MACA Nos. 1239 of 2017 & 1352 of 2017: Yacob T.P. v. Biju Varghese, Viji P. KuriaKose, National Insurance Co. Ltd. & Sebastian Varghese

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN FRIDAY, THE 24[TH] DAY OF FEBRUARY 2023 / 5TH PHALGUNA, 1944 MACA NO. 1239 OF 2017** **AGAINST THE ORDER/JUDGMENT OPMV 544/2015 OF MOTOR ACCIDENT** ## **CLAIMS TRIBUNAL MUVATTUPUZHA** ## **APPELLANT/PETITIONER:** YACOB T.P. @ JACOB T.P. AGED 58 YEARS, S/O. PAULOSE, THURUTHIYIL HOUSE, KUTTIPADAM, ALLAPRA P.O.,VENGOLA. NOW RESIDING AT MANACKAPPARA BHAGOM, KUNNACKAL KARA, VALAKOM VILLAGE, MUVATTUPUZHA TALUK, ERNAKULAM DISTRICT. BY ADVS. SRI.DILEEP VARGHESE SRI.K.K.KURUVILLA SMT.TESMY VARGHEESE ## **RESPONDENTS/RESPONDENTS:** 1 BIJU VARGHESE S/O. A.A. VARGHESE, EREKKATTUKUZHIYIL HOUSE, KARUKAPPILLY P.O., KOLENCHERY, ERNAKULAM DISTRICT - 682 311. 2 VIJI P. KURIAKOSE PANDARAMKUDIYIL HOUSE, NEAR GIRIMUKAL, KURISUPALLI, EZHAKARANAD KARA, MANEED VILLAGE, ERNAKULAM DISTRICT - 682 308. 3 NATIONAL INSURANCE CO.LTD KOLENCHERRY - 682 311. SRI.SEBASTIAN VARGHESE-SC THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 24.02.2023, ALONG WITH MACA.1352/2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.A.C.A.No.1239 of 2017 & 1352 of 2017 : 2 : # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN FRIDAY, THE 24[TH] DAY OF FEBRUARY 2023 / 5TH PHALGUNA, 1944 MACA NO. 1352 OF 2017** **AGAINST THE ORDER/JUDGMENT OPMV 544/2015 OF MOTOR ACCIDENT** ## **CLAIMS TRIBUNAL MUVATTUPUZHA** ## **APPELLANT/3RD RESPONDENT IN O.P.(M.V.) NO.544/15:** NATIONAL INSURANCE COMPANY LTD. KOLENCHERRY BRANCH, REPRESENTED BY ITS MANAGER, REGIONAL OFFICE, M.G ROAD, ERNAKULAM. BY ADV SRI.LAL GEORGE ## **RESPONDENTS/PETITIONERS AND RESPONDENT 1 & 2 IN O.P.(M.V.)** ## **544/15:** 1 YACOB T.P. @ JACOB T.P., S/O. PAULOSE, AGED 60 YEARS, THURUTHIYIL HOUSE, KUTTIPADAM, ALLAPRA P.O, VENGOLA, NOW RESIDING AT MANACKAPPARA BAGOM, KUNNACKAL KARA, VALAKOM VILLAGE, MUVATTUPUZHA TALUK, ERNAKULAM DISTRICT, PIN - 686661 2 BIJU VARGHESE S/O. A.A VARGHESE, ERKKATTUKUZHIYIL HOUSE, KARUKAPPILLY P.O KOLENCHERY, ERNAKULAM DISTRICT - 682311 3 VIJI P. KURIAKOSE PANDARAMKUDIYIL HOUSE, NEAR GIRIMUKAL, KURISUPALLI, EZHAKARANAD KARA, MANEED VILLAGE, ERNAKULAM DISTRICT – 682308. BY ADVS. SRI.DILEEP VARGHESE SRI.K.K.KURUVILLA THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 24.02.2023, ALONG WITH MACA.1239/2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.A.C.A.No.1239 of 2017 & 1352 of 2017 : 3 : ## **DEVAN RAMACHANDRAN, J.** ## **========================= M.A.C.A.Nos. 1239 of 2017 & 1352 of 2017 ========================== Dated this the 24[th] day of February, 2023** ## **JUDGMENT** Among the afore two appeals, MACA No.1239 of 2017 has been filed by a person who was injured in a road accident on 18.12.2014 – while he was riding a scooter, when it was hit by a “Tipper Lorry”, driven in a rash and negligent manner. The injured/claimant filed OP(MV)No.544/2015 before the Motor Accidents Claims Tribunal, Muvattupuzha (the 'Tribunal' for short), seeking compensation to the extent of Rs.51,12,000/- and limited to Rs.30,00,000/-, but which has been awarded only Rs.22,38,070/-. He thus impugns the Award of the Tribunal as being inadequate. 2. While so, MACA No.1352 of 2017 has been filed by the National Insurance Company, which insured the offending vehicle, again impugning the Award of the Tribunal, saying that the compensation awarded is excessive. 3. I have heard Sri.Dileep Varghese – learned counsel for the claimant and Sri.Sebastian Varghese – learned Standing Counsel for the National Insurance Company. 4. Sri.Dileep Varghese – learned counsel for the claimant, vehemently argued that the notional income adopted by the Tribunal in favour of his client was grossly inadequate because, M.A.C.A.No.1239 of 2017 & 1352 of 2017 : 4 : Ext.A9 – Certificate issued by the employer and spoken to by the person who issued it, namely PW2, would establish that he was drawing Rs.20,000/- per month. He then added that the Tribunal has erred in reducing the percentile of disability suffered by his client to 80%, even though Ext.A16 – Disability Certificate, issued by PW3 doctor, certified it to be 88.4%. He argued that if this had been taken, then the compensation for “permanent disability” would have been much higher. 5. Per contra, Sri.Sebastian Varghese – learned Standing Counsel for the Insurance Company, argued that the compensation awarded by the Tribunal under the heads “future medical expenses”, “loss of amenities” and “loss of earning power” is excessive and disproportionate; and, prayed that same be deleted. He then asserted that the compensation awarded by the Tribunal under the head “permanent disability” is without error. 6. I have evaluated the afore rival submissions on the touchstone of various materials and evidence on record – copies of which have been handed over across the Bar by the learned counsel for the parties, with the express consent that they can be acted upon by this Court without dispute. 