M.A.C.A.2444/2008 and 2515/2008

M.A.C.A.2444/2008 and 2515/2008 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN** **SATURDAY, THE 26[TH] DAY OF NOVEMBER 2022/5TH AGRAHAYANA, 1944** **MACA NO. 2444 OF 2008** **AGAINST THE AWARD IN OPMV 1206/2000 OF MOTOR ACCIDENT CLAIMS** ## **TRIBUNAL, TRIVANDRUM** ## **APPELLANT/APPLICANT:** SREEKUMARAN NAIR, S/O.VELALYUDHAN NAIR, 'DEVI PRIYA', DEVI NAGAR, PALKULANGARA, PETTAH.PO,, THIRUVANANTHAPURAM-24. BY ADVS. SRI.P.RAVEENDRAN PILLAI SMT.INDIRA RAVEENDRAN SRI.SANJAY THAMPI SMT.R.DEVI SHRI ## **RESPONDENTS/RESPONDENTS:** 1 M/S.ANAD SAW MILLS ROAD, 1-F, SHENCOTTAH ROAD, THENKASI, TAMILNADU. 2 RAMASWAMY, S/O SANKARAN, DOOR NO.56-B KOOLLAKKADI BAZAR, TENKASI, TAMILNADU. 3 M/S UNITED INDIA INSURANCE CO.LTD DIVISIONAL OFFICE NO.II, MALANKARA BUILDING, VJT HALL ROAD, PALAYAM, THIRUVANANTHAPURAM-34. BY ADVS. MATHEWS JACOB (SR.) SRI.P.JACOB MATHEW THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 26.11.2022, ALONG WITH MACA.2515/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.A.C.A.2444/2008 and 2515/2008 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN** **SATURDAY, THE 26[TH] DAY OF NOVEMBER 2022 / 5TH AGRAHAYANA, 1944** **MACA NO. 2515 OF 2008** **AGAINST THE AWARD IN OPMV 1199/2000 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, TRIVANDRUM** ## **APPELLANT/APPLICANT:** MRS.LEELA SREEKUMAR @ LEELA NAIR W/O.SREEKUMARAN NAIR, 'DEVI PRIYA',, DEVI NAGAR, PALKULANGARA, PETTAH P.O., THIRUVANANTHAPURAM - 24. BY ADVS. SRI.P.RAVEENDRAN PILLAI SMT.INDIRA RAVEENDRAN SRI.SANJAY THAMPI SMT.R.DEVI SHRI ## **RESPONDENTS/RESPONDENTS:** 1 M/S.ANAND SAW MILLS, 1-F, SHENCOTTAH ROAD, THENKASI, TAMILNADU. 2 RAMASWAMY S/O.SANKARAN, DOOR NO.56-B, KOOLPAKKADI BAZAR, TENKASI, TAMILNADU. 3 M/S.UNITED INDIA INSURANCE CO.LTD. DIVISIONAL OFFICE NO.II, MALANKARA BUILDING,, VJT HALL ROAD, PALAYAM, THIRUVANANTHAPURAM-34. BY ADV SRI.MATHEWS JACOB SR. THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 26.11.2022, ALONG WITH MACA.2444/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.A.C.A.2444/2008 and 2515/2008 .. 3 .. ## **C.JAYACHANDRAN, J** ## **-------------------------** **M.A.C.A.Nos.2444 and 2515 of 2008 -------------------------------------Dated this the 26[th] day of November, 2022** ## **J U D G M E N T** **1.** These are the appeals carried by the injured persons, who are husband and wife, in an accident which occurred on 09.04.2000. M.A.C.A.No.2444/2008 is carried from the award in O.P(M.V).No.1206/2000 and M.A.C.A.No.2515/2008 is carried from the award in O.P(M.V).No.1199/2000, both of the Motor Accidents Claims Tribunal, Thiruvananthapuram. The appeals are essentially focused on the enhancement of compensation granted by the Tribunal under various heads. **2.** Heard Sri.Sanjay Thambi, learned counsel for the appellant and Sri.Mathews Jacob, learned Senior Counsel appearing for the third respondent/insurance company. Perused the records. ## M.A.C.A.2444/2008 and 2515/2008 .. 4 .. **3.** Learned counsel for the appellant first contended on the salary of the injured/husband in O.P(M.V) No.1206 of 2000 [M.A.C.A.2444/2008]. Learned counsel invited the attention of this Court to Ext.A26, the salary certificate issued by M/s.Spinney's, Abudhabi, indicating a salary of 13450 Abudhabi dirham, corresponding to Rs.1 lakh, approximately. The Tribunal has reckoned only Rs.6,000/-. The Tribunal was of the view that the salary being drawn in a foreign country is not liable to be reckoned for the purpose of compensation in a motor accident; instead, salary which could be fetched on Indian standards for a similarly placed person alone can be considered, was the finding. This Court cannot endorse the course adopted by the Tribunal. The Honourable Supreme Court in **United India Insurance Company Ltd. v. Satinder Kaur @ Satwinder Kaur & Ors. [(2021(11)** **SCC 780]** held that, a salary certificate issued from a gulf country, which is not attested by the Indian Embassy, cannot be taken as such for reckoning the ## M.A.C.A.2444/2008 and 2515/2008 .. 