MACA Nos. 497 and 914 of 2013 (United India Insurance Co. Ltd. v. O. M. Abraham and Others)

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **THURSDAY, THE 26TH DAY OF AUGUST 2020 / 15TH SRAVANA, 1942** ## **MACA.No.497 OF 2013** **AGAINST THE AWARD IN OP[MV] NO.278/2001 DATED 18-10-2012 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, KALPETTA** ## **APPELLANT/3RD RESPONDENT:** **UNITED INDIA INSURANCE COMPANY LIMITED S.BATHERI, NOW REPRESENTED BY ITS MANAGER REGIONAL OFFICE, "SHARANYA", HOSPITAL ROAD, KOCHI - 11.** **BY ADVS. SRI.MATHEWS JACOB (SR.) SRI.P.JACOB MATHEW** ## **RESPONDENTS/PETITIONER & RESPONDENTS 1 & 2:** **1 O.M.ABRAHAM S/O.MATHAI, OLAPPURAKKAL HOUSE, KUPPADI P.O., S.BATHERI TALUK, WAYANAD DISTRICT 673 320.** **2 BABY S/O.PHILIPOSE, EDAPPALLIMATTOM HOUSE NEAR KSRTC GARAGE, S.BATHERI P.O. 673 320.** **3 F.P.GEORGE, EDAPPALLIMATTOM HOUSE, KOLAGAPPARA P.O. MEENANGADI, WAYANAD DISTRICT 673 380.** **R1 BY ADV. SRI.MATHEW KURIAKOSE** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 26.08.2020, ALONG WITH MACA.914/2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA.Nos.497 & 914 OF 2013 2 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **THURSDAY, THE 26TH DAY OF AUGUST 2020 / 15TH SRAVANA, 1942** ## **MACA.No.914 OF 2013** **AGAINST THE AWARD IN OP[MV] NO.278/2001 DATED 18-10-2012 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, KALPETTA** ## **APPELLANT/PETITIONER:** **O M ABRAHAM, S/O.MATHAI AGED 61 YEARS OLAPPURAKKAL HOUSE, KUPPADI POST, KUPPADI AMSOM DESOM OF SULTHAN BATHERY TALUK, WAYANAD DISTRICT.** **BY ADV. SRI.MATHEW KURIAKOSE** ## **RESPONDENTS/RESPONDENTS:** |**1**|**BABY, S/O.PHILIPOSE**| |---|---| ||**EDAPPALLIMATTOM HOUSE, NEAR K.S.R.T.C.GARAGE**| ||**SULTHAN BATHERY POST, SULTHAN BATHERY.**| |**2**|**E.P. GEORGE**| ||**EDAPPALLIMATTOM HOUSE, KOLAGAPPARA POST,**| ||**MEENANGADI, WAYANAD.**| |**3**|**UNITED INDIA INSURANCE CO.LTD.**| ||**NOPORANAI BUILDINGS, CHUNGAM, SULTHAN BATHERY.**| **R1, R3 BY ADV. SRI.A.R.GEORGE** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 26.08.2020, ALONG WITH MACA.497/2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA.Nos.497 & 914 OF 2013 3 ## **JUDGMENT** **The appellants are the Insurance Company and the claimant. The Insurance Company has filed the appeal alleging that the accident as submitted in the claim petition never occurred. The claimant, while riding a motor bike, fell off the bike and there was no vehicle involved, is the argument raised by the insurer. The FIR was lodged after a period of one month and the hospital records indicated the cause of injury as “fall from the bike”. Once the claim petition was dismissed for reason of not having proved the accident as described in the petition. The claimant filed an appeal, in which there was a direction to adduce further evidence as to the accident having occurred in the manner pleaded. On remand, there was no independent witness examined as was directed by the Hon'ble High Court. In such circumstances, the** MACA.Nos.497 & 914 OF 2013 4 **claim petition ought to have been dismissed. It is also alleged that the compensation granted is on the higher side.** **2. Learned Counsel for the appellant/ claimant would submit that though no independent witness was examined, there were documents produced to explain the delay in registering the FIR as also the mistake committed insofar as the cause of accident as recorded by the hospital. It is contended that the appellant/claimant had suffered 70% disability and is partially paralysed on one side. The compensation has to be enhanced, is the contention in the appeal of the appellant/claimant.** **3. Looking at the evidence adduced on remand, this Court cannot find that there was no explanation offered for the delay in registering the FIR. The mistake committed in recording the 'history and alleged cause of injury' has also been satisfactorily explained. In this context,** MACA.Nos.497 & 914 OF 2013 5 **reference can be made to the judgment of the Division Bench of this Court in MACA No.2872 of 2008 on 27.07.2012, wherein the remand was made at the first instance. The examination of an independent witness to prove the accident was a mere observation by the Division Bench and not a direction as such. In fact, the remand was made on the specific contention raised by the appellant/ claimant that if an opportunity is given, he would be in a position to prove the case to the satisfaction of the Tribunal. Before the Tribunal, after remand, the claimant relied on the copy of the records furnished by the Criminal Court to the accused, as per Section 207 of the Code of Criminal Procedure, which was produced by the accused/driver on an application filed by the appellant/claimant as I.A. No.2739 of 2012. The said document, the charge sheet, was marked by the Tribunal as Exhibit-B1 and relied upon, especially finding the** MACA.Nos.497 & 914 OF 2013 6 **said document to be certified by the Investigating Officer as provided under the Cr.P.C.