MACA No.2708 of 2012 & MACA No.1451 of 2013

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **FRIDAY, THE 15TH DAY OF MARCH 2019 / 24TH PHALGUNA, 1940** **MACA.No. 2708 of 2012** **AGAINST THE AWARD IN OPMV 1295/2007 of MOTOR ACCIDENT CLAIMS TRIBUNAL ,ERNAKULAM DATED 03-07-2012** **APPELLANT/3rd RESPONDENT IN O.P(MV):** **ICICI LOMBARD GENERAL INSURANCE CO.LTD. KANNANKERI ESTATE,SHANMUGHAM ROAD,COCHIN-31.** **BY ADVS. SRI.K.B.RAMANAND SRI.R.AJITH KUMAR** ## **RESPONDENTS/CLAIMANTS AND RESPONDENTS 1 AND 2 IN O.P(M):** - **1 JAISON GEORGE (DIED) S/O.GEORGE VARKEY,ANCHANICKAL HOUSE,ASHOKA,ARAKULAM(PO),IDUKKI.(DIED),PIN-685591.** - **2 MAYA MATHEW W/O.LATE JAISON GEORGE,ANCHANICKAL HOUSE,ASHOKA,ARAKULAM(PO),IDUKKI-685591.** - **3 AGNA JAISON D/O.LATE JAISON GEORGE,ANCHANICKAL HOUSE,ASHOKA,ARAKULAM(PO),IDUKKI.(MINOR REPRESENTED BY HER MOTHER,MAYA MATHEW,THE 2ND RESPONDENT)685591.** - **4 MARY GEORGE W/O.GEORGE VARKEY,ANCHANICKAL HOUSE,ASHOKA,ARAKULAM(PO),IDUKKI-685591.** - **5 JOSEPH SEBASTIAN (DELETED) S/O.DEVASSIA,KALLIDUKKIL HOUSE,OPP.COCHIN PUBLIC SCHOOL,THRIKKAKARA,COCHIN--682021.** - **6 SUNESH PHLIP (DELETED) S/O.PHILIP @ THANKACHAN,NELLIKUNNEL HOUSE,SENAPATHY BHAGOM,PERINCHANKUTTY KARA,VATHIKUDI VILLAGE,UDUMBAMCHOLA TALUK,IDUKKI-685554.** **RESPONDENTS 5 AND 6 ARE DELETED FROM THE PARTY ARRAY, VIDE ORDER DATED 12.12.2014 IN I.A 380/14 IN MACA 2708/12.** M.A.C.A No.2708 of 2012 & M.A.C.A No.1451 of 2013 2 **BY ADVS. SMT.M.MANJU SMT.NEETHU PREM SRI.K.R.RANJITH SRI.R.SUDHISH** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 15.03.2019, ALONG WITH MACA.1451/2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** M.A.C.A No.2708 of 2012 & M.A.C.A No.1451 of 2013 3 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **FRIDAY, THE 15TH DAY OF MARCH 2019 / 24TH PHALGUNA, 1940** ## **MACA.No. 1451 of 2013** **AGAINST THE AWARD IN OPMV 1295/2007 of MOTOR ACCIDENT CLAIMS TRIBUNAL ,ERNAKULAM DATED 03.07.2012** ## **APPELLANT/PETITIONER:** |**1**|**MAYA MATHEW**| |---|---| ||**AGED 33 YEARS,**| ||**W/O. LATE JAISON GEORGE**| ||**ANCHANICKAL HOUSE, ASHOKA,**| ||**ARAKULAM P.O., IDUKKI 685591.**| |**2**|**AGNA JAISON**| ||**AGED 7 YEARS**| ||**D/O.LATE JAISON GEORGE,**| ||**REPRESENTED BY HER NEXT FRIEND AND MOTHER MAYA**| ||**MATHEW, ANCHANICKAL HOUSE ASHOKA,**| ||**ARAKULAM P.O., IDUKKI**| |**3**|**MARY GEORGE**| ||**AGED 67 YEARS,**| ||**W/O.GEORGE VARKEY, ANCHANICKAL HOUSE, ASHOKA,**| ||**ARAKULAM P.O., IDUKKI**| ||**BY ADVS.**| ||**SRI.R.SUDHISH**| ||**SMT.M.MANJU**| ||**SRI.K.R.RANJITH**| ## **RESPONDENTS/RESPONDENTS:** |**1**|**JOSEPH SEBASTIAN**| |---|---| ||**S/O.DEVASSIA,KALLIDUKKIL HOUSE,**| ||**OPP.COCHIN PUBLIC SCHOOL THRIKKAKARA,**| ||**COCHIN-682021.**| |**2**|**SUNESH PHILIP,**| ||**S/O.PHILIP @ THANKACHAN**| ||**NELLIKUNNEL HOUSE, SENAPATHY BHAGOM,**| ||**PERINCHANKUTTY KARA, VATHIKUDI VILLAGE,**| ||**UDUMBAMCHOLA TALUK, IDUKKI 685 619.**| M.A.C.A No.2708 of 2012 & M.A.C.A No.1451 of 2013 4 **3 ICICI LOMBARD GENERAL INSURANCE COMPANY LIMITED KANNANKERI ESTATE, SHANMUGHAM ROAD, COCHIN-682 031** **BY ADV. SRI.K.B.RAMANAND** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 15.03.2019, ALONG WITH MACA.2708/2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** M.A.C.A No.2708 of 2012 & M.A.C.A No.1451 of 2013 5 ## **M.A.C.A No.2708 of 2012 & M.A.C.A No.1451 of 2013** ## **J U D G M E N T** These appeals arise from O.P.(M.V). No.1295 of 2007 on the files of the Motor Accidents Claims Tribunal, Ernakulam. Among the appeals, M.A.C.A No.1451 of 2013 is by the legal representatives of the claimant and M.A.C.A No.2708 of 2012 is by the insurer in the proceedings. The claimant in the proceedings sustained injuries in a motor accident took place on 22.11.2006. He was a salesman in a private business establishment aged 34 years at the time of accident. The claim in the proceedings was for a sum of Rs.10,00,000/-. The Tribunal found that the claimant is entitled to a sum of Rs.4,26,270/and consequently, an award was passed for the said amount. The claimant died pending proceedings before the Tribunal and on his death, his legal representatives continued the proceedings. The legal representatives of the claimant and the insurer are aggrieved by the quantum of compensation fixed by the Tribunal. 