K.K. Jayan v. Marykutty Gilbert, Gilbert Kernoly & National Insurance Co. Ltd.

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MRS. JUSTICE MARY JOSEPH WEDNESDAY, THE 8[TH] DAY OF MARCH 2023 / 17TH PHALGUNA, 1944 MACA NO. 802 OF 2014 ``` ``` AGAINST THE AWARD IN OPMV 468/2004 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, ERNAKULAM DATED 10.08.2010 ``` ## **`APPELLANT/PETITIONER:`** ``` K.K.JAYAN AGED 35 YEARS S/O.K.K.KRISHNAN, KALAYIL HOUSE, NEAR JACOBITE CHAPPELL, VELIYANAD P.O., ARAKUNNAM VIA, ERNAKULAM. BY ADV SRI.T.R.SUGUNAN ``` ## **`ESPONDENTS/RESPONDENTS:`** ``` 1MARYKUTTY GILBERT VALIYAVEETTIL HOUSE, THUMBA, ST.XAVIER'S COLLEGE P.O., TRIVANDRUM NOW RESIDING AT H.NO.27/547,THAMARAKULANGARA ROAD, NORTH FORT GATE,POONITHURA VILLAGE, ERNAKULAM, PIN - 682 038. 2GILBERT KERNOLY AGED 51 YEARS S/O.FELIX GOMUS, VALIYAVEETTIL HOUSE,NEAR VSSC THUMBA, MENAMKULAM VILLAGE,TRIVANDRUM. NOW RESIDING AT H.NO.27/547,THAMARAKULANGARA ROAD, NORTH FORT GATE,POONITHURA VILLAGE, ERNAKULAM PIN - 682 038. 3NATIONAL INSURANCE CO.LTD DIVISION NO.10, FLAT NO.101-106, N.I BMC HOUSE,CONNAUGHT PLACE, NEW DELHI PIN – 110 001. BY ADVS.SRI.GEORGE CHERIAN (SR.) SMT.LATHA SUSAN CHERIAN SMT.K.S.SANTHI ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 08.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` M.A.C.A.No.802 of 2014 ``` ``` 2 ``` ## **`JUDGMENT`** ## **`Dated this the 8[th] day of March, 2023`** The appeal on hand is directed against an award passed by Motor Accidents Claims Tribunal, Ernakulam (for short ‘the Tribunal’) on 10.08.2010 in O.P.(MV)No. 468/2004. The appellant is the petitioner before the Tribunal. 2. For the sake of clarity, the parties to this appeal will hereinafter be referred to as the Petitioner and respondents 1 to 3 in accordance with their status before the Tribunal. 3. Petitioner met with a motor accident at 10:00 p.m. on 25.04.2003. He was walking from east to west through the extreme southern side of Piravom-Koothattukulam road and a Maruthi car proceeding through that road in the same direction knocked him down and thereby he sustained serious injuries. He was taken to Medical Trust Hospital, Ernakulam and after the primary treatment was shifted to Taluk Head Quarters Hospital, Thripunithura. He was aged 32 years as on date of the motor accident. Alleging that the motor accident was occurred due to the rash and negligent driving of the car by its ``` M.A.C.A.No.802 of 2014 ``` ``` 3 ``` driver and claiming a sum of `4,50,000/- as compensation, the Original Petition on hand was filed by the petitioner before the Tribunal. 4. The owner, the driver and the insurer of the Maruthi car were arrayed as respondents 1 to 3 in the Original Petition. Though served with notice from the Tribunal, R1 and R2 did not turn up to contest the Original Petition and therefore were declared _as ex-parte_ . The 3[rd] respondent filed written statement admitting issuance of a policy for the Maruthi car bearing Registration No.KL-01/X-4183 as on date of accident. It was contended that the motor accident was not occurred due to negligence of the 2[nd] respondent who was driving the Maruthi Car, but due to negligence of the petitioner himself. Amount claimed as compensation was disputed for its exorbitance. The claims of the petitioner regarding the age, the occupation, the monthly income, the injuries sustained, the details of treatment and expenses incurred for that were also disputed for want of basis to establish. 5. Before the Tribunal, Exts.A1 to A11 were marked in evidence. Permission was obtained by it from the Tribunal to ``` M.A.C.A.No.802 of 2014 ``` ``` 4 ``` contest the Original Petition raising all statutory defences. The Tribunal found on the basis of the evidence adduced by the petitioner that the motor accident in question was occurred due to the rash and negligent driving of the Maruthi car bearing Registration No.KL-01/X-4183 by its driver, who is the 2[nd] respondent in the Original Petition. The Tribunal also found that injuries were caused to the petitioner in the motor accident and therefore, he is entitled to get compensation from the respondents. A sum of `2,33,368/- was arrived at as the compensation payable. The Tribunal directed the 3[rd] respondent, the insurer of the Maruthi Car to deposit the compensation with interest at the rate of 7.5% per annum from the date of filing of the Original Petition till the date of realisation alongwith costs, after adjusting the amount paid as interim compensation under Section 140 of the Motor Vehicles Act 1988, within 30 days from the date of receipt of a certified copy of the award. 