Joseph v. United India Insurance Company Ltd.

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. THURSDAY, THE 12[TH] DAY OF OCTOBER 2023 / 20TH ASWINA, 1945 MACA NO. 3626 OF 2018 ``` ``` AGAINST THE AWARD DATED 06.07.2018 IN OP(MV) 782/2014 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, PERUMBAVOOR ``` ## **`APPELLANT/PETITIONER:`** ``` JOSEPH, AGED 61 YEARS S/O KURIAKOSE, KAVALAMBRAMALI HOUSE, PULLUVAZHI.P.O, ERNAKULAM DISTRICT. ``` ``` BY ADV A.N.SANTHOSH ``` ## **`RESPONDENT/2ND RESPONDENT:`** ``` UNITED INDIA INSURANCE COMPANY LTD., KULANGARA TOWERS, KACHERITHAZHAM, MUVATTUPUZHA-686 661. ``` ``` BY ADV SRI.K.SANDESH RAJA ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 12.10.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA NO. 3626 OF 2018 ``` ``` 2 ``` ## **`JUDGMENT`** The appellant is the petitioner in O.P.(M.V). No.782/2014 on the files of the Motor Accident Claims Tribunal, Perumbavoor. 2. The claim petition was submitted by him seeking compensation for the injuries sustained to him in a motor accident that occurred on 10.05.2014. According to him, the accident occurred when the scooter ridden by him was hit by another motorcycle bearing Registration No.KL 17 E 153 ridden by the 1[st] respondent in the claim petition. He was the owner of the said scooter as well, and the said motorcycle was insured with the respondent herein. Immediately after the accident, the appellant was taken to MOSC Medical College Hospital, Kolenchery and was treated as an inpatient. In the accident, serious injuries were sustained to him and consequent to such injuries, he sustained permanent disablement, which was later certified by the Medical Board as 86.67%. The appellant was aged 57 years and was working at the relevant time as a Re-saw cutter in a sawmill with a monthly income of Rs.25,000/-. The compensation claimed by the ``` MACA NO. 3626 OF 2018 ``` ``` 3 ``` appellant was Rs.20,00,000/-. 3. The 1[st] respondent in the claim petition submitted a written statement admitting the accident but denying the negligence on his part. According to him, the accident occurred due to the negligence on the part of the appellant himself. He further contended that the vehicle was insured with the respondent herein and, therefore, if at all there is any liability that has to be indemnified by them. The respondent/2[nd] respondent submitted a written statement admitting the coverage of the insurance policy in respect of the motorcycle but denied the liability on various grounds. The negligence and the quantum of compensation were also disputed by them. 4. The evidence in this case consists of Exts.A1 to A9 from the side of the appellant. The disability certificate issued by the Medical Board was marked as Ext.C1. From the side of the respondent, Ext.B1 was marked. 5. After examining the materials placed on record, the Tribunal came to a conclusion that the accident occurred due to the ``` MACA NO. 3626 OF 2018 ``` ``` 4 ``` negligence on the part of the 1[st] respondent in the claim petition, the rider of the motorcycle and the insurer of the said vehicle, the respondent herein, was held liable to pay the compensation. The quantum of compensation was fixed as Rs.11,98,051/- and the respondent herein was directed to deposit the said amount along with interest @8% per annum from the date of petition till realisation. This appeal is submitted by the appellant seeking enhancement of compensation. 6. Heard Sri. A.N. Santhosh, learned counsel appearing for the appellant and Sri. K. Sandesh Raja, learned counsel appearing for the respondent Insurance Company. 7. The learned counsel for the appellant raised several contentions highlighting the inadequacy of compensation awarded by the Tribunal under various heads. 8. The first contention relates to the monthly income taken by the Tribunal. Even though an amount of Rs.25,000/- was claimed by the appellant, the Tribunal has considered the same as Rs.7,500/-. After considering the materials placed on record, I find ``` MACA NO. 3626 OF 2018 ``` ``` 5 ``` some force in the contention of the appellant. Even though no specific evidence was adduced to substantiate the nature of employment and the monthly income received by the appellant, the fact that the employment of the appellant mentioned in the F.I.R. was as the worker in a sawmill cannot be ignored. The F.I.R. was registered immediately after the accident, and therefore, I do not find any reason to suspect the veracity of the same. Moreover, the Tribunal also found that the appellant was working in a sawmill, and he is a skilled worker. As per the method of computation evolved from the principles laid down by the Hon’ble Supreme Court in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Co.Ltd** [(2011) 13 SCC 236], and **Syed Sadiq v. Divisional Manager, United India Insurance Company** [(2014) 2 SCC 735], even in the absence of any evidence, a monthly income in respect of an ordinary employer can be taken as Rs.9,500/-, in respect of an accident occurred in the year 2014. Since there is already a finding that the appellant was a skilled worker by the Tribunal, which is not under challenge, I am of the ``` MACA NO. 3626 OF 2018 ``` ``` 6 ``` view that a slightly higher income can be taken. In the facts and circumstances of the case, i.e. taking into account the year of the accident, the nature of employment, etc., I deem it appropriate to fix it as Rs.12,000/-. Of course, the learned counsel for the respondent Insurance Company opposes the said monthly by pointing out that, had he been working in a regular employment, he could have produced documents substantiating the same, and therefore, in the absence of any such document, the said monthly income could not be accepted. However, considering the contents of the F.I.S. and the finding already entered by the Tribunal, which remains unchallenged, I am not inclined to accept the said contention and therefore, the monthly income is fixed as Rs.12,000/-. 