MACA No. 599 of 2018 & CO No. 134 of 2018 — National Insurance Company Limited vs Anu Mohan

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ``` PRESENT ``` ``` THE HONOURABLE MRS. JUSTICE MARY JOSEPH ``` # **`THURSDAY, THE 7[TH] DAY OF MARCH 2024 / 17TH PHALGUNA, 1945`** ``` MACA NO. 599 OF 2018 ``` ``` AGAINST AWARD DATED 30.05.2017 IN OPMV NO.601 OF 2010 OF ADDITIONAL MOTOR ``` ``` ACCIDENT CLAIMS TRIBUNAL-II, ALAPPUZHA ``` ## **`APPELLANT/3RD RESPONDENT:`** ``` NATIONAL INSURANCE COMPANY LIMITED, AROOR NOW REPRESENTED BY ITS ASSISTANT MANAGER(LEGAL),KOCHI,REGIONAL OFFICE, OMANA BUILDING,M.G.ROAD,KOCHI-35. ``` ``` BY ADV SRI.P.JACOB MATHEW ``` ## **`RESPONDENT/PETITIONER:`** ``` ANU MOHAN, D/O.MOHAN,PADAVUMGAL HOUSE,WARD NO.1, AROOKUTTY PANCHAYAT,PIN-688 535. ``` ``` BY ADVS. SRI.P.M.JOSHI SMT.SIJI K.PAUL ``` ``` THIS APPEAL HAVING COME UP FOR HEARING ON 07.03.2024, ALONG WITH CO.134/2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA NO.599/2018 &CO NO.134/2018 ``` ``` 2 ``` # **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MRS. JUSTICE MARY JOSEPH THURSDAY, THE 7[TH] DAY OF MARCH 2024 / 17TH PHALGUNA, 1945 ``` ``` CO NO. 134 OF 2018 ``` ``` AGAINST AWARD DATED 30.05.2017 IN OPMV NO.601 OF 2010 OF ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL-II, ALAPPUZHA ``` ## **`PETITIONER/RESPONDENT/CLAIMANT`** ``` ANU MOHAN, AGED 21 YEARS, D/O.MOHAN, PADAVUMGAL HOUSE, WARD NO.1, AROOKUTTY PANCHAYAT, CHERTHALA, ALAPPUZHA DISTRICT. ``` ``` BY ADV. JOSHI P.M. ``` ## **`RESPONDENT/APPELLANT/2ND RESPONDENT:`** ``` THE NATIONAL INSURANCE CO.LTD., AROOR REPRESENTED BY ITS ASSISTANT MANAGER (LEGAL), KOCHI REGIONAL OFFICE, OMANA BUILDING, M.G.ROAD, KOCHI-35. ``` ``` THIS CROSS OBJECTION HAVING COME UP FOR HEARING ON 07.03.2024, ALONG WITH MACA.599/2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA NO.599/2018 &CO NO.134/2018 ``` ``` 3 ``` ## **JUDGMENT** ## **Dated this the 07[th] day of March, 2024.** This appeal and Cross Objection were originated from an award passed by Additional Motor Accidents Claims TribunalII, Alappuzha (for short, ‘the Tribunal’) on 30.05.2017 in O.P(M.V) No.601 of 2010. The appellant in M.A.C.A No.599 of 2018 is the 3[rd] respondent before the Tribunal and the Cross Objector is none other than the petitioner before the Tribunal. 2. 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. 3. The facts of the case relevant for disposal of the appeal and the cross objection are summarised hereinbelow:- At about 4.30 p.m on 24.08.2009, while the petitioner was walking through the footpath of Arookutty PHC Road, a mini lorry bearing Registration No.KL.32/5456 knocked her down ``` MACA NO.599/2018 &CO NO.134/2018 ``` ``` 4 ``` due to rash and negligent driving by its driver. She sustained serious injuries and was rushed to Lakeshore Hospital, Kochi. She was treated there as inpatient and lateron was shifted to Amrita Institute of Medical Sciences, Edappally. She had undergone hospitalisation there for several spells. She claimed to be a pharmacist trainee then and earning `7,000/- monthly. She was unmarried also. The motor accident in question has caused her dis-figuration. She also lost her earning capacity on account of the injuries sustained in the motor accident. Alleging that the motor accident was occurred due to the rash and negligent driving of the mini lorry bearing Registration No.KL.32/5456 by its driver and raising a claim for a total sum of `11,43,000/-, the above Original Petition was filed before the Tribunal. 4. The driver, the registered owner and the insurer of the mini lorry bearing Registration No.KL.32/5456 were arrayed as respondents 1 to 3 in the above Original Petition. All ``` MACA NO.599/2018 &CO NO.134/2018 ``` ``` 5 ``` the respondents were served with notice. Respondents 1 and 2 did not turn up to contest the Original Petition and therefore declared as ex parte. 5. 