Joy P. Issac v. Tony Kuruvilla K., Sasikumar and United India Insurance Co. Ltd.

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ## **`THE HONOURABLE MRS. JUSTICE MARY JOSEPH`** ``` WEDNESDAY, THE 9[TH] DAY OF NOVEMBER 2022 / 18TH KARTHIKA, 1944 MACA NO. 1639 OF 2013 ``` ``` AGAINST THE AWARD DATED 28.05.2013 IN O.P(M.V) NO.456/2008 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, MUVATTUPUZHA ``` ## **`APPELLANT/PETITIONER:`** ``` JOY P. ISSAC, S/O.ISSAC, PULINATTU HOUSE, IRAPURAM VILLAGE, KEEZHILLAM P.O. BY ADVS. SRI.T.K.KOSHY SRI.ABE RAJAN ``` ## **`RESPONDENTS/RESPONDENTS:`** ``` 1TONY KURUVILLA K., ANATHANAM HOUSE, P.B.NO.53, KANJIRAPPALLY P.O., KOTTAYAM DISTRICT, PIN-686 507. 2SASIKUMAR, S/O.KRISHNANKUTTY, VISHNUVILASOM HOUSE, NEAR PUNCHAVAYAL JUNCTION, ERUMELI NORTH VILLAGE, KOTTAYAM, PIN-686 507. 3THE UNITED INDIA INSURANCE CO.LTD. VETTUKATTIL BUILDING, M.G.ROAD, ERNAKULAM, KOCHI-682 016. BY ADVS. SRI.JOHN JOSEPH VETTIKAD SRI.C.JOSEPH JOHNY ``` ## **`THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD`** ``` ON 09.11.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` M.A.C.A.No.1639 of 2013 ``` ``` 2 ``` ## **JUDGMENT** ## **Dated this the 09[th] day of November, 2022** This appeal is filed challenging an award passed by Motor Accidents Claims Tribunal, Muvattupuzha (for short ‘the Tribunal’) on 28.05.2013 in O.P.(MV) No.456/2008. For the sake of convenience, the parties to this appeal will hereinafter be referred to as the petitioner and respondents 1 to 3 in accordance with their status in the Original Petition. 2. The petitioner had met with a motor accident on 13.11.2007 when an Ambassador Car bearing Registration No.KL-6/4979 driven by him through MuvattupuzhaPerumbavoor M.C Road was dashed by an Innova Car bearing Registration No.KL-05-W-2149 driven by its driver. The accident was allegedly occurred due to the rash and negligent driving of the Innova Car by its driver. Petitioner had sustained serious injuries and was treated at Nirmala Medical Centre, Muvattupuzha. Claiming a sum of Rs.7,50,000/- as total compensation from the owner, driver and insurer of the ``` M.A.C.A.No.1639 of 2013 ``` ``` 3 ``` Innova Car, the Original Petition as above was filed. The owner, driver and insurer of the Innova Car were arrayed as respondents 1 to 3 and alleging that they are jointly and severally liable to compensate him, the Original Petition was filed. 3. First and second respondents who are the owner and driver of the Innova Car though received notice from the Tribunal did not turn up to contest the Original Petition and were declared ex parte. The 3[rd] respondent in the written statement filed admitted the policy coverage of the Innova Car as on date of accident but, contended that the Ambassador Car was driven by the petitioner in high speed and thereby the accident was caused. The age, occupation and income of the petitioner are disputed. The quantum claimed as compensation is also disputed for being exorbitant in nature. A further contention was also raised that since the petitioner himself has caused the motor accident by his rash and negligent driving, is not entitled to get any compensation from the respondents. ``` M.A.C.A.No.1639 of 2013 ``` ``` 4 ``` 4. Before the Tribunal, evidence was adduced by both parties. On the side of the parties, PW1 was examined and Exts.A1 to A15 and Ext.B1 were marked. 5. On appreciation of the above evidence, the Tribunal found that the accident was occurred due to the rash and negligent driving of the Innova Car by the 2[nd] respondent. It was further found that the petitioner had sustained injuries in the motor accident and is entitled to get Rs.2,85,600/- as compensation. The Tribunal had fixed the liability on the 3[rd] respondent to indemnify the 1[st] respondent, the registered owner of the vehicle. 6. It is contended by Sri.T.K.Koshy, the learned counsel for the petitioner that the petitioner claimed to be a Photographer cum Videographer by profession, getting Rs.8,000/- as monthly income. According to him, despite the pleadings raised as above, the Tribunal had fixed the monthly income as Rs.3,500/- notionally and thereby the compensation payable was arrived at. According to him, compensation for loss of earning was assessed by fixing 6 months as the period for which he had loss of income. ``` M.A.C.A.No.1639 of 2013 ``` ``` 5 ``` According to him, the period taken by the Tribunal is minimal when compared to the injuries sustained by him in the motor accident. The learned counsel has also pointed out that compensation was awarded by the Tribunal under various other heads also on the lower side and interference is called for to modify it and make it just and reasonable. According to him, the compensation for permanent disability also needs to be reassessed on the basis of a modified monthly income. 