MACA Nos. 2067 & 2083 of 2017 (New India Assurance Co. Ltd. v. Sudheer S/o Ibrahim & Ors.)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE SOPHY THOMAS FRIDAY, THE 10[TH] DAY OF FEBRUARY 2023 / 21ST MAGHA, 1944** **MACA NO. 2067 OF 2017** **AGAINST THE ORDER/JUDGMENT IN OPMV 2730/2012 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, THRISSUR** ## **APPELLANT/3RD RESPONDENT IN OP(MV) No.2730 OF 2012:** THE NEW INDIA ASSURANCE COMPANY LTD., PERINCHERRY BUILDING, ROUND NORTH,THRISSUR -680001, REPRESENTED BY ITS MANAGER,REGIONAL OFFICE, M.G ROAD, ERNAKULAM. BY ADV. SRI.SEBASTIAN VARGHESE(K/141/2000) ## **RESPONDENT/PETITIONER IN OP(MV) 2730 OF 2012:** SUDHEER S/O IBRAHIM, AGED 42 YEARS,AALAMPARAMBIL HOUSE, LOKAMALLWESARAM VILLAGE,DESOM, KODUNGALLUR PO, THRISSUR – 680001. BY ADV.SRI.SHEJI P ABRAHAM THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 03.02.2023, ALONG WITH MACA.2083/2017, THE COURT ON 10.02.2023 DELIVERED THE FOLLOWING: **MACA Nos.2067 & 2083 of 2017** **2** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE SOPHY THOMAS FRIDAY, THE 10[TH] DAY OF FEBRUARY 2023 / 21ST MAGHA, 1944 MACA NO. 2083 OF 2017** **AGAINST THE ORDER/JUDGMENT IN OPMV 2730/2012 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, THRISSUR** **APPELLANT/PETITIONER:** SUDHEER AGED 42 YEARS S/O IBRAHIM, AALAMPARAMBIL HOUSE, LOKAMALLWESARAM VILLAGE DESOM, KODUNGALLUR PO, THRISSUR. BY ADV SRI.SHEJI P.ABRAHAM ## **RESPONDENTS/RESPONDENTS:** 1 DASAN S/O SUBRAMANIAN,AGED 57 YEARS, THAITHARA HOUSE, PARAMBIKULANGARA, METHALA, KODUNGALLUR PO, THRISSUR - 680664. 2 THE MANAGING PARTNER SAFA ENTERPRISES, AZHIKODE PO-680673,TEMPORARY ADDRESS: ABDUL JALEEL,POOVATHUMPARAMBIL HOUSE, ERIYAD G.P. 3 THE NEW INDIA INSURNCE CO.LTD PERINCHERY BLDG, ROUND NORTH,THIRSSSUR.680001. BY ADV. SRI.SEBASTIAN VARGHESE(K/141/2000) **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 03.02.2023, ALONG WITH MACA.2067/2017, THE COURT ON 10.02.2023 DELIVERED THE FOLLOWING:** **MACA Nos.2067 & 2083 of 2017** **3** ## **SOPHY THOMAS, J.** ------------------------------------ MACA Nos.2067 & 2083 of 2017 ------------------------------------ Dated this the 10[th] day of February, 2023 ## **J U D G M E N T** These appeals arise out of the Award in OP(MV) No.2730 of 2012 on the file of Motor Accidents Claims Tribunal, Thrissur. The claimant is the appellant in MACA No.2083 of 2017 and the 3[rd] respondent/insurer is the appellant in MACA No.2067 of 2017. The claimant is assailing the award on the ground of inadequacy of compensation and the insurer is against the excessive nature of the compensation awarded by the Tribunal. 2. The claimant/appellant in MACA No.2083 of 2017 met with a road traffic accident on 07.10.2012 at 3.30 p.m, while he was riding his motorbike. According to him, KL-47/A-444 lorry driven by the 1[st] respondent in a rash and negligent manner dashed against his motorcycle and he sustained serious injuries, resulting in amputation of his left leg below knee. He was a 37 year old coolie earning monthly income of **MACA Nos.2067 & 2083 of 2017** **4** Rs.9,000/- and he became totally disabled due to the accident. He approached the Tribunal claiming compensation of Rs.30 lakh. But, the Tribunal awarded only Rs.18,60,600/-. According to him, it was not the just compensation to be awarded and hence he filed MACA No.2083 of 2017, challenging the quantum. 3. According to the insurer/appellant in MACA No.2067 of 2017, since the doctor certified the disability of the injured as 50%, the Tribunal ought not have fixed the functional disability @100%, while awarding compensation for disability. Moreover, the Tribunal awarded Rs.3 lakh for future treatment, without any factual finding, and moreover, 9% interest was awarded from the date of petition, for an amount which was yet to be incurred in future. The compensation awarded under other heads also is challenged as it is excessive. 