National Insurance Company Limited v. Thomas (MACA No. 1175/2014)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE N.NAGARESH** **MONDAY, THE 01ST DAY OF JUNE 2020 / 11TH JYAISHTA, 1942 MACA.No.1175 OF 2014** **AGAINST THE AWARD IN OPMV 400/2009 DATED 30-01-2014 OF** **MOTOR ACCIDENT CLAIMS TRIBUNAL , NORTH PARAVUR** ## **APPELLANT/2ND RESPONDENT:** **NATIONAL INSURANCE COMPANY LIMITED, NEW DELHI, NOW REPRESENTED BY ITS MANAGER, KOCHI REGIONAL OFFICE,OMANA BUILDING, M.G.ROAD, KOCHI-35.** **BY ADVS. SRI.MATHEWS JACOB (SR.) SRI.P.JACOB MATHEW** ## **RESPONDENT/PETITIONER:** **1 THOMAS,S/O.ANTONY,PUTHIