Jude Felix, Jose Thomas, and Jenson Sebastian v. Sunny, Antony John, and National Insurance Co. Ltd.

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN FRIDAY, THE 17[TH] DAY OF MARCH 2023 / 26TH PHALGUNA, 1944 MACA NO. 3829 OF 2016 ``` ``` AGAINST THE JUDGMENT IN OPMV 2/2011 OF ADDITIONAL DISTRICT COURT & SESSIONS COURT - II, NORTH PARAVUR / I ADDITIONAL MACT, NORTH PARAVUR ``` ``` APPELLANTS/ADDL.2ND,3RD PETITIONERS & ADDL. 4TH RESPONDENT: ``` ``` 1JUDE FELIX AGED 46 YEARS, S/O T.V.THOMAS (LATE) THERAMEL HOUSE, OCHANTHURUTHU PO,KOCHI. 2JOSE THOMAS AGED 49 YEARS, S/O T.V.THOMAS (LATE) THERAMEL HOUSE, OCHANTHURUTHU PO,KOCHI. 3JENSON SEBASTAIN AGED 42 YEARS, (ADDL.4TH RESPONDENT) S/O T.V.THOMAS (LATE), THERAMEL HOUSE,OCHANTHURUTHU PO, KOCHI. BY ADVS. SRI.JOY C. PAUL SMT.RAKHI VIJAYAN ``` ## **`RESPONDENTS/RESPONDENTS 1 TO 3:`** ``` 1SUNNY S/O PAUL, MENACHERY HOUSE,NEAR APPANGADU BRIDGE, NJARACKAL KARA. 2ANTONY JOHN PUTHUSSERY HOUSE, NEERIKODE PO,ALANAGAD. 3NATIONAL INSURANCE CO.LTD ERUMBATHU BUILDING, PUMP JN.ALUVA. ``` ``` SMT.LATHA SUSAN CHERIAN -SC ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 17.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` **MACA 3829/2016** ..2.. ## **JUDGMENT** Late T.V.Thomas was involved in a road accident on 20.07.2010 – when, while he was walking along a road, he was knocked down by the offending vehicle driven in a rash and negligent manner. He suffered very serious injuries on his head and was subjected to prolonged treatment, including as an inpatient for 16 days. He, therefore, filed OP(MV)No.2/2011 before the Motor Accidents Claims Tribunal, North Paravur (‘Tribunal’ for short), seeking compensation for an amount of Rs.5,86,000/-, limited to Rs.5,50,000/-, but which has been allowed only to a sum of Rs.3,62,500/-. However, pending this Original Petition, he died; and the legal heirs, namely the appellants herein, came on record to represent his interest. The appellants thus prosecute this appeal, asserting that the compensation awarded in favour of their father is exiguous. 2. Sri.Joy.C.Paul – learned counsel for the appellants, argued that even though the original claimant/now deceased T.V.Thomas, was 82 years at the time of the accident, he was hale and hearty, which is manifest from the fact that he was walking on the road on his own, without any assistance. He **MACA 3829/2016** ..3.. argued that, therefore, the learned Tribunal ought to have granted sufficient amount towards ‘Loss of Earnings’, taking note of his long and prolonged hospitalization; and further that the compensation for ‘Pain and Sufferings’ and ‘Loss of Amenities’ ought to have been much higher, especially because he lost his amenities after the accident, never to regain it until his death, four years later. He concluded saying that, this is without doubt because, Exts.A7 and A8 series of bills, which have been accepted by the learned Tribunal, show the large amount of money expended for his medical treatment. 3. In response, Smt.Latha Susan Cherian – learned Standing Counsel for the Insurance Company, submitted that the computations adopted by the Tribunal, in arriving at the compensation, are without error; and thus prayed that this appeal be dismissed. 4. I have considered the afore submissions on the touchstone of the evidence and documents on record – copies of which have been handed over across the Bar by the learned counsel for the parties with the express consent that they can be acted upon by this Court without dispute. **MACA 3829/2016** ..4.. 5. The constitutive facts involved in this case are without dispute. The factum of the accident and that the deceased was 82 years at that time is without contest. The claim petition filed by the original claimant asserted that he was working as a Tutor, receiving Rs.5,000/- per month as his income. Going by _**Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Ltd.**_ [(2011) 13 SCC 236], the notional income to be adopted for even a person with unascertainable income, or who is working as a ‘Coolie’, in the year 2010 – when the accident occurred - is Rs.7,500/-. Obviously, the amount claimed by the original claimant was not excessive; and in fact, ought to have been accepted by the learned Tribunal. 