4. The owner and driver of the offending vehicle remained ex parte throughout. 5. No oral evidence was adduced before the Tribunal from either side. Exts.A1 to A18 and B1 were seen marked. 6. Heard learned counsel Sri.Sebastian Varghese, **MACA Nos.2067 & 2083 of 2017** **5** appearing for the appellant in MACA No.2067 of 2017 (respondent in MACA No.2083 of 2017) and learned counsel Sri.Sheji P Abraham, appearing for the appellant in MACA No.2083 of 2017(respondent in MACA No.2067 of 2017). 7. The accident, injuries and the policy of the offending vehicle are not in dispute. The common challenge in both the appeals, is with respect to the quantum of compensation awarded. 8. Let us have a reappraisal of the facts and evidence, to find out whether any interference is warranted in the impugned award. 9. Learned counsel Sri.Sheji P Abraham, appearing for the injured/appellant in MACA No.2083 of 2017 would argue that, the appellant was a driver by profession earning monthly income of Rs.18,000/-, as borne out from Ext.A10 salary certificate. The Tribunal fixed a notional income of Rs.5,000/only, and that was not fair according to him. But, the original claim petition filed by the claimant will show that, he was only a coolie earning monthly income of Rs.9,000/-. So, Ext.A10 document showing that he was a driver earning monthly **MACA Nos.2067 & 2083 of 2017** **6** income of Rs.18,000/- is not liable to be accepted as a genuine document. No oral evidence was adduced from the side of the claimant to say that, the job and the income stated in the claim petition were not correct or to show that he was working as a driver earning monthly income of Rs.18,000/-. 10. The Tribunal found that the claimant was aged 42 at the time of accident. But, his claim petition was to the effect that he was aged only 37. The FIR also will show his age as 37. At the time of hearing the appeal, learned counsel for the appellant/claimant produced the original birth certificate and aadhar card of the claimant showing his date of birth as 30.11.1975. The insurer is not disputing the age of the claimant shown in his Birth Certificate and so, it can be taken as 37, as stated in the claim petition. The original claim of the claimant was that he was earning monthly income of Rs.9,000/-. Though there is no evidence to prove his monthly income from his coolie work, going by the decision **Ramchandrappa** vs. **Manager, Royal Sundaram Alliance Insurance Company Limited** (AIR 2011 SC 2951), in the year 2012, a 37 year old coolie was eligible to get his notional **MACA Nos.2067 & 2083 of 2017** **7** income fixed at Rs.8,500/-. Exts.A11 and A12 certificates will show that he was having a driving licence and so he was eligible to get the job of a driver in future also, which is a skilled job. Considering that aspect, this Court is inclined to fix his notional income at Rs.9,000/-, as claimed in the claim petition. 11. Learned Tribunal assessed compensation for loss of earning for six months. Since the left leg of the claimant was amputated below knee, the loss of earning assessed for six months is justifiable. @ Rs.9000/- per month, he was eligible to get Rs.54,000/- (9000x6). Since he was already awarded Rs.30,000/- under the head 'loss of earning', he is eligible to get the balance Rs.24,000/-. 