Joseph Thomas @ Josekunju v. Jomon James and Oriental Insurance Co. Ltd.

# IN THE HIGH COURT OF KERALA AT ERNAKULAM ## PRESENT THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. THURSDAY, THE 18TH DAY OF MARCH 2021 / 27TH PHALGUNA, 1942 ## MACA.No.844 OF 2015(A) AGAINST THE AWARD IN OPMV NO.226/2012 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL ,KOTTAYAM ## APPELLANT/PETITIONER: JOSEPH THOMAS @ JOSEKUNJU AGED 52 YEARS S/O GEORGE THOMAS, VALIYAVEEDAN (VALIYAVEETTIL) HOUSE, VEROOR, VAZHAPPALLY VILLAGE, CHANGANANSSERY BY ADVS. DR.V.N.SANKARJEE SRI.V.N.MADHUSUDANAN SRI.PRATHAP. S.R.K. SRI.S.SIDHARDHAN SMT.M.SUSEELA SMT.R.UDAYA JYOTHI ## RESPONDENTS/RESPONDENTS: 1 JOMON JAMES S/O JAMES JOSEPH, MULAKUPADAM, VEROOR, INDUSTRIAL ESTATE NAGAR P.O, CHANGANASSERY TALUK, KOTTAYAM DISTRICT 2 JAMES JOSEPH (FATHER'S NAME AND AGE NOT KNOWN TO THE APPELLANT), MULAKUPADAM, VEROOR, INDUSTRIAL ESTATE NAGAR P.O, CHANGANASSERY TALUK, KOTTAYAM DISTRICT, 3 THE ORIENTAL INSURANCE CO.LTD KOTTAYAM-686 001 R1 BY ADV. SRI.GEORGE CHERIAN SR. R1 BY ADV. SMT.LATHA SUSAN CHERIAN R1 BY ADV. SMT.K.S.SANTHI R3 BY ADV. SRI.GEORGE CHERIAN (SR.) THIS MOTOR ACCIDENTS CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 18.03.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.A.C.A.No.844 of 2015 2 ## JUDGMENT Dated this the 18th day of March 2021 … This is an appeal filed by the petitioner in OP(MV) No.226/2012 on the file of Motor Accident Claims Tribunal, Kottayam, seeking enhancement of compensation. 2. The claim petition was filed by him seeking compensation for the injuries sustained to him in a motor accident occurred on 12.6.2011. It was contended that, due to the injuries, he sustained a permanent disability of 10%. According to him, he was a fruit vendor, aged 50 years. As compensation, he claimed a total compensation of Rs.11,42,000/- and the said claim was limited to 8 lakhs. 3. The Insurance Company alone contested the claim. They filed a written statement admitting the coverage of policy, but disputed the liability on various grounds. The quantum of compensation claimed by M.A.C.A.No.844 of 2015 3 the appellant was also seriously disputed. 4. The evidence in this case consists of Exts. A1 to A11 from the side of the appellant/petitioner. The disability certificate issued by the Medical Board was marked as Ext.X1. 5. After the trial, the Tribunal passed an award allowing a total compensation of Rs.5,16,500/- and the Insurance Company was directed to deposit the said amount along with interest at the rate of 8.5% per annum from the date of petition. Being dissatisfied with the said compensation, this appeal is filed. 6. Heard the learned counsel for the appellant and the learned counsel for the 3[rd] respondent, the Insurance Company. 7. The main contention urged by the learned counsel for the appellant is that, the monthly income claimed by him was Rs.15,000/-, but the Tribunal had taken the same as Rs.7,000/- only and this is on lower side. As mentioned above, the case of the appellant is that, he was conducting a fruit stall at Vazhappallay Grama Panchayat. In order to substantiate the same, he M.A.C.A.No.844 of 2015 4 produced Ext.A11 license issued by the Vazhappally Grama Panchayat. Considering the fact that, he is a fruit vendor, the income taken by the Tribunal appears to be on lower side. As per the principles laid down by the Hon’ble Supreme Court in Ramachandrappa v. Manager, Royal Sundaram alliance Insurance Company Limited [(2011)13 SCC 236] and in Syed Sadiq v. Divisional Manager, United India Insurance Company Limited [(2014)2 SCC 735], even in the case of coolie, the notional income can be fixed by taking the income as Rs.4,500/- in the year 2004. Further, it is a well accepted method that, the monthly income for the subsequent years can be reckoned by making an addition of Rs 500/- per year, after taking the basic income as Rs.4500/- for the year 2004. Going by the said principles the monthly income shall be Rs.8000/-. However, in this case, the appellant has already produced Ext.A11 licence issued by the Vazhappally Grama Panchayat which indicates that, he was conducting a fruit stall. Hence he can be treated a person