M.A.C.A Nos. 2716/12 & 610/13 (United India Insurance Co. Ltd. v. Repheal Domenic & Others; Raphael Dominic v. United India Insurance Co. Ltd.)

# `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` TUESDAY, THE 29[TH] DAY OF MARCH 2022 / 8TH CHAITHRA, 1944 ``` ## `MACA NO. 2716 OF 2012` ``` AGAINST THE AWARD DATED 28.07.2012 IN OP(MV) NO.1890/2008 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,ERNAKULAM ``` ## `APPELLANT/3RD RESPONDENT:` ``` THE UNITED INDIA INSURANCE CO.LTD., DIVISIONAL OFFICE NO.3, ERNAKULAM, COCHIN, REPRESENTED BY THE DY. MANAGER, OFFICE OF THE REGIONAL MANAGER, UNITED INDIA INSURANCE CO. LTD., HOSPITAL ROAD, ERNAKULAM. ``` ``` BY ADVS.SRI.M.A.GEORGE SMT.DEEPA GEORGE ``` ## `RESPONDENTS/PETITIONER & RESPONDENTS 1 & 2:` ``` 1REPHEAL DOMENIC, AGED 36 YEARS, S/O.DOMINIC, 403 A(18/1263), PALAKKAL HOUSE, A.K.G.LANE, NAMBIAPURAM, PALLURUTHY, COCHIN, REPRESENTED BY HIS NEXT FRIEND & BROTHER IN LAW K.JEEVARAJ, AGED 46 YEARS, S/O.KUTTAPPAN, MAMOTH HOUSE, SASTHA JUNCTION, PALLURUTHY, COCHIN. 682 020. ``` ``` 2K.CHENTHAMARAKSHAN, 11/358 A, PANKAJ ROAD, MARADU.P.O, COCHIN. 682 041. 3SELJO AUGUSTINE, S/O.AUGUSTINE, VARANDAYUNIYIL VEETTIL, ``` M.A.C.A.Nos.2716/12& 610/13 -:2:- ``` EAST OF NARASIMHASWAMY TEMPLE, PALAKKATTUMALA KARA, PALA, KOTTAYAM. ``` ``` BY ADVS.SMT.M.MANJU SRI.K.R.RANJITH SRI.R.SUDHISH ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 29.03.2022, ALONG WITH MACA.NO.610/2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` M.A.C.A.Nos.2716/12& 610/13 -:3:- ## `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ``` PRESENT ``` ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` TUESDAY, THE 29[TH] DAY OF MARCH 2022 / 8TH CHAITHRA, 1944 ``` ## `MACA NO. 610 OF 2013` ``` AGAINST THE AWARD DATED 28.07.2012 IN OP(MV) NO.1890/2008 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,ERNAKULAM ``` ## `APPELLANT/PETITIONER:` ``` RAPHAEL DOMINIC, AGED 37 YEARS, S/O.DEMENIC, 403A, (18/1263), PALAKKAL HOUSE, A.K.G.LANE, NAMBIAPURAM, PALLURUTHY, COCHIN – 6. ``` ``` BY ADVS.SRI.R.SUDHISH SMT.M.MANJU SRI.K.R.RANJITH ``` ## `RESPONDENTS/RESPONDENTS:` ``` 1CHENTHAMARAKSHAN, 11/358A, PANKAJ VIHAR, AYININADA, KATTITHARA ROAD, MARADU P.O., COCHIN - 682 304. ``` ``` 2SEIJO AUGUSTINE, S/O.AUGUSTINE, VARANDAYUNIYIL VEETTIL, EAST OF NARASIMHASWAMY TEMPLE, PALAKKATTUMALA KARA, PALA, KOTTAYAM - 686 575. ``` ``` 3UNITED INDIA INSURANCE COMPANY LIMITED D/O.NO.3, ERNAKULAM, COCHIN - 682 035. ``` M.A.C.A.Nos.2716/12& 610/13 -:4:- ``` BY ADVS.SRI.SHIBU JOSEPH SMT.DEEPA GEORGE SRI.P.V.JYOTHI PRASAD SRI.P.VISWANATHAN ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 29.03.2022, ALONG WITH MACA.NO.2716/2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` M.A.C.A.Nos.2716/12& 610/13 -:5:- Dated this the 29[th] day of March,2022 ## **C O M M O N J U D G M E N T** As these appeals arise from the same award in O.P.(MV)No.1890/2008 on the file of the Motor Accidents Claims Tribunal, Ernakulam, between the same parties and by the same Tribunal, they are being disposed of by this common judgment. The parties are, for the sake of convenience, referred to as per their status before the Tribunal. 