# **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
**PRESENT**
**THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR**
**MONDAY, THE 01ST DAY OF APRIL 2019 / 11TH CHAITHRA, 1941**
**MACA.No. 500 of 2018**
**AGAINST THE AWARD IN OPMV 1847/2014 of MOTOR ACCIDENT CLAIMS TRIBUNAL ,ERNAKULAM DATED 26-09-2017**
## **APPELLANT/3RD RESPONDENT:**
**NATIONAL INSURANCE COMPANY LIMITED KAYAMKULAM NOW REPRESENTED BY ITS ADMINISTRATIVE OFFICER, KOCHI REGIONAL OFFICE OMANA BUILDING, M.G ROAD, KOCHI- 35**
**BY ADVS. SRI.MATHEWS JACOB (SR.) SRI.P.JACOB MATHEW**
## **RESPONDENT/PETITIONER:**
**GEORGE S/O. XAVIER, KAYYANIKKAL HOUSE, MAY FIRST ROAD, THAMMANAM.P.O., KOCHI- 682 032**
**BY ADVS. SMT.CINZIA RAJU SMT.P.S.GEETHA KUMARY SRI.T.R.SUGUNAN**
**THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 01.04.2019, ALONG WITH CO.59/2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:**
MACA.No. 500 of 2018 & CO.No. 59 of 2019
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## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT**
**THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR**
**MONDAY, THE 01ST DAY OF APRIL 2019 / 11TH CHAITHRA, 1941**
**CO.No. 59 of 2019 IN MACA. 500/2018**
**AGAINST THE JUDGMENT IN MACA 500/2018 of HIGHCOURT**
## **CROSS OBJECTOR/PETITIONER:**
**GEORGE, S/O.XAVIER, KAYYANIKKAL HOUSE, MAY FIRST ROAD, THAMMANAM.P.O., KOCHI- 682 032**
**BY ADV. SRI.T.R.SUGUNAN**
## **RESPONDENT/RESPONDENT:**
**NATIONAL INSURANCE COMPANY LIMITED KAYAMKULAM NOW REPRESENTED BY ITS ADMINISTRATIVE OFFICER, KOCHI REGIONAL OFFICE OMANA BUILDING, M.G ROAD, KOCHI- 35**
**THIS CROSS OBJECTION/CROSS APPEAL HAVING BEEN FINALLY HEARD ON 01.04.2019, ALONG WITH MACA.500/2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:**
MACA.No. 500 of 2018 & CO.No. 59 of 2019
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## **M.A.C.A No.500 of 2018**
## **& Cross Objection No.59 of 2019**
## **J U D G M E N T**
The insurer in a proceedings for compensation before the Motor Accidents Claims Tribunal has come up in this appeal challenging the quantum of compensation granted by the Tribunal. The Cross Objection is filed by the claimant challenging the inadequacy of the compensation granted.
2. The claimant sustained serious injuries in a motor accident took place on 27.06.2014. He was aged 56 years and a flexboard worker at the time of accident. It is stated by the claimant in the claim petition that he was earning a monthly income of Rs.10,000/during the relevant period. A sum of Rs.15,00,000/- was the compensation claimed in the proceedings. The Tribunal granted a sum of Rs.12,31,900/- as against the said claim. It is aggrieved by the said quantum of compensation that the insurer has come up in this appeal.
3. Heard the learned senior counsel for the appellant as also the learned counsel for the claimant.
4. Ext.A5 wound certificate and Ext.X1 disability
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certificate would indicate that the claimant sustained serious head injuries including sub-arachnoid haemorrhage. He also suffered fracture of right zygoma and right petrous temporal bone. He was in the hospital for treatment for about 38 days after the accident.