7. The learned counsel for the 3[rd] respondent has contended that the Tribunal has arrived at just and reasonable sums under various heads as compensation payable to the petitioner. According to him, the petitioner though claimed to be a Photographer cum Videographer, he failed to adduce materials to establish his profession and the monthly income earned therefrom. According to him, evidence of any nature was not adduced by the petitioner to prove his profession and monthly income. The learned counsel has conceded that monthly income if fixed based on the fixation in Ramachandrappa v Manager, Royal Sundaram Alliance Insurance Company Limited [ (2011) 13 SCC 236], is ``` M.A.C.A.No.1639 of 2013 ``` ``` 6 ``` reasonable and appropriate in the case on hand. The learned counsel for the 3[rd] respondent has contended that interference with the sums awarded under other heads is also unwarranted for being just and reasonable. 8. This Court has noticed from the evidence on record that the petitioner had sustained Comminuted Segmental intertrochanteric fracture of right femur, Type II compound fracture of right tibia and fracture lower end of left radius. He was treated with wound recon nailing for fracture of femur and fixation of rod for fracture of tibia. Wound debridement and suturing were also done. The petitioner had claimed himself to be a Photographer cum Videographer. Exts.A10 and A11 were produced by the petitioner to establish his profession. Ext.A10 is a photocopy of the identity card which shows his identity as a Professional Videographer and as a member of All Kerala Photographers Association. Ext.A11 is a receipt evidencing payment of Tax for the building wherein a studio was conducted by him. Therefore the claim of the petitioner that he was working as a Photographer cum Videographer as on date of accident is only to be believed. ``` M.A.C.A.No.1639 of 2013 ``` ``` 7 ``` But, evidence is not forthcoming to convince this Court about the monthly income earned from the profession. 9. In the above circumstances, this Court has to consider a reasonable monthly income for calculation of compensation and Rs.7,000/- is taken for the purpose. In view of the injuries sustained by him, the petitioner might have been refrained from attending his job atleast for 8 months. This Court is inclined to calculate the compensation for loss of earning by taking Rs.7,000/- as the monthly income and 8 months as the period for which the petitioner was unable to earn income. In the above calculation, the petitioner is entitled to receive Rs.56,000/- as compensation for loss of earning. Rs.21,000/- being the sum awarded by the Tribunal as per the impugned award, the petitioner is entitled to get Rs.35,000/- as compensation additionally. Under the head bystander expenses and extra nourishment the Tribunal had awarded Rs.1,300/- and Rs.3,000/respectively and this Court is inclined to modify it respectively to Rs.6,000/- and Rs.5,000/- and thereby the petitioner will get Rs.4,700/- and Rs.2,000/- respectively as additional ``` M.A.C.A.No.1639 of 2013 ``` ``` 8 ``` compensation. Under the head transportation expenses, the amount awarded by the Tribunal being Rs.2,000/-, this Court is inclined to modify it to Rs.4,000/- and thereby the petitioner will get Rs.2,000/- as compensation additionally. Towards pain and suffering the sum stands awarded being Rs.25,000/-, this Court is inclined to award Rs.25,000/more. Towards loss of amenities and enjoyments in life, the amount awarded by the Tribunal being low this Court is inclined to grant Rs.25,000/- and thereby the petitioner will get Rs.5,000/- as compensation additionally. Towards damages to clothing the Tribunal failed to award any sum and this Court is inclined to grant Rs.1,000/-. 10. When compensation for disability is reassessed on the basis of Rs.7,000/- as the refixed monthly income and maintaining the other factors adopted by the Tribunal, Rs.1,63,800/- will be payable. Since Rs.81,900/- being the sum stands awarded by the Tribunal, the petitioner is entitled to get Rs.81,900/- additionally. 11. When reassessed in the above manner, a total sum of Rs.1,56,600/- (Rupees One lakh Fifty six Thousand ``` 9 ``` ## **`M.A.C.A.No.1639 of 2013`** and Six Hundred only) is found payable as additional compensation. The said amount would carry interest at the rate of 7.5% per annum from the date of filing of the Original Petition till the date of realisation. The 3[rd] respondent shall deposit the sum arrived at this Court now with interest fixed and the sum stands originally awarded by the impugned award with interest fixed (if not already paid) within a period of two months from the date on which a certified copy of this judgment is received. M.A.C.A stands allowed accordingly. Sd/- **MARY JOSEPH** **JUDGE** NAB