Mohan Das v. The Divisional Manager, The National Insurance Company Ltd., Kollam

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN THURSDAY, THE 26[TH] DAY OF MAY 2022 / 5TH JYAISHTA, 1944 MACA NO. 482 OF 2016 ``` ``` AGAINST THE ORDER/JUDGMENT IN OPMV 633/2010 OF II ADDITIONAL DISTRICT COURT & II ADDITIONAL MOTOR ACCIDENT ``` ## **`CLAIMS TRIBUNAL ,KOLLAM`** ## **`APPELLANT/PETITIONER:`** ``` MOHAN DAS AGED 53 YEARS S/O. MADHAVAN, ANUPAMA, CHERUSSERI BHAGOM, CHAVARA, KOLLAM. ``` ``` BY ADVS. SRI. PRATHEESH.P SMT. RENY ANTO ``` ## **`RESPONDENT/3RD RESPONDENT:`** ``` THE DIVISONAL MANAGER THE NATIONAL INSURANCE COMPANY LTD., KOLLAM – 691 001. ``` ``` SRI.P.G.GANAPPAN ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 26.05.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA NO.482 Of 2016 ``` ``` 2 ``` ## **`JUDGMENT`** The petitioner in O.P (M.V) No.633 of 2010 on the file of the II Additional Motor Accidents Claims Tribunal, Kollam has preferred this appeal aggrieved by the amount of compensation awarded for the personal injuries sustained by him in an accident occurred on 23.09.2007. The status of the parties herein is referred to as it appears in the claim petition. 2. According to the petitioner, while he was travelling on a motor cycle, a Maruthi car, driven by the 2[nd] respondent, hit against the motor cycle and the petitioner sustained serious injuries. The petitioner claimed an amount of Rs.8,00,000/- as total compensation for the injuries sustained in the accident. 3. Respondents 1 and 2 remained ex-parte before the Tribunal. The 3[rd] respondent- insurer of the ``` MACA NO.482 Of 2016 ``` ``` 3 ``` car admitted the existence of a valid policy of insurance for the car at the time of accident, but denied their liability and contended that the amount claimed is excessive. 4. Before the Tribunal, Exts.A1 to A34 documents were marked and PW1 and PW2 were examined, on the side of the petitioner. The Tribunal found that the accident happened due to the negligent driving of the car by the 2[nd] respondent and awarded an amount of Rs.7,71,000/- with 9% interest per annum from the date of petition till realisation with proportionate costs as compensation to the petitioner for the injuries sustained in the accident. The compensation awarded by the Tribunal under various heads is as follows:- |Sl.<br>No.|Heads|Amount|Amount<br>awarded<br>(in<br>Rupees)|Basis-vital<br>details in a nut<br>shell| |---|---|---|---|---| |||claimed (in||| |||Rupees)||| |1|Loss of past earning|3,00,000|3,30,000|Considering<br>gravity of injuries<br>from Ext.A9 to 17| |2|Transportation expenses|30,000|75,000|Ext.A33& A34| ``` MACA NO.482 Of 2016 ``` ``` 4 ``` |3|Medical & other incidental<br>expenses|50,000|70,000|Ext.A25| |---|---|---|---|---| |4|Extra Nourishment|10,000|10,000|Considering| |||||gravity of injuries| |||||from Ext.A9 to 17| |5|Bystander's expenses|25,000|72,000|Number of daya as| |||||IP (Ext.A9 to 17)| |6|Damage to clothing &<br>articles|1,000|1,000|On a reasonable| |||||evaluation| |7|Pain and Sufering|50,000|1,00,000|On a reasonable| |||||evaluation| |8|Loss of amenities and<br>prospects|30,000|50,000|On a reasonable| |||||evaluation| |9|Loss of earning power or<br>permanent disability|3,04,000|63,000|Ext.A28<br>(5,000x12x7x<br>15%)| ||**Total**|**8,00,000**|**7,71,000**|| 5. Aggrieved by the amount of compensation awarded by the Tribunal, the petitioner has come up in appeal. 6. According to the petitioner, the Tribunal went wrong in taking his monthly income as Rs.15,000/-. He was an employee of IRE at Chavara in Kollam District. As per the evidence of PW2 and Ext.A23 series issued by the employer, the salary of the petitioner for the month of August, 2007 at the time of accident was Rs.17,896/-. After deducting the ``` MACA NO.482 Of 2016 5 ``` amount towards tax, the Tribunal fixed the monthly income of the petitioner as Rs.15,000/-. In the light of Ext. A23 series produced by the petitioner, the Tribunal was right in taking the monthly income as Rs.15,000/- for the purpose of calculation of compensation. The amount of Rs.3,30,000/(15,000x22 months) awarded towards loss of past earning is just and reasonable. 