Meena Raju (through legal heirs, substituted for deceased RAJU PHILIPOSE) v. Velmurugan, Manu George & Reliance General Insurance Co. Ltd.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN WEDNESDAY, THE 15[TH] DAY OF MARCH 2023 / 24TH PHALGUNA, 1944** **MACA NO. 778 OF 2021** **AGAINST THE AWARD IN OPMV 615/2018 OF MOTOR ACCIDENT CLAIMS** **TRIBUNAL MUVATTUPUZHA** ## **APPELLANT/PETITIONER:** 1 RAJU PHILIPOSE *(DIED)* AGED 58 YEARS, S/O.PHILIPOSE, POOMATTATHIL HOUSE, PERINGAZHA KARA, PERUMBALLOOR P.O., MARADY VILLAGE, MUVATTUPUZHA TALUK, ERNAKULAM DISTRICT, PIN-686 673. *("MEENA RAJU, W/O LATE. RAJU PHILIPOSE, AGED 58 YEARS, POOMATTATHIL HOUSE, PERINGAZHAKARA, PERUMBALLOOR P.O., MARADY VILLAGE, MUVATTUPUZHA TALUK, ERNAKULAM DISTRICT". THE ABOVE MENTIONED PARTY IS SUBSTITUTED IN PLACE OF THE DECEASED ORIGINAL APPELLANT AS PER ORDER DATED 13/02/2023 IN IA 1/2023 IN MACA 778/2021.)* DILEEP VARGHESE K.K.KURUVILLA TESMY VARGHEESE ## **RESPONDENTS/RESPONDENTS:** 1 VELMURUGAN, S/O.RAMACHALLAYA.K., NO.14, NEHRU NAGAR, 3RD CROSS STREET, CHENNAI, PIN-600 032. 2 MANU GEORGE, S/O.GEORGE, NELLOOR HOUSE, PERUMBALLOOR KARA, PERUMABLLOOR P.O., ARAKUZHA VILLAGE, MUVATTUPUZHA TALUK, ERNAKULAM DISTRICT, PIN-686 673. 3 RELIANCE GENERAL INSURANCE CO.LTD., REPRESENTED BY ITS MANAGER, MANTRA INSURANCE 68A/580, 1ST FLOOR, MITHUN COMPLEX, E K VALASU, ERODE, PIN-638 011. LATHA SUSAN CHERIAN GEORGE A.CHERIAN(K/611/2014) MACA NO. 778 OF 2021 2 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 15.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: MACA NO. 778 OF 2021 3 ## **JUDGMENT** The original appellant, Sri.Raju Philipose was walking along a public road on 11.03.2018, when, at about 7.20 pm, the offending motorcycle, driven in a rash and negligent manner, hit him, causing very grievous injuries. He was treated for a long period of time and had to endure great amount of stress and trauma; forcing him to file OP(MV)No.615/2018, before the Motor Accidents Claims Tribunal, Muvattupuzha (the "Tribunal' for short), seeking compensation of an amount of Rs.18,62,000/-, limited to Rs.10,00,000/-, but which has been allowed only a sum of Rs.5,69,567/-. He thus impugns the Award as being inadequate. 2. Pending this lis, however, the original appellant died and his wife brought herself on record, through the order of this Court dated 13.02.2023; and she is prosecuting it now. 3. Sri.Dileep Varghese - learned counsel for the appellant, pointed out that, even though Ext.A10 series Income Tax Returns had been produced and marked before the Tribunal in evidence, on the misdirected impression that it relate only to the assessment year 2016-17, it refused to MACA NO. 778 OF 2021 4 accept them and then proceeded to fix a notional income of mere Rs.10,000/- in favour of late Raju Philipose. He argued that this was impermissible because, going by the second document, which is part of Ext.A10, an amount of Rs.3,11,050/- has been shown to be the gross income of late Raju Philipose for the Assessment Year 2017-18, which relates to the period during which the accident happened. 4. After saying as afore, Sri.Dileep Varghese submitted that the compensation granted by the Tribunal under the head 'loss of earnings', as also under the heads 'pain and suffering' and 'loss of amenities' is so exiguous, that it obtains no rational nexus to the injuries sustained by his client. He, therefore, prayed that all the sums awarded thereunder be suitably enhanced. 5. Sri.K.S.Santhi – learned standing counsel for the Insurance Company, on the other hand, argued that the findings and computations of the Tribunal are without error, particularly because the income of the original appellant has not been proved in any manner, as is legally acceptable. She thus pleaded that this appeal be dismissed. 6. I have considered the afore rival submissions on the touchstone of the evidence on record - copies of which have MACA NO. 778 OF 2021 5 been handed over across the Bar by the learned counsel for the parties with the express consent that it can be acted upon by this Court without dispute. 7. There is no doubt, as is also admitted, that the accident left the original appellant with great amount of injuries. Ext.A5 - wound certificate records the same to be as under: “(1). Bicondylar fracture left tibial condyle 2) Fracture 5th, 6th, 7th, 8th and 9th ribs Lt.side 3) Fracture superior and inferior public ramus Lt. 4) Tenderness present left side of chest 5) Lacerated wound 2x 5cm over antromedial tibia Rt. 6) Lacerated wound 2cm on forehead Distal pulse present.” 8. The original appellant was, thereafter, assessed for his disability by a competent Medical Board, which issued Ext.C1, certifying his permanent disability to the extent of 18%. 9. That being said, the original appellant claimed to be a businessman and relied upon Ext.A10 to prove that his income was more than Rs.3,00,000/- per annum. However, the learned Tribunal did not accept Ext.A10, finding that it relates only to the Assessment Year 2016-17; and then went on to fix his notional income as being Rs.10,000/-. 10. In the afore scenario, I must say upfront that the findings of the learned Tribunal regarding the notional 6 MACA NO. 778 OF 2021 income of the original appellant cannot be found favour with. This is because, even in the case of a person with unascertainable income, or who works as a “coolie”, the Hon'ble Supreme Court, in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Ltd.