M/S ICICI Lombard General Insurance Co. Ltd. v. Shyamkumar S. (MACA No.3187 of 2014; CO No.43 of 2015)

``` 1 ``` ``` [ MACA.3187/2014, CO.43/2015 ] ``` # **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` THURSDAY, THE 24TH DAY OF SEPTEMBER 2020 / 2ND ASWINA, 1942 ``` ``` MACA.No.3187 OF 2014 ``` ``` AGAINST THE AWARD IN OPMV 570/2009 DATED 30-04-2014 OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL , NORTH PARAVUR ``` ## **`APPELLANT/S:`** ``` M/S ICICI LOMBARD GENERAL INSURANCE CO.LTD KANNANKERI ESTATE, 3RD FLOOR, SHANMUGHAM ROAD, MARINE DRIVE, ERNAKULAM - 670 001. ``` ``` BY ADV. SRI.R.AJITH KUMAR (128/84) ``` ## **`RESPONDENT/S:`** ``` SHYAMKUMAR.S S/O. SASIDHARAN NAIR, SAVIDAM, KALLUMADAPARAMBU, MUPPATHADAM P.O., KODUNGALLUR VILLAGE. ``` ``` R1 BY ADV. SMT.ANUPAMA JOHNY R1 BY ADV. SRI.BINOY DAVIS R1 BY ADV. SRI.REJI GEORGE ``` ``` THIS MOTOR ACCIDENTS CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 24-09-2020, ALONG WITH CO.43/2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` 2 ``` ``` [ MACA.3187/2014, CO.43/2015 ] ``` # **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` THURSDAY, THE 24TH DAY OF SEPTEMBER 2020 / 2ND ASWINA, 1942 ``` ``` CO.No.43 OF 2015 IN MACA. 3187/2014 ``` ``` IN MACA 3187/2014 FROM THE AWARD DATED 30.4.2014 PASSED IN OPMV 570/2009 ON THE FILE OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, NORTH PARAVUR ``` ## **`PETITIONER/S:`** ``` SHYAMKUMAR AGED 37 YEARS S/O.SASIDHARAN NAIR, SAVIDHAM, KALLUMADAPARAMBU MUPPATHADOM P.O., KADUNGALLOOR VILLAGE. ``` ``` BY ADVS. SRI.REJI GEORGE SMT.ANUPAMA JOHNY SRI.GOPAKUMAR G. (ALUVA) ``` ## **`RESPONDENT/S:`** ``` M/S. ICICI LOMBARD GENERAL INSURANCE CO. LTD. KANNANKERI ESTATE, 3RD FLOOR, SHANMUGHAM ROAD, MARINE DRIVE, ERNAKULAM, PIN - 670001. ``` ``` R1 BY ADV. SRI.R.AJITH KUMAR (128/84) ``` ``` THIS CROSS OBJECTION/CROSS APPEAL HAVING BEEN FINALLY HEARD ON 24-09-2020, ALONG WITH MACA.3187/2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` 3 ``` ``` [ MACA.3187/2014, CO.43/2015 ] ``` ## **C.S.DIAS, J. ====================== MACA No.3187 of 2014 and Cross Objection No.43 of 2015 ====================== Dated this the 24[th] day of September, 2020.** ## **JUDGMENT** The appellant – Insurance Company - was the third respondent in OP (MV) No.570 of 2009 on the file of the Motor Accidents Claims Tribunal, North Paravur. The respondent - cross objector - was the petitioner before the Tribunal. The respondents 1 and 2 in the claim petition were the owner and driver of the offending vehicle. 2. The appellant had admitted the insurance policy. Hence, the Tribunal directed the appellant to pay the compensation. Therefore, the owner and driver of the offending vehicle are not impleaded as parties in the appeal or cross objection. The parties are, for the sake of convenience, referred to as per their status in the claim petition. ``` 4 ``` ``` [ MACA.3187/2014, CO.43/2015 ] ``` 3. The petitioner had filed the claim petition under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of the injuries he sustained in a motor accident that took place on 28.5.2009. He had stated that he was 32 years. 4. It was the case of the petitioner that, he was working as electrical technician in Dubai. On 28.5.2009, while he was riding his motor cycle bearing registration No.KL-42/1848, from Aluva to Valanjambalam, Ernakulam, a stage carriage bus bearing Registration No.KL-7/AT 9909 driven by the second respondent, in a rash and negligent manner, hit the motor cycle of the petitioner. He sustained serious injuries in the accident. His right leg was amputated and he lost sensation of his right hand. Consequently, he lost his employment. He was admitted in the Karothukuzhi Hospital, Aluva and, thereafter, at the Medical Trust Hospital, Ernakulam. The petitioner sought a total compensation of Rs.35,80,000/- under various ``` 5 ``` ``` [ MACA.3187/2014, CO.43/2015 ] ``` heads. 