A reading of the certificate issued by the Medical Board, it is clear that there is an ortho disability of 14% and neuro disability of 17% (total 31%). According to the petitioner, due to the accident, the petitioner was suffering memory loss and he failed in B.Tech Engineering degree. Ext.A11 is the marklist produced before the Tribunal. Those marks would show that he failed in all subjects during the period. The Tribunal rejected the above contention. But, the fact is that the petitioner sustained very serious injuries and there is 31% disability to him, which includes 14% ortho disability and 17% neuro disability. Keeping in mind the above injuries sustained by the petitioner and the disability suffered by him, this Court has to decide a just and reasonable compensation. 8. Admittedly, the petitioner was in the hospital for 67 days and he was in the ventilator for 10 days. The Tribunal awarded only an amount of Rs.3,000/- towards extra nourishment. I think the petitioner is entitled another amount of Rs.12,000/- in that head. Similarly, the Tribunal awarded only an amount of Rs.12,000/towards attendant expenses. Admittedly, the petitioner was in hospital for 67 days. Even after his discharge from the hospital, he was **MACA.No.1754 OF 2011** **5** undergoing treatment for several days. Even according to the Medical Board, there is 31% disability to the petitioner, which includes 14% ortho disability and 17% neuro disability. If that is taken into consideration, the petitioner is entitled more amount for attendant expenses also. What is claimed is Rs.30,000/- and what is awarded is only Rs.12,000/-. I think the petitioner is entitled the entire amount claimed in that head also. Therefore, the petitioner is entitled another amount of Rs.18,000/- towards attendance expenses. 9. For pain and suffering, the Tribunal awarded an amount of Rs.50,000/. I already considered the injuries sustained by the petitioner in this judgment. The documents are also produced by the petitioner to substantiate the same. The senior counsel made available the copies of the photographs of the injured to show the serious nature of the injuries and the trauma he suffered during this period. The Tribunal fixed an amount of Rs.50,000/- towards pain and sufferings. Considering the entire facts and circumstances of this case and also considering the serious nature of the injuries and also considering the trauma faced by the petitioner, I think another amount of Rs.50,000/- can be awarded towards pain and suffering also. 10. Towards loss of amenities, Rs.40,000/- is awarded. Considering the entire facts and circumstances of this case, I think another amount of Rs.10,000/- can be awarded in this head also. **MACA.No.1754 OF 2011** **6** Admittedly, the petitioner suffered disability of 31%. He also suffered disfiguration also. There is shortening of left leg. No amount is awarded by the Tribunal for disfiguration. Similarly, the senior counsel also submitted that the disfiguration will affect his marriage prospects also. Considering the entire facts and circumstances of this case, I think an amount of Rs.50,000/- can be awarded for disfiguration. 11. Then, this Court has to decide compensation for permanent disability and loss of earning. The Tribunal fixed the monthly income of the petitioner as Rs.4,500/- and based on the same, loss of earning power is decided. The learned counsel relied the judgment of this Court in **Fathimath Zuhara's** case (supra) in which this Court confirmed the finding of the Tribunal in that case that an Engineering student will get an amount of Rs.12,000/-. The relevant portion of the judgment is extracted hereunder : “Furthermore, such fixation has to be made with reference to various aspects such as, the educational career graph, future prospects etc. In this case, the two students for whose death claim petitions have been filed by their respective parents, were studying in LBS College of Engineering at Pooval in Kasaragod. Obviously, taking into the fact that the victims were Engineering students, the Tribunal took the monthly income notionally at Rs. 12,000/- in both the cases. Despite the persuasive argument of the counsel for the third respondent, we do not find any reason to hold that the notional income fixed by the Tribunal as Rs. 12,000/is excessive or exorbitant. No doubt, had they been alive and passed out from the Engineering College on employment, they would not have been placed on a scale of pay having a starting which is lesser than Rs. 12,000/-. At the same time, in the wake of the arguments of the appellants - claimants the question whether it was appropriately fixed after reckoning all vital aspects, for the purpose of assessing the compensation under the head loss of **MACA.No.1754 OF 2011** **7** ## dependency, calls for consideration.” 