M.A.C.A. Nos. 698 of 2016 and 1675 of 2016 (Oriental Insurance Co. Ltd. v. Arun C. Mani)

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE T.R.RAVI** **FRIDAY, THE 26[TH] DAY OF NOVEMBER 2021 / 5TH AGRAHAYANA, 1943** **MACA NO. 698 OF 2016** **AGAINST THE AWARD IN OPMV 761/2013 OF MOTOR ACCIDENT CLAIMS TRIBUNAL-I, (ADDL.DISTRICT JUDGE-I)PATHANAMTHITTA** ## **APPELLANT/2ND RESPONDENT IN THE OP:** THE ORIENTAL INSURANCE CO. LTD. KOLLAM, REPRESENTED BY THE AUTHORISED SIGNATORY, THE ORIENTAL INSURANCE COMPANY LTD, REGIONAL OFFICER, METRO PALACE, ERNAKULAM NORTH, KOCHI-18. BY ADV SRI.A.R.GEORGE ## **RESPONDENT/CLAIMANT:** ARUN C.MANI @ DEEPU S/O.CHANDRA MANI, PATTAPPARAMBIL VEEDU, PADINJAREKARA, NEDUMPRAM P.O., PIN-689 578. BY ADV SRI.T.K.BIJU (MANJINIKARA) THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 29.9.2021 ALONG WITH MACA.1675/2016, THE COURT ON 26.11.2021, DELIVERED THE FOLLOWING: M.A.C.A.Nos.698 & 1675 OF 2016 2 # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR. JUSTICE T.R.RAVI** **FRIDAY, THE 26[TH] DAY OF NOVEMBER 2021 / 5TH AGRAHAYANA, 1943 MACA NO. 1675 OF 2016** **AGAINST THE AWARD IN OPMV 761/2013 OF MOTOR ACCIDENT CLAIMS TRIBUNAL-I, (ADDL.DISTRICT JUDGE-I)PATHANAMTHITTA APPELLANT/PETITIONER IN OP(MV):** ARUN C. MANI @ DEEPU AGED 27 YEARS S/O. CHANDRAMANI, PATTAPARAMBIL VEEDU, PADINJAREKARA, NEDUMPRAM P.O. BY ADVS. SRI.T.K.BIJU (MANJINIKARA) SMT.ANNIE M.ABRAHAM ## **RESPONDENT/2ND RESPONDENT IN THE OP(MV):** THE ORIENTAL INSURANCE CO. LTD DIVISIONAL OFFICE, THIRUVALLA-689 647. BY ADV SRI.A.R.GEORGE THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 29.9.2021 ALONG WITH MACA.698/2016, THE COURT ON 26.11.2021 DELIVERED THE FOLLOWING: M.A.C.A.Nos.698 & 1675 OF 2016 3 ## **T.R. RAVI, J.** ## **--------------------------------------------** ## **M.A.C.A.Nos.698 & 1675 OF 2016** -------------------------------------------Dated this the 26[th] day of November, 2021 ## **JUDGMENT** M.A.C.A.No.698 of 2016 has been filed by the insurance company who was the 2[nd] respondent in OP(MV) No.761 of 2013 before the Tribunal contending that the amount awarded by the Tribunal is excessive. M.A.C.A.No.1675 of 2016 has been filed by the claimant before the Tribunal, claiming enhanced compensation. The parties are referred to as Claimant and Insurer. 2. On 27.2.2013, the motorcycle which was driven by the claimant was hit by another motorcycle driven in a rash and negligent manner, resulting in grievous injury to the claimant. The claimant suffered fracture of the tibia and fibula (L) leg, fracture Zigomatic complex ZMC (L), multiple abration on face, right hand and left hand, lacerated wound on the left eyebrow and laceration on the forehead. He was taken to the Pushpagiri Medical College Hospital, Thiruvalla and was treated as inpatient for one day. He was referred to TMM Hospital, Thiruvalla where he remained in treatment as inpatient from 28.2.2013 to 14.3.2013. The claimant M.A.C.A.Nos.698 & 1675 OF 2016 4 approached the Tribunal claiming compensation of Rs.8,38,000/limited to Rs.5 lakhs. The Tribunal awarded a sum of Rs.5,57,641/as compensation. Aggrieved by the award the claimant and insurer have filed these appeals. 3. Heard the counsel for the Insurer and the claimant. 4. The Insurer challenges the quantum of compensation awarded and has also taken a contention that there was contributory negligence on the part of the claimant. The contention of contributory negligence is taken on the ground that the claimant was drunken and drowsy when taken to the hospital. On the quantum it is submitted that the Tribunal fixed a notional income of Rs.20,000/- per month, when the claim itself was made stating that the claimant was earning Rs.10,000/- per month. It is also stated that admittedly, the claimant was only having a temporary job and the Tribunal has gone wrong in treating the job as if was permanent, while adopting the notional income of Rs.20,000/-. 5. The claimant on the other hand contends that he was working as a driver and was having a license to drive heavy vehicles. It is pointed out that the final report in crime No.433 of 2013 of the Thiruvalla Police station which is produed as Exhibit A7, will clearly show that the negligence is on the part of the driver M.A.C.A.Nos.698 & 1675 OF 2016 5 of the offending vehicle and not on the part of the claimant. It is submitted that the mere presence of smell of alcohol cannot lead to an inference that the driver was under the influence of alcohol. [See **Oriental Insurance Co.Ltd. v. Vineetha Nair (2016 (3) KLT 620)** and **Jose v. United India Insurance Co.Ltd. (2015 (4) KLT 706)]** . It is further contended that in the absence of any contra evidence, the final report has to be relied upon for the purpose of deciding on the question of negligence. It is hence submitted that there was nothing wrong in the Tribunal finding that the negligence was on the part of the driver of the offending vehicle. The counsel for the