5. The respondents 1 and 2 were set ex parte. The third respondent – the Insurance Company filed a written-statement, inter alia, contending that the claim petition is not maintainable. It was denied that the accident occurred due to the negligence on the part of the second respondent. The age, occupation and income of the petitioner was also disputed. However, the third respondent admitted the insurance policy. 6. The petitioner was examined as PW1 and Exts A1 to A17 were marked in evidence. The third respondent did not adduce any evidence. 7. After considering the pleadings and materials on record, the Tribunal by the impugned award allowed the claim petition, in part, by awarding Rs.20,35,200/- as compensation with interest at the rate of 8% per annum from the date of petition till the date of realization with proportionate cost of Rs.24,500/-. ``` 6 ``` ``` [ MACA.3187/2014, CO.43/2015 ] ``` 8. The comparative table of compensation that was claimed by the petitioner and that was awarded by the Tribunal is as follows:- |SI<br>.<br>N<br>o|Head of claim|Amount<br>claimed<br>(in rupees)|Amount awarded (in<br>rupees)| |---|---|---|---| |1|Pain and sufferings|50,000/-|50,000/-| |2|Loss of amenities of life,<br>discomfort and inconvenience<br>caused|20,000/-|20,000/-| |3|Loss of earnings|90,000/-|90,000/-| |4|Medical expenses|5,00,000/-|3,92,800/-| |5|Bystander expenses|5000/-|7,400/-| |6|Transportation expenses|2000/-|2,000/-| |7|Extra nourishment|3000/-|3,000/-| |8|Compensation for disability|28,80,000/-|14,40,000/-| |9|Compensation for loss of<br>earning power|30,000/-|30,000/-| ||Total|35,80,000/-|20,35,200/-| 9. Aggrieved by the quantum of compensation awarded the third respondent - Insurance Company has preferred the appeal, and dissatisfied with the quantum of compensation awarded, the petitioner - respondent in the appeal has filed the cross objection. 10. Heard the learned counsel appearing for the appellant/respondent in cross objection and the ``` 7 ``` ``` [ MACA.3187/2014, CO.43/2015 ] ``` learned counsel appearing for the respondent/cross objector. 11. The sole question that emerges for consideration in this appeal and cross-objection is whether the quantum of compensation awarded by the Tribunal is just and reasonable. 12. A Constitution Bench of the Hon'ble Supreme Court in **National Insurance Company Ltd. v. Pranay Sethi [(2017) 16 SCC 680],** has held that Section 168 of the Motor Vehicles Act, 1988, deals with the concept of 'just compensation' and the same has to be determined on the foundation of fairness, reasonableness and equitability on acceptable legal standards. The conception of 'just compensation' has to be viewed through the prism of fairness, reasonableness and non-violation of the principle of equitability. 13. It is an admitted fact that the petitioner sustained injuries on account of the accident that occurred on 28.5.2009, due to the rash and negligent driving by the second respondent. The ``` 8 ``` ``` [ MACA.3187/2014, CO.43/2015 ] ``` petitioner was aged 32 years at the time of accident. 14. Pursuant to the direction of the Tribunal, the petitioner was examined by the District Medical Board, Ernakulam. The Medical Board by Ext A9 disability certificate dated 10.12.2010, assessed the permanent disability of the petitioner @ 50% due to the amputation of the right knee and injury on his right upper limb. 15. The bone of contention of the learned counsel for the appellant before this Court is that the notional income of the petitioner fixed by the Tribunal @ Rs.15,000/- per month is on the higher side. Per contra, the learned counsel appearing for the respondent/cross objector argued that as per Exts A10 and A17 salary certificates issued by “Various Ice Products”, Dubai, where the petitioner was employed, he had a salary of AED 3,100/-, which