2. The petitioner had filed the claim petition under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of the injuries sustained to him in an accident on 27.05.2007. It was while he was his case that, on the above said day, waiting at the bus stop at Aroor Junction along with his friend ‘C.K. Vineeth’, a tempo van bearing registration No. KL-7/AZ-5002(van), driven by the second respondent in a negligent manner, hit the M.A.C.A.Nos.2716/12& 610/13 -:6:- petitioner and his friend. Both of them had suffered multiple injuries and were treated at the Medical Trust Hospital, Ernakulam. The petitioner was treated as an inpatient from 28.05.2007 to 01.06.2007 and, thereafter, at the Medical College Hospital, Kottayam, from 01.06.2007 to 22.09.2007. The petitioner had suffered a head injury, fracture of the zygoma and multiple fracture of his ribs. The petitioner was a coolie worker by profession and was earning a monthly income of Rs.7,500/-. The van was owned by the first respondent and insured with the third respondent. Hence, he claimed an amount of Rs.29,07,000/- as compensation from the respondents, which claim was limited to Rs.20,00,000/-. 3. The other injured in the same accident also filed O.P.(MV)No.776/2008 before the same Tribunal, against the respondents, seeking compensation. 4. The respondent Nos.1 and 2 did not contest M.A.C.A.Nos.2716/12& 610/13 -:7:- both the proceedings and were set ex parte. 5. The third respondent/insurer had filed separate written statements in both the claim petitions denying the pleadings in the claim petitions. It was contended that the accident occurred due to the negligence of both the petitioners who stood on the road in violation of the traffic rules. It is also stated that the first respondent had violated the insurance policy conditions. Therefore, the third respondent is not liable to indemnify the liability of the second respondent arising out of the accident. Hence, the third respondent may be exonerated of its liability. 6. The Tribunal consolidated and jointly tried the two claim petitions. 7. The petitioners in the two claim petitions had produced and marked Exts.A1 to A15 in evidence. Exts.X1 to X3 were marked as court exhibits. 8. The Tribunal, after analysing the pleadings M.A.C.A.Nos.2716/12& 610/13 -:8:- and materials on record, allowed the captioned claim petition in part, by permitting the petitioner to recover from the third respondent an amount of Rs.9,46,000/with interest and proportionate costs. 9. Aggrieved by the impugned award, the third respondent/insurer has filed M.A.C.A.No.2716/2012 and dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioner has filed M.A.C.A.No.610/2013. 10. Heard; Adv. Smt. Deepa George, the learned counsel appearing for the appellant/insurer in M.A.C.A.No.2716/2012 and Adv. Smt. M. Manju, the learned counsel appearing for the appellant/petitioner in M.A.C.A. No.610/2013. 11. The common point that emanates for consideration in the appeals is whether the quantum of compensation awarded by the Tribunal is reasonable and just? M.A.C.A.Nos.2716/12& 610/13 -:9:- ## : **Negligence and liability** 12. Ext.A4 charge sheet filed by the Aroor Police in Crime No.212/2007 proves that the accident occurred due to the negligence of the second respondent. Undisputedly, the first respondent was the owner and the third respondent was the insurer of the van. The respondents have not let in any evidence to discredit Ext.A4 charge sheet. The third respondent has also not proved that the first respondent had violated the insurance policy conditions. Therefore, the third respondent is to indemnify the liability of the first respondent arising out of the accident. ## **Income:** 13. The petitioner had claimed that he was a coolie worker by profession and was earning a monthly income of Rs.7,500/-. Nevertheless, he did not produce any material to prove his avocation. The Tribunal had M.A.C.A.Nos.2716/12& 610/13 -:10:- fixed the ‘notional monthly income’ of the petitioner at Rs.3,000/-. 