MACA Nos.2416 & 3174 of 2015

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE SOPHY THOMAS MONDAY, THE 28[TH] DAY OF NOVEMBER 2022/7TH AGRAHAYANA, 1944 MACA NO.2416 OF 2015** **AGAINST THE ORDER/JUDGMENT IN OPMV 1389/2007 OF MOTOR** **ACCIDENT CLAIMS TRIBUNAL, PATHANAMTHITTA** ## **APPELLANT/3RD RESPONDENT:** THE NEW INDIA ASSURANCE COMPANY LTD BRANCH OFICE, COLLEGE ROAD, PATHANAMTHITTA, REPRESENTED BY ITS MANAGER. BY ADVS. SRI.KKM.SHERIF SRI.LAL K.JOSEPH ## **RESPONDENT/CLAIMANT:** R.SIVAKUMAR S/O.RAMAKRISHNAPANICKER, THOPPIL THEKKETHIL, NEEDOOR MURI, PALLIPADU PO, ALAPPUZHA DISTRICT 688011. BY ADV SRI.A.N.SANTHOSH THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 18.11.2022, ALONG WITH MACA.3174/2015, THE COURT ON 28.11.2022 DELIVERED THE FOLLOWING: **MACA Nos.2416 & 3174 of 2015** **2** **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE SOPHY THOMAS MONDAY, THE 28[TH] DAY OF NOVEMBER 2022/7TH AGRAHAYANA, 1944 MACA NO. 3174 OF 2015** **AGAINST THE ORDER/JUDGMENT IN OPMV 1389/2007 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, PATHANAMTHITTA** **APPELLANT/PETITIONER:** R.SIVAKUMAR S/O.RAMAKRISNA PANICKER, THOPPIL THEKKETHIL, NEEDOOR MURI, PALLIPADU P.O., ALAPPUZHA. BY ADV SRI.A.N.SANTHOSH ## **RESPONDENTS/RESPONDENTS 2 AND 3:** 1 CHANDRASEKARAN PILLAI PADEELETHU PUTHENVEEDU, BUDHANNOOR P.O., CHENGANOOR - 689 510. 2 THE BRANCH MANAGER NEW INDIA INSURANCE CO.LTD., COLLEGE ROAD, PATHANAMTHITTA - 689 645. BY ADVS. SRI.D.KISHORE SRI.LAL K.JOSEPH SRI.KKM.SHERIF **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 18.11.2022, ALONG WITH MACA.2416/2015, THE COURT ON 28.11.2022 DELIVERED THE FOLLOWING:** **MACA Nos.2416 & 3174 of 2015** **3** ## **SOPHY THOMAS, J.** --------------------------------------- MACA Nos.2416 & 3174 of 2015 --------------------------------------- Dated this the 28[th] day of November, 2022 ## **J U D G M E N T** The 3[rd] respondent in OP (MV) No.1389 of 2007 on the file of Motor Accidents Claims Tribunal, Pathanamthitta is the appellant in MACA No.2416 of 2015. The claimant/injured in the very same O.P is the appellant in MACA No.3174 of 2015. Both these appeals are directed against the impugned award dated 05.09.2014, and both the appellants are challenging the quantum of compensation awarded by the Tribunal. The insurer is alleging that the award is excessive in nature and the claimant is alleging that the compensation awarded is inadequate. 2. The appellant/injured in MACA No.3174 of 2015 met with a road traffic accident on 27.08.2007 at 12.15 p.m, while he was riding his motorcycle through Thiruvalla-Mavelikkara road. According to him, KL04-E-1400 maruti car driven by the 1[st] respondent in a rash and negligent manner, dashed against **MACA Nos.2416 & 3174 of 2015** **4** his motorcycle and he was thrown down, and he sustained serious injuries thereby. He approached the Tribunal claiming compensation of Rs.30 lakh. The Tribunal awarded compensation of Rs.23,34,008/- in total, under general and special damages. 3. The accident, injuries and the policy of the offending vehicle are not in dispute. 4. PWs 1 and 2 were examined and Exts.A1 to A30 were marked before the Tribunal, in support of the claim put forward by the injured. No oral or documentary evidence was adduced from the side of the owner, driver or insurer. 5. Now let us see whether any interference is warranted in the impugned award, as claimed by the appellants in the above appeals. 6. The appellant in MACA No.2416 of 2015 i.e. the insurer, is challenging the impugned award mainly on the ground that the monthly income of the injured fixed by the Tribunal was on the higher side, and moreover, though he was not a permanent employee with fixed income, the Tribunal gave 50% addition towards future prospects instead of 40%. 