claimant submits that the Tribunal went wrong in adopting the split multiplier method and should have awarded compensation for permanent disability adopting the multiplier of 18, having regard to the fact that the claimant was less than 25 years old at the time of the accident (Date of Birth 12.4.1988 as per Driving Licence). It is also submitted that he is entitled to future prospects at the rate of 30% going by the decisions in MACA No.1860 of 2015 and MACA No.1826 of 2014. Another contention that is taken is that no amount was granted towards future treatment, despite the fact that the claimant is still not able to take up the avocation of driver. It is also submitted on M.A.C.A.Nos.698 & 1675 OF 2016 6 behalf of the claimant that the amounts awarded towards pain and suffering and loss of amenities require to be increased. In reply, the counsel for insurer submits that the disability in the case of the claimant is only 15% and there is no evidence regarding requirement of any future treatment. 6. Having considered the contentions on either side, I am of the considered opinion that the award of the Tribunal needs to be modified. Following the decision in **New India Assurance Co.Ltd. v. Pazhaniammal** reported in **[(2011) 1 K.L.T 648]** , there is no reason to find that there has been contributory negligence on the part of the claimant and the said contention is rejected. The contention of the insurer that the Tribunal went wrong in adopting Rs.20,000/- as a notional income of the claimant is justified. The amount claimed as monthly income in the claim petition is only Rs.10,000/- per month. Having regard to the disability caused to the claimant by the 2 fractures, making it difficult even to walk, and the disability certificate which shows difficulty to drive, there is considerable force in the contention that he is not able to continue the avocation of driving particularly heavy vehicles. The claimant is entitled to an addition of 30% towards future prospects. The monthly income for the purpose of M.A.C.A.Nos.698 & 1675 OF 2016 7 calculating the permanent disability should be hence Rs.13,000/per month. The contention of the claimant that the Tribunal went wrong in adopting the split multiplier is also justified having regard to the fact that there can be no fixation of retirement age in the case of the claimant. In the absence of any specific reason and evidence on record the Tribunal should not apply split multiplier and should apply the multiplier as per the decision in **Sarla Verma vs Delhi Transport Corporation & Ors.** reported in **[2010 (2) KLT 802].** [See **Puttamma v. Narayana Reddy** reported in **(2014(1) KLT 738(SC))** ] **.** The loss of earnings has to be reworked on the basis of the monthly income of Rs.10,000/-. Exhibit A8 disability Certificate issued by the Standing Disablities Assessment Board of the General Hospital, Pathanamthitta, shows that the claimant cannot squat and is not able to walk long distances and has difficulty in driving except for short durations. In the above circumstances, I am of the opinion that the amount awarded towards loss of amenities and pain and sufferings should be increased to Rs.50,000/- each. Thus the claimant will be entitled to a sum of Rs.4,21,200/- (13000x12x18x15%) towards compensation for permanent disability. After deducting the amount of Rs.3,24,000/- granted by the Tribunal, the claimant will be M.A.C.A.Nos.698 & 1675 OF 2016 8 entitled to an additional sum of **Rs.97,200/-** under the above head. An additional sum of **Rs.20,000/- each** will be payable under the heads loss of amenities and pain and suffering. The accident occurred on 27.2.2013 and the claim petition was filed on 9.9.2013. I am hence of the opinion that loss of earnings has to be taken for a period of 6 months at the rate of Rs.10,000/- per month, totalling to Rs.60,000/-. Since the Tribunal has also awarded the said amount even though on a different calculation, there is no requirement for any change. Since no evidence has been tainted regarding the requirement of future medical expenses, I am of the opinion that no amount can be granted under that head. 7. In the result, both the appeals are partly allowed. The claimant is awarded an additional compensation of **Rs.1,37,200/-** (One Lakh Thirty Seven Thousand Two Hundred only) with interest at the rate of 9% per annum from the date of filing of the claim petition (09.09.2013) till the date of realisation, with proportionate costs. The Insurer shall deposit the additional compensation granted in this appeal along with the interest and proportionate costs, before the Tribunal within two months from the date of receipt of a certified copy of this judgment, after deducting any M.A.C.A.Nos.698 & 1675 OF 2016 9 amount to which the claimant is liable towards balance court fee and legal benefit fund. The disbursement of the compensation to the claimant shall be in accordance with law. Sd/- **T.R. RAVI JUDGE** dsn