MACA Nos. 1740 of 2014 and 2135 of 2015 v. Oriental Insurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE MARY JOSEPH** **THURSDAY, THE 18TH DAY OF FEBRUARY 2021 / 29TH MAGHA,1942** ## **MACA.No.1740 OF 2014** **AGAINST THE AWARD IN OPMV 424/2009 DATED 14-03-2014 OF MOTOR ACCIDENTs CLAIMS TRIBUNAL, VATAKARA** ## **APPELLANT/3RD RESPONDENT IN THE OP:** **THE ORIENTAL INSURANCE CO.LTD,** **VADAKARA, REPRESENTED BY ITS AUTHORISED SIGNATORY, THE ORIENTAL INSURANCE CO.LTD., REGIONAL OFFICE ERNAKULAM, METRO PALACE, ERNAKULAM NORTH,KOCHI-18** **BY ADV. SRI.A.R.GEORGE** ## **RESPONDENT/CLAIMANT:** **BABU,** **S/O.KELAPPAN, PUNORATH KANDY HOUSE, KARAYAD AMSOM DESOM, KARAYAD PO, KOYILANDY TALUK 673 524.** **BY ADV. SRI.T.K.BIJU (MANJINIKARA)** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 18.02.2021, ALONG WITH MACA.2135/2015(D), THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA.No.1740/2014 & MACA.No.2135/2015 2** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE MARY JOSEPH** **THURSDAY, THE 18TH DAY OF FEBRUARY 2021 / 29TH MAGHA,1942** ## **MACA.No.2135 OF 2015** **AGAINST THE AWARD IN OPMV 424/2009 DATED 14-03-2014 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, VATAKARA** ## **APPELLANT/PETITIONER IN THE O.P (M.V):** **BABU, S/O KELAPPAN, AGED 46 YEARS PUNNORATH KANDY HOSUE, KARAYAD AMSOM DESOM, KARAYAD P.O., KOYILANDY TALUK.** **BY ADVS. SRI.T.K.BIJU (MANJINIKARA) SMT.ANNIE M.ABRAHAM** ## **RESPONDENT/3RD RESPONDENT IN THE O.P (M.V):** **THE ORIENTAL INSURANCE COMPANY LIMITED REP. BY ITS BRANCH MANAGER, SREE NIDHI BUILDINGS, VADAKKARA P.O.-673 101.** **BY ADV. SRI.A.R.GEORGE** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 18.02.2021, ALONG WITH MACA.1740/2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA.No.1740/2014 & MACA.No.2135/2015 3** ## **JUDGMENT** **[MACA.1740/2014, MACA.2135/2015]** **Dated this the 18[th] day of February, 2021** These appeals have been originated from award dated 14.03.2014 passed by Motor Accidents Claims Tribunal, Vatakara (for short 'the Tribunal') in O.P.(MV) No.424 of 2009. The Tribunal has awarded a sum of Rs.2,08,314/- as compensation to the petitioner for personal injuries sustained by him in the motor accident with interest at the rate of 7.5% per annum from the date of the petition till the date of realisation and proportionate costs. Feeling aggrieved by the same, appeal was preferred by the 3[rd] respondent insurer as MACA No.1740 of 2014 and by the petitioner as MACA No.2135 of 2015. Parties to the above appeals will hereinafter be referred to as petitioner and respondents 1 to 3 in accordance with their status in O.P. (M.V.) No.424 of 2009 before the Tribunal. 2. The facts relevant for consideration of these appeals are summarised hereinbelow: The petitioner was a pedestrian, proceeding through the **MACA.No.1740/2014 & MACA.No.2135/2015 4** margin of a public road at Mulakandythazhe, Meappayyur, Koilandi at about 3 p.m on 14.08.2008. A lorry bearing Registration No.KL-18C-528 driven by its driver in a rash and negligent manner knocked him down and thereby he sustained injuries. During the course of treatment, his right index finger was amputated. In the above circumstances, seeking for a sum of Rs.4,00,000/- as total compensation from the owner, driver and insurer of the Lorry arrayed as respondents 1 to 3, claim petition was preferred as O.P(MV) No.424 of 2009, before the Tribunal. 3. On receipt of notice from the Tribunal all the respondents entered appearance. The claim petition was not contested by the 1[st] and 2[nd] respondents, though a counsel entered appearance for them. The 3[rd] respondent, who was the insurer of the offending vehicle has filed written statement denying the age, occupation, nature of the injuries and the physical incapacity of the petitioner, but, admitting the insurance coverage of the vehicle. It was contended further that the compensation claimed under different heads is excessive and without any basis. 4. Oral evidence was not adduced by any of the parties before the Tribunal. The petitioner relied on Exts.A1 to A4, **MACA.No.1740/2014 & MACA.No.2135/2015 5** which include copies of FIR, Accident Register cum Wound Certificate, original Discharge Summary and Medical Bills. The above evidence was appreciated by the Tribunal and on its basis the impugned award was passed. The Tribunal found that the driver, who was the 2[nd] respondent before it was rash and negligent in driving the Lorry at the relevant time of accident and responsible for the accident to occur. The Tribunal has also found that Rs.2,08,314/- is payable as compensation to the petitioner. 