National Insurance Company Limited v. SnehaJan, MACA No. 2782 of 2015

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN ``` ``` MONDAY, THE 22[ND] DAY OF MAY 2023 / 1ST JYAISHTA, 1945 ``` ``` MACA NO. 2782 OF 2015 ``` ``` AGAINST THE AWARD DATED 13.03.2015 IN OPMV 197/2012 OF ADDITIONAL MOTOR ACCIDENTS CLAIMS TRIBUNAL, PATHANAMTHITTA ``` ## **`APPELLANT/3RD RESPONDENT:`** ``` NATIONAL INSURANCE COMPANY LIMITED KAYAMKULAM NOW REPRESENTED BY ITS ASST.MANAGER, KOCHI REGIONAL OFFICE, OMANA BUILDING, M.G.ROAD, KOCHI – 35. ``` ``` BY ADVS. SRI.MATHEWS JACOB (SR.) SRI.P.JACOB MATHEW ``` ## **`RESPONDENT/PETITIONER:`** ``` SNEHAJAN S/O. JANARDHANAN, ARATTUTHADATHIL, KIDANGANNOOR P. O., ARANMULA REPRESENTED BY HIS MOTHER AND NEXT FRIEND MANIYAMMA, ARATTUTHADATHIL, KIDANGANNOOR P. O., ARANMULA – 689 320. ``` ## **`BY ADV SRI.A.N.SANTHOSH`** ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 22.05.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` M.A.C.A No.2782 OF 2015 ``` ``` 2 ``` ## **JUDGMENT** The 3[rd] respondent in OP(MV) No.197 of 2012 on the file of the Motor Accidents Claims Tribunal, Pathanamthitta has filed this appeal challenging the quantum of compensation awarded to the petitioner therein. The parties are referred to as per their status in the claim petition. 2. On 21.07.2011, while the petitioner was riding a motorcycle bearing Registration No.KL-04/D-5443, he sustained injuries when a motorcycle bearing Registration No.KL-03-R-3884 ridden by the 1[st] respondent collided against his motorcycle. According to the petitioner, the accident happened due to the rash and negligent riding of the offending vehicle by the 1[st] respondent. The 2[nd] respondent is the owner of the offending vehicle and the 3[rd] respondent is its insurer. The petitioner claimed an amount of Rs.50,00,000/- for ``` M.A.C.A No.2782 OF 2015 ``` ``` 3 ``` the injuries sustained in the accident. 3. Before the Tribunal, respondents 1 and 2 remained ex-parte. Exts.A1 to A15 were marked on the side of the petitioner. 4. The 3[rd] respondent-Insurance Company filed a written statement admitting the policy. However, they disputed the income, age and occupation of the petitioner. 5. The Tribunal found that the 1[st] respondent was not having valid driving license and that the accident happened due to his negligent riding and awarded a compensation of Rs.42,65,039/- with 9% interest p.a from the date of filing of the petition till realisation and proportionate cost of Rs.2,15,024/-. The 3[rd] respondent was directed to satisfy the award and allowed to recover the same from respondents 1 and 2. 6. The compensation awarded by the Tribunal under different heads is extracted below:- ``` M.A.C.A No.2782 OF 2015 ``` ``` 4 ``` |Sl.<br>No|Head of claim|Amount<br>claimed (Rs.)|Amount<br>awarded<br>(Rs.)|Basis –<br>vital<br>details| |---|---|---|---|---| |1|Loss of earnings|8,40,000|4,24,000|| |2|Pain and Sufferings|5,00,000|2,00,000|| |3|Transport to Hospital|1,00,000|23,750|Ext.A1<br>2<br>series| |4|Extra Nourishment|1,00,000|5000|| |5|Loss of earning<br>power|5,00,000|23,04,000|| |6|Loss of amenities|5,00,000|2,00,000|| |7|Others:<br>(a)Medical expenses|15,000|8289|Ext.8<br>series| ||(b) Attendant<br>charges for 25years|1,00,000|6,00,000|| |8|Parents agony|-|2,00,000|| |9|Future treatment|7,00,000|2,00,000|| |10|Permanent disability<br>and others|33,01,000||| |11|Loss of marriage<br>prospects|3,00,000|100000|| ||**Total**|**66,56,000**<br>**limited**<br>**to**<br>**Rs.50,00,000**|**42,65,039**|**Court**<br>**fee**<br>**paid**<br>**for**<br>**Rs.50,**<br>**00,000**| 7. The petitioner was a mason. He was aged 32 years at the time of the accident. The Tribunal has rightly taken the notional monthly income of the ``` M.A.C.A No.2782 OF 2015 ``` ``` 5 ``` petitioner as Rs.8,000/[ **Ramachandrappa v.** **Manager, Royal Sundaram Alliance Insurance Company Limited** [2011 (13) SCC 236]]. 8. With regard to the loss of earnings, the Tribunal found that the petitioner was incapacitated to work for 53 months and awarded an amount of Rs.4,24,000/-. The petitioner is entitled for compensation for loss of earnings only for the period from the date of accident till the filing of the claim petition. I hold that the petitioner is entitled for an amount of Rs.64,000/- (8000x8) as compensation for loss of earnings. Accordingly, an amount of **Rs.3,60,000/-** (4,24,000 – 64,000) has to be deducted from the total compensation. 9. The Tribunal has awarded an amount of Rs.23,04,000/- towards loss of earning power. For the said purpose, the Tribunal added 50% towards future prospects. Since the petitioner was not a permanent employee and he was aged 32 years, only 40% can be added towards future prospects. Therefore, the monthly ``` M.A.C.A No.2782 OF 2015 ``` ``` 6 ``` income of the petitioner would come to Rs.11,200/(8000+3200). The Tribunal has taken the multiplier as 16. Going by Ext.A13 disability certificate, it can be seen that the disability of the petitioner is certified as 100%. Therefore, I find that, the functional disability of the petitioner is also 100%. Accordingly, the compensation for loss of earning power is reworked as Rs.21,50,400/(11200x100x12x16/100). Therefore, an amount of **Rs.1,53,600/-** (23,04,000-21,50,400) has to the deducted from the total compensation. 