6. According to Sri.Sugunan T.R., the learned counsel for the petitioner, the Tribunal is unjustified in fixing the monthly income notionally as `2,500/-. According to him, the ``` M.A.C.A.No.802 of 2014 ``` ``` 5 ``` motor accident was occurred in the year 2003 and therefore, fixation of a higher sum as monthly income is warranted. It is further contended by the learned counsel that the Tribunal failed to award just and reasonable compensation towards transportation expenses, damages to clothing, extra nourishment, attendant expenses, pain and suffering and loss of amenities and enjoyments in life. According to him, the Medical Board associated with General Hospital, Ernakulam had examined the petitioner and his permanent whole-body disability was certified as 32%. According to him, reasonable compensation was also not awarded by the Tribunal in favour of the petitioner towards permanent disability, since `2,500/- was based as the monthly income for calculation of it. Therefore, modification is sought in the matter of fixation of the monthly income and calculation of compensation under the above head. He also sought for enhancement of `5,000/-stood awarded by the Tribunal as compensation towards loss of marriage prospects of the petitioner. The learned counsel has also relied on **Kajal v. Jagdish Chand and Others [ 2020 (4) SCC 413]** to canvass that loss of future prospects also needs to be ``` M.A.C.A.No.802 of 2014 ``` ``` 6 ``` considered while assessing compensation in favour of the petitioner. 7. It was conceded that liability has been fixed on the 3[rd] respondent correctly, since the offending vehicle was insured with them at the relevant time of the motor accident. According to him, compensation stood awarded by the Tribunal being just and reasonable, the award under challenge is only required to be maintained. According to him, petitioner failed to establish his claim that `3,000/- was earned by him as monthly income at the relevant time of the motor accident and therefore, the Tribunal was constrained to fix `2,500/- as his monthly income on a notional basis. The learned counsel has relied on **Kajal** supra to canvass that loss of future prospects of the petitioner also needs to be considered while calculating compensation in favour of the petitioner. According to him, petitioner having been suffered 32% permanent whole-body disability it is also reasonable to consider loss of his future prospects in his occupation due to the injuries, while calculating the compensation payable. ``` M.A.C.A.No.802 of 2014 ``` ``` 7 ``` 8. It is pointed out that a claim for loss of marriage prospects was not raised by the petitioner in the Original Petition. Nevertheless the Tribunal has awarded `5,000/-. Petitioner was aged 32 years at the relevant time of the motor accident. His marital status is not stated anywhere. He had not raised a claim in the Original Petition that on account of the injuries sustained and the disability suffered due to that, his marriage prospects have been lost or reduced. In that context, the Tribunal is not justified in awarding `5,000/- as compensation towards loss of marriage prospects and that is only liable to be deducted from the additional compensation found payable. Thus modification of compensation sought under that head is discarded being devoid of any basis. 