MACA Nos. 1932 of 2016 & 2873 of 2016 (Prasanth P.K. v. IFFCO Tokio General Insurance Co. Ltd)

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN** **WEDNESDAY, THE 13[TH] DAY OF DECEMBER 2023 / 22ND AGRAHAYANA, 1945** **MACA NO. 1932 OF 2016** **AGAINST THE AWARD DATED 10.05.2016 IN OPMV 660/2012 OF II** **ADDITIONAL MACT, PALAKKAD** ## **APPELLANTS:** **PRASANTH .P.K AGED 32 YEARS S/O. KRISHNAKUTTY P.V. PARAKKAL HOUSE, THENNUR, PALAKKAD.** ## **BY ADV SRI.JACOB SEBASTIAN** ## **RESPONDENTS:** **IFFCOTOKIO GENERAL INSURANCE CO. LTD NEAR IT OFFICEE NO. 5 COLLEGE ROAD SECOND CLASS, THIRUPUR TAMILNADU-641 602.** **BY ADVS. SRI.MATHEWS JACOB (SR.) SRI.P.JACOB MATHEW** ## **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEENF FINALLY HEARD** **ON 13.12.2023, ALONG WITH MACA.2873/2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA NOS.1932 & 2873/2016 :2:** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN** **WEDNESDAY, THE 13[TH] DAY OF DECEMBER 2023/ 22ND AGRAHAYANA, 1945 MACA NO. 2873 OF 2016** **AGAINST THE AWARD DATED 10.05.2016 IN OPMV 660/2012 OF II** **ADDITIONAL MACT, PALAKKAD** ## **APPELLANTS:** **IFFCO TOKIO GENERAL INSURANCE COMPANY LIMITED THIRUPUR NOW REPRESENTED BY ITS LEGAL MANAGER, IFFCO BHAVAN, THOTTAKKAT ROAD, KOCHI-682011** **BY ADVS. MATHEWS JACOB (SR.) P.JACOB MATHEW** ## **RESPONDENTS:** **1 PRASANTH P.K. S/O KRISHNANKUTTY P.V., PARAKKAL HOUSE, THENUR, PALAKKAD - 678520** **2 VIMAL RAJ DOOR NO 112/A, SAKKILI STREET, PALLAMGOUNDAMPATTI, THIRUCHENGODE, TAMIL NADU - 600018** **3 R GANESHAN S/O RAMALINGAM, 3/98 KARUNKULAM, KANNUR P.O., SIVANGANGAI, TAMIL NADU** ## **BY ADV JACOB SEBASTIAN** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEENF FINALLY HEARD ON 13.12.2023, ALONG WITH MACA.1932/2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA NOS.1932 & 2873/2016 :3:** ## **JUDGMENT** Since these appeals arise from a common award dated 10.05.2016 passed by the Additional Motor Accidents Claims Tribunal-II, Palakkad in O.P.(MV)No.660 of 2012, they are disposed of by this common judgment. The parties are referred to as per their status in the claim petition. 2. M.A.C.A.No.1932 of 2016 is filed by the petitioner dissatisfied with the quantum of compensation awarded by the Tribunal and M.A.C.A. No.2873 of 2016 is filed by the 3[rd] respondent insurer contending that the amount awarded is excessive and exorbitant. 3. According to the petitioner, on 26.11.2011, while he was riding a bike, a JCB bearing Registration No.TN 34F/7198 driven by the 2[nd] respondent in a rash and negligent manner, hit on the bike and the petitioner **MACA NOS.1932 & 2873/2016 :4:** sustained serious injuries. The 1[st] respondent is the owner and the 3[rd] respondent is the insurer of the offending vehicle. The petitioner claimed an amount of Rs.1crore for the personal injuries sustained by him in the accident. 4. Before the Tribunal, respondents 1 and 2 remained _ex parte_ . The 3[rd] respondent insurance company filed a written statement admitting the existence of a valid policy, however denied the driving licence of the 2[nd] respondent to drive an excavator like JCB. It was further contended that the amount claimed is excessive and exorbitant. Exts.A1 to A21 series were marked from the side of petitioner and PWs 1 and 2 were examined. From the side of the respondents, Exts.B1 to B3 were marked. The Tribunal found that the accident happened due to the negligence of the 2[nd] respondent and awarded an amount of Rs.46,62,750/- as total compensation. 5. According to the learned senior counsel for the insurance company, the amount awarded by the Tribunal **MACA NOS.1932 & 2873/2016 :5:** is excessive and exorbitant, whereas, the learned counsel appearing for the petitioner contended that the amount awarded is totally inadequate. In view of the rival contentions, this Court has to see whether the amount awarded by the Tribunal under various heads is just and reasonable. 