MACA Nos. 2423 of 2017 & 1539 of 2017 (PRADEEP KUTTAKARAMBIL v. RAMESH S., VALI SHAIK & SHRIRAM GENERAL INSURANCE CO. LTD.; SHRIRAM GENERAL INSURANCE CO. LTD. v. PRADEEP S/O SANKARAN)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE BASANT BALAJI** **TUESDAY, THE 3[RD] DAY OF JANUARY 2023 / 13TH POUSHA, 1944** **MACA NO. 2423 OF 2017** **OPMV 241/2014 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, OTTAPPALAM** ## **APPELLANT/S:** PRADEEP KUTTAKAPARAMBIL,AGED 50, S/O.SANKARAN, KUTTAKAPARAMBIL HOUSE, THIRUMITTAKKODE P.O., KOOTTANAD, OTTAPALAM TALUK, PALGHAT DISTRICT, PIN679533, (PR STATUS RESIDING IN 248,KINSTON ROAD, ESSEX, IGI IPG, UNITED KINGDOM) BY ADVS.SRI.V.P.PRASAD SRI.K.R.RAJKUMAR ## **RESPONDENT/S:** 1 RAMESH S.,S/O.DARGAISH,DOOR NO.28, 3/2-40/1, ARANDALPET, VIJAYAWAD, KRISHNA DISTRICT, ANDRA PRADESH, PIN-520008, (DRIVER OF LORRY NO.AP-16-TC 8996) 2 VALI SHAIK,S/O.SALVAR, 11-41, INDIRA NAGAR-2, NEAR LAKULU, YANAMALAKUDURU, PENAMALURU, ARANDALPET, VIJAYAWADA RURAL, KRISHNA DISTRICT, ANDHRA PRADESH, PIN-520008,(RC OWNER OF LORRY NO.AP-16-TC 8996) 3 THE SHRIRAM GEN.INSURANCE CO.LTD. D.NO.52-1/1-1, RING ROAD, VETERINARY COLONY, VIJAYAWADA, ANDHRA PRADESH, PIN-520008(INSURER OF LORRY NO.AP-16-TC 8996) BY ADV SRI.R.AJITH KUMAR 12884 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 03.01.2023, ALONG WITH MACA.1539/2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **MACA 2423 & 1539/2017** -2- ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** ## **THE HONOURABLE MR.JUSTICE BASANT BALAJI TUESDAY, THE 3[RD] DAY OF JANUARY 2023 / 13TH POUSHA, 1944 MACA NO. 1539 OF 2017** **OPMV 241/2014 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, OTTAPPALAM APPELLANT/S:** SHRIRAM GENERAL INSURANCE COMPANY LIMITED D.NO. 52-1/1-1, RING ROAD, VETERINARY COLONY,VIJAYAWADA, ANDRAPRADESH - 520 008.REP. BY ITS MANAGER, SHRIRAM G.I. CO.LTD., ERNAKULAM. BY ADV SRI.R.AJITH KUMAR (128/84) ## **RESPONDENT/S:** PRADEEP S/O. SANKARAN,KUTTAKAPARAMBIL HOUSE, THIRUMITTAKKODE P.O.,KOOTTANAD, OTTAPALAM TALUK, PALAKKAD DISTRICT,PIN - 679 533. BY ADVS. SRI.V.P.PRASAD SRI.K.R.RAJKUMAR ## **OTHER PRESENT:** K.S. SANTHI THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 03.01.2023, ALONG WITH MACA.2423/2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **MACA 2423 & 1539/2017** -3- ## **JUDGMENT** **[MACA Nos.2423/2017 & 1539/2017]** (Dated this the 3[rd] day of January 2023) M.A.C.A.No.2423 of 2017 is filed by the claimant/petitioner and M.A.C.A. No.1539 of 2017 is filed by the third respondent/Insurance Company against the award in O.P. No.241 of 2014 on the files of the MACT, Ottappalam. 2. The appellant in MACA No.2423 of 2017, who is the claimant in the above O.P., on 13.9.2012 with his friends and relatives were on the way to Palani temple for pilgrimage. When they reached at Pathiripala, they stopped for having tea. The appellant was walking through the side of the road and then a lorry bearing registration No.AP-16 TC 8696 driven by the first respondent in a rash and **MACA 2423 & 1539/2017** -4- negligent manner, knocked down the appellant and thereby, he sustained serious injuries. He was immediately taken to P K Das Institute of Medical Sciences, Vaniyamkulam and was treated there. Thereafter, he was taken to London and treated there in several hospitals. The accident occurred solely due to negligence of the first respondent who was driving the lorry. A compensation of Rs.94,00,000/- was claimed from the first respondent. 3. Respondent Nos.1 and 2 remained ex-parte. The 3[rd] respondent alone filed a written statement. The 3[rd] respondent contended that there is no negligence on the part of the first respondent and the accident occurred due to the negligence on the part of the appellant himself. The Insurance policy at the time of the accident in respect of the lorry was admitted. The compensation claimed is **MACA 2423 & 1539/2017** -5- excessive. The liability is limited to the terms and conditions of the policy. 4. Before the Tribunal, the appellant/claimant was examined as PW1 and Exts.A1 to 32 were marked. Ext.X1 and X2 marked were the Medical board report and case sheet of the appellant from P.K. Das Hospital respectively. 