# **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
# **PRESENT**
**THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN**
**SATURDAY, THE 19[TH] DAY OF NOVEMBER 2022/28TH KARTHIKA, 1944 MACA NO. 1766 OF 2015**
**OP(MV) 314/2010 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, TIRUR**
**DTD.30.4.2014**
**APPELLANT/2nd RESPONDENT:**
M/S.ICICI LOMBARD GENERAL INSURANCE LTD., ICICI BANK TOWER, BANDRA KURLE COMPLEX, BANDRA (EAST), MUMBAI - 400 051, REPRESENTED BY IT'S MANAGER LEGAL. BY ADV SRI.R.AJITH KUMAR VARMA
## **RESPONDENT/CLAIMANT:**
ANOOP M S/O.KUMARAN, MANGOTTIL HOUSE, P.O.VETTOM, TIRUR TALUK, MALAPPURAM DISTRICT - 676 102. BY ADVS. SRI.ARUN MATHEW VADAKKAN SRI.K.P.SUDHEER
**THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 19.11.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:**
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## **C.JAYACHANDRAN, J.**
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M.A.C.A.No.1766 of 2015 -----------------------------------------------Dated this the 19[th] day of November, 2022
## **JUDGMENT**
This appeal is carried by the 2[nd] respondent/insurance company challenging the award of the Motor Accidents Claims Tribunal, Tirur in O.P.(M.V.)No.314/2010. The appellant's grievance is that the compensation awarded under various heads by the Tribunal are excessive, especially in the context of reckoning the permanent disability. The accident occurred on 31.12.2007, when the motorcycle, in which the claimant was a pillion, collided with another motorcycle, thus sustaining serious injuries on his head.
**2.** Heard Sri.R.Ajithkumar Varma, learned counsel for the appellant and Sri.K.P.Sudheer, learned counsel for the respondent. Perused the records.
**3.** Learned counsel for the appellant submitted that, as per Ext.C1 disability certificate assessed by the District Medical Board, 40% disability was found. The appellant/insurance company moved an application before the Tribunal for
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re-assessment by the State Medical Board, which was allowed. As per Ext.C2, the State Medical Board assessed the disability at 23.11%. It is the contention of the learned counsel for the appellant that as against the four Doctors who are signatories to Ext.C1 disability certificate, Ext.C2 is vouched by as many as seven Doctors of various Specialties. Not only that, the assessment of disability at the second instance was pursuant to the direction by the Court, wherein all relevant inputs have been taken into account. Therefore, according to the learned counsel, the disability certified in Ext.C2 ought to have been taken. The exercise made by the Tribunal in reckoning the disability of 40% in terms of Ext.C1 is not a permissible course, submits the learned counsel. It was also pointed out that compensation at the rate of Rs.1,00,000/- each granted under the head 'loss of amenities' and also on 'poor prospects of marriage' are also not tenable.
**4.** Per contra, the learned counsel for the respondent/claimant submitted that adequate reasons have been stated by the Tribunal to reckon the disability at 40% in terms of Ext.C1. It was also pointed out that a further
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interlocutory application was preferred before the Tribunal to subject the claimant for a further assessment by the State Medical Board, which, however, was dismissed. According to the learned counsel, no interference is required with respect to the disability component assessed by the District Board. As regards the compensation granted under the head 'amenities' and 'poor marriage prospects', learned counsel would argue to sustain the same. Besides, it was specifically argued that the income reckoned by the Tribunal is very much on the lower side at Rs.4,000/- per month. Even the index available in the judgment of the Hon'ble Supreme Court in **Ramchandrappa**
**v. Manager, Royal Sundaram Aliance Insurance Company Limited** [2011 KHC 4675], would indicate a monthly income of Rs.6,000/- for the year 2007.