6. The Tribunal has awarded a total compensation of Rs.46,62,750/- under various heads as follows: |**Sl.**<br>**No**|**Head of Claim**|**Amount**<br>**claimed**|**Amount**<br>**awarded**| |---|---|---|---| |1|Loss of earning|425000|375000| |2|Partial loss of<br>earning||| |3|Transportation to<br>hospital and back|25000|25000| |4|Damage to clothing|5000|750| |5|Extra nourishment||20000| |6|Medical expenses|1800000|1672000| |7|Future medical|200000|50000| ## **MACA NOS.1932 & 2873/2016 :6:** ||expenses||| |---|---|---|---| |8|Expenses of a<br>bystander|18000|25000| |9|Compensation for<br>pain and suffering<br>etc|100000|100000| |10|Compensation for<br>continuing or<br>permanent disability|3000000|2295000| |11|Compensation for<br>loss of earning power|4000000|| |12|Compensation for<br>loss of amenities in<br>life|100000|100000| ||**Total**|**10000000**|**4662750**| ## 7. According to the learned counsel for the petitioner, the petitioner was an Engineer and was working at Resource Square Solution, a unit of Videocon Cochin. He has produced Exts.A2 and A3 letters as proof of his employment and salary. PW2 was examined to prove Exts.A1 and A2 letters. As per the version of PW2, the **MACA NOS.1932 & 2873/2016 :7:** petitioner was drawing a monthly salary of Rs.25,000/-. He has also deposed that the petitioner has been terminated from the said office pursuant to Ext.A3 resignation letter submitted by him and that he has not attended the office after the accident. The Tribunal, on the basis of the version of PW2, has taken the monthly salary of the petitioner as Rs.25,000/-. 8. The learned senior counsel for the 3[rd] respondent insurance company contends that the Tribunal went wrong in taking the monthly income of the petitioner as Rs.25,000/-. In the light of the evidence adduced by PW2, I do not find anything wrong in the Tribunal taking the monthly income of the petitioner as Rs.25,000/-. The learned senior counsel also has a contention that the Tribunal went wrong in assessing the period of loss of earning as 15 months and the same can be given only for the period between the date of accident and the date of filing the petition. This contention cannot be sustained in ## **MACA NOS.1932 & 2873/2016 :8:** the light of the decision of the Hon'ble Supreme Court in **R.D. Hattangadi vs M/S Pest Control (India) Pvt. Ltd.** [1995 (1) SCC 551]. In view of the injuries sustained by the petitioner, he was incpacitated to work and the Tribunal cannot be found fault with, for taking the period of decumbiture as 15 months. 9. According to the learned senior counsel for the insurance company, Ext.A1 disability certificate cannot be relied on, since the same is not issued by a Medical Board. It is to be noted that the same is issued by an Assistant Professor of Orthopeadics, Medical College Hospital, Thrissur. The insurance company has not sought for reference of the petitioner to a Medical Board for assessing the percentage of disability at the time of trial. Ext.A1 disability certificate can therefore, be accepted. The Tribunal has taken the functional disability of the petitioner as 45% on the basis of Ext.A1 disability **MACA NOS.1932 & 2873/2016 :9:** certificate and I find that the Tribunal is right in taking the functional disability as 45%. 10. The learned counsel for the petitioner submits that the petitioner is still undergoing treatment. The nature of injuries sustained by him and evidence adduced by PW1 would show that the petitioner requires future treatment. Ext.A1 disability certificate issued by PW1 also states that the petitioner requires prolonged treatment including medical surgeries. 