7. The injured, who is the appellant in MACA No.3174 of **MACA Nos.2416 & 3174 of 2015** **5** 2015, would contend that, he was working as Purchase Manager cum Driver in a private firm at Qatar, drawing monthly salary of Qatar Rial equivalent to Indian money Rs.41,000/-. Admittedly, he was only 36 years old as on the date of accident, as evident from his passport. Ext.A15 passport shows that, he was having visa to Qatar during the relevant period. Ext.A24 driving licence issued from Sultanate of Oman shows that, he was a Driver too, by profession. He had visa to Muscat from 1991 to 2003, as seen from Ext.A26 passport. Though there was no document to prove his monthly income, going by Ext.A19 Bank Account Statement, learned Tribunal found that, he was able to send substantial amounts to his Bank Account in India and it was corroborated by Ext.A20 counterfoils also. Though there was no evidence to prove that, he was having a permanent job in Qatar with fixed income, the documents produced by him more particularly Ext.A17 was sufficient to show that, he could have continued his job as a Driver cum Purchase Manager in Qatar. Taking into account all the relevant factors, learned Tribunal fixed his notional income @ Rs.15,000/-. Since the accident was in the year 2007, and his Bank Account Statements show sending of **MACA Nos.2416 & 3174 of 2015** **6** amounts to various accounts ranging from Rs.2,000/- to Rs.60,000/-, though it was not regular, learned Tribunal is fully justified in taking his monthly income as Rs.15,000/-. That amount is quite reasonable, as it was the income he could have earned in India as a Driver cum Purchase Manager during the period 2007. So, no interference is warranted in the monthly income fixed @ Rs.15,000/- by the Tribunal, though the Insurance Company is alleging that, the monthly income fixed by the Tribunal is on the higher side. 8. The appellant/insurer in MACA No.2416 of 2015 has got another contention that, the learned Tribunal went wrong in awarding 50% addition towards future prospects to the notional income of Rs.15,000/-. According to them, going by the decision **National Insurance Company Ltd.** vs. **Pranay Sethi and Others** (AIR 2017 SC 5157), since the injured was not having a permanent job with fixed salary, the addition towards future prospects ought to have been 40% only. Going by **Pranay Sethi's** case cited supra, a self employed person below 40 years is eligible to get only 40% addition towards future prospects. So, the contention of the appellant/insurer in MACA No.2416 of 2015 is tenable to that extent. Hence, for **MACA Nos.2416 & 3174 of 2015** **7** assessing compensation for the loss of earning capacity, on account of 40% permanent disability suffered by the injured, the income has to be calculated giving 40% addition towards future prospects. If so, the multiplicand would be Rs.21,000/(15000+40%). The multiplier applicable is 15 as he was aged only 36 years. So, the compensation for permanent disability has to be reassessed as Rs.15,12,000/(21000x12x15x40/100). The Tribunal awarded Rs.16,20,000/under the head 'loss of earning capacity'. So, there is excess payment of Rs.1,08,000/- (16,20,000-15,12,000), and that amount is liable to be deducted. There is no serious challenge by the insurer against the quantum of compensation awarded under other heads. 9. MACA No.3174 of 2015 was filed by the appellant/injured after receipt of notice in the appeal filed by the insurer. He filed the appeal contending that, the amount awarded by the Tribunal was inadequate, as he had suffered serious injuries in the accident including crush injury on his right leg and foot. He became disabled from continuing his job as a Driver. Though the disability assessed by the Doctor was 40%, in fact, the functional disability was more than that. **MACA Nos.2416 & 3174 of 2015** **8** 10. Learned counsel for the insurer contended that, if at all the appellant/injured was not able to continue his job as a Driver, it could not be said that, he was incapacitated from doing any other job. So, the percentage of disability assessed by the Doctor is to be accepted as such, and no further enhancement can be given towards functional disability. The Tribunal accepted his disability as 40%, and it need not be interfered with, as he was able to do jobs if at all he could not have continued his job as a Driver. 