9. It is noticed from the materials on record that the motor accident in question was occurred in the year 2003. True that the petitioner had raised a claim that he was getting `3,000/- as the monthly income. But, the Tribunal fixed it as `2,500/- on a notional basis. The motor accident being occurred in the year 2003, `2,500/- fixed by the Tribunal notionally is too low and having due regard to the cost of living ``` M.A.C.A.No.802 of 2014 ``` ``` 8 ``` and price index prevalent at the relevant time, the monthly income is refixed as `4,000/-. Loss of earning was considered by the Tribunal only for a period of 5 months. The period considered by the Tribunal undoubtedly is low, and therefore, is modified to 7 months. When compensation for loss of earning is calculated on the basis of the modified monthly income and the period, `28,000/- (`4,000/- x 7) is arrived at. `12,000/- stood awarded by the Tribunal when adjusted against that sum, the petitioner will get `16,000/- (`28,000/- - `12,000/-) as additional compensation under that head. 10. The Medical Board associated with General Hospital, Ernakulam had examined the petitioner in the year 2007 and assessed disability viz: Ophthalmologic, 15% Neurological, 12% and Orthopaedic, 5%. The Medical Board has observed that during examination of the petitioner, it was revealed to them that he had post-traumatic defective vision of both eyes, mal-union of distal end of left radius with restriction of terminal flexion of left unit, post-traumatic slurring of speech and vertigo in co-ordination of both lower limbs. It is noticed from the Wound cum discharge certificate issued from Medical Trust ``` M.A.C.A.No.802 of 2014 ``` ``` 9 ``` Hospital, Kochi, the discharge summary issued from the very same hospital, the Medical Certificate issued and the photocopy of an OP ticket issued in favour of the petitioner from Taluk Head Quarters Hospital, Thripunithura, marked in evidence respectively as Exts.A6 to A11 that the petitioner had sustained severe head injury in the motor accident. Apart from that the petitioner had also sustained several abrasions over face, contusion on upper lip and fracture of teeth. In the radiological investigation, fractures of lower end of radius and tip of patella were also detected. He was treated with antibiotics, analgesics, antiedema measures and nootropic agents. He was also subjected to aggressive chest physiotherapy and supportive measures during hospitalisation. He got gradually improved. POP cast was also applied over right lower limb, left forearm and wrist and removed on 24.05.2003 as per the advice of the Orthopedic doctor. He was advised complete mobilisation and review after 6 weeks in the Ortho OP department to discuss about the possibility of a surgery for the left lower end of radius to rectify its defect. At the time of discharge his condition was reported, improved a lot. He was advised to continue ``` M.A.C.A.No.802 of 2014 ``` ``` 10 ``` medication and to review in the Neurosurgery OP Department after 6 weeks. He attended the hospital as outpatient for a short period further. Medical documents are not forthcoming to establish that the petitioner had undergone inpatient as well as outpatient treatment further. He failed to produce medical bills other than Ext.A10 series to establish the treatment to be availed in future and expenditure to be incurred. 11. The total permanent whole-body disability of the petitioner is certified in Ext.A9 as 32%. The Tribunal had taken it as such for computation of compensation for disability. Petitioner failed to produce any document to establish that he was aged 32 years at the relevant time of the motor accident. Nevertheless, the Tribunal took 32 itself as his age at the relevant time of the occurrence. The multiplier relevant for the age group of 30-35 years as per **Sarla Verma V. Delhi Transport Corporation [2010 (2) KLT 802 (SC)]** is 16 and being correctly adopted by the Tribunal is maintained. Petitioner was primarily treated at Medical Trust Hospital, Ernakulam and continued the same at Taluk Head Quarters Hospital, Thripunithura. As revealed from the cause title of the ``` M.A.C.A.No.802 of 2014 ``` **==> picture [16 x 9] intentionally omitted <==** appeal memorandum, his place of abode is Veliyanad, Arakkunnam, Ernakulam. The inpatient treatment at Medical Trust Hospital, Ernakulam was extended for more than 30 days. Having