is equivalent to Rs.40,000/- per month. However, the Tribunal had fixed only an amount of Rs.15,000/- as the notional income. ``` 9 ``` ``` [ MACA.3187/2014, CO.43/2015 ] ``` 16. On a perusal of Exts A10 and A17 salary certificates issued by the petitioner's employer, it is seen that the certificates are not attested by the Indian Embassy, which is imperative as held by the Hon'ble Supreme Court in **United India Insurance Co. Ltd v. Satinder Kaur @ Satwinder Kaur and others- [ (2020(3)KHC 760]** and a Division Bench of this Court in **National Insurance Co. Ltd, Thalassery vs Ramla and others [2016 (4) KHC 891].** 17. In view of the law laid down in **Satinder Kaur** and **Ramla** (supra), Exts A10 and A17 salary certificates were rightly rejected by the Tribunal, for want of attestation. Therefore, the petitioner's claim that he was drawing a salary of Rs.40,000/per month cannot be accepted. However, it is seen that the petitioner had given evidence as PW1 and he was cross-examined by the learned counsel for the third respondent. The defence set up in the cross-examination was that the salary certificates produced by the petitioner was not genuine, but ``` 10 ``` ``` [ MACA.3187/2014, CO.43/2015 ] ``` were fabricated for the purpose of the case. 18. Nevertheless, it is proved in the oral testimony of the petitioner read with Ext.A15 passport that the petitioner was employed abroad. Going by the law laid down by the Hon'ble Supreme Court in **Ramachandrappa v. Manager, Royal Sundaram Alliance [(2011) 13 SCC 236]** and **Syed Sadiq and others v. Divisional Manager, United India Insurance Co.Ltd. - [(2014) 2 SCC 735]** wherein notional income of a coolie worker was fixed at Rs.4,500/- in the year 2004, and that of a vegetable vendor was fixed at Rs.6,500/- in the year 2006 and by this Court in **Soman vs Jinesh James and others [ILR 2020 (3) Kerala 1003]** the notional income of a coolie was fixed @ Rs.7,500/- per month in the year 2010, I am of the considered opinion that the income fixed by the Tribunal for a qualified electrical technician as evidenced by Ext A13, even by Indian standards, at the rate of Rs.15,000/- in the year 2009 is reasonable and just. ``` 11 ``` ``` [ MACA.3187/2014, CO.43/2015 ] ``` 19. Therefore, it can be safely concluded that the notional monthly income of the petitioner in the year 2009 was Rs.15,000/-. ## **Disability Certifcate** 20. As both sides have accepted the findings of the Medical Board in Ext A9 disability certificate, the petitioner's permanent disability is fixed at 50%. ## **Multiplier** 21. As the petitioner was aged 32 years at the time of accident, the multiplier to be adopted is 16 as per the decision in **Sarla Verma v. Delhi Transport Corporation [(2009) 6 SCC 121], National Insurance Co.Ltd v Pranay Sethi [(2017) 16 SCC 680]** and **Satinder Kaur** (supra). 22. On a re-appreciation of the compensation that has been awarded by the Tribunal, it is seen that the Tribunal has omitted to award any amount towards future prospects of the petitioner. 23. Going by the law laid down by the Hon'ble Supreme Court in **Syed Sadiq and others** ``` 12 ``` ``` [ MACA.3187/2014, CO.43/2015 ] ``` **v. Divisional Manager, United India Insurance Co.Ltd. [(2014) 2 SCC 735]** , **Raj Kumar v. Ajay Kumar [2011 (1) KLT 620(SC)],** and **Pappu Deo Yadav vs. Naresh Kumar and others [Civil Appeal No.2567/2020],** I am of the definite opinion that the petitioner, who has suffered 50% disability and was self-employed, the Tribunal ought to have granted future prospects at the rate of 40%. 24. Thus, considering the fact that the petitioner was aged 32 years at the time of accident, his monthly income is Rs.15,000/-, the disability is 50%, the multiplier is 16, the loss of income is six months and future prospects is 40%, the total amount due to the petitioner towards compensation for disability and future prospects is fixed at Rs.20,60,000/- instead of 14,40,000/-. 