10. Towards loss of amenities, an amount of Rs.2,00,000/- has been awarded by the Tribunal. In addition to the same, the Tribunal has awarded an amount of Rs.1,00,000/- towards loss of marriage prospects. The learned counsel for the Insurance Company contended that the petitioner cannot be awarded compensation both under the heads loss of amenities and loss of marriage prospects. Since the petitioner was a bachelor at the time of the accident and ``` M.A.C.A No.2782 OF 2015 ``` ``` 7 ``` the accident has led to his loss of vision and other permanent disabilities including psychiatric disorder, I find that the petitioner is entitled for compensation for loss of marriage prospects; but the same will come under the category of loss of amenities. Therefore, the petitioner is awarded a compensation of **Rs.3,00,000/-** under the head loss of amenities resulting in an additional amount of Rs.1,00,000/- under the said head. The amount of Rs.1,00,000/- awarded under the head loss of marriage prospects has to be deducted from the total compensation. 11. The Tribunal has awarded an amount of Rs.2,00,000/- towards parents agony. I am of the view that no amount can be awarded under the said head. Therefore, an amount of **Rs.2,00,000/-** awarded under the said head has to be deducted from the total compensation. 12. Annexure-A13 shows that the petitioner has sustained 100% permanent disability. He has loss of ``` M.A.C.A No.2782 OF 2015 ``` ``` 8 ``` vision, psychiatric problems, epilepsy and insomnia. It has come out from the evidence that the petitioner is unable to do his day to day activities and needs the assistance of someone, even to take food. 13. Towards attendant charges, though the petitioner claimed only Rs.1,00,000/-, an amount of Rs.6,00,000/has been awarded by the Tribunal. The learned counsel for the insurance company submits that since the petitioner had claimed only Rs.1,00,000/-, an amount of Rs.6,00,000/- awarded under the head attendant charges cannot be sustained. The Hon’ble Supreme Court, in **Kajal v. Jagdish Chand** [2020 (1) KLT 743 (SC)], has held that the multiplier method has to be followed for determining the attendant charges. Taking into account the disability of the petitioner, an amount of Rs.5,000/- can be fixed as the monthly attendant charge. Since the petitioner was aged 32 years at the time of the accident, the multiplier can be fixed as 16. Accordingly, the petitioner is entitled for an amount of ``` M.A.C.A No.2782 OF 2015 ``` ``` 9 ``` Rs.9,60,000/(Rs.5000x12x16) towards future bystander expenses. Therefore, the petitioner will be entitled for an enhanced amount of **Rs.3,60,000/-** (9,60,000-6,00,000) under the said head. 14. True that the petitioner has not preferred any appeal against the award. However, the power of this Court to award enhanced compensation in the absence of the appeal has been reiterated by the Hon’ble Supreme Court in **Jitendra Khimshankar Trivedi v. Kasam Daud Kumbhar** [2015 (1) KLT SN 142 (SC)] and **Baby & Ors. v. Sanal Kumar & Ors.** [2018 (3) KLJ 582]. 15. I find that the Tribunal has awarded just and reasonable compensation under other heads. 16. Accordingly, the compensation for the personal injuries sustained by the petitioner is reworked as follows:- |Sl.<br>No|Head of<br>claim|Amount<br>awarded by<br>the Tribunal<br>(Rs.)|Amount<br>awarded by<br>this Court<br>(Rs.)|Difference|| |---|---|---|---|---|---| ``` M.A.C.A No.2782 OF 2015 ``` ``` 10 ``` |1|Loss of<br>earnings|4,24,000|64,000|-3,60,000| |---|---|---|---|---| |2|Pain and<br>Sufferings|2,00,000|2,00,000|-| |3|Transport to<br>Hospital|23,750|23,750|-| |4|Extra<br>Nourishment|5000|5,000|-| |5|Loss of<br>earning<br>power|23,04,000|21,50,400|-1,53,600| |6|Loss of<br>amenities|2,00,000|3,00,000|+1,00,000| |7|Others:<br>(a) Medical<br>expenses|8289|8289|-| ||(b)<br>Attendant<br>charges|6,00,000|9,60,000|+3,60,000| |8|Parents<br>agony|2,00,000|0|-2,00,000| |9|Future<br>treatment|2,00,000|2,00,000|-| |10|Permanent<br>disability and<br>others|-|-|-| |11|Loss of<br>marriage<br>prospects|1,00,000|0|-1,00,000| ||**Total**|**42,65,039**|**39,11,439**|**-3,53,600**| In the result, the appeal is allowed. The petitioner will be entitled only for an amount of Rs.39,11,439/- as total compensation. As per order dated 06.10.2015, the ``` M.A.C.A No.2782 OF 2015 ``` ``` 11 ``` appellant/3rd respondent has deposited an amount of Rs.15,00,000/- before the Tribunal. The 3[rd] respondent shall deposit the balance amount in terms of this judgment along with 9% interest and costs within a period of two months from the date of receipt of a copy of this judgment. It is made clear that the petitioner will be entitled for interest on the future bystander’s expenses only from the date of the award. The recovery right already granted by the Tribunal against respondents 1 and 2 is not disturbed. ## **Sd/-** ``` MURALI PURUSHOTHAMAN JUDGE ``` SPR