5 .. salary. Nevertheless, the Honourable Supreme Court took the salary being drawn at Qatar by the injured in that case as 750 Qatari Riyal per month for the year 1984. In **Abraham Jacob v. Mubarak** [2014(3) KLT 883], a Division Bench of this Court though frowned upon a salary certificate issued in respect of an employment in Qatar - on the premise that there was nothing indicative of the permanent nature of the job - still reckoned the monthly salary at Rs.40,000/-, as against Rs.1 lakh indicated in the salary certificate issued from Qatar and Rs.10,000/- reckoned by the Tribunal. Therefore, it cannot be laid down as an absolute proposition that the salary of a non resident Indian, who is employed outside India and who met with an accident in India cannot be reckoned at all and that, the salary corresponding to the Indian standards alone can be reckoned. It varies from facts to facts. In the instant case, Ext.A26 is the salary certificate, which was marked through the appellant/claimant, who offered himself as PW1. This M.A.C.A.2444/2008 and 2515/2008 .. 6 .. Court finds that, there is no quarrel/controversy with respect to the quantum of the salary being drawn by the appellant/claimant in the cross examination, though his employment in the gulf country was challenged. In **Satwinder Kaur** supra, the Honourable Supreme Court also found that the percentage to be reduced for personal expenses should be one-half and not one-third or one-fourth as indicated in **National** **Insurance Co. Ltd. v. Pranay Sethi [2017(4) KLT 662** **(SC** )], owing to the fact that, expenses in outside country is much higher than that in India. In the facts and circumstances, this Court is inclined to reckon the salary of the appellant in M.A.C.A.2444/2008 (the husband) at Rs.50,000/- - as against Rs.1,00,000/-, indicated in Ext.A26 and Rs.6,000/- reckoned by the Tribunal - with corresponding reduction at the rate of 50% towards personal expenses, as indicated in **Satwinder Kaur** supra. Accordingly, the salary to be reckoned for the purpose of granting compensation will be Rs.25,000/-. M.A.C.A.2444/2008 and 2515/2008 .. 7 .. **4.** The second count is with respect to pain and suffering. The injuries, which are sustained by the appellant in M.A.C.A.2444/2008 are narrated in paragraph 10 of the judgment, which are extracted here below. 'As per Ext.A16 wound certificate, the applicant had sustained a lacerated injury 3x2x1 cm on the right forearm, laceration over the chest with glass pieces and he was referred to the Medical College Hospital, Thiruvananthapuram. Ext.A17 is the discharge summary issued from the S.U.T Hospital which shows that he was admitted from 10.04.2000 and discharged on 19.4.2000. He had pain over the pubic symphysis and left illium. X-ray of the chest was taken and it revealed fracture of the 5[th] and 6[th] ribs on the left side with pneumo thorax. X-ray of the pelvis revealed fracture of the pelvis (Unstable) involving public symphysis separatin and left sacro Illiac joint disruption. Pneumothorax a drained out thorught the chest drain and external fixation of the pelvis was done....' This Court notice that there are fractures on the 5[th] and 6[th] ribs, on the pelvis and injuries on the M.A.C.A.2444/2008 and 2515/2008 .. 8 .. Pneumothorax, which necessary indicates that, pain and suffering granted by the Tribunal has to be enhanced atleast to Rs.30,000/- from Rs.15,000/-. It is so done. **5.