MACA Nos. 2764 of 2018 and 2883 of 2019 (SBI General Insurance Company Ltd. vs Sajeev; Sajeev vs SBI General Insurance Company Ltd.)

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN TUESDAY, THE 28[TH] DAY OF MARCH 2023 / 7TH CHAITHRA, 1945 MACA NO. 2764 OF 2018** **AGAINST THE ORDER/JUDGMENT OPMV 131/2015 OF ADDITIONAL DISTRICT COURT & MOTOR ACCIDENT CLAIMS TRIBUNAL, NORTH** ## **PARAVUR** ## **APPELLANT/3RD RESPONDENT:** SBI GENERAL INSURANCE COMAPNY LTD., NATARAJ, 101, 201 AND 301 JUNCTION OF WESTERN EXPRESS HIGH WAY AND ANDHERI KURLA ROAD, ANDHERI EAST, MUMBAI-400 069. BY ADVS. K.J.SAJI ISAAC ELIZABETH VARKEY JITHIN SAJI ISAAC ## **RESPONDENTS/PETITIONERS & 1ST & 2ND RESPONDENTS:** 1 SAJEEV AGED 50 YEARS, S/O.SUBRAHMANYAN, ILAYEDATH HOUSE, PALLYATHURUTH KARA, VADAKKEKKARA, PIN - 683522 2 SAJEEV (DELETED) S/O. KESAVAN, ARUMANGODE HOUSE, NEAR MANJADI MOSQUE, NOCHULLI P.O., KUZHALMANNAM, PALAKKAD. 3 ANTONY SANEER S/O.PETER, HOUSE NO.12/318(7/951), CHATHANADU HOUSE, NEAR COCHIN COLLEGE KUVAPPADAM, MATTANCHERRY, KOCHI-2, PIN – 682002 (THE NAME OF R2 IS DELETED FROM THE PARTY ARRAY AT THE RISK OF THE APPELLANT VIDE ORDER DATED 07.02.2019 IN IA.NO.1/2019.) BY ADV A.N.SANTHOSH THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 28.03.2023, ALONG WITH MACA.2883/2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.A.C.A.No.2764 of 2018 and 2883 of 2019 : 2 : **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN TUESDAY, THE 28[TH] DAY OF MARCH 2023 / 7TH CHAITHRA, 1945 MACA NO. 2883 OF 2019** **AGAINST THE ORDER/JUDGMENT OPMV 131/2015 OF ADDITIONAL DISTRICT COURT & MOTOR ACCIDENT CLAIMS TRIBUNAL, NORTH PARAVUR** ## **APPELLANT/PETITIONER:** SAJEEV AGED 54 YEARS, S/O. SUBRAMANIAN, ILAYEDATH HOUSE, PALLYATHURUTH KARA, VADAKKEKARA VILLAGE, PARAVUR. BY ADV A.N.SANTHOSH ## **RESPONDENT/3RD RESPONDENT:** SBI GENERAL INSURANCE COMPANY LTD. NADARAJ, 101, 201, 301, JUNCTION OF WESTERN EXPRESS HIGHWAY, AND ANDHERI KURLA ROAD, ANDHERI EAST, MUMBAI. BY ADVS. SRI.K.J.SAJI ISAAC DR.ELIZABETH VARKEY THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 28.03.2023, ALONG WITH MACA.2764/2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.A.C.A.No.2764 of 2018 and 2883 of 2019 : 3 : ## **DEVAN RAMACHANDRAN, J. ========================= M.A.C.A.Nos. 2764 of 2018 & 2883 of 2019 ========================== Dated this the 28[th] day of March, 2023** ## **JUDGMENT** Among the two appeals above – which have been heard together, MACA No.2883/2019 has been filed by the claimant in OP(MV)No.131/2015 before the Motor Accidents Claims Tribunal, North Paravur; while, MACA No.2764/2018 has been filed by SBI General Insurance Company Ltd., which insured the offending vehicle involved in a road accident, that occurred on 05.03.2014. 2. It is conceded by both sides that the appellant in MACA No.2883/2019 (who will hereinafter referred to by his name, Sri.Sajeev) was involved in a road accident on 05.03.2014, when the scooter he was riding was knocked down by the offending lorry driven in a rash and negligent manner. He sustained very serious injuries and had to be treated for a long period of time, including for 100 days as inpatient; and he, thereupon, filed the afore Original Petition, seeking compensation of an amount of Rs.1,16,03,000/-, limited to Rs.50,00,000/-; but which has been allowed only to a sum of Rs.28,64,506/-. He thus assails the Award as being inadequate. 3. The Insurance Company, on the other hand, argued that the compensation awarded by the learned Tribunal under various M.A.C.A.No.2764 of 2018 and 2883 of 2019 : 4 : heads is excessive; and thus pleads that same be scaled down, as per the binding precedents. 4. I have heard Sri.A.N.Santhosh, learned counsel appearing for Sri.Sajeev – appellant in MACA No.2883/2019, and Sri.Saji Isaac K.J., learned Standing Counsel for the Insurance Company – appellant in MACA No.2764/2018. 