3[rd] respondent filed written statement after his and contended that the mini appearance lorry bearing Registration No.KL.32/5456 was duly insured in the name of the 2[nd] respondent at the relevant time of the motor accident. Liability to indemnify the insured is denied for the reason that the vehicular records and driving licence of the 1[st] respondent was not produced before the insurer. The claims of the petitioner regarding the age, occupation, monthly income, injuries sustained and disability suffered were disputed. Compensation claimed is also disputed for its exorbitant nature. It was contended furthermore that the motor accident was occurred due to negligence of the petitioner, who crossed the road in a careless manner. ``` MACA NO.599/2018 &CO NO.134/2018 ``` ``` 6 ``` 6. Before the Tribunal, petitioner mounted the witness box and deposed as PW1 and a witness was also examined on her side as PW2. Exts.A1 to A31 and X1 were also marked. 3[rd] respondent did not adduce any evidence. 7. Based on the evidence on record, the Tribunal found that the motor accident in question was occurred due to the rash and negligent driving of the mini lorry bearing Registration No.KL.32/5456 by the 1[st] respondent. The Tribunal also found that on account of the injuries established as sustained by the petitioner in the motor accident, she is entitled to get compensation. The Tribunal calculated and arrived at `15,05,600/- as the compensation payable to the petitioner. 3[rd] respondent was directed by it to pay the above sum with interest at the rate of 9% per annum from the date on which the Original Petition was filed till the date on which payment is made. Proportionate costs was also allowed. ``` MACA NO.599/2018 &CO NO.134/2018 ``` ``` 7 ``` 8. The appeal on hand was filed challenging mainly the quantum stood awarded by the Tribunal as compensation in favour of the petitioner. In the cross objection, the learned counsel has raised an argument that the compensation stood awarded by the Tribunal is on the lower side. Since the challenge was raised by the appellant as well as the cross objector against the quantum of compensation stood awarded by the Tribunal, this Court is inclined to critically evaluate the oral as well as documentary evidence that formed basis for arriving at the compensation. 9. It is pointed out by the learned counsel for the 3[rd] respondent that monthly income was taken by the Tribunal as `6,000/-, against a claim raised by the petitioner for `7,000/-. According to him, the monthly income considered being reasonable, is only to be maintained. 10. According to the learned counsel, petitioner was examined by a Medical Board and Ext.X1 was issued where his ``` MACA NO.599/2018 &CO NO.134/2018 ``` ``` 8 ``` permanent partial disability was certified as 40%. According to the learned counsel, since the Medical Board has certified only the permanent partial disability of the petitioner, 40%, certified in Ext.X1 is not liable to be considered as such for the purpose of calculation of compensation for disability. 11. It is further contended by the learned counsel that 50% was added by the Tribunal to the monthly income of the petitioner in consideration of loss of future prospects. According to him, the Tribunal undoubtedly is wrong in adding 50% to the monthly income in consideration of loss of future prospects. According to him, the petitioner failed to adduce evidence to establish that she had suffered loss of future prospects on account of the injuries sustained in the motor accident. The learned counsel has pointed out so, even then, this Court is inclined to consider loss of future prospects but 40% alone can be added to the monthly income instead of 50% relying on the dictum of the Apex Court in **National** ``` MACA NO.599/2018 &CO NO.134/2018 ``` ``` 9 ``` ## **Insurance Company Limited v. Pranay Sethi and others [2017 (4) KLT 662 (SC)].** 12. The learned counsel pointed out further that `2,00,000/- was awarded by the Tribunal as compensation towards pain and suffering, which is excessive. The learned counsel invited the attention of this Court to `1,00,000/- stood awarded by the Tribunal as compensation towards loss of earning capacity. According to him, compensation cannot be awarded by the Tribunal for disability and loss of earning capacity together. The learned counsel seeks for a modification by reduction of `1,00,000/- from the sum stood awarded by the Tribunal. 