# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`**
## **`PRESENT`**
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THE HONOURABLE MRS. JUSTICE MARY JOSEPH
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MONDAY, THE 26[TH] DAY OF FEBRUARY 2024 / 7TH PHALGUNA, 1945
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MACA NO. 1717 OF 2012
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AGAINST THE AWARD DATED 30.04.2012 IN O.P(M.V) NO.13 OF 2010 OF
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MOTOR ACCIDENT CLAIMS TRIBUNAL,KOLLAM.
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## **`APPELLANT/3RD RESPONDENT:`**
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RELIANCE GENERAL INSURANCE CO. LTD
KOLLAM, REPRESENTED BY ITS DEPUTY MANAGER, REGIONAL
OFFICE, ERNAKULAM.
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BY ADV
SRI.GEORGE CHERIAN (THIRUVALLA)
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## **`RESPONDENT/CLAIMANT:`**
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NAGESH
S/O. NANDANAN, THOTTUMKKARA PUTHEN VEEDU,
KULANGARABHAGOM,
CHAVARA-691 583.
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BY ADVS.
SRI.V.S.CHANDRASEKHARAN
SMT.LEKSHMI SWAMINATHAN
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THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR HEARING
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ON 26.02.2024, ALONG WITH MACA.3309/2015, THE COURT ON THE SAME
DAY DELIVERED THE FOLLOWING:
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MACA NO.1717 OF 2012 & 3309/2015
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# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`**
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THE HONOURABLE MRS. JUSTICE MARY JOSEPH
MONDAY, THE 26[TH] DAY OF FEBRUARY 2024 / 7TH PHALGUNA, 1945
MACA NO. 3309 OF 2015
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AGAINST THE AWARD DATED 30.04.2012 IN O.P(MV) NO.13 OF 2010 OF
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MOTOR ACCIDENTS CLAIMS TRIBUNAL, KOLLAM
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## **`APPELLANT/PETITIONER`**
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NAGESH,
AGED 30 YEARS
S/O.KUMARAN, RESIDING AT THOTTUMKARA PUTHEN VEEDU,
KULANGARABHAGOM, CHAVARA PO, KOLLAM-691 583.
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BY ADVS.
SRI.V.S.CHANDRASEKHARAN
SRI.M.V.DAS
SMT.LEKSHMI SWAMINATHAN
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## **`RESPONDENT/RESPONDENT:`**
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DIVISIONAL MANAGER,
THE RELIANCE GENERAL INSURANCE COMPANY LTD, KOLLAM.
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BY ADV.
SRI.GEORGE CHERIAN (THIRUVALLA)
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THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR HEARING
ON 26.02.2024, ALONG WITH MACA.1717/2012, THE COURT ON THE SAME
DAY DELIVERED THE FOLLOWING:
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MACA NO.1717 OF 2012 & 3309/2015
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## **JUDGMENT**
## **Dated this the 26[th] day of February, 2024.**
These appeals are originated from an award passed by Motor Accidents Claims Tribunal, Kollam (for short, ‘the Tribunal’) in O.P (M.V) No.13/2010. The appellant in M.A.C.A No.1717 of 2012 is the insurer of the offending vehicle, which is a Hyundai Santro Car bearing Registration No.KL-2/M 7169 involved in the motor accident. The appellant in M.A.C.A No.3309 of 2015 is the injured in the motor accident. Compensation is sought to be enhanced by the victim and that is sought to be reduced by the insurer in the respective appeals.
2. For the sake of convenience, the parties to this appeal will hereinafter be referred to as the petitioner and respondent No. 3 in accordance with their status in the Original Petition.
3. It is urged by Sri.V.S Chandrasekharan, the learned counsel for the petitioner that the monthly income was fixed by
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MACA NO.1717 OF 2012 & 3309/2015
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the Tribunal notionally but that is totally disproportionate to that fixed by the Apex Court in **Ramachandrappa vs. Manager, Royal Sundaram Alliance Insurance Company Limited [(2011) 13 SCC 236]** in the case of a coolie worker who met with a motor accident in the year, 2004. According to him, the permanent disability of the petitioner was assessed by the Medical Board as 50%, but the Tribunal confined it’s consideration only to 30% without assigning cogent reasons and therefore is erred and unjustified. The learned counsel pointed out furthermore that though the petitioner has every reason for getting compensation towards discomforts and inconveniences suffered by him on account of the injuries sustained in the motor accident, the Tribunal failed to award the same.
4. The learned counsel for the 3[rd] respondent contended on the contrary that `6,000/- was fixed by the Tribunal as the monthly income of the petitioner without any basis.
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5. It is contended by the learned counsel that 30% permanent disability was considered by the Tribunal without stating any reasons for such a consideration.
6. Contention furthermore taken by the learned counsel was that loss of future prospects was considered by the Tribunal in total ignorance of the factum that the petitioner had sustained only personal injuries in the motor accident. According to her, loss of future prospects is not required to be considered in the case of a victim of the motor accident, who sustained only personal injuries, simple in nature. The learned counsel contended furthermore that `50,000/- stood awarded by the Tribunal as compensation towards pain and suffering is excessive and sought to reduce it.
7. The learned counsel seeks for discarding the claim of the petitioner for compensation towards discomforts and inconveniences for the reason that the petitioner has been reasonably compensated for loss of earning capacity as well as permanent disability.
