K.R. Govindan v. Sujatha and Surendra Kumar V.T. and ICICI Lombard General Insurance Company Limited

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **WEDNESDAY, THE 30TH DAY OF MAY 2018 / 9TH JYAISHTA, 1940 MACA.No. 25 of 2014** **AGAINST THE AWARD DATED 07.05.2013 IN OP(MV)NO. 1876/2009 of M.A.C.T.,ERNAKULAM** **APPELLANT:-----------** **K.R.GOVINDAN, S/O.LATE P.V. RAMAKRISHNAN EMBRANTHIRI, RESIDING AT SREE POORNASREE, MARADU P.O., KOCHI - 682 304, REPRESENTED BY NEXT FRIEND AND GUARDIAN J. LEELA GOVINDAN, W/O.K.R. GOVINDAN, SREE POORNASREE, MARADU P.O., KOCHI - 682 304.** **BY ADVS.SRI.DINESH R.SHENOY** **SMT.DRISYA SURENDRAN** ## **RESPONDENTS:-** ## **--------------** **1. SUJATHA,** **AYILYAM HOUSE, PALLIYAM ROAD, ILLAM LANE, COCHIN - 682 031.** **2. SURENDRA KUMAR V.T., S/O. THANKAPPAN, VATTATHARA, EDAKOCHI, COCHIN -6.** **3. ICICI LOMBARD GENERAL INSURANCE COMPANY LIMITED, ZENITH HOUSE, KESHAVARO KHADE MARG, MAHALAXMI, MUMBAI- 400 034.** - **R3 BY ADV. SRI.R.AJITH KUMAR (128/84)** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 30-05-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **DST** ## **K.Harilal, J.** ==================================== M.A.C.A.No.25/2014 ==================================== Dated this the 30[th] day of May, 2018. ## **JUDGMENT** 1.Appellant is the petitioner in O.P.(MV) 1876/2009 of the Motor Accidents Claims Tribunal, Ernakulam and the respondents are the respondents therein. The aforesaid application was filed under Section 166(1) of the Motor Vehicles Act, claiming compensation for the injuries suffered by him in a road traffic accident. According to him, on 6.12.2008, while he was riding his motor cycle, the offending container lorry driven by the second respondent, owned by the first respondent and insured with the third respondent, came in a M.A.C.A.No.25/2014 -:2:- rash and negligent manner and hit the motor cycle and caused grievous injuries to him. He contended that the accident was caused by the rash and negligent driving of the offending container lorry by the second respondent and thereby the respondents 1 and 2 are liable to pay compensation to him and the third respondent insurance company is liable to indemnify the respondents 1 and 2. - 2.The respondents opposed the claim disputing the cause of accident and the quantum of compensation. However, after considering the evidence on record, the Tribunal accepted the aforesaid contentions raised by the appellant and passed the impugned award granting `5,50,500/- as compensation to the appellant herein, though he claimed `15,65,000/-. This appeal has been filed, challenging the M.A.C.A.No.25/2014 ## -:3:- inadequacy and correctness of the quantum of compensation granted under various heads of claim. 3.Heard the learned counsel for the appellant and the learned counsel for the respondents. - 4.It is contended by the learned counsel for the appellant that Exts A12 and A13 would show that the appellant was getting an amount of `12,000/- per month at the time of accident. But, the Tribunal has went wrong by taking `5,000/- only as his monthly income. It is also contended that the Tribunal has reduced the degree of disability from 11% to 10%, after discarding Ext.C1 medical certificate. Similarly, the quantum of compensation granted under the head, loss of amenities, is very low and no amount was granted under the head, compensation for future treatment, the learned M.A.C.A.No.25/2014 -:4:- counsel for the appellant contends. - 5.Per contra, the learned counsel for the third respondent insurance company advanced arguments, to justify the quantum of compensation granted under various heads of claim. According to the learned counsel for the insurance company, the Tribunal can be justified in reducing the monthly income from `12,000/- to `5,000/-, considering the payment of 10% service tax and the expenses for conducting survey. - 6.In view of the aforesaid arugment, the point that arises for consideration in this appeal is, whether the Tribunal is justified in fixing the monthly income of the appellant, rejecting the claim for future treatment and determining compensation for loss of amenities. It is not disputed that Ext.A12 salary certificate shows M.A.C.A.No.25/2014 -:5:- that the appellant is a surveyor, engaged in measuring the quantity of oil imported and exported in a company, by name M/s.J.B.Boda Surveyors Pvt.Ltd., at the time of accident. Exts A12 and A13 certificates would show that the appellant retired from service on 31.5.2008 and thereafter he was re-appointed on contract basis for a period of one year, with effect from 2.6.2008. Further, it shows a reduction of 10% as service tax from the remuneration