11. The Tribunal has awarded an amount of Rs.50,000/- towards compensation for future medical expenses. Taking into consideration the injuries sustained by the petitioner and the nature of prolonged treatment required, I re-fix the amount as Rs.1,00,000/- under the said head. Therefore, the petitioner is entitled for an additional amount of **Rs.50,000/-** (1,00,000-50,000) under the said head. **MACA NOS.1932 & 2873/2016 :10:** 12. The petitioner was aged 28 years at the time of the accident and in the light of the decision of the Hon'ble Court reported in **Sarla Verma** _**v**_ **. Delhi Transport Corporation [2009 (6) SCC 121: AIR 2009 SC 3104],** the Tribunal has rightly taken the multiplier as '17'. PW1/ the Assistant Professor, Government Medical College, Thrissur, who issued Ext.A1 disability certificate, assessed the whole body permanent disability of the petitioner as '45%'. 13. The Tribunal has awarded an amount of Rs.22,95,000/- towards compensation for continuing or permanent disability. The learned counsel for the petitioner submits that, since the petitioner has sustained disability of 45%, he is entitled to add 40% of the income towards future prospects. In the light of the decision reported in **Satish v. New India Assurance 775/2022 776/2022 and in Rajkumar v. Ajaykumar [2011** **MACA NOS.1932 & 2873/2016 :11:** **ACJpage-1 SC],** the petitioner is entitled for future prospects. Since the petitioner has no permanent employment, I find that the petitioner is entitled to add 40% of the income towards future prospects. Thus, for calculating compensation under the above head, the income would come to Rs.35,000/- (25,000 + 40% of 25,000) per month. Accordingly, the compensation under the said head is to be reworked and the amount comes to 32,13,000/- [35,000x17x12x45/100]. Since the petitioner has already been awarded an amount of Rs.22,95,000/-, he is entitled for an additional amount of **Rs.9,18,000/-** [32,13,000-22,95,000]. 14. I find that the compensation awarded under other heads is just and reasonable. 15. In the result, the petitioner is entitled for an enhanced amount of **9,68,000/-** (Rupees nine lakh and sixty eight thousand only) [9,18,000 + 50,000]. It is made **MACA NOS.1932 & 2873/2016 :12:** clear that the amount of Rs.50,000/- awarded towards compensation for future medical expenses will carry interest only from the date of award. 16. As order dated 23.08.2023 in per I.A.No.3324/2016 (I.A.No.1/2016) in M.A.C.A.No. 2873 of 2016, an amount of Rs. 5,00,000/- was permitted to be withdrawn by the petitioner from the amount deposited by the 3[rd] respondent insurance company. After deducting the said amount, the petitioner shall be paid an amount of Rs.4,68,000/-. The amount of Rs.9,18,000/- will carry 9% interest p.a from the date of petition till realization with proportionate costs. 17. It is the specific case of the Insurance Company that the 2[nd] respondent was not having a valid license for driving a JCB. Though the Insurance Company raised such a contention, the said issue was not considered by the Tribunal. Accordingly, the matter is remanded to the Tribunal for the limited purpose of considering the **MACA NOS.1932 & 2873/2016 :13:** question as to whether the Insurance Company is liable to indemnify the 2[nd] respondent for the amount awarded as compensation. The quantum of compensation re-fixed by this Court shall be paid by the Insurance Company and their right to recover the said amount from the 2[nd] respondent will depend upon the order to be passed by the Tribunal. The amount awarded by the Tribunal and as modified by this Court shall be deposited before the Tribunal within a period of three months from the date of receipt of a certified copy of this Judgment. Appeal is disposed of. Sd/- **MURALI PURUSHOTHAMAN JUDGE** SB **MACA NOS.1932 & 2873/2016 :14:** ## **APPENDIX OF MACA 1932/2016** ## **PETITIONER ANNEXURES** **Annexure-A1 ORIGINAL OF TREATMENT CERTIFICATE DATED 21.12.2022 ISSUED BY DR. JAYAKRISHNAN K.S, M.B.B.S, M.S ORTHO ASSISTANT PROFESSOR GOVT. MEDICAL COLLEGE, PALAKKAD IN FAVOUR OF PETITIONER.**