5. I have evaluated the afore rival submissions on the touchstone of various materials and evidence on record – copies of which have been handed over across the Bar by the learned counsel for the parties, with the express consent that they can be acted upon by this Court without dispute. 6. The primary contest between the parties is as to the notional income adopted by the Tribunal in favour of Sri.Sajeev. He had claimed that he was a professional driver, earning Rs.20,000/- per month, and he had deposed to such effect, when he took the box as PW1. However, the learned Tribunal did not accept the same, finding that, in the absence of corroborating evidence, his statements cannot be found to be credible; and hence fixed the notional income to be Rs.9,000/- per month. However, in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Ltd. [(2011) 13 SCC 236],** even in the case of a “Coolie”, or a person with an unascertainable income in the year 2014 – when the accident occurred – the minimum figure M.A.C.A.No.2764 of 2018 and 2883 of 2019 : 5 : to be adopted as notional income is Rs.9,500/-. Since Sri.Sajeev had taken the box as PW1 and deposed that he was a professional driver, I see no reason to disbelieve him totally; and therefore, am of the view that he must be granted a better notional income, guided by **Rajani v. Oriental Insurance Co.Ltd. [2022 (5) KLT Online 1012 (SC)],** which postulates that in the case of a person who is engaged in technical avocation, a robust view has to be taken. I, therefore, propose an amount of Rs.10,000/- as the notional income of Sri.Sajeev, which is only a mere Rs.500/- more than what is postulated in **Ramachandrappa (supra)** for a “Coolie”. 7. That said, since Sri.Sajeev is now admitted to be 52 years old (though taken by the Tribunal to be 50), at the time of the accident, future prospects at the rate of 10% becomes eligible to be added to his notional income, as per **National Insurance Company Ltd. v. Pranay Sethi [2017 (4) KLT 662].** 8. The medical evidence on record, particularly Ext.X1 – Disability Certificate, shows that Sri.Sajeev has suffered amputation and that his disability has been assessed to be 63%. However, the learned Tribunal has accepted this to be 100% functionally, which is based on other medical evidence, namely Ext.A4 – Wound Certificate, which records his injuries to be as follows: _near total amputation of the right leg with absent pulse,_ M.A.C.A.No.2764 of 2018 and 2883 of 2019 : 6 : _lacerated wound of 15 x 10 cm with “bone exposed bone distal vascularity feeble” on the left leg_ (sic). Hence, I find conclusions of the learned Tribunal in this regard to be without any error. 9. That said, I notice that the learned Tribunal has awarded only Rs.19,200/- towards “Bystander's Expenses” and Rs.6,000/under the head “Extra Nourishment”, it has done so under the wrong impression that Sri.Sajeev was hospitalised only for 64 days. In fact, the medical records indubitably reveal that he was hospitalised for nearly 100 days. Obviously, therefore, the per day expenses for this will have to be reckoned much higher than what has been taken by the Tribunal, which I propose to be Rs.250 and Rs.350, respectively. 10. Pertinently, the learned Tribunal then has awarded Rs.1,00,000/- each under the heads “Pain and Sufferings” and “Loss of Amenities and Enjoyment in Life”. This is adverting to the fact that Sri.Sajeev has suffered amputation of his leg. It thereafter found that he is fitted with an artificial leg, but the life of which is only 8 years and which will hence require replacement; thus granting him a further amount of Rs.1,50,000/- towards “Future Medical Expenses”. I cannot find any of these findings of the learned Tribunal liable to be interfered with, because they are all just and fairly fixed, taking note of the trauma, pain and agony suffered by Sri.Sajeev, on account of his