13. According to the learned counsel, `50,000/- was awarded by the Tribunal as compensation for loss of amenities and enjoyments in life and another `50,000/- towards disfiguration. The learned counsel also seeks for reduction of those sums from the total sum stood awarded by the Tribunal. ``` MACA NO.599/2018 &CO NO.134/2018 ``` ``` 10 ``` 14. The learned counsel for the petitioner canvasses for enhancement of monthly income from `6,000/-. The learned counsel urged on the basis of **Ramachandrappa vs. Manager, Royal Sundaram Alliance Insurance Company Limited [(2011) 13 SCC 236]** that even for a coolie worker, who met with a motor accident in the year 2004, the Apex Court had fixed `4,500/- as the monthly income for the purpose of calculation of compensation and therefore, the petitioner who is standing in a better position than a coolie worker is entitled to have his monthly income fixed on a higher side. Petitioner was established as a Diploma holder in Pharmacy and also underwent training in that field. According to him, a sum higher than `7,000/- could have been taken for calculation of compensation under the heads loss of earning and disability. 15. The attention of this Court was also drawn by the learned counsel to the photographs marked in evidence as ``` MACA NO.599/2018 &CO NO.134/2018 ``` ``` 11 ``` Exts.A27 to A29 to convince that dis-figuration was caused to her. According to him, two fingers of the petitioner were lost due to the injuries sustained in the motor accident. The learned counsel contended further based on the photographs that petitioner had sustained crush injury on the right abdomen as well as on right thigh. Accordingly enhancement of compensation is sought. 16. It is pertinent to note that the petitioner had claimed only `7,000/- as her monthly income. Going by the narration of the motor accident in the Original Petition as well as the evidence adduced by the petitioner as PW1, this Court is convinced that the motor accident was occurred while the was in course. petitioner undergoing training Pharmacy `7,000/- was claimed by her as the monthly income obtained by her during the course of training. Since the petitioner was a Diploma holder in Pharmacy and had undergone training, there is every possibility for her to obtain the job as a pharmacist. ``` MACA NO.599/2018 &CO NO.134/2018 ``` ``` 12 ``` Because of the motor accident, she lost that opportunity. Indisputably, the petitioner in the context is entitled to have a fair amount fixed as her monthly income. Petitioner also deposed before the Tribunal as PW1 that because of the injuries and incapacity caused by the injuries sustained by her, she was not in a position to apply for the post of a pharmacist. According to her, she could not cut the strips of tablets as well as to write anything properly in case the job as pharmacist is given. According to her, it is improbable for anyone to provide her with the job as a pharmacist with all incapacities she have. These are the realities on which this Court could take judicial notice. 17. In view of the facts discussed above, this Court is inclined to take `9,000/- as the monthly income of the petitioner that could have been earned by her had the motor accident not taken place. Compensation for loss of earning is calculated based on `7,000/- claimed by the petitioner as her ``` MACA NO.599/2018 &CO NO.134/2018 ``` ``` 13 ``` monthly income in the Original Petition. Twelve months was considered by the Tribunal for arriving at the compensation payable towards loss of earning. The period considered by the Tribunal being reasonable is maintained. When compensation for loss of earning is re-assesssed on the basis of the monthly income re-fixed, `84,000/- (`7,000/- x 12) is arrived at and is awarded. 