5. It is contended by Sri.A.R.George, the learned counsel for the appellant/3[rd] respondent in MACA No.1740 of 2014 that Rs.75,000/- awarded by the Tribunal as compensation for pain and suffering is excessive. According to him, the petitioner had sustained only multiple injuries and his right index finger was amputated during the course of treatment. According to him, the claimant had inpatient treatment in a hospital only for two days. According to him, Rs.75,000/- awarded as compensation for pain and suffering is totally disproportionate to the injuries sustained by the petitioner and period of treatment undergone by him. It is also contended that grant of Rs.10,000/- as compensation by the Tribunal, under the head mental shock and agony in a case of the nature is unknown. The learned counsel **MACA.No.1740/2014 & MACA.No.2135/2015 6** has pointed out that compensation was not awarded by the Tribunal under the head loss of amenities and enjoyments in life, since no claim was made for that in the application. In the context, the learned counsel has agreed to treat Rs.10,000/- as compensation payable towards loss of amenities and enjoyments in life. The 3[rd] contention raised by the learned counsel was that the Tribunal has awarded Rs.88,200/- as compensation towards disability by taking 14% as the disability in tune with Schedule I Part II of the Employee's Compensation Act, 1923. According to him, as per the schedule referred to, 14% is fixed for near total amputation of right index finger but, as per Exts.A2 and A3, copies respectively of the accident register cum wound certificate and the discharge summary, the petitioner suffered only amputation near to total of right index finger and therefore the Tribunal is not justified in assessing the compensation payable to the petitioner by taking 14% as the disability. 6. Sri.T.K.Biju, the learned counsel for the appellant/petitioner in MACA No.2135 of 2015 has contended that though the accident was occurred in the year 2008 and the claim petition was considered in the year 2009, the Tribunal has taken only Rs.3,500/- as the monthly income of the petitioner for computation of compensation for loss of earning and **MACA.No.1740/2014 & MACA.No.2135/2015 7** disability. According to him, the petitioner was a concrete worker and claimed Rs.7,500/- as his monthly income at the relevant time of accident. Inviting the attention of this Court to **Soman v. Jinesh James and Others** [2020 (4) KHC 623], where a Single Bench of this Court had taken Rs.7,500/- as the monthly income of a victim, who met with a motor accident in the year 2010, it is contended that Rs.7,500/- ought to have been fixed by the Tribunal as the monthly income of the petitioner in the case on hand. It is also contended that 14% disability was taken by the Tribunal in tune with the relevant Schedule in the Employee's Compensation Act, 1923 and the Tribunal is justified in doing so. According to him, the petitioner has suffered near total amputation of his right index finger and that is equal to total amputation of right index finger. According to him, Rs.75,000/- awarded as compensation towards pain and suffering being a just and reasonable sum, interference is unwarranted. According to him, award of compensation for loss of earning being on the lower side interference and modification is required. The learned counsel has also sought for maintaining the award of compensation under the head mental shock and agony and to award separate sum as compensation towards loss of amenities and enjoyments in life. **MACA.No.1740/2014 & MACA.No.2135/2015 8** 7. In view of the rival arguments advanced by the respective counsel, it is incumbent upon this Court to test the merits involved in those in the light of the evidence on record. The Tribunal has taken Rs.3,500/- as the monthly income of the petitioner for calculation of compensation for loss of earning as well as for disability. The accident being in the year 2008, fixation of Rs.3,500/- as the monthly income is unjust and