5. The Tribunal, after considering the oral and documentary evidence, passed an award and the total compensation awarded was Rs.45,20,460/- with interest at the rate of 9% per annum from 29.3.2014 till realisation. Aggrieved by the quantum of compensation, the claimant has filed MACA No.2423 of 2017. At the same time, being aggrieved by award of compensation, the Insurance company has filed M.A.C.A No.1539 of 2017. The main contention raised by the counsel for the **MACA 2423 & 1539/2017** -6- appellant/claimant is that the appellant was employed in UK as Marketing Manager in a Food Product Company earning a monthly income of Rs.1,50,000/- (1500 UK pounds). Ext.A29 is salary certificate dated 11.11.2015 issued by the Proprietor of Excellent Food products Ltd to the effect that the appellant was working as a permanent employee with them and earning a gross salary of 44,800 pounds for the period 2010 to 2012. Ext.A13 is another letter to the effect that the gross tax salary of the appellant from 6.4.2011 to 5.4.2012 was 19,200 pounds. The Tribunal relying on the decision reported in **Valsamma v. Binu Jose [2014(1) KLT 10** ], has held that in case of persons employed outside India for assessing compensation under head of loss of dependency, the income has to be taken in the context of Indian standards taking the probable **MACA 2423 & 1539/2017** -7- income which may have fetched if he was working in India during the relevant time and the income which he was alleged to have been earning in a Gulf country where the employment of such nature is not permanent and it likely to be terminated at the whims and fancies of the sponsor cannot be relied upon. Though the appellant claims that he is a permanent employee in UK he has not disclosed his educational qualification and he was working in a private company. In such a case, the Tribunal was justified in relying on the dictum laid down mentioned above and taking income to Indian standards. The Tribunal took monthly income of the appellant as Rs.40,000/-, as according to the Tribunal it is the income which a person in the standard of the appellant would be earning in India as the Marketing Manager. The permanent disability assessed **MACA 2423 & 1539/2017** by the Tribunal is 61% which the Tribunal has accepted in toto. Since the appellant was aged 47 years at the time of accident, the multiplier according to the decision reported in **Sarla Verma v. Delhi Transport Corporation [2009(6) SCC 121]** is 13. It has to be noted that the permanent disability assessed by the Medical Board attached to the Medical College is 61%. The Apex Court has held in various decisions that if the percentage of disability is on a higher side, future prospects can be added for determining the compensation for permanent disability. Hence, relying in the decision reported in **National Insurance Company Ltd. v. Pranay Sethi** [(2017) 16 SCC 680] the appellant/claimant being a self employed man aged 47 years, 25% can be added to the monthly income towards future prospects. Thus, the monthly **MACA 2423 & 1539/2017** -9- income would be Rs.50,000/-. Accordingly, the compensation for permanent disability can be calculated as 50,000x13x12x61/100 = Rs.47,58,000/- 7. Towards loss of amenities in life, though the appellant claimed Rs.2,00,000/-, taking the nature of injuries and the effects of the injuries sustained in the personal life of the appellant, the Tribunal has awarded a sum of Rs.40,000/-. Taking note of the injuries sustained by the appellant and Ext.X1 report and Ext.X2 case sheet, serious injuries have been sustained by him and the appellant needs support from family and from other relatives for his domestic daily life. Hence, taking into consideration of these facts, an amount of Rs.20,000/- more is awarded towards compensation for loss of amenities. 8. The compensation granted under other heads, are **MACA 2423 & 1539/2017** -10- ## found to be reasonable and just. Accordingly, the following enhancements are made to the award passed by the Tribunal: |Sl.<br>No.|Head of Claim|Amt. Awarded<br>by Tribunal<br>(Rs.)|Amt. Enhanced<br>in appeal (Rs.)| |---|---|---|---| |1|Compensation<br>for<br>permanent disability|Rs.38,06,400|Rs.47,58,000| |2.|Loss of amenities|Rs.40,000|Rs.60,000| |||Rs.38,46,400|Rs.48,18,000| ||Amount enhanced ..Rs.48,18,000–Rs.38,46,400**=Rs.9,71,600/-**||| In the result, the M.A.C.A. No.2423 of 2017 is allowed and M.A.C.A. No.1539 of 2017 is dismissed. The appellant in M.A.C.A. No.2423 of 2017 is entitled for an enhanced amount of Rs. **9,71,600** /- (Rupees nine lakh seventy one thousand and six hundred only). The Insurance Company shall pay interest for the enhanced amount at the **MACA 2423 & 1539/2017** rate of 8% from the date of petition till realisation. All other findings entered by the Tribunal stand confirmed. If any amounts have already been paid, the same shall be granted set off. The claimants shall produce the details of the Bank account before the Insurance Company/Tribunal within one month from the date of receipt of a certified copy of this judgment and amount shall be transferred to the Bank account directly through NEFT/RTGS mode, within a period of one month thereafter. If the Bank account is not furnished within the time stipulated, it is made clear that no interest shall run on the enhanced amount after the period stipulated by this Court. **sd/BASANT BALAJI, JUDGE** _dl/_