18. The Tribunal had calculated compensation for disability as well as for loss of earning power. Compensation is not payable under both the heads. In the case on hand, the petitioner as PW1 deposed about her incapacity to pursue with an avocation as a pharmacist and her version remained uncontroverted. In the above circumstances, this Court finds it appropriate to calculate compensation for loss of earning power. In Ext.X1, the Medical Board has certified 40% as her permanent partial disability. In view of the uncontroverted version of PW1, this Court is inclined to take 40% as such as the ``` MACA NO.599/2018 &CO NO.134/2018 ``` ``` 14 ``` disability for the purpose of calculation of compensation for loss of earning power of the petitioner. This Court is also inclined to add 40% in the place of 50% to the monthly income fixed by the Tribunal in consideration of loss of future prospects. As already stated, `9,000/- is taken as the monthly income for the purpose of calculation of compensation for loss of earning power. When 40% is added to `9,000/- re-fixed as the monthly income, `12,600/- (`9,000/- + 40% of `9,000/-) is arrived at. In the absence of any challenge against the multiplier adopted by the Tribunal, it is maintained. 19. When compensation for loss of earning power is calculated afresh on the basis of the monthly income taken as above and maintaining the other factors adopted by the Tribunal, the petitioner will get `10,88,640/- (`12,600/- x 12 x 18 x 40/100) as compensation for loss of earning power. 20. `2,00,000/- was awarded by the Tribunal as compensation towards pain and suffering . It is evidenced from ``` MACA NO.599/2018 &CO NO.134/2018 ``` ``` 15 ``` the medical documents on record that the petitioner had sustained crush injury and undergone several spells of hospitalisation in different hospitals and also several surgical procedures. But the Tribunal has awarded only `50,000/- as compensation towards loss of amenities and enjoyments in life. Since the amount stood awarded by the Tribunal as compensation under that head is inadequate, `2,00,000/stood awarded by the Tribunal as compensation towards pain and suffering, though a little bit excessive, is maintained. `50,000/- was awarded by the Tribunal towards dis-figuration. Since 40% assessed by the Medical Board as such has been taken consideration of by the Tribunal and calculated compensation on its basis, this Court is declined to interfere with and modify the compensation stood awarded by the Tribunal. `50,000/- awarded by the Tribunal towards disfiguration is therefore maintained. When considered in the light of the duration of treatment undergone by the petitioner, ``` MACA NO.599/2018 &CO NO.134/2018 ``` ``` 16 ``` this Court is also inclined to enhance the compensation towards bystander expenses to `15,000/-. Rate of interest fixed being excessive is also modified and reduced to 8%. 21. In the manner of calculation afresh, the total compensation stood awarded by the Tribunal is modified to `17,33,640/- (Rupees seventeen lakh thirty three thousand six hundred and forty only) (`84,000/- + `10,88,640/- + `15,000/- + `10,000 + `2,25,000/- + `1,000/- + `10,000/- + `2,00,000/- + `50,000/- + `50,000/-) and the petitioner is entitled to receive it with interest at the rate of 8% per annum from the date of filing of the Original Petition till the date of realisation. 3[rd] respondent/the appellant in M.A.C.A No.599 of 2018 shall pay the compensation now arrived at with interest accrued on it at the rate fixed and costs, within a period of two months from the date on which a certified copy of this judgment is received. Petitioner is also entitled to get proportionate costs as ordered by the Tribunal. Compensation ``` MACA NO.599/2018 &CO NO.134/2018 ``` ``` 17 ``` shall be disbursed to the petitioner in accordance with the guidelines issued by this Court in Circular No.03/2019 dated 06.09.2019. Both M.A.C.A and cross objection are allowed in part. 3[rd] respondent is exonerated from paying interest for 88 days being the period of delay occurred in filing the cross objection on hand. The sum stood awarded being in excess of the claim raised in the Original Petition, the Tribunal shall see that court fee payable for the sum falls excess than the claim shall also be realised from the petitioner at the time of disbursal. **`Sd/-` MARY JOSEPH** **JUDGE** JJ