Liyochan v. Georgekutty, Teresa George and The New India Assurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN & THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** **WEDNESDAY, THE 9TH DAY OF MARCH 2016/19TH PHALGUNA, 1937** **MACA.No. 2317 of 2009 ( ) --------------------------** **AGAINST THE AWARD IN OPMV.NO. 856/2006 of MOTOR ACCIDENTS CLAIMS TRIBUNAL, PALA DATED 31-10-2008 APPELLANT/PETITIONER:** **--------------------** **LIYOCHAN, S/O. JOSEPH, THOPPIL HOUSE, MEMURI.P.O., MANJOOR VILLAGE, NOW RESIDING AT KOCHUMARUTHANGAL HOUSE, ULLANADU KARA BHARANANGANAM VILLAGE, KOTTAYAM DIST.** **BY ADV. SRI.ABRAHAM MATHEW (VETTOOR)** **RESPONDENTS/RESPONDENTS:** **-----------------------** *** 1. GEORGEKUTTY, S/O. ISSAC, MANGATTU HOUSE KALAMBUKATTU BHAGOM, KALLARA KARA, KALLARA VILLAGE. * DELETED** **2. TERESA GEORGE, W/O. LATE GEORGE, MANGATTU HOUSE, KALLARA KARA, KALLARA VILLAGE.** **3. THE NEW INDIA ASSURANCE CO. LTD., REP. BY ITS DIVISIONAL MANAGER, KOTTAYAM.** ***R1 DELETED AS PER THE ORDER IN IA.NO.1232/15 DATED 8.4.15** **R3 BY ADV. SRI.VIJU THOMAS R3 BY ADV. SMT.M.MEENA JOHN** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 09-03-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **P.N. Ravindran & K. Ramakrishnan, JJ.** - - - - - - - - - - - - - - - - - - - - - - - - - - - ## **M.A.C.A.No.2317 of 2009** - - - - - - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 9[th] day of March, 2016 ## **JUDGMENT** ## **K. Ramakrishnan, J** Claimant in O.P.(M.V.)No.856/2006 on the file of the Motor Accidents Claims Tribunal, Pala, is the appellant herein. The appellant filed the application for compensation for the personal injuries and disability suffered by him in a motor vehicle accident occurred on 09.09.2006. According to the claimant, he was riding the motor cycle bearing Reg.No.KL-5/U-476 and when reached the place of occurrence, a car with Reg.No.KBV/6789 driven by first respondent, owned by second respondent and insured with the third respondent came from the opposite direction in a high speed and hit against the motor cycle causing severe injuries to him. According to him, the accident occurred due to the negligence of the first respondent. He was working as a wireman and getting Rs.7,000/- per month. He suffered severe disability. He claimed a total compensation of Rs.5,33,000/- on various heads, but restricted his claim to Rs. 4,00,000/-. 2. Respondents 1 and 2 appeared and filed written _**M.A.C.A.No.2317 of 2009**_ 2 statement contending that they are the driver and owner of the vehicle involved in the accident. But they denied negligence on the part of the first respondent. According to them, the accident occurred due to the negligence of the petitioner himself. The total compensation claimed is exorbitant. The vehicle is validly insured with the third respondent and the compensation if any awarded has to be paid by them. 3. Third respondent/insurance company entered appearance and filed counter admitting the insurance of the car involved in the accident, but denied the negligence on the part of the first respondent. According to them, the accident occurred due to the negligence of the petitioner himself. They also contended that the total compensation claimed is exorbitant and they prayed for dismissal of the application. 4. No oral evidence was adduced on either side. Exts.A1 to A23 and X1 were marked on the side of the petitioner. No evidence either oral or documentary was adduced on the side of the respondents. After considering the evidence on record, the court below found that the accident occurred due to the negligence of the first respondent and assessed a total compensation of Rs.3,21,900/- on various heads as follows: _**M.A.C.A.No.2317 of 2009**_ 3 |**_Heads_**|**_Amount_**| |---|---| |Medical expenses|₹1,44,350/-| |Loss of earnings|₹10,000/-| |Bystander expenses|₹15,000/-| |Extra nourishment|₹500/-| |Damage to clothing|₹250/-| |Transport to hospital|₹6,000/-| |Pain and suffering|₹20,000/-| |Permanent partial disability|₹1,00,800/-| |Loss of amenities|₹25,000| |Total|₹3,21,900/-| and directed the third respondent insurance company to pay the amount with 9% interest from the date of petition till payment together with cost of Rs.4,500/-. Dissatisfied with the quantum of compensation awarded, the above appeal has been preferred by the appellant/claimant herein. 5. Heard Sri.Anil Abey Jose, learned counsel representing Sri.Abraham Mathew Vettoor, counsel for the appellant and Sri.Gigi Thomas, learned counsel appearing for the third respondent as the first respondent has been deleted from the party array and in spite of service of notice on the second respondent, he did not appear in the delay condonation application, so notice to him is dispensed with. 6. The counsel for the appellant submitted that the documents produced by him will go to show that he is a qualified 4 ## _**M.A.C.A.No.2317 of 2009**_ person and the lower court was not justified in considering the income as Rs.4,000/- and further reducing to Rs.2,500/- for the purpose of awarding compensation under the head loss of earning and further reducing to Rs.2,000/- for the purpose of computing the compensation under the head loss of earning capacity. Further no future prospects have been taken into consideration by the court below. The amount awarded under the head loss of earning is also on the lower side because court below itself had found that he was under continuous treatment for nearly 17 months and bed ridden for longer period. But the court below had only taken four months for the purpose of awarding compensation under the head loss of earning. The amount awarded under the head pain and suffering, loss of amenities in life is also on the lower side. According to him, he is entitled to get enhancement on all heads. 7. On the other hand, the learned counsel for the insurance company submitted that the court below had properly appreciated the evidence and the total compensation awarded is just and proper. 