with better income than the persons employed in manual M.A.C.A.No.844 of 2015 5 labour. Hence, the fixation of monthly income at a higher rate than the one fixed by the Tribunal and also by applying the principles laid down by the Hon’ble Supreme Court in the above judgments, is warranted. Therefore, in this case, this Court is of the opinion that, an amount of Rs.10,000/- per month will be a reasonable amount. Accordingly, the compensation under the head of actual loss of earning as well as for physical disability have to be re-worked, by taking the monthly income as Rs 10,000/-. With regard to the compensation under the loss of earnings, on account of the revision of monthly income, the appellant will be entitled for a further sum of Rs.12,000/- (Rs.10,000x428,000). While computing compensation under the head of physical disability, the criteria adopted by the Tribunal other than the monthly income can be retained. Accordingly the compensation under the said head has to be re-fixed as Rs.1,56,000/- [Rs.10,000x12x13x10/100]. The Tribunal has already awarded Rs.1,09,200/- under this head. Therefore, after deducting the same, the additional amount receivable by the appellant under M.A.C.A.No.844 of 2015 6 this head is Rs.46,800/-. 8. The learned counsel for the appellant pointed out that, even though he produced Ext.A6 certificate before the Tribunal showing the requirement of future treatment, no amount was granted. According to the counsel, for the purpose of removal of implants, an amount of Rs.35,000/- is required and it is specifically mentioned in Ext.A6. As nothing has been mentioned in the award as to the appreciation of Ext.A6, the appellant filed I.A.No.604 of 2014 seeking to review of the award on this head. However, the same was rejected by the Tribunal on 8.1.2014 and that order is also under challenge in this appeal. It is true that, going through the contents of Ext.A6, it is mentioned that, an amount of Rs.35,000/- is required for removal of implants. 9. The learned counsel for the 3[rd] respondent seriously opposed the claim under this head pointing out that Ext.A6 document cannot be accepted as such, as the same is not proved in the manner required by law. No competent person was examined to substantiate the M.A.C.A.No.844 of 2015 7 said document and, therefore, the same cannot be accepted. Even though, this Court find some force in the contention of the learned counsel for the 3[rd] respondent, this Court is of the view that, some amount is to be granted under the said head. Therefore, even though the amounts specified in Ext.A6 as such, cannot be accepted, considering the facts and circumstances of this case, an amount of Rs.20,000/- can be fixed as the compensation receivable by the appellant under this head. It is also clarified that, while fixing the amount as above, this Court has taken note of the fact that, the Tribunal has already awarded an amount of Rs.75,000/- and 70,000/- under the heads of pain and sufferings and the loss of amenities respectively. It seems that, the said amounts are slightly on higher side. This is also a factor to be taken into account while fixing the amount towards future treatment as Rs.20,000/-, so as to ensure a just compensation in this case. 10. Thus, the additional amount of compensation receivable by the appellant is Rs.78,800/- M.A.C.A.No.844 of 2015 8 [12,000+46,800+20,000]. The 3[rd] respondent, the Insurance Company is directed to deposit the said amount within a period of three months from the date of receipt of a copy of this judgment. It is directed that, the appellant shall be entitled for interest at the rate of 8.5% per annum for an amount of Rs.58,800/from the date of petition till realization. Since the amount of Rs.20,000/- is awarded towards future treatment which is yet to be availed, no interest can be granted for the same. If the said amount is not paid within the period of three months from the date of receipt of a copy of this judgment, the 3[rd] respondent is liable to pay interest for the same at the rate of 9% per annum from the date of default till realization. With the above observations, this appeal is disposed of. Sd/- ZIYAD RAHMAN A.A. JUDGE pkk