7. According to the petitioner, though he claimed an amount of Rs.3,04,000/- towards compensation for 'loss of earning power or permanent disability', the Tribunal awarded only an amount of Rs.63,000/- under the said head. While assessing the compensation for loss of earning power, the Tribunal found that the functional disability of the petitioner is only 15%, though the permanent disability of the petitioner has been assessed as 28% in Ext.P28 certificate. The Tribunal found that the petitioner was working in IRE evenafter the accident and there has ``` MACA NO.482 Of 2016 ``` ``` 6 ``` been no reduction in the income and as such, there is no loss of earning power until the petitioner attains the age of superannuation. Therefore, the Tribunal found that the petitioner is not entitled to get any compensation for loss of earning power until he attains the age of superannuation. The Tribunal held that after superannuation, the petitioner is entitled for compensation for loss of earning power and for that purpose, the Tribunal took the notional income as Rs.5,000/- per month. Accordingly, the Tribunal fixed an amount of Rs.63,000/- (5000x12x7x15%) as compensation for loss of earning power. The learned counsel for the petitioner contends that the Tribunal ought to have taken the monthly income of the petitioner after his superannuation based on the salary he would have drawn at the time of his retirement. It is to be noted that the accident happened in the year 2007 and as on date of the accident, the Tribunal found that, his monthly income ``` MACA NO.482 Of 2016 ``` ``` 7 ``` for the purpose of assessment of compensation is Rs.15,000/-. In taking this view I am fortified by the decision of this Court in **Raju Sebastian v. United India Insurance Co.Ltd. [2021 (6) KLT 136]** . Therefore, I re-fix the notional income for the purpose of assessment of compensation for future loss of earning power as Rs.7,500/- (15000/2). Accordingly, the compensation for loss of earning power is recalculated as Rs.94,500/- (7500x12x7x15%). Since an amount of Rs.63,000/- has already been paid, the petitioner is entitled for an enhanced compensation of **Rs.31,500/-** (94,500-63,000) under the said head. 8. With regard to the loss of amenities in life, taking note of the injuries sustained by the petitioner, particularly, the amputation of the right little toe of the petitioner and the hardships the petitioner had suffered on account of the injuries, I find that, an amount of Rs.70,000/- would be a just and reasonable compensation. Since, the petitioner has already been ``` MACA NO.482 Of 2016 ``` ``` 8 ``` awarded an amount of Rs.50,000/-, he is entitled for an enhanced compensation of **Rs.20,000/-** (70,00050,000) under the head loss of amenities. 9. Towards pain and suffering, taking note of the injuries sustained by the petitioner, the prolonged treatment and various surgeries undergone by him, I find that an amount of Rs.1,20,000/- can be awarded. Since an amount of Rs.1,00,000/- has been awarded, the petitioner is entitled for an enhanced amount of **Rs.20,000/-** (1,20,000-1,00,000) under the said count. 10. Towards extra nourishment, the petitioner was granted an amount of Rs.10,000/- by the Tribunal. In the light of the injuries sustained by him and the treatment he had undergone, I find that the petitioner can be awarded a compensation of Rs.15,000/- and the petitioner is entitled for an additional amount of **Rs.5,000/-** (15,000-10,000) under the said head. ``` MACA NO.482 Of 2016 ``` ``` 9 ``` 11. I find that the compensation awarded under the other heads is just and reasonable. 12. Thus, the petitioner is entitled for an amount of **Rs.76,500/-** (31,500 + 20,000 + 20,000 + 5,000) as enhanced compensation. The enhanced compensation under various heads is tabulated as follows:- |Sl.<br>No.|Heads|Amount|Amount<br>awarded (in<br>Rupees)|Enhanced<br>amount| |---|---|---|---|---| |||claimed (in||| |||Rupees)||| |1|Loss of past earning|3,00,000|3,30,000|-| |2|Transportation expenses|30,000|75,000|-| |3|Medical & other incidental<br>expenses|50,000|70,000|-| |4|Extra Nourishment|10,000|10,000|5,000| |5|Bystander's expenses|25,000|72,000|-| |6|Damage to clothing &<br>articles|1,000|1,000|-| |7|Pain and Sufering|50,000|1,00,000|20,000| |8|Loss of amenities and<br>prospects|30,000|50,000|20,000| |9|Loss of earning power or<br>permanent disability|3,04,000|63,000|31,500| ||Total|8,00,000|7,71,000|76,500| The 3[rd] respondent insurance company shall deposit the enhanced compensation with 9% interest ``` MACA NO.482 Of 2016 ``` ``` 10 ``` per annum from the date of filing the petition till deposit and proportionate costs, within a period of two months from the date of receipt of a certified copy of this judgment. While calculating the interest on the enhanced amount, the period of delay in filing the appeal (185 days delay) shall be excluded in terms of the order dated 18.07.2017 in this appeal. The appeal is disposed of as above. ## **`Sd/-`** ``` MURALI PURUSHOTHAMAN JUDGE ``` SPR