2. Heard the learned counsel for the legal representatives of the claimant as also the learned counsel for the insurer. M.A.C.A No.2708 of 2012 & M.A.C.A No.1451 of 2013 6 3. Exts.A4 and A5 are the wound certificates. Among them, Ext.A4 is one issued from the Co-operative Medical College Hospital, Kochi and Ext.A5 is one issued from the Specialists' Hospital, Ernakulam. Ext.A6 is the discharge certificate issued from Specialists' Hospital, Ernakulam. Exts.A4 to A6 indicate that the claimant sustained the following injuries: - (1) Degloving injury (L) wrist - (2) Super condylar fracture (L) hand - (3) Mangled (L) palm - (4) Degloving 7 skin injury to tendon (5) Fracture 2[nd] 3[rd] and 4[th] shaft meta carpals with bone loss, loss of little finger. The said documents also indicate that on account of the seriousness of the injuries, the left hand of the claimant was amputated at the level of left meta carpal joint. The aforesaid documents also indicate that the claimant was in the hospital from 22.11.2006 to 20.12.2006. Ext.A12 is the disability certificate issued to the claimant by the Medical Board. In Ext.A12 disability certificate, the disability of the claimant was assessed at 40%. The correctness of the quantum of compensation fixed by the Tribunal has to be examined in the light of the aforesaid facts and documents. 4. The case of the claimant as regards his monthly income was that he was earning a sum of Rs.6,000/-. A certificate issued by his employer was also produced by the claimant to establish M.A.C.A No.2708 of 2012 & M.A.C.A No.1451 of 2013 7 the same. The Tribunal reckoned the monthly income of the claimant only at Rs.3,000/-. In the light of the decisions of the Apex Court in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited.** [(2011) 13 SCC 236] and **Syed Sadiq v. Divisional Manager, United India Insurance Company Limited** [(2014) 2 SCC 735], where the notional monthly income of persons who were unable to establish the income in the context of accidents took place in 2004 and 2008 were reckoned as Rs.4,500/- and 6500/respectively, I am of the view that the monthly income of the claimant in the instant case should have been fixed at least at Rs.5500/-. The claimant is, therefore, entitled to a sum of Rs.16,500/- towards loss of earnings for a period of 3 months as against Rs.9,000/- granted by the Tribunal. In other words, the claimant would be entitled to a sum of Rs.7,500/- in addition under the above head. Towards compensation for pain and sufferings, the claimant is seen granted a sum of Rs.30,000/and towards loss of amenities, the claimant is seen granted a sum of Rs.25,000/-. Having regard to the nature of injuries sustained and the fact that the left hand of the claimant had to be amputated, according to me, the compensation under the above heads should have been Rs.50,000/- each. The claimant is, therefore, entitled to a further sum of Rs.20,000/- towards of compensation for pain and suffering and a further sum of Rs.25,000/- towards compensation for loss of amenities in life. The compensation for continuing permanent disability and loss M.A.C.A No.2708 of 2012 & M.A.C.A No.1451 of 2013 8 of earning power was determined by the Tribunal, reckoning the monthly income of the claimant at Rs.3,000/- and adding 30% of the same towards future prospects, applying the multiplier '16' and disability at 40%. The said compensation, according to me, has to be re-worked reckoning the monthly income at Rs.5,500/- and adding 40% of the same towards future prospects and applying the multiplier '16' and the percentage of disability at 40. The compensation under the said head would, therefore, come to Rs.5,91,360/-. The claimant was granted only a sum of Rs.2,99,520/- under the said head. He is, therefore, entitled to an additional sum of Rs.2,91,840/- under that head. 5. The learned counsel for the insurer contended that the claimant in the instant case died during the pendency of the claim petition, in the year 2011. As such, the Tribunal ought not have applied '16' as the multiplier. There is no substance in this argument. Right to compensation has to be determined with reference to the date of application. It is seen that the said view is taken by this court in **New India Assurance Co. Ltd v. Shaji** [2016 (3) KLT 174] in an identical case. The relevant portion of the judgment reads thus: “The other contention taken by the learned counsel for the insurance company was that the mother died during the pendency of the proceedings and that should have been taken note of by the Tribunal for fixing the multiplier. We are afraid that the proposition is not correct and so that the said contention cannot be accepted. The cause of action for claiming compensation arises for the claimants as M.A.C.A No.2708 of 2012 & M.A.C.A No.1451 of 2013 9 on the date of the death of the victim of the accident.” In the light of the above judgment, the contention raised by the learned counsel for the insurer is rejected. In the result, the appeals are disposed of directing the insurer to pay a sum of Rs.3,44,340/(7,500+20,000+25,000+2,91,840) by way of additional compensation to the claimants. Needless to say, the claimants will be entitled to interest for the additional amount of compensation at the rate of 7.5%. It is, however, made clear that the claimants will not be entitled to interest for the enhanced compensation granted for the period of delay in fling the appeal, as ordered on 6.7.2018 in C.M.Application No.1746 of 2013. **Sd/-** **P.B.SURESH KUMAR** **JUDGE** Mn