** The third count is with respect to the disability assessed by the Specialist at 15% vide Ext.A23, as against which, the Tribunal was pleased to take only 10%. Here also, this Court is not in a position to endorse the view of the Tribunal. Ext.A23 is issued by a Specialist attached to a Government Hospital. He was examined as PW2, thus offering an opportunity to the contesting respondents to cross examine. Nothing tangible is seen elicited in his cross examination, which would erode the veracity of the assessment of disability at 15%. That apart, assessment of disability being an expert's job, the Tribunal is not justified in interfering with the same so as to reduce it to 10%, without stating any reasons. Therefore, disability has to be reckoned at 15%. Even ## M.A.C.A.2444/2008 and 2515/2008 .. 9 .. though, learned counsel for the appellant seriously opposed and contended that, records are there to show that the injured had travelled even after the accident outside India, this Court is not persuaded to interfere with the disability assessed vide Ext.A23. Mere factum of travel would not indicate that the disability assessed is not correct. **6.** As against loss of amenities, what has been reckoned by the Tribunal is Rs.25,000/-. A nominal increase is affordable in that count also, which is enhanced to Rs.30,000/-. **7.** In the result, M.A.C.A.2444/2008 is allowed and the compensation amount payable to the claimant/appellant is reworked as indicated in the table here below. |**Sl.**<br>**No.**|**Head of Claim**|**Amount**<br>**awarded by**<br>**the**<br>**Tribunal**|**Total amount**<br>**after enhancement**<br>**in appeal**| |---|---|---|---| |**1**|**Medical Bill**|**38,000**|**38,000**| M.A.C.A.2444/2008 and 2515/2008 ## .. 10 .. |**2**|**Loss of earnings**|**18,000**|**75,000**<br>**[25,000 x 3]**| |---|---|---|---| |**3**|**Transportation**|**2,000**|**2,000**| |**4**|**Damage to Clothing**|**250**|**250**| |**5**|**Extra Nourishment**|**1,000**|**1,000**| |**6**|**Pain and Suffering**|**15,000**|**30,000**| |**7**|**Disability**|**79,200**|**4,95,000 ***| |**8**|**Loss of Amenities**|**25,000**|**30,000**| |**9**|**Bystander Expenses**|**3,850**|**3,850**| ||**Total**|**1,82,300**|**6,75,100**| |**Amount enhanced = Rs.6,75,100 – Rs.1,82,300 = Rs.4,92,700**|||| **[* 25,000 x 12 x 11 x 15/100]** **8** . The Insurance Company shall pay interest for the amount awarded by the Tribunal at the rate directed in the impugned award; and for the enhanced amount, at the rate of 5% from the date of petition. If any amount has already been paid, the same shall be granted set off. Since there was a delay of 432 days in filing the appeal, the interest for the enhanced quantum shall not run for the said period, as directed in order dated 30.06.2021 in C.M.A.No.2/2008. The claimant shall produce the ## M.A.C.A.2444/2008 and 2515/2008 .. 11 .. details of the Bank account before the Insurance Company/Tribunal within two months from the date of receipt of a certified copy of this judgment and amount shall be transferred to the Bank account directly through NEFT/RTGS mode, within a period of one month thereafter. If the Bank account is not given within the time stipulated, it is made clear that, no interest shall run on the enhanced amount after the period stipulated by this Court. However, if the Insurance Company fails to deposit the amount, as directed, interest on the enhanced amount shall also run at the rate ordered by the Tribunal from the date of petition. The appeal is allowed to the above extent. ## **9. M.A.C.A.2515 of 2008** M.A.C.A.2515/2008, arising from O.P(M.V).No. 1199/2010, is preferred by the wife, who also got injured in the same accident. The main bone of contention is again with respect to the monthly ## M.A.C.A.2444/2008 and 2515/2008 .. 