14. In **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited** [(2011) 13 SCC 236], the Hon'ble Supreme Court has fixed the notional income of a coolie worker in the year 2004, at Rs.4,500/- per month. 15. Following the yardstick in the afore-cited decision and taking note of the fact that the accident occurred in the year 2007, I re-fix the notional monthly income of the petitioner at Rs.6,000/-. ## **Disability:** 16. On an application made by the petitioner, he was referred to the Medical Board attached to the Government Medical College Hospital, Kottayam. A three member Medical Board, as per Ext.X1, assessed the ‘permanent neurological disability’ of the petitioner at 67%. The relevant finding of the M.A.C.A.Nos.2716/12& 610/13 -:11:- ## Neurologist attached to the Medical Board is as follows: ## “ Present disabilities 1. Bilateral anosmia----------3% 2. Headache, dizziness, emotional out burst and loss of memory for past events ----------7% 3. Right 3[rd] nerve palsy and diplopia ----------20% 4. Right hemiparesis, power grade 3 to 4, he can rise from sitting position and walk on level in short steps only with support----------30% 5. Incontinence----------7% Total neurological disability----------67%(sixty seven percentage)” 17. The Tribunal, on the basis of Ext.X1 and considering the fact that the petitioner was a coolie worker, fixed the ‘functional disability’ of the petitioner at 100%. 18. In **Rajkumar v. Ajayakumar** [2011(1) KLT 620(SC)], the Honourable Supreme Court has categorically held that, what needs to be looked into in an injury claim, is the functional disability of the injured/claimant. 19. It is an undisputed fact that the petitioner M.A.C.A.Nos.2716/12& 610/13 -:12:- was a coolie worker by profession. 20. On going through the above extracted portion of Ext.X1, I find that only the disabilities numbered in Sl. Nos.3, 4 and 5 have affected the avocation of the petitioner as manual labourer. 21. Sl.No.3 relates to the right 3[rd] nerve palsy, which has led the petitioner to diplopia to the extent of 20%. Nonetheless, the said disability would not affect the petitioner from carrying on his avocation, but the disabilities certified at Sl. Nos.4 and 5, would certainly have a bearing on the petitioner's avocation. 22. On a re-appreciation of Ext.X1 and on a consideration of the disabilities at Sl. Nos.3 to 5, I am of the firm view that the petitioner's functional disability can be fixed at 50%, instead of 100% fixed by the Tribunal. ## **Future prospects** 23. In **V. Mekala v. M.Malathi and another** M.A.C.A.Nos.2716/12& 610/13 -:13:- [(2014) 11 SCC 178], **Jagdish v. Mohan and others** [(2018) 4 SCC 571], **Pappu Deo Yadav v. Naresh Kumar & others** [AIR 2020 SC 4424] and **Anthony** **@ Anthony Swamy vs The Managing Director,** K.S.R.T.C [ (2020) 7 SCC 161], the Hon'ble Supreme Court has repeatedly reminded the Tribunals/Courts that in a case of serious injury, the injured-claimant is entitled to future prospects. 