12. Ext.A7 disability certificate is to the effect that the injured/appellant suffered disability of 50% as his left leg was amputated below knee. Learned Tribunal took his functional disability as 100% and awarded compensation, which is under challenge by the insurer. Learned counsel for the claimant/appellant in MACA No.2083 of 2017 submitted that, the claimant was a driver by profession and since his left leg **MACA Nos.2067 & 2083 of 2017** **8** was amputated below the knee, he could never work as a driver and so, the Tribunal was justified in taking his functional disability as 100%. But, as we have seen, though the claimant produced copy of his driving licence before the Tribunal, in the original claim petition, his case was that he was a coolie earning monthly income of Rs.9,000/-. That fact was not disowned by him at any point of time, and no amendment also was effected, though he produced Ext.A10 salary certificate saying that he was a driver by profession. If he was a coolie, even if he lost his left leg below knee, it could not be said that he was not able to do any other job to eke out a living. So, the functional disability taken as 100% by the Tribunal is really excessive. 13. The insurer has drawn the attention of this Court to the fact that, as per Workmen’s Compensation Act also, the disability due to amputation of a leg below knee is only 50%. Ext.A7 disability certificate was issued by an Assistant Professor of Orthopaedics attached to Govt. Medical College, Thrissur and he assessed 50% permanent disability with respect to whole body, because of traumatic amputation of left **MACA Nos.2067 & 2083 of 2017** **9** leg and foot below knee. Since the claimant was only a 37 year old young man having future prospects, especially when he was having a driving licence also in his name, he was eligible to go for other avocations also in future. Considering that fact, this Court is inclined to take his functional disability as 60%. 14. We have fixed the notional income of the claimant @ Rs.9,000/- per month. Since he suffered permanent functional disability of 60% by amputation of his left leg below knee, he is eligible to get 40% enhancement towards future prospects, as he was aged only 37, and self employed. So, his monthly income, for the purpose of assessing compensation for disability, can be taken as Rs.12,600/-. The multiplier applicable is 15, as he was aged only 37. So, the compensation for disability can be reworked as Rs.13,60,800/(12600x12x15x60/100). He was already paid compensation of Rs.10,92,000/- under the head compensation for disability and so, he is eligible to get the balance Rs.2,68,800/- under that head. 15. The insurer is assailing the compensation of Rs.2 **MACA Nos.2067 & 2083 of 2017** **10** lakh awarded for pain and suffering. It is true that, in the accident, the claimant suffered serious injuries including mangled left foot, which resulted in traumatic amputation of left leg below knee, and also fracture of calcanium and lateral malleolus. The claimant was admitted in hospital for 12 days. The accident was in the year 2012. Considering all these facts, the compensation of Rs.2 lakh awarded under the head pain and suffering seems to be excessive and this Court is inclined to fix the compensation for pain and suffering at Rs.1.5 lakh. So, the claimant/appellant in MACA No.2083 of 2017 has to refund Rs.50,000/- under that head. 16. The insurer would also contend that the learned Tribunal awarded Rs.3 lakh for future treatment, without any factual basis, and moreover, awarded interest for that amount which was not yet incurred. Exts.A8 and A9, the cash receipt and quotation, would show that the injured/claimant had spent a sum of Rs.55,250/- towards artificial limb. It is true that, in future also, he had to expend some amount for replacing and maintaining the artificial limb. No evidence has been adduced by the claimant to show even the approximate expenses that **MACA Nos.2067 & 2083 of 2017** **11** could have been spent in future, for his artificial limb. There is no factual basis for Rs.3 lakh awarded by the Tribunal towards future treatment expenses, or in awarding interest for the amount to be expended in future, from the date of petition. Relying on Exts.A8 and A9, this Court is inclined to award Rs.1,55,250/- for future treatment. So, he has to refund Rs.144,750/- as excess amount awarded under the head future treatment expenses. It has come out in evidence that, he has already spent Rs.55,250/- for artificial limb and that amount has to carry interest. The balance Rs.1 lakh may not carry interest from the date of petition, as pointed out by the insurer, as those expenses are to be incurred in future. 