**5.** Having heard the learned counsel appearing on both sides, this Court finds merit in the contention raised by the appellant/insurance company. This Court perused Exts.C1 and C2 disability certificates. The disability in Ext.C1 is primarily assessed by a Psychiatrist, who indicated 40% psychiatric disability. Thereafter, three more Doctors, whose specialty is
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not indicated, have recorded that there is no Orthopedic disability for the claimant, however, certifying that the permanent disability is 40%. The injury sustained to the brain/head is not seen considered, as decipherable from Ext.C1. In the circumstances, the disability indicated in Ext.C1 cannot be accepted, as such. In Ext.C2, as pointed out by the learned counsel for the appellant, seven doctors from various specialties have certified that the permanent disability is 23.11%. This Court also notices that Ext.C2 is preferred by the State Medical Board, whereas Ext.C1 is preferred by the District Medical Board. That apart, the physical condition of the claimant is seen assessed in paragraph no.1, where under, serial nos.1 to 3 the condition of the patient is seen referred. However, Ext.C2 also does not reflect any reasoning on the basis of which the disability has been assessed. It is true that the Tribunal is not a competent person, or an expert, to assess the disability. However, the reasons stated by the Tribunal in paragraph no.9 of the impugned award are also very relevant. The Tribunal after seeing the claimant made the following observations:
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_“On seeing the petitioner it is revealed that he cannot either walk or even move without the assistance of others and he was virtually taken to the court hall by his brother taking too much strain. What I could gather on seeing the petitioner that his condition is highly pathetic and he has become a vegetable in all purpose. He is not in a position even to sit without the aid of others. Therefore, it is clearly established that the petitioner is totally incapacitated to do any work and thereby he is totally prevented from earning anything for his livelihood. As per Exts.A7 and A11 documents, petitioner had undergoing physiotherapy treatment on 155 days.”_
**6.** In the context of the facts referred above, as also, to balance the equities, this Court is of the opinion that it would be just and reasonable to reckon the permanent disability at 30%. It is so ordered.
**7.** This Court finds no merit in the contention that the compensation amount granted under the heads 'loss of amenities' and also on account of 'poor marriage prospects' to be excessive. The amounts granted are quite reasonable.
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Finally, this Court is inclined to accept the contention of the learned counsel for the respondent that the income of the claimant reckoned is on the lower side. As rightly pointed out by the learned counsel, even the income as indicated in **Ramchandrappa v. Manager, Royal Sundaram Aliance Insurance Company Limited** [2011 KHC 4675], he is entitled to a notional income of Rs.6,000/- per month. This Court is not influenced by the objection of the appellant that the income reckoned by the Tribunal cannot be interfered with in the absence of an appeal preferred by the claimant. What has to be looked into by every Court/Tribunal while dealing with compensation under the Motor Vehicles Act is the paramount requirement to ensure that the compensation granted is just and reasonable, wherefore the exercise of the jurisdiction by this Court to ensure the said component, would also take within its sweep, the duty to enhance the income, once it is found to be grossly insufficient. In these circumstances, this Court directs the monthly income to be reckoned at Rs.6,000/-. Loss of earnings for 6 months has to be calculated at the rate of Rs.6,000/- per month.
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## **8.** In the result, this M.A.C.A. is allowed in part and the compensation amount payable to the claimant/respondent is re-worked as indicated in the table hereinbelow:
|**Sl.No.**|**Head of Claim**|**Amount**<br>**awarded**<br>**by the**<br>**Tribunal**<br>**(Rs.)**|**Total amount**<br>**after**<br>**enhancement in**<br>**appeal**<br>**(Rs.)**|
|---|---|---|---|
|1|Loss of earning (Total)|24,000|36,000<br>(6,000x6)|
|2|Loss of earning<br>(partial)|Nil|--|
|3|Medical, miscellaneous<br>& bystander expenses|87,000|87,000|
|4|Future bystander<br>expenses|1,00,000|1,00,000|
|5|Bystander expenses|Nil|--|
|6|Transportation<br>expenses|20,000|20,000|
|7|Extra-nourishment|20,000|20,000|
|8|Damage to clothing,<br>etc.|1,000|1,000|
|9|Pain and suffering|50,000|50,000|
|10|Loss of dependency|Nil|--|
|11|Loss of consortium|Nil|--|
|12|Loss of love and<br>affection|Nil|--|
|13|Loss of estate|Nil|--|
|14|Compensation towards<br>permanent partial<br>disability|6,14,400|3,45,600<br>(6000x12x16x30/100)|
|15|Compensation for loss<br>of amenities & future<br>treatment|1,00,000|1,00,000|
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|16|Any other heads:-<br>Loss of earning power<br>Funeral expenses<br>Compensation for<br>matrimonial prospects|Nil<br>Nil<br>1,00,000|–<br>–<br>1,00,000|
|---|---|---|---|
||Total|11,16,400|8,59,600|
|Amount =|Rs.2,56,800/- (less)|||
**9.** The Insurance Company shall pay interest for the amounts awarded by the Tribunal at the rate directed in the impugned award. If any amount has already been paid, the same shall be granted set off.
**10.** The claimant shall produce the 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 Insurance Company fails to deposit the amount, as directed, interest shall be paid at the rate of 10% per annum on the modified compensation amount from the date of petition till date of actual payment/deposit.
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The appeal is allowed in part as above.
Sd/-
## **C.JAYACHANDRAN, JUDGE**
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