9. The next aspect to be considered is with respect to the percentage of disability. Even though, as per Ext.C1, the whole body disability was certified as 86.67%, the Tribunal rounded the same and accepted 87% whole body disability. However, the specific contention put forward by the learned counsel for the ``` MACA NO. 3626 OF 2018 ``` ``` 7 ``` appellant is that considering the physical condition of the appellant and the nature of the employment he was engaged in, 100% disability ought to have been taken. It is discernible from the observations made by the Tribunal in the award itself that the injuries sustained by the appellant are to the effect that he became incapable of pursuing any employment. After examining the medical reports, a finding was entered into by the Tribunal to the effect that the appellant requires the assistance of a person as a bystander throughout his life. Moreover, in Ext.C1 and other medical records, it was observed as follows: _“petitioner had Aphasia (Motor Speech BROCA'S Aphasia with difficulty in communicating with others, Speech difficulty Severe) which accounts to 75% neurological disability. The Neuropsychological evaluation revealed that he had severe dysfunction in memory (Significant impairment in remote memory, mental balance, concentration, delayed recall, retention and object recognition) along with difficulty in perceptuo motor coordination, resulting in 70% disability, and the total whole body permanent disability is assessed as 86.67% by using combination formula.”_ Thus, it is evident that the contention put forward by the learned ``` MACA NO. 3626 OF 2018 ``` ``` 8 ``` counsel for the appellant has to be accepted in view of the fact that the injuries suffered by the appellant made him unfit to pursue any employment. It is a well settled position of law that what is relevant to be considered in such circumstances is the functional disability of the victim, and the compensation need not be confined based on the physical disability alone. The impact of the physical disability on the employment of the victim is to be taken into account. Therefore, considering the facts and circumstances of the case and the physical condition of the appellant consequent to the injuries sustained, I am of the view that this is a fit case in which 100% disability can be taken, and it is fixed accordingly. The Tribunal has already added future prospects @ 10%, which can be followed while computing the compensation. When reassessing the compensation for permanent disability with the above revised criteria, the amount under the said head would come to Rs.14,25,600/-. After deducting Rs.7,75,170/- already awarded by the Tribunal, the additional amount would come to Rs.6,50,430/-. 10. Consequent to the revision of monthly income, the ``` MACA NO. 3626 OF 2018 ``` ``` 9 ``` appellant would be entitled to an additional amount under the head of loss of earnings. It is seen that the Tribunal has granted compensation for nine months under the said head. Thus, it is found that the appellant is entitled to a further sum of Rs.40,500/under this head. 11. Another crucial contention raised by the learned counsel for the appellant is with regard to the future bystander expenses. In this case, the Tribunal has entered into a categorical finding that the physical condition of the appellant is such that he has to depend upon a bystander throughout his life. Even after arriving at such a finding, the amount awarded under the head of bystander expenses was only Rs.25,000/- which appears to be on the lower side. In this regard, it is to be noted that, in the decision rendered by the honourable Supreme Court in **Kajal v. Jagdish Chand & Ors.[MANU/SC/0126/2020],** in respect of an accident that occurred in the year 2004, bystander expenses were calculated for two persons @ Rs.5,000/- each and the amount was determined after applying the multiplier applicable to the age of the victim. In ``` MACA NO. 3626 OF 2018 ``` ``` 10 ``` the facts and circumstances of the case, when applying the aforesaid principles, at least the expenses of one bystander have to be calculated. Thus, while fixing the amount the appellant has to spend on bystander as Rs.5,000/- per month, the amount to be awarded under this head is determined as Rs.5,40,000/- under this head (5,000 x 12 x 9). 12. Similarly, considering the serious nature of the injuries, the disability and the impact of the same on the life of the appellant, I deem it appropriate to grant a further sum of Rs.20,000/- under the head of loss of amenities. Thus, the total compensation receivable by the appellant, in addition to the amount already awarded by the Tribunal, is determined as Rs.12,50,930/-. Accordingly, in the light of the aforesaid observations and findings, this appeal is allowed. The award dated 06.07.2008 in O.P.(M.V.) No.782/2014 passed by the Motor Accident Claims Tribunal, Perumbavoor is hereby modified by granting an additional amount of Rs.12,50,930/- (Rupees twelve lakhs, fifty ``` MACA NO. 3626 OF 2018 ``` ``` 11 ``` thousand, nine hundred and thirty only) and the respondent herein is directed to deposit the said amount along with interest at the rate as ordered by the Tribunal and proportionate costs, within a period of three months from the date of receipt of a copy of this judgment. ``` Sd/- ZIYAD RAHMAN A.A. JUDGE ``` scs