17. The compensation awarded for bystander expenses was only Rs.3,600/-, though the claim was Rs.25,000/-. Learned Tribunal, finding that the claimant was hospitalised only for 12 days, @ Rs.300/- per day, Rs.3,600/- was awarded. Since his left leg was amputated below knee, though he was hospitalised only for 12 days, he might have been in need of a bystander for his ordinary pursuits at least for three months. Taking Rs.300/- per day for three months, **MACA Nos.2067 & 2083 of 2017** **12** he was eligible to get Rs.27,000/-. But, as his claim is only Rs.25,000/-, that amount could have been awarded towards bystander expenses. Since he was already paid Rs.3,600/under that head, he is eligible to get the balance Rs.21,400/-. 18. The compensation awarded under all other heads seems to be reasonable as far as the claimant/appellant in MACA No.2083 of 2017 is concerned, and nothing was shown by the insurer also, to show that the compensation awarded under other heads requires any modification. |Head of claim<br>(1)|Amount<br>awarded by<br>the Tribunal<br>(2)|Amount<br>awarded in<br>appeal<br>(3)|Amounts<br>deducted in<br>appeal<br>(4)|Difference to<br>be drawn as<br>enhanced<br>compensation<br>(5)| |---|---|---|---|---| |Loss of earning|Rs.30,000/-|Rs.54,000/-|-|Rs.24,000/-| |Compensation<br>for disability|Rs.10,92,000/-|Rs.13,60,800/-|-|Rs.2,68,800/-| |Pain and<br>suffering|Rs.2,00,000/-|Rs.1,50,000/-|Rs.50,000/-|-| |Future<br>treatment|Rs.3,00,000/-|Rs.1,55,250/-|Rs.1,44,750/-|-| |Bystander<br>expenses|Rs.3,600/-|Rs.25,000/-|-|Rs.21,400/-| ||Total||Rs.1,94,750/-|Rs.3,14,200/-| |Enhanced compensation (3,14,200-1,94,750)<br> **Rounded off to Rs.1,20,000/-**||||Rs.1,19,450/-| **MACA Nos.2067 & 2083 of 2017** **13** 19. So, both the appeals are liable to be allowed in part, enhancing and reducing the compensation awarded under various heads, to the extent shown above. While modifying the compensation as aforesaid, the claimant/appellant in MACA No.2083 of 2017 is eligible to get enhanced compensation of Rs.1,20,000/- [(24000+2,68,800+21400)-(50000+144750)]. The appellant in MACA No.2083 of 2017 is entitled to get interest @ 9% as awarded by the Tribunal but it is clarified that the compensation amount of Rs.1 lakh awarded for future treatment will not carry interest. 20. It is given to understand that, the Insurance Company deposited half of the compensation amount including interest and costs before the Tribunal, for getting interim stay as prayed for in MACA No.2067 of 2017. So, the insurer/appellant in MACA No.2067 of 2017 is directed to deposit the balance amount along with the enhanced compensation awarded in MACA No.2083 of 2017, in the Bank Account of the appellant, with interest at 9% per annum from the date of petition till the date of deposit (future treatment expenses of Rs.1 lakh will not carry any interest), within a **MACA Nos.2067 & 2083 of 2017** **14** period of two months from the date of receipt of a copy of this judgment. The deposit must be in terms of the directives issued by this Court in Circular No.3 of 2019 dated 06/09/2019 and clarified in O.M.No.D1/62475/2016 dated 07/11/2019 after deducting the liabilities, if any, of the appellant/claimant towards Tax, balance court fee and legal benefit fund. Accordingly, both the appeals are allowed in part, modifying the compensation amount to the extent as stated above. Sd/- **SOPHY THOMAS JUDGE** smp