** **4. Exhibit-B1 contains the Wound Certificate issued by the Doctor in attendance at Priya Nursing Home, Sultan Batheri, where the appellant/claimant was first admitted. The accident is said to have occurred at Kuppadi at 8.45pm. The wound certificate clearly shows that the petitioner was taken to a hospital at nearby Sulthan Bathery, where he reached by 9.15 pm on the date of occurrence, which is within a span of 30 minutes. Obviously, due to serious injuries occasioned, the appellant/claimant was taken to Baby Memorial Hospital at Calicut, a higher medical center. It was the Wound Certificate issued from the Baby Memorial Hospital, which indicated the accident having been caused by “a fall from bike”. This Court has examined the Accident Register-cum-Wound Certificate issued by the Baby Memorial Hospital,** MACA.Nos.497 & 914 OF 2013 7 **which indicates the patient having been brought to the hospital on 20.07.2000 at 1.15am. Obviously, when the accident occurred at 8.45pm on 19.07.2000, he was taken to the nearby hospital, where he reached within half an hour and then transferred to a Medical Center having better facility to deal with the grievous injuries caused, where he reached at 1.15 am. Kozhikkode is about 100 kilometers away from Sulthan Bathery. Considering the injuries caused it is quite probable that the injured was disoriented. The contention of the appellant/ claimant is also that when he was brought to Baby Memorial Hospital, he was unconscious and the person who accompanied him to the hospital spoke about the 'fall from a motor bike'. Admittedly, the petitioner was an inpatient, who was treated in the Baby Memorial Hospital for a period of one month. The delay in the FIR as rightly found by the Tribunal is satisfactorily explained. The Tribunal** MACA.Nos.497 & 914 OF 2013 8 **has also noticed that the police conducted an investigation and registered a charge-sheet, wherein the jeep driver is shown as the accused. In the circumstances as stated above, though no independent witness was examined, there is sufficient evidence before the Tribunal to find the accident having occurred as stated in the claim petition. Negligence as against the driver of the jeep has also been established. Since there is a valid insurance policy, and there is no allegation of violation of conditions of policy, necessarily the Insurance Company will have to indemnify the owner.** ## **5. Now the question is as to the** **enhancement of compensation as claimed by the appellant/claimant and the challenge to quantum as raised by the Insurance Company, which can be considered together. The appellant/claimant admittedly was an employee of a Co-operative Bank,** MACA.Nos.497 & 914 OF 2013 9 **who had proved the same by production of Salary Certificate. There was an additional income claimed from agriculture. The Tribunal adopted Rs.3,000/as the notional income of the appellant/claimant. However, the Tribunal also found that the appellant/claimant had continued employment with the Co-operative Bank. The appellant/claimant admittedly suffered permanent disability of 70%. However, this does not result in any functional disability for reason of the appellant/claimant having continued in the employment. There was also no evidence as to the agricultural income for the appellant/claimant, who admittedly was a Bank employee. Further the appellant being a Bank Employee could not have personally engaged himself in the agricultural activity and it could only have been with hired help, which can be continued after the accident too. In such circumstances, the compensation for permanent disability as awarded by** MACA.Nos.497 & 914 OF 2013 10 **the Tribunal cannot be sustained. The further submission of the learned Counsel for the appellant is that the multiplicand adopted is only 9, especially taking note of the loss of earning capacity after retirement, for which the notional income from agriculture alone has to be calculated. The appellant was aged 48. In such circumstances, there was no scope for applying the multiplicand of 9. As found earlier, the appellant continued in the employment and he would superannuate only at the age of 60. So the appellant would retire only after 12 years. Hence the multiplicand adopted at 9 cannot be sustained nor the award under the head permanent disability. In such circumstances, this Court does not find any reason to grant compensation for permanent disability. However, the loss of amenities has to be enhanced considering the disability of 70%.