injuries, particularly M.A.C.A.No.2764 of 2018 and 2883 of 2019 : 7 : ## amputation of the leg. 11. Further, on the question of future treatment, even though the learned Tribunal has awarded Rs.1,50,000/- under the said head, Sri.Sajeev has now produced an additional document, namely, Annexure A1, which is an original quotation from a prosthetic limb company, showing that “he would require an amount of Rs.3,94,000/-”. However, Sri.Saji Isaac K.J. – learned Standing Counsel for the Insurance Company, submitted that his client cannot accept this document without proof; and therefore, that they would not stand in the way of the matter being remanded to the learned Tribunal for assessment of the actual figure. I am certain that this Court will be justified in acceding to the same, particularly when Sri.A.N.Santhosh – learned counsel for Sri.Sajeev, also did not oppose it, but welcomed the same. 12. I, however, clarify that even though this Court finds no error in the grant of Rs.1,50,000/- towards future treatment, the question whether it will require to be enhanced, based on the new document on record, persuades this Court to remand it to the learned Tribunal on this sole issue. In the afore circumstances, these appeals are disposed of in the following manner: (a) The compensation under the head “Loss of Earning Power” is enhanced to Rs.17,16,000/from Rs.15,44,400/-, reckoning the notional income of the M.A.C.A.No.2764 of 2018 and 2883 of 2019 : 8 : appellant to be Rs.10,000/- per month, with 10% future prospects added to it and taking his percentile of disability to be 100%, as correctly reckoned by the learned Tribunal. (b) The compensation under the head “Extra Nourishment” is enhanced to Rs.25,000/-, from Rs.6,000/- awarded by the Tribunal, reckoning Rs.250/as per day expense, for 100 days of hospitalisation. (c) The compensation under the head “Bystander's Expenses” is enhanced to Rs.35,000/- from Rs.19,200/awarded by the Tribunal, reckoning the per day expenses for the same to be Rs.350/-, for 100 days of hospitalisation. - (d) In all other heads, the compensation awarded by the Tribunal will remain unaltered. (e) However, to decide necessity of enhancement of sums under “Future Treatment Expenses” alone, the Original Petition will stand remanded to the learned Tribunal; which will do so, after affording necessary opportunities to both sides to lead additional/fresh evidence and for further hearing; thus culminating in a fresh Award in this sole regard, as expeditiously as is possible, but not later than six months from the date of receipt of a copy of this judgment. The parties shall M.A.C.A.No.2764 of 2018 and 2883 of 2019 : 9 : appear before the learned Tribunal at 11 a.m on 26.04.2023 for this purpose. (f) I clarify that the remand has been ordered only to verify whether any amount over Rs.1,50,000/-, as has been granted by the Tribunal, is necessary, based on new evidence/document; and, therefore, if any such amount is found, only the balance will be offered. (g) Consequently, Sri.Sajeev will be at full liberty to recover the compensation, as enhanced by this Court, from the Insurance Company, subject to any further enhancement to be granted by the learned Tribunal consequent to the afore order of remand, at the rate of 7.5% from the date of claim until it is recovered. He will also be entitled to proportionate costs, on the enhanced amount, as ordered by the Tribunal. The Insurance Company shall deposit the compensation amount, as fixed above – subject to any enhancement to be granted by the Tribunal in terms of the order of remand afore – within a period of two months from the date of Award of the Tribunal. ## **Sd/DEVAN RAMACHANDRAN JUDGE** anm M.A.C.A.No.2764 of 2018 and 2883 of 2019 : 10 : ## **APPENDIX OF MACA 2883/2019** PETITIONER ANNEXURES ANEXURE A1 ORIGINAL QUOTATION DATED 15/3/2023 ISSUED BY JEROM REHAD CENTRE, THRISSUR.