due to the appellant and further it is stated that the appellant shall bear the expenses for conducting the survey. Therefore, the Tribunal is justified in not taking `12,000/- as such without deducting the aforesaid amount. But, the question is, is the Tribunal justified in taking `5,000/- only. Of course, the Tribunal can deduct `1,200/- from `12,000/-, as service M.A.C.A.No.25/2014 -:6:- tax. But, this Court is of the view that the Tribunal cannot justified in deducting `5,800/as expenses for the work of measuring quantity of oil imported and exported. The accident has occurred in the year 2008. In view of the decision reported in _**Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Co. Ltd.**_ [(2011) 13 SCC 236], this Court is of the view that even in the absence of any evidence to prove exact income, `7,500/- can be taken as notional income of the appellant. Therefore, `7,500/- is taken as monthly income of the appellant. 7.Can the Tribunal be justified in granting compensation for 'loss of earnings' for four months only? The accident has occurred on 06.12.2008 and he had undergone treatment as an inpatient for 79 days and he was discharged M.A.C.A.No.25/2014 -:7:- after the last surgery on 27.04.2009 only. Certainly, he would not have worked at least for six months. Therefore, he is entitled to get compensation for six months. Thus, the appellant is given `45,000/-[7,500 x 6) as compensation for 'loss of earnings'. He is entitled to get `29,000/-, as additional compensation under the head 'loss of earnings'. 8.Ext.C1 disability certificate shows that the degree of his permanent disability is 11%. Going by the award, it could be seen the Tribunal has reduced the same to 10%, without sufficient reasoning. Therefore, he is entitled to get compensation for 'loss of earning power', considering his 'permanent disability' as 11% instead of 10%. In view of the above, the appellant is entitled to get `89,100/-[7,500 x 12 x 9 x 11/100] as M.A.C.A.No.25/2014 -:8:- compensation for 'loss of earning power'. The appellant is given `35,100/- more as additional compensation for 'loss of earning power'. - 9.The learned counsel for the appellant vehemently contended that the Tribunal has went wrong by rejecting compensation for future treatment, despite the prolonged treatment, shown in Exts.A7 to A10 discharge summaries. As rightly submitted by the learned counsel for the appellant, it is not disputed and he had undergone treatment as an inpatient, for 79 days and had undergone four surgeries during this period. Ext.A10 is the last discharge summary dated 02.08.2010. In the said discharge summary, the prescription made by the Doctor shows history of seizure, which was not found in earlier three other discharge summaries. It shows that the seizure is a M.A.C.A.No.25/2014 -:9:- consequential disease, caused by the accident. That apart, in the last discharge summary, he was advised to come for review, after two weeks and several medicines were prescribed to him. Therefore, it could be reasonably presumed that he was under treatment as an outpatient for a considerable period after Ext.A10 discharge certificate dated 02.08.2010. In view of Exts.A7 to A10 and the grievous nature injuries which he had suffered, the Tribunal is not justified in rejecting compensation for 'future treatment'. 10. Having regard to the grievous nature of the injuries and consequential disability suffered by him and the continuing treatment evidenced by Exts.A7 to A10, the appellant is given `15,000/- as compensation for 'future treatment'. Similarly, the Tribunal is not M.A.C.A.No.25/2014 -:10:- justified in granting `15,000/- only under the head 'loss of amenities', particularly, when Ext.C1 disability certificate shows 11% permanent disability. Having regard to the degree of disability, consequent on the injury suffered by him, the compensation for 'loss of amenities' would stand enhanced to `30,000/-. Thus, he is given `15,000/- as additional compensation under the head 'loss of amenities'. Thus, the appellant is given a total additional compensation of `94,100[29,000 + 35,100 + 15,000 +15,000]. 11. It is needless to say, the additional compensation also would carry interest, as stipulated by the Tribunal. All other findings of the Tribunal will stand undisturbed and operative. The 3[rd] respondent Insurance Company is directed to deposit the entire compensation M.A.C.A.No.25/2014 ## -:11:- with interest, within three months from today and the appellant is allowed to withdraw the entire compensation. 12. This Motor Accident Claims Appeal is allowed accordingly to the above extent. Sd/- **K.Harilal, Judge** sl/DST ## **//** True copy// P.S. To Judge