** **6. It is to be noticed that the** MACA.Nos.497 & 914 OF 2013 11 **appellant/claimant had 70% disability and had suffered hospitalisation for 243 days, ie. more than 8 months. The injuries suffered by the appellant are the following:** - **“1. Fissure fracture skull [right temporal]** **2. Right temporal extra dural haematoma.** **3. Right fronto temporal intra cerebral haematoma.** **4. Multiple abrasions.** **5. X-ray skull had confirmed fissure fracture skull.** **6. C.T. Scan head had also confirmed right** **temporal extra dural.”** **The appellant/claimant had a contention with** **respect to his having taken leave, which resulted in loss of pay. The Tribunal found that the leave availed by the appellant/claimant for 132 days resulted in a loss and assessed the total loss of income of Rs.97,545/-.** _**George v. Krishan Venu & Others [ILR 2020 (3) Kerala 402]**_ **, finds leave availed also to be reckoned for the purpose of** MACA.Nos.497 & 914 OF 2013 12 **granting compensation for loss of earning. A leave availed by an injured in an accident would not have been availed if the accident had not occurred. To that extent, he could have enjoyed the leave for other purposes and could have also encashed the same as per the service rules. In such circumstances, merely because there was paid leave available to the appellant/claimant and the same was availed for his absence from duty, it cannot be treated as a ground for denying the compensation for loss of earning. It was in that circumstances, Rs.97,545/- has been granted to the appellant/ claimant as wages** _**in lieu**_ **of leave, which is not liable to be interfered with. There is an additional submission that the appellant/claimant, by reason of the accident, was denied promotion, which is proved by Annexure A13. The loss caused is said to be Rs.9,414/-. In such circumstances, an amount of Rs.10,000/- would be added to loss of** MACA.Nos.497 & 914 OF 2013 13 **earning.** **7. As far as the bystander's expense it has to be computed @ Rs.200/- per day and for extra nourishment, considering the injuries caused and incapacitation for a long period, the same has to be enhanced to Rs.25,000/-. For pain and suffering, Rs.75,000/- has to be awarded, especially looking at the serious injuries and the disability caused of 70%. As far as the loss of amenities and inconvenience caused, again noticing the fact that the appellant/claimant had suffered 70% disability, this Court is of the opinion that a compensation of Rs.2 lakhs is to be awarded under the said head. There is no scope for granting any compensation for permanent disability and that would stand deleted. Considering the disability, the compensation granted for loss of life expectancy and to defray the expenses to have a nursing attendant is not liable to be interfered with.** MACA.Nos.497 & 914 OF 2013 14 ## **8. Accordingly, the following modification** **is made to the award made by the Tribunal:** |**Sl.**<br>**No.**|**Head of Claim**|**Amount**<br>**awarded by**<br>**the Tribunal**<br>`|**Total amount**<br>**after**<br>**enhancement in**<br>**appeal**<br>`| |---|---|---|---| |**1**|**Income/notional income**|**3,000**|**------**| |**2**|**Loss of earning**|**97,545**|**1,07,545**| |**3**|**Medical and**<br>**miscellaneous expenses**|**1,08,500**|**1,08,500**| |**4**|**Bystander's expenses**|**2,700**|**5,400**| |**5**|**Transportation expenses**|**8,400**|**8,400**| |**6**|**Extra nourishment**|**2,700**|**25,000**| |**7**|**Damage to clothing**|**500**|**500**| |**8**|**Pain and suffering**|**30,000**|**75,000**| |**9**|**Loss of expectation of**<br>**life**|**5,000**|**5,000**| |**10**|**Compensation for**<br>**permanent disability**|**2,26,800**|**------**| |**11**|**Loss of amenities and**<br>**conveniences caused**|**10,000**|**2,00,000**| |**12**|**Expenses for appointing**||| MACA.Nos.497 & 914 OF 2013 15 ||**a nurse-cum-driver to**<br>**look after day-to-day**<br>**affairs.**|**50,000**|**50,000**| |---|---|---|---| ||**Total**|**5,42,145**|**5,85,345**| **MACA No.497 of 2013 and MACA No.914 of 2013 are partly allowed. The payment as per the award and the modification made herein shall be made within three months with interest as directed by the Tribunal @ 7.5%, after deducting the amounts already paid or deposited. The appellant shall not be entitled to interest for 107 days for the amounts enhanced, which is the delay occasioned in filing the appeal. The appellant shall produce a copy of a cancelled cheque of the Bank Account in a Nationalized Bank in his name, with copy of AADHAAR or acceptable identification, before the Tribunal within one month, with copy to the Insurance Company. The Insurance Company shall credit the amounts through NEFT/RTGS mode to the said account,** MACA.Nos.497 & 914 OF 2013 16 **failing which the Tribunal shall proceed with the recovery in accordance with law. Parties to suffer their respective costs.** **Sd/-** **K. VINOD CHANDRAN, JUDGE.** **sp/06/08/2020**