8. Since there is no appeal filed against the finding regarding negligence, we are not going to that aspect in this appeal. _**M.A.C.A.No.2317 of 2009**_ 5 According to the claimant, he is working as an electrical supervisor in a company at Mumbai and getting Rs.7,000/- per month and he had produced Exts.A17 and A18 certificate to prove this fact. But no oral evidence was adduced on the side of the petitioner and the court below had relied on Ext.A13 certificate to show that he is a qualified diploma holder and also Ext.A14 to show that he is a skilled labourer and took the monthly income of the injured as Rs.4,000/- per month, but court below had deducted 1/3[rd] from that amount towards his personal expenses and taken only Rs.2,500/- as his monthly income for calculating the loss of earning and further reduced to Rs.2,000/- for the purpose of assessing compensation under the head loss of earning capacity. The court below was not justified in taking different yardstick for fixing the monthly income for these purposes. Having found that, he is a qualified person and taking the monthly income as Rs.4,000/-, the court below should not have deducted any further amount from that amount. Further it is seen from the documents that he suffered contusion scalp, open comminuted fracture both bones of right leg with skin soft tissue and bone loss, fractures 2[nd] and 3[rd] metatarsals of right foot and comminuted intra articular fracture lower right radius. Further it will be seen from the documents produced that he had sustained _**M.A.C.A.No.2317 of 2009**_ 6 type III B open fracture both bones right leg with comminuted intra articular fracture distal end of right radius and fracture 2[nd] and 3[rd] metatarsal right foot. He was treated with wound debridement and interlocking nailing of right tibia. He had undergone bone grafting and skin grafting. He was treated with K-wire fixing etc., Further it is seen from the documents that he was undergoing treatment on several occasions as inpatient and continued treatment for at least 17 months and he was in bed for considerable period. The court below had awarded Rs.15,000/- under the head bystanders expenses, but only taken four months for considering the question of loss of earning, it appears to be unsustainable in law. Having found that he was undergoing treatment for 17 months, court below had taken that period for awarding compensation under the head loss of earning. So taking his monthly income as Rs.4,000/- per month, for 17 months he will be entitled to get an amount of Rs.68,000/- under the head loss of earning during the period of treatment instead of Rs.10,000/- awarded by the tribunal. Thereby, he will be entitled to get an amount of Rs.58,000/- under that head. 9. Considering the nature of injury sustained, the tribunal has awarded only Rs.20,000/- for pain and suffering, which _**M.A.C.A.No.2317 of 2009**_ 7 according to us is on the lower side. We inclined to enhance the same to Rs.40,000/-, thereby he will be entitled to get an additional amount of Rs.20,000/- under that head. The court below had taken Rs.2,000/per month for assessing his loss of earning capacity, we have taken his monthly income as Rs.4,000/-. In _**Rajesh v. Rajbir Singh**_ [2013(3) KLT 89 (SC)], the Supreme Court had held that, even in cases where persons are not having any permanent income, future prospects will have to be taken into consideration and for the age group up to 50, 30% will have to be added for his future prospects. The court below had taken 28% disability assessed in Ext.X1 for the purpose of assessing the compensation for loss of earning capacity considering the nature of disability suffered. But the tribunal has takenv15 as the multiplier and considering the age of the petitioner, as per _**Sarla Verma (Smt) and Others v. Delhi Transport Corporation and**_ _**Another**_ (2009 (6) SCC 121), the multiplier will be only 14 and not 15. The principles laid down in the decision reported in _**Rajesh v. Rajbir Singh**_ (supra) has been made applicable to injury cases as well by the Apex Court in the decision reported in _**Syed Sadiq v. Divisional Manager, United India Insurance Company**_ [AIR 2014 (SC) 1052]. Applying the above principles, the appellant will be _**M.A.C.A.No.2317 of 2009**_ 8 entitled to get an amount of Rs.2,44,608/- (4,000x130% =5200x12x14x28%) instead of Rs.1,00,800/- awarded by the tribunal under the head loss of earning capacity. Thereby he will be entitled to get an additional amount of Rs.1,43,808/- under that head. The tribunal awarded only 25,000/- under the head loss of amenities in life. Considering the nature of injury sustained, his age and also the disability suffered, we feel that it is on the lower side and we enhance the same to Rs.40,000/-. Thereby he will be entitled to get an additional amount of Rs.15,000/- under that head. Though the counsel for the appellant vehemently argued to get enhancement on other heads, we are not inclined to enhance the same, as we are of the opinion that the amount awarded under other heads are just and proper. In all the appellant will be entitled to get an additional compensation of Rs.2,36,808/-, which the third respondent insurance company is liable to pay with 9% interest from the date of petition till payment. Three months time is granted to the insurance company to pay the amount. Considering the circumstances, parties are directed to bare their respective costs in the appeal. The insurance company is directed to issue a cheque towards court fee for the excess amount awarded by this court, over and above the amount claimed in the _**M.A.C.A.No.2317 of 2009**_ 9 petition and need to issue cheque for the balance amount in favour of the petitioner. With the above modification of the impugned award of the tribunal, the appeal is allowed in part and disposed of accordingly. _Sd/-_ **P.N.RAVINDRAN (JUDGE)** _Sd/-_ **K.RAMAKRISHNAN (JUDGE)** // True Copy// P.A. to Judge ss