12. I think the same principle can be adopted in this case also. In that case, the accident happened in 2004 and the accident in this case occurred in the year 2005. Therefore, the monthly income of the petitioner can be fixed as Rs.12,500/-. If that is taken, the compensation for permanent disability and earning power is to be reassessed in the following manner : 12,500 x 12 x 18 x 31/100 = Rs.8,37,000/- 13. From the above amount, the amount already awarded is to be deducted. The Tribunal awarded an amount of Rs. 3,01,320/-. If that is deducted, the balance amount will be Rs.5,35,680/- (8,37,0003,01,320). 14. Then, the counsel submitted that no amount is awarded for future treatment. The senior counsel submitted that, the very fact that the petitioner sustained neuro disability of 17% will show that he need future treatment. Considering the entire facts and circumstances of this case, I think another amount of Rs.50,000/- can be awarded in that head also. For compensation for loss of expectation, no amount is awarded. Loss of expectation includes marriage prospects and other life expectations. This cannot be assessed through money. But, considering the entire facts and circumstances of this case, I think another amount of Rs.50,000/- can be awarded in that head also. Therefore, the total enhanced **MACA.No.1754 OF 2011** **8** ## compensation amount entitled by the petitioner can be summarised like this : |**Sl.No.**|**Head**|**Amount**| |---|---|---| |1|Extra nourishment|Rs.12,000/-| |2|Attendance expenses|Rs.18,000/-| |3|Compensation for pain and<br>sufferings|Rs.50,000/-| |4|Compensation<br>for<br>loss<br>of<br>amenities|Rs.10,000/-| |5|Compensation for disfiguration|Rs.50,000/-| |6|Loss of earning power|Rs.5,35,680/-| |7|Compensation<br>for<br>future<br>treatment|Rs.50,000/-| |8|Compensation for Loss of<br>expectation|Rs.50,000/-| ||**Total**|**Rs.7,75,680/-**| 15. The total claim of the petitioner before the Tribunal is only Rs.15,00,000/-. Now, the amount awarded by the Tribunal is Rs.7,47,646/- and the enhanced amount now awarded is Rs.7,75,680/-. I think it will be a just and reasonable compensation. In ## **Anant Son Of Sideshwar Dukre's** case (supra), the Apex Court ## observed like this : “(5) In cases of motor accidents leading to injuries and disablements, it is a well settled principle that a person must not only be compensated for his physical injury, but also for the non - pecuniary losses which he has suffered due to the injury. The Claimant is entitled to be compensated for his inability to lead a full life, and enjoy those things and amenities which he would have enjoyed, but for the injuries. (6) The purpose of compensation under the Motor Vehicles Act is to fully and adequately restore the aggrieved to the **MACA.No.1754 OF 2011** **9** position prior to the accident. This Court in Yadav Kumar v. The Divisional Manager, National Insurance Company Ltd., 2010 (10) SCC 341 explained “just compensation” in the following words: “It goes without saying that in matters of determination of compensation both the Tribunal and the Court are statutorily charged with a responsibility of fixing a ‘just compensation’. It is obviously true that determination of a just compensation cannot be equated to a bonanza. At the same time the concept of ‘just compensation’ obviously suggests application of fair and equitable principles and a reasonable approach on the part of the Tribunals and Courts. This reasonableness on the part of the Tribunal and Court must be on a large peripheral field.” 16. Keeping in mind the above principle laid down by the Apex Court, I think the enhanced amount fixed by this Court is a just and reasonable compensation. 17. Therefore, this appeal is allowed in part. The impugned award is modified. The appellant is entitled an enhanced amount of Rs.7,75,680/- with interest at the rate of 8% per annum from the date of application till realisation. But I make it clear that, the petitioner is not entitled interest for the amount awarded for future treatment. The 3[rd] respondent is directed to pay the enhanced compensation with interest. SD/- **P.V.KUNHIKRISHNAN JUDGE** SKS