11. The available evidence is sufficient to show that, the injured suffered crush injury on his right leg and foot with fracture tibia and fibula and also facial injury. He was admitted and treated in Amritha Hospital for 99 days, spanning over a period of one year. The injured was a bachelor at the time of accident. According to him, the accident snuffed out his dreams of marriage, and still he is a bachelor. But, the Tribunal did not award adequate compensation taking into account all these aspects. In paragraph 13 of the impugned judgment, the Tribunal found that, the claimant/injured is a bachelor and still he continues to be so, and he lost his marriage prospects. So, Rs.60,000/- **MACA Nos.2416 & 3174 of 2015** **9** was awarded under the head 'loss of amenities and enjoyment in life'. Since the appellant/injured in MACA No.3174 of 2015 was working in Qatar as a Driver cum Purchase Manager, and he was aged only 36, he was having good marriage prospects and no amount is seen awarded by the Tribunal under the head 'loss of marriage prospects'. So, this Court is inclined to award Rs.60,000/- under the head 'loss of marriage prospects'. 12. Though the injured was hospitalised for 99 days in total, towards extra nourishment, only Rs.3,000/- was awarded by the Tribunal. Rs.8,000/- more seems to be reasonable towards extra nourishment, considering the duration of hospitalisation and period of treatment, and rest. 13. Towards pain and suffering, the Tribunal awarded Rs.60,000/-. It has come out in evidence that, the appellant/injured was hospitalised for 99 days and he underwent several surgical procedures spanning over a period of one year. Considering that aspect, Rs.40,000/- more towards pain and suffering seems to be reasonable. **MACA Nos.2416 & 3174 of 2015** **10** |Head of claim<br>(1)|Amount<br>awarded by<br>the Tribunal<br>(2)|Amount<br>awarded in<br>appeal<br>(3)|Amounts<br>deducted in<br>appeal<br>(4)|Difference to<br>be drawn as<br>enhanced<br>compensation<br>(5)| |---|---|---|---|---| |Loss of earning<br>capacity|Rs.16,20,000/-|Rs.15,12,000/-|Rs.1,08,000/-|-| |Loss of<br>marriage<br>prospects|---|Rs.60,000/-|-|Rs.60,000/-| |Extra<br>nourishment|Rs.3,000/-|Rs.11,000/-|-|Rs.8,000/-| |Pain and<br>suffering|Rs.60,000/-|1,00,000/-|-|Rs.40,000/-| ||Total||Rs.1,08,000/-|Rs.1,08,000/-| 14. So, both the appeals are liable to be allowed in part, modifying the compensation under various heads such as loss of earning capacity, extra nourishment, pain and suffering and loss of marriage prospects, to the extent as mentioned above, without altering the aggregate amount of compensation awarded by the Tribunal. 15. It is given to understand that, the Insurance Company deposited the entire compensation amount before the Tribunal and as per orders of this Court, only 50% was ordered to be released to the appellant/injured in MACA No.3174 of 2015. Since there is no modification in the **MACA Nos.2416 & 3174 of 2015** **11** aggregate amount of the compensation awarded by the Tribunal, the appellant in MACA No.3174 of 2015 is entitled to receive the balance 50% which is in deposit before the Motor Accidents Claims Tribunal, Pathanamthitta with interest accrued thereon, and the learned Tribunal is directed to release the amount without further delay. In the result, both these appeals are allowed in part to the aforesaid extent. No order is made as to costs. Sd/- **SOPHY THOMAS JUDGE** smp