5. The learned senior counsel for the appellant contended that the Tribunal has granted to the claimant a sum of Rs.3,60,000/- towards compensation for loss of earnings. It was pointed out that the accident took place on 27.06.2014 and the claim petition was filed on 23.08.2014. According to the learned counsel, in a case of this nature, compensation for loss of earnings can be granted by the Tribunal only for the period upto the filing of the claim petition and not for the period thereafter. It was also contended by the learned counsel that even if it is taken that the income of the claimant as pleaded by him is correct, the claimant is entitled to only a sum of Rs.20,000/- towards compensation for loss of earnings. The submission of the counsel, in the circumstances, is that Rs.3,40,000/- granted by the Tribunal to the claimant towards loss of earnings, at any rate, is in excess. It was also contended by the learned counsel that the sum of Rs.1,00,000/- granted by the Tribunal by way of compensation for pain and sufferings is also in excess. Similar was the contention in relation to the compensation granted by the Tribunal to the claimant towards loss of amenities and enjoyment in life. According to the learned senior
MACA.No. 500 of 2018 & CO.No. 59 of 2019
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counsel, the compensation granted under the said head is also excessive. It was also contended by the learned counsel that in terms of Ext.X1 disability certificate issued by the Medical Board attached to the Medical College Hospital, Alappuzha, the permanent disability of the claimant was assessed only at 49%. It was pointed out that despite the said assessment of the disability, the Tribunal has reckoned the permanent disability of the claimant at 64%. According to the learned senior counsel, in a case of this nature, there is absolutely no justification for the Tribunal to reckon the permanent disability at a percentage higher than what was fixed by the competent Medical Board.
6. Per contra, the learned counsel for the claimant submitted that the claimant has suffered serious brain injuries in the accident and he was unable to lead a normal life after the accident. It was specifically pointed out that the ability of the claimant to speak is also affected on account of the accident. According to the learned counsel, the Tribunal, in the circumstances, should have reckoned the loss of earning power of the claimant at 100%. It was pointed out that if the compensation payable to the claimant for continuing disability is reckoned treating the loss of earning power as 100%, the compensation granted by the Tribunal cannot be said to be in excess.
7. I have considered the contentions raised by the
MACA.No. 500 of 2018 & CO.No. 59 of 2019
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learned counsel. In the light of the submissions made by the learned counsel for the claimant as to the serious disabilities suffered by the claimant in the accident, I have directed the claimant to be present in court and the claimant appeared before me in my chamber on 22.03.2019. I have attempted then to interact with the claimant and I found that the claimant is not able to communicate properly. He takes a long time to complete a short sentence. Every word is being uttered in that process with much strain. I also found that he is not able to walk without the assistance of others. The compensation payable to the claimant, according to me, has to be assessed having regard to the aforesaid facts and circumstances.
8. Having regard to the facts mentioned in the preceding paragraph, I am unable to find fault with the Tribunal for having increased the percentage of disability in the matter of computing the compensation payable to the claimant for continuing disability and loss of earning power. It is seen that the Tribunal has reckoned the compensation payable to the claimant for continuing disability and for loss of earning power, reckoning his monthly income at Rs.7,500/-. In the light of the decision of the Apex court in **Syed Sadiq v. United India Insurance Co. Ltd.** (2014) 2 SCC 735, where the Apex court has reckoned the notional monthly income of a vegetable merchant who was unable to prove the income at Rs.6,500/- in the context of an
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accident took place in the year 2008, I am of the view that the income of the claimant in the instant case, in the context of an accident took place in the year 2014, can be safely taken at Rs.10,000/- as claimed by him. If the income of the claimant is reckoned at Rs.10,000/- and compensation for continuing disability and loss of earning power is computed on that basis, making a provision for future prospects also at the rate of 10%, the compensation payable under this head would come to Rs.7,60,320/- (Rs.11,000x12x64/100x9). The claimant was granted a sum of Rs.5,18,400/- under the said head. The claimant is, therefore, entitled to a sum of Rs.2,41,920/- in addition, under the above head. It is seen that as against the claim of Rs.2,00,000/-, the Tribunal has granted a sum of Rs.1,00,000/- towards compensation for pain and suffering. But, as against the claim of Rs.2,00,000/- for compensation for loss of amenities and enjoyment in life, the Tribunal has granted only a sum of Rs.80,000/-. According to me, in a case of this nature, the claimant would have been granted at least a sum of Rs.1,50,000/- towards loss of amenities and enjoyment in life. If that be so, the additional compensation which the claimant is entitled would come to Rs.3,11,920/- (Rs.2,41,920+Rs.70,000). If the said amount is adjusted against the sum of Rs.3,40,000/-, granted by the Tribunal towards loss of earnings, the excess compensation would only be Rs.28,080/-.
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In the result, the appeal and cross objection are disposed of refixing the compensation at Rs.12,03,820/-.
**Sd/-**
**P.B.SURESH KUMAR**
**JUDGE**
Mn