** [(2011) 13 SCC 236], has postulated that the minimum notional income is Rs.11,500/- for the year 2018, when the accident occurred. In the case at hand, the original appellant is certainly not a “coolie”, or a person with unascertainable income and Ext.A10 Income Tax Returns establish without doubt that, even for the assessment year 2017-18, his gross income was Rs.3,11,050/-. The learned Tribunal, as rightly argued by Sri.Dileep Varghese, misunderstood Ext.A10 to be the Income Tax Return for the assessment year 2016-17 alone, without noticing that the second of the said documents is for the assessment year 2017-18. Obviously, the said return relates to the Financial Year 2016-17 and when the accident occurred on 11.03.2018, the original appellant would have filed his next set of returns only after that date. Indubitably, therefore, the second of the documents in Ext.A10, namely, the Income Tax Returns of the Assessment Year 2017-18, ought to have been adverted to by the learned Tribunal. MACA NO. 778 OF 2021 7 11. Going by the said document, as I have already said above, the gross income of the original appellant is shown to be Rs.3,11,050/-, along with Rs.18,000/-, which he claimed is his income from agriculture. After deducting the tax payable on the afore gross income of Rs.3,11,050/-, it can safely be assumed that his income would be a minimum of Rs.3,00,000/- per year for the assessment year 2017-18. Since the original appellant could not have filed his return for the next year, because the accident happened even prior to the deadline for the same, a fair amount of reliance on this document would certainly be justified and necessary. I, therefore, propose to take the income of the appellant to be Rs.20,000/- per month, though strictly, as per Ext.A10, it would have to be taken as Rs.25,000/-. However, factoring in the possibility of a lesser income the next year, I deem it appropriate to adopt the afore as the notional income. I am persuaded to do so also because, as I have said above, in **Ramachandrappa** (supra), even for a “coolie”, the monthly income to be reckoned Rs.11,500/- and for a businessman, an increment of Rs.8,500/- would certainly be apposite. 12. That being said, the injuries sustained by the original appellant are certainly not trivial and Ext.C1 certifies his MACA NO. 778 OF 2021 8 permanent disability to be 18%. I am, therefore, of the firm view that, taking note of the prolonged treatment which he would have had to suffer, the compensation awarded by the Tribunal under the heads 'pain and suffering' and 'loss of amenities' will certainly require to be enhanced, though not substantially. 13. The medical evidence show that the original appellant was hospitalized for 14 days and it is presumably, therefore, that the learned Tribunal has reckoned three months for the purpose of computation of his compensation under the head 'loss of earnings'. However, the medical treatment records indicate that he had to undergo treatment for a slightly longer period of time and I, therefore, propose to entend the said period by a month. 14. That said, the argument of Sri.Dileep Varghese, that future prospects ought to be added to the income of the original appellant, cannot appeal to me since, as per Ext.C1, his percentile of disability is only 18%. This is because the said certificate records that he has pain and difficulty walking, with some restriction in his knee movement on account of the pain, thus incapacitating him to sit in a squatting position. I am not persuaded to hold these to be MACA NO. 778 OF 2021 9 sufficient to grant future prospects because the earning capacity of the original appellant as a businessman would certainly not be inhibited by this. I, therefore, repel the claim for future prospects on such basis. For the afore reasons, I allow this appeal in the following manner: (a) The compensation under the head 'loss of earnings' is enhanced to Rs.80,000/-, from Rs.30,000/- granted by the Tribunal, reckoning the notional income of the original appellant to be Rs.20,000/- per month for a period of four months. (b) The compensation under the head 'pain and suffering' is enhanced to Rs.75,000/-, from Rs.50,000/granted by the Tribunal, adverting to the fracture of the 5[th ] to 9[th] ribs, as also the cubic ramus, which would have caused a lot of trauma to him. - (c) The compensation under the head 'loss of amenities' is enhanced to Rs.35,000/-, from Rs.30,000/- granted by the Tribunal, taking note of Ext.C1 disability certificate and its contents as said above. In all other respects, the Award of the Tribunal will MACA NO. 778 OF 2021 10 stand in tact. Needless to say, the appellant will be at full liberty to recover the compensation, as enhanced by this Court, from the Insurance Company, along with interest at the rate of 7% as awarded by the Tribunal, from the date of claim until it is recovered. She will also be entitled to proportionate costs on the enhanced amount as ordered by the Tribunal. In view of the afore, the amount as fixed above shall be deposited by the Insurance Company before the learned Tribunal, within a period of two months from the date of receipt of a copy of this judgment. **Sd/- DEVAN RAMACHANDRAN JUDGE** stu