7. I will first deal with the question of notional income of the claimant. Going by **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Ltd. [(2011) 13 SCC** M.A.C.A.No.1239 of 2017 & 1352 of 2017 : 5 : **236],** even in the case of a person with an unascertainable income in the year 2014 – when the accident happened – the minimum amount to be adopted is Rs.11,000/-. I, therefore, fail to understand why the Tribunal did not accept at least the same. That said, I find favour with the view of the Tribunal that Ext.A9 – Employment Certificate could not have been relied upon because it was not supported by any other relevant document to show the actual payment of wages of Rs.20,000/- to the claimant by his employer, namely PW2. Normally, a certificate of that nature ought to have been corroborated by evidence to establish actual payment, including vouchers, receipts, tax documents and such other. In the absence of any such, Ext.A9 cannot be accepted and the Tribunal has acted correctly. 8. Coming to the question of the percentile of disability, I notice that the learned Tribunal has reduced it to 80% from 88.4% as certified by PW3 doctor in Ext.A16 – Disability Certificate. No doubt, Ext.A16 has been issued by a Medical Board, but the competence of PW3 has not been impeached by the Insurance Company, even when he was cross-examined. The Tribunal has, however, reduced it to 80%, under the impression that, as per “Government of India Guidelines”, if the percentage of disability of an arm is only 90%, then it will have to be construed as being 45% for the whole body. I am afraid that, this reasoning of the Tribunal M.A.C.A.No.1239 of 2017 & 1352 of 2017 : 6 : is untenable because of the fact that the claimant had suffered an amputation of left mid arm and that he was working as a site supervisor in a construction company. It is apodictic that his avocation has been greatly impacted, because a site supervisor is not expected to merely stand and watch, but to be an active participant in everything that happens in the construction site, which is to say, to be part of every activity which even an ordinary worker does. When he loses an arm, it really means that his capacity to be a site supervisor is impeded to a large extent; and in any event, I notice that the Tribunal has taken his disability to be 80%, which means that it has also understood this in its proper perspective. Therefore, all which remains is to verify whether the reduction from 88.4% – as certified in Ext.A16 – to 80% is justified. I cannot find so, and I am of the view that a more generous view ought to have been taken. I, therefore, propose the disability to be 85%. 9. That takes me to the contentions of the Insurance Company in MACA No.1352 of 2017. As I have said above, Sri.Sebastian Varghese argues that the amount granted by the Tribunal under the head “loss of amenities” is excessive; while no sum towards “loss of earning power” ought to have been granted. He also has a case that, in the absence of any evidence to show future treatment, the amount of Rs.1,00,000/- ought not to have been offered. M.A.C.A.No.1239 of 2017 & 1352 of 2017 : 7 : 10. As regards the question of compensation under “loss of amenities”, I do not intend to interfere with the findings of the Tribunal because of the same reasons I have said above, namely, that the claimant has suffered amputation of his left arm. This is not trivial, and it can cause extreme trauma and agony to the person who has suffered it. It may not be possible for another person, not in his position, to understand it in its proper perspective. 11. Relating to the “loss of earning power”, I find some force in the submissions of Sri.Sebastian Varghese, because an amount of Rs.80,000/- had already been granted by the Tribunal under the head “loss of earnings”. Of course, this will have to be now revised, because this Court intends to take the notional income of the claimant to be Rs.11,000/-. I am, therefore, of the view that the subsequent Award under the head “loss of earning power” was unnecessary. 12. Finally, the argument that no future medical expenses had been proven cannot be accepted because Ext.A14 – Fitment proposal issued by M/s.Otto Bock Health Care, Mumbai, is unequivocal to the effect that the petitioner would require a minimum amount of Rs.1,00,000/-, for maintenance and future care of prosthetic arm. I do not, therefore, propose to interfere with this at all. M.A.C.A.No.1239 of 2017 & 1352 of 2017 : 8 : Resultantly, these appeals are allowed in part in the following manner: (a) The compensation to the claimant under the head “loss of earning” is revised to Rs.88,000/-, taking his notional income to be Rs.11,000/- as per ## **Ramachandrappa (supra).** (b) The compensation under the head “permanent disability” is enhanced to Rs.10,09,800/-, again taking the notional income of the appellant to be Rs.11,000/and his permanent disability to be 85%. (c) The compensation under the head “loss of earning power” is deleted. (d) In all other heads, the compensation awarded by the Tribunal will remain unaltered. Needless to say, the claimant will be at full liberty to recover the compensation, as enhanced by this Court, from the Insurance Company, along with interest at the rate of 7.5% (modifying the rate of 9% as awarded by the Tribunal), from the date of claim until it is recovered. He will also be entitled to proportionate costs, on the enhanced amount, as ordered by the Tribunal. ## **Sd/DEVAN RAMACHANDRAN, JUDGE** anm