6. The next question is whether the quantum assessed by the Tribunal for ‘Loss of Earnings’; by reckoning only three months, is proper; and if the sums awarded under the heads ‘Loss of Amenities’ and ‘Pain and Suffering’ are commensurate to the injuries caused and the suffering endured by him. 7. On the aspect of ‘Loss of Earnings’, I see that the appellants have no case that the original claimant had any permanent disability, or at least that was so assessed by a **MACA 3829/2016** ..5.. competent Doctor or Medical Board. The medical evidence, particularly Ext.A4(a), graphically show the injury suffered by T.V.Thomas, as being “ _pain on the right shoulder, lacerated wound lateral to right eye 1x0.5x1, swelling on right pareto temporal region_ ”(sic). The next Wound Certificate, namely Ext.A4(b) issued by another hospital, adds that he had a “ _sutured wound on the right eye brow, contusion with haematoma on the right pareto occipital region, along with abrasion on his left hand_ ”(sic). These are substantiated by Ext.A10 series of Scan Reports, which confirm that the injuries were very serious, leading to “ _subarachanoid hemorrhage along his left sylvian fissure in the parieto region_ ”(sic). It is also without doubt – as is admitted - that the deceased was treated as an inpatient for 16 days; and as rightly argued by Sri.Joy.C.Paul, the huge bill for treatment, as manifest from Exts.A7 and A8, stand testimony to all this. 8. On the question of ‘Loss of Earnings’, the claim made by the original claimant was Rs.48,000/-, which is approximately for a period of about nine and a half months; and going by the injuries sustained by him and the prolonged hospitalization, same ought to have been granted. I, therefore, **MACA 3829/2016** ..6.. enhance the compensation under that head to the sum which was claimed, namely Rs.48,000/-. 9. Taking note of the afore, I have also no doubt that the compensation awarded by the Tribunal under the heads ‘Loss of Amenities’ and ‘Pain and Sufferings’ are extremely inadequate. I propose an amount of Rs.20,000/- and Rs.50,000/- respectively under these heads. 10. That said, on the question of transportation charges, even though the claimant had produced Ext.A8 Taxi Bill for Rs.12,485/-, the learned Tribunal accepted only part of it, saying that it is not properly proved, thus granting Rs.5,000/-. I am of the view that there was no requirement to have reduced it to such extent, when the Tribunal did not chose to reject Ext.A8 wholly, but adopted only a portion of it. I propose to restore the said bill substantially and to award Rs.10,000/under this head. Resultantly, this appeal is partly is allowed in the following manner: a The compensation under the head ‘Loss of Earning’ is enhanced to Rs.48,000/-, from Rs.15,000/- awarded by the Tribunal. **MACA 3829/2016** ..7.. - b The compensation under the head ‘Transport to hospital’ is enhanced to Rs.10,000/-, from Rs.5,000/awarded by the Tribunal. - c The compensation under the head ‘Pain and Sufferings’ is enhanced to Rs.50,000/-, from Rs.30,000/- awarded by the Tribunal. - d The compensation under the head ‘Loss of Amenities’ is enhanced to Rs.20,000/-, from Rs.2,000/- now awarded by the Tribunal. Needless to say, all other findings of the Tribunal are left in tact. Consequently, the appellants will be entitled to recover the compensation, as enhanced by this Court, from the Insurance Company, along with interest at the rate of 8% per annum (modifying the rate of interest of 9% per annum as ordered by the Tribunal, in view of the escalation granted by this Court) from the date of claim until it is realised. The appellant will also be entitled to proportionate costs as awarded by the Tribunal on the enhanced amounts. In view of the afore, the amount as fixed above shall be deposited by the Insurance Company before the learned **MACA 3829/2016** **==> picture [20 x 9] intentionally omitted <==** Tribunal, within a period of two months from the date of receipt of a copy of this judgment. However, while computing the interest eligible to the appellant as above, the period of 115 days - being the delay caused by the appellants in filling the appeal - shall stand excluded. Sd/- ## **DEVAN RAMACHANDRAN, JUDGE** ACR