12 .. income. It was contended that she was running a poultry farm, from which, she was fetching a monthly income of Rs.25,000/-. However, no proof of income has been adduced before the Tribunal, except Ext.A40, a copy of the license to run the poultry farm. The Tribunal found that the license was issued after 09.04.2000, the date of accident. This Court finds no reason to enhance the monthly income reckoned by the Tribunal in the absence of an enabling evidence. However, the contention that the disability assessed at 10% vide Ext.A39 has been reduced to 9% is worthy of being considered. This Court directs that, disability shall be considered at 10% as assessed in Ext.A39. **10.** The injury suffered by the appellant is narrated in paragraph 9 of the judgment. This Court notice that she had suffered a lacerated injury, measuring 3x2x1cm on the left end of the forehead, a lacerated wound about 4x2 cm on the left cheek and a contusion ## M.A.C.A.2444/2008 and 2515/2008 .. 13 .. with tenderness over the right forearm. X-ray revealed alveolar fracture sub luxation, olecranom capitulum of the right elbow and fracture of both bones of the right forearm. Here again, this Court notice that the compensation granted under the head 'pain and suffering' is not sufficient, having regard to the injuries sustained by her. Therefore, the compensation under the said head is increased to Rs.25,000/-. Compensation under the head 'loss of amenities' is also increased to Rs.15,000/-, as against Rs.9,000/- granted by the Tribunal. **11.** In the result, the M.A.C.A is allowed and the compensation amount payable to the claimant/appellant is reworked as indicated in the table here below. |**Sl.**<br>**No.**|**Head of Claim**|**Amount**<br>**awarded by**<br>**the**<br>**Tribunal**|**Total amount**<br>**after**<br>**enhancement in**<br>**appeal**| |---|---|---|---| |**1**|**Medical Bill**|**29,000**|**29,000**| |**2**|**Loss of earnings**|**6000**|**6,000**<br>**[2,000 x 3]**| |**3**|**Transportation**|**2,000**|**2,000**| M.A.C.A.2444/2008 and 2515/2008 .. 14 .. |**4**|**Damage to Clothing**|**250**|**250**| |---|---|---|---| |**5**|**Extra Nourishment**|**1,000**|**1,000**| |**6**|**Pain and Suffering**|**15,000**|**25,000**| |**7**|**Disability**|**28,080**|**31,200 ***| |**8**|**Loss of Amenities**|**9,000**|**15,000**| |**9**|**Bystander Expenses**|**1,000**|**1,000**| |||**91,330**|**1,10,450**| |**Amount enhanced = Rs.1,10,450 – Rs.91,330 =**|||**Rs.19,200**| **[* 2000 x 12 x 13 x 10/100]** **12.** The Insurance Company shall pay interest for the amount awarded by the Tribunal at the rate directed in the impugned award; and for the enhanced amount, at the rate of 5% from the date of petition. If any amount has already been paid, the same shall be granted set off. Since there was a delay of 1266 days in filing the appeal, the interest for the enhanced quantum shall not run for the said period, as directed in order dated 30.06.2021 in C.M.A.No.1/2008 (old CMAP No.2589/2008). The claimant shall produce the details of the Bank account before the Insurance Company/Tribunal within two months from the date of ## M.A.C.A.2444/2008 and 2515/2008 .. 15 .. receipt of a certified copy of this judgment and amount shall be transferred to the Bank account directly through NEFT/RTGS mode, within a period of one month thereafter. If the Bank account is not given within the time stipulated, it is made clear that, no interest shall run on the enhanced amount after the period stipulated by this Court. However, if the Insurance Company fails to deposit the amount, as directed, interest on the enhanced amount shall also run at the rate ordered by the Tribunal from the date of petition. The appeal is allowed to the above extent. **Sd/-** **C.JAYACHANDRAN** **JUDGE** Sbna/