25. Going by the impugned award, it is seen that the Tribunal has awarded the petitioner Rs.90,000/- towards loss of earnings, i.e., Rs.15,000/- x 6 months. It is also seen in column ``` 13 ``` ``` [ MACA.3187/2014, CO.43/2015 ] ``` No.9 in the table above that the petitioner has been again awarded an amount of Rs.30,000/-, which is actually a duplication of amount claimed in column No.3, which the petitioner is not entitled. Therefore, I set aside the said amount. ## **Other heads of claim** 26. With respect to the other heads of claim, I find that the Tribunal has awarded reasonable and just compensation. The medical expenses have been fixed on the basis of Ext A16 series of medical bills. Thus, I do not find any ground to enhance the amounts under any other heads of claim. 27. On an overall re-appreciation of the pleadings, materials on record and the law laid down by the Hon'ble Supreme Court in the aforecited decisions, I am of the firm opinion that the petitioner is entitled for enhancement of the amounts as modified and re-calculated above, and given in the table below for easy reference. ``` 14 ``` ``` [ MACA.3187/2014, CO.43/2015 ] ``` |SI.<br>No|Head of claim|Amount<br>claimed<br>(in rupees)|Amount<br>awarded (in<br>rupees)|Amounts<br>modified and<br>recalculated<br>by this Court| |---|---|---|---|---| |1|Pain and sufferings|50,000/-|50,000/-|50,000/-| |2|Loss of amenities of life,<br>discomfort<br>and<br>inconvenience caused|20,000/-|20,000/-|20,000/-| |3|Loss of earnings|90,000/-|90,000/-|90,000/-| |4|Medical expenses|5,00,000/-|3,92,800/-|3,92,800/-| |5|Bystander expenses|5000/-|7,400/-|7,400/-| |6|Transportation expenses|2000/-|2,000/-|2,000/-| |7|Extra nourishment|3000/-|3,000/-|3,000/-| |8|Compensation<br>for<br>disability|28,80,000/<br>-|14,40,000/<br>-|20,60,000/-| |9|Compensation for loss of<br>earning power|30,000/-|30,000/-|Nil| ||Total|35,80,000/<br>-|20,35,200/<br>-|26,25,200/-| 28. It is seen that the Tribunal has granted only 8% interest on the compensation awarded. In light of the decision of the Hon'ble Supreme Court in **MCD v. Uphaar Tragedy Victims Association [(2011) 14 SCC 481]** and **United India Insurance Co. Ltd v. Satinder Kaur @ Satwinder Kaur and others[ (2020(3)KHC 760]** , I fix interest at the rate of 9% per annum on the compensation, considering the accident took place in the year 2009. 29. In the result, the appeal is dismissed and ``` 15 ``` ``` [ MACA.3187/2014, CO.43/2015 ] ``` the cross objection is allowed by enhancing the compensation by a further amount of Rs.5,90,000/(Rupees Five Lakh Ninety Thousand only) with interest at the rate of 9% per annum from the date of petition till the date of realisation with proportionate costs. The appellant/third respondent shall deposit the additional compensation granted in the cross objection before the Tribunal with interest and proportionate costs within a period of two months from the date of receipt of a certified copy of the judgment after deducting the liability, if any, of the petitioner towards balance court-fee and legal benefit fund. The disbursement of the compensation to the petitioner shall be made in accordance with law. ## **`Sd/-`** ``` C.S.DIAS ``` ``` JUDGE ``` ``` Sks/24.9.2020 ``` ``` 16 ``` ``` [ MACA.3187/2014, CO.43/2015 ] ``` ``` The figure “Rs.20,60,000/-” in the 7[th] line of paragraph No.24 is corrected as Rs.20,16,000/-, figure “Rs.20,60,000/-” in Sl No.8 of the table at paragraph No.27 is corrected as “Rs.20,16,000/-”, total figure of “Rs.26,25,200/-” in table is corrected as “Rs.25,81,200/-” and enhanced compensation shown as “Rs.5,90,000/-” in the 3[rd] line of paragraph No.29 is corrected as “Rs.5,46,000/-” as per order dated 5.7.2023 in IA No.1/2023 in MACA 3187/2014. ``` ``` sd/- ``` ``` Deputy Registrar ```