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8. It was urged that the petitioner was totally negligent and responsible for causing the motor accident and therefore, the Tribunal is unjustified in fastening the entire liability on the 1[st] respondent, who was the driver of the offending vehicle and consequently on the insurer of that vehicle to indemnify the insured.
9. The evidence on record is scrutinised in the light of the rival arguments advanced as above. The Final Report was marked in evidence from the side of the petitioner as Ext.A7 wherefrom it is revealed that the driver of the Hyundai Santro Car bearing Registration No.KL-2/M 7169 alone was chargesheeted for rash and negligent driving. Therefore, the Tribunal is justified in fixing the entire liability on the 1[st] respondent for causing the motor accident and the argument advanced to reverse the fixation of liability is discarded being totally devoid of merits.
10. It is well established from the evidence on record that the petitioner sustained injuries in the motor accident occurred on 03.10.2009 and those are extracted from Ext.A12
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MACA NO.1717 OF 2012 & 3309/2015
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## and A13 hereunder :
“Type II compound fracture of shaft of right femur. Grade II compound open chip fracture patella. Closed displaced fracture middle 1/3rd of clavicle left Undisplaced fracture shaft of 5[th] meta carpal. Fracture neck of 3[rd] , 4[th] and 5[th] metatarsal right side. Right heel pad avulsion. Right temporal bone fracture.”
11. The fracture sustained by the petitioner on shaft of right femur was reported in Ext.A13 as not united. It is found that the petitioner had undergone inpatient treatment for 51 days. His leg was also reported deformed. For the reasons, the Tribunal has awarded `50,000/- as compensation towards pain and suffering and this Court finds no reason to interfere with. The prayer made by the insurer to reduce it is discarded being devoid of basis.
12. It is found from the impugned award that the Tribunal failed to award any sum as compensation towards discomforts and inconveniences and the learned counsel for the injured, urged for grant of. When viewed in the backdrop of the serious injuries sustained by the petitioner in the motor
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accident, this Court finds every reason for awarding compensation under that head. Therefore, `50,000/- is awarded as compensation under that head.
13. `7,000/- is fixed as the monthly income of the petitioner. The permanent disability of the petitioner was certified in Ext.A16 by a Medical Board as 50%. The Tribunal without assigning any valid and cogent reasons confined consideration of permanent disability to 30% and calculated compensation on it’s basis. The Tribunal undoubtedly is unjustified in doing so. Therefore, this Court is inclined to re-calculate the compensation payable towards permanent disability by taking 50% certified by the Medical Board itself. Petitioner’s future prospects will undoubtedly be affected by the permanent disability suffered by him in the motor accident. Copy of the passport of the petitioner marked in evidence without objection as Ext.A18 reveals his date of birth as 05.01.1984. The motor accident was occurred on 03.10.2009 and therefore, he can be taken as completed 25 years at the
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relevant time of the motor accident. The multiplier applicable is 18 and 17 mistakenly adopted by the Tribunal is replaced by 18.
14. Petitioner being aged 25 years at the relevant time of the motor accident, 40% is liable to be added to the monthly income fixed, in consideration of loss of future prospects. Thus `9,800/- (`7,000/- + 40% of `7,000/-) is arrived at.
15. When compensation for disability is reassessed on the basis of the factors modified as above, `10,58,400/- (`9,800/x 12 x 18 x 50/100) is arrived at. It is noticed from the impugned award that the Tribunal has already awarded compensation towards continuing and permanent disability and reduction in earning capacity as well. `3,67,200/- and `1,83,600/- were awarded as compensation under the respective heads. Therefore, the sum stood awarded in total under those heads have to be adjusted against the sum now arrived at. Thus, `5,07,600/- [(`10,58,400/-) - (`1,83,600/- + `3,67,200/-)] is payable as additional compensation to the petitioner towards permanent disability.
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16. Loss of earning when calculated for ten months on the basis of `7,000/- re-fixed as the monthly income, `70,000/- (`7,000/- x 10) is arrived at. `60,000/- was already awarded by the Tribunal as compensation and that when adjusted against, the petitioner will get `10,000/- (`70,000/- - `60,000/-) as additional compensation under that head.
17. When compensation is calculated afresh as above, the petitioner will get `5,67,600/- (Rupees Five lakh sixty seven thousand six hundred only) (`50,000/- + `5,07,600/- + `10,000/-) as total additional compensation. Interest is also ordered for that sum at the rate of 7.5% per annum from the date of filing of the Original Petition till the date of realisation. 3[rd] respondent/insurer shall pay the additional compensation arrived at, with interest accrued on it at the rate fixed as above, within a period of two months from the date on which a certified copy of this judgment is received. The disbursal of the amount shall be in accordance with the guidelines issued by this Court in Circular No.03/2019 dated 06.09.2019. It is pointed
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out by the learned counsel for the 3[rd] respondent that the filing of M.A.C.A No.3309 of 2015 was delayed by 1204 days. Therefore, 3[rd] respondent is exonerated from paying interest for the period of delay.
M.A.C.A No.3309 of 2015 is allowed in part and M.A.C.A No.1717/2012 is dismissed accordingly.
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Sd/-
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**MARY JOSEPH JUDGE**
JJ