due regard to the above aspects, `5,000/- is granted towards transportation expenses. `500/- stood awarded by the Tribunal when adjusted against the above sum, petitioner will get `4,500/- as additional compensation under that head. As compensation towards bystander expenses, the sum stood awarded by the Tribunal being `3,000/-, `2,000/- more is awarded. `600/- more is also awarded as compensation towards damages to clothing. The Tribunal failed to award any sum as compensation towards extra nourishment and therefore, `5,000/- is awarded under that head. As compensation towards pain and sufferings and loss of amenities and enjoyments in life, `20,000/- and `15,000/- respectively were awarded by the Tribunal. When viewed in the backdrop of the serious injuries sustained by the petitioner and the treatment availed for a considerably long period, the sums stood awarded by the Tribunal are unreasonable and therefore modified to `50,000/- each. Thus the petitioner will get ## **`M.A.C.A.No.802 of 2014`** **==> picture [16 x 9] intentionally omitted <==** `30,000/- and `35,000/- respectively as additional compensation. 12. Whether loss of future prospects is required to be considered in the case of the petitioner is the further question to be delved on. The Medical Board had assessed 32% as the permanent whole-body disability of the petitioner for various reasons narrated in Ext.A9, which include post-traumatic defective vision of both eyes, slurring of speech and vertigo. Based on the above difficulties, there is every reason to doubt the petitioner’s capacity to do the work as was done prior to the motor accident. Therefore, this Court finds it appropriate to consider loss of future prospects also in the case of the petitioner. 13. The petitioner comes within the age group of 30-35 and therefore, based on the direction of the Apex Court in **National Insurance Co. Ltd V. Pranay Sethi [2017 (4) KLT 662 (SC)]** , this Court is inclined to add 40% to the monthly income fixed, in consideration of loss of future prospects. The monthly income is already re-fixed by this Court as `4,000/-. When 40% is added to it, `5,600/- (`4,000/- + 40% of ``` M.A.C.A.No.802 of 2014 ``` ``` 13 ``` `4,000/-) is arrived at. As rightly pointed out by the learned counsel for the 3[rd] respondent, 16 is adopted as the multiplier. When compensation for disability is calculated afresh with the factors modified as above, `3,44,064/- (`5,600/- x 12 x 16 x 32/100) is arrived at. `1,53,600/-, the sum stood awarded by the Tribunal when adjusted against, the petitioner will get `1,90,464/- (`3,44,064/- - `1,53,600/-) as additional compensation. 14. The petitioner being aged 32 years at the relevant time when he met with the motor accident and materials having not been produced to establish his marital status, this Court is declined to award compensation towards loss of marriage prospects. Therefore, `5,000/- stood awarded by the Tribunal as compensation under that head is liable to be deducted from the additional compensation that would be arrived at in this appeal and this Court do so. 15. In the above manner of calculation afresh, the petitioner will get `2,78,564/- [(`16,000/- + `4,500/- + `2,000/- + `600/- + `5,000/- + `30,000/- + `35,000/- + `1,90,464/-) - (`5,000/-)] (Rupees Two lakhs seventy eight ``` 14 ``` ## **`M.A.C.A.No.802 of 2014`** thousand five hundred and sixty four only) as additional compensation, which will also carry interest at the rate of 7.5% per annum from the date of filing of the Original Petition till the date of realisation. 3[rd] respondent shall pay the above sum with interest accrued on it and the original compensation stood awarded by the Tribunal alongwith interest and costs (if not already paid), within a period of two months from the date on which a certified copy of this judgment is received. 16. In view of the order passed by this Court on 04.03.2022 in CM.Application No.1/2014, the 3[rd] respondent is exonerated from paying interest for 1147 days being the delay occurred in filing the appeal on hand. MACA stands allowed accordingly. Sd/- **MARY JOSEPH** **JUDGE** MJL