24. Following the ratio decidendi in the afore-cited decisions and considering the ‘functional disability’ of the petitioner fixed at 50%. I hold that the petitioner is entitled to ‘future prospects’ @ 40%, as he was aged 32 years at the time of accident. ## **Multiplier:** 25. The petitioner was aged 32 years at the time of the accident. In the light of the law laid down in **Sarla Verma and others v. Delhi Transport Corporation and others** [(2010) 2 KLT 802 (SC)],the M.A.C.A.Nos.2716/12& 610/13 -:14:- relevant multiplier to be adopted is '16'. ## **Loss of earning capacity:** 26. Taking into account the above-mentioned factors i.e., the notional monthly income of the petitioner at Rs.6,000/-, his functional disability at 50%, the multiplier at '16’ and after adding 40% towards ‘future prospects’, I hold that the petitioner is entitled to an amount of **Rs.8,06,400/-** , towards ‘loss of earning capacity’, instead of Rs.5,76,000/- awarded by the Tribunal. ## **Loss of earnings:** 27. As the Tribunal had fixed the ‘functional disability’ of the petitioner at 100%, the Tribunal did not award any amount under the head ‘loss of earnings’. 28. Taking into account the fact that the accident occurred on 27.05.2007 and that the claim petition was filed on 15.09.2008, I hold that the petitioner was M.A.C.A.Nos.2716/12& 610/13 -:15:- indisposed for a period of 12 months. 29. In view of the re-fixation of the notional monthly income of the appellant at Rs.6,000/-, I award him an amount of **Rs.72,000/-** under the head ‘loss of earnings’ 30. With respect to the other heads of compensation awarded by the Tribunal, I find the same to be reasonable and just compensation. Nonetheless, the amount of Rs.50,000/- awarded by the Tribunal towards ‘future treatment’ shall not carry any interest. 31. On an comprehensive re-appreciation of the pleadings, materials on record and the law referred to in the afore-cited decisions, I am of the considered opinion that the appellant in M.A.C.A.No.610/2013/petioner is entitled to enhancement of compensation as modified and re-calculated above and given in the table below for easy reference. M.A.C.A.Nos.2716/12& 610/13 -:16:- |Sl.No|Head of claim|Amount<br>awarded by the<br>Tribunal (in<br>rupees)|Amounts<br>modified and<br>recalculated<br>bythis Court| |---|---|---|---| |1|Loss of earnings|Nil|72,000| |2|Transport expenses|3,000|3,000| |3|Extra nourishment|10,000|10,000| |4|Damage to clothes<br>and articles|1,000|1,000| |5|Medical expenses|56,000|56,000| |6|Bystander expenses|25,000|25,000| |7|Pain and sufferings|75,000|75,000| |8|Compensation for<br>continuing and<br>permanent<br>disability and loss<br>of earning power|5,76,000|8,06,400| |9|Future treatment|50,000|50,000| |10|Compensation for<br>short expectation in<br>life|Nil|Nil| |11|Compensation for<br>marriageprospects|75,000|75,000| |12|Compensation for<br>loss of amenities<br>and enjoyment in<br>life|75,000|75,000| ||**TOTAL**|**9,46,000**|**12,48,400**| M.A.C.A.Nos.2716/12& 610/13 -:17:- In the result, the appeals are disposed of by holding that appellant in M.A.C.A.No.610/2013/petitioner is entitled to enhancement of compensation by a further amount of 3,02,400/- out of which only an amount of Rs.2,52,400/- would carry interest at the rate of 6% per annum from the date of petition till the date of deposit, after deducting interest for a period of 111 days (i.e., the period of delay in preferring this appeal and as ordered by this Court on 25.02.2019 in C.M.Appln.No.774/2013) and proportionate cost. The appellant in M.A.C.A.No.2716/2012/third respondent-insurer is ordered to deposit the enhanced compensation with interest and costs as ordered above within a period of sixty days from the date of receipt of a certified copy of this judgment. Immediately on the compensation amount being deposited, the Tribunal shall disburse the deposited amount to the appellant in M.A.C.A.Nos.2716/12& 610/13 -:18:- M.A.C.A.No.610/2013/petitioner in accordance with law. ``` Sd/- ``` ## **C.S.DIAS,JUDGE** DST/29.03.22 //True copy/ P.A.To Judge