unreasonable. True that the petitioner failed to discharge his burden to establish that he was getting Rs.7, 500/- as monthly income at the relevant time. As rightly pointed out by the learned counsel for the 3[rd] respondent, the petitioner failed even to establish that, he was a concrete worker at that point of time. 8. It is stated by the petitioner in the petition seeking compensation that concrete work is done by him independently and not under any employer. Therefore, being self employed, the petitioner may not be able to adduce any evidence to establish his monthly income. In **Ramachandrappa v. Royal Sundaram Alliance Insurance Co.Ltd. [(2011) 13 SCC 236]** the Apex Court had taken Rs.4,500/- as the monthly income of a coolie worker who had met with a motor accident in the year 2004. Therefore, Tribunal ought to have taken a sum **MACA.No.1740/2014 & MACA.No.2135/2015 9** proportionate to Rs.4,500/- in the year 2009, when the petition seeking compensation was filed. Interest of justice demands modification of the monthly income and this Court is inclined to fix it as Rs.5,500/-. Six months fixed by the Tribunal being a reasonable period is maintained. In the computation of compensation with the monthly income fixed as Rs.5,500/- for six months, petitioner will get Rs.33,000/-. Rs.21,000/- stands ordered by the impugned award when deducted, Rs.12,000/- will be payable as additional compensation under the head loss of earning. For pain and suffering, Rs.75,000/- was awarded by the Tribunal. As per the Discharge Summary marked in evidence as Ext.A3, the petitioner had sustained crush injury on his right index finger with partial extensor tendon and cut injury on middle finger with multiple lacerations over the dorsum of the hand. During the course of treatment, almost total amputation of the right index finger was done. True that hospitalization was only for two days. The nature of the injuries, the treatment undergone and the only review advised on 20.08.2008, suggests to this Court that Rs.75,000/- awarded by the Tribunal under the head pain and sufferings is on the higher side. This Court is inclined to reduce it as Rs.40,000/-. As suggested by the learned counsel for the insurer Rs.10,000/- already awarded **MACA.No.1740/2014 & MACA.No.2135/2015 10** under the head mental shock and agony, alongwith an excess sum of Rs.5,000/- is treated as the compensation payable under the head loss of amenities and enjoyments in life. As per Schedule I Part II of Employees Compensation Act, 1923, 14% is the disability fixed in the case of total amputation of right index finger. But, as per Ext.A3, there was only near total amputation of right index finger. Moreover, there is no evidence to establish that the petitioner was engaged in concrete work. Therefore, this Court is inclined to reduce the percentage of disability to 12%. When compensation is computed with Rs.5,500/- as the modified monthly income and disability as 12%, Rs.1,18,800/- is arrived at as the compensation payable towards disability. Rs.88,200/already awarded by the Tribunal under that head, when deducted from the sum arrived at now, Rs.30,600/- is found payable additionally as compensation. Thus the total sum payable as compensation additionally in the fixation by this Court will come to Rs.47,600/- (Rupees fourtyseven thousand six hundred only) (30,600 + 12,000 + 5000). 9. The learned counsel for the petitioner has also urged to enhance the rate of interest which as per the impugned award is 7.5%. There is merit in the argument and this Court is inclined to modify it as 9%. Thus, both appeals succeed in part. **MACA.No.1740/2014 & MACA.No.2135/2015 11** In the result, the appeals are allowed in part. A sum of Rs.47,600/- is found payable as additional compensation. For the original sum stands awarded by the Tribunal interest is payable at the rate of 9% per annum from the date of the petition till the date of the award. For the additional sum stands enhanced by this Court in the judgment on hand, interest at the rate of 7.5% is fixed and the same is payable from the date of the award till realisation. Filing of M.A.C.A No.2135 of 2015 being delayed by 356 days, the Tribunal shall see that the insurer is exempted from liability to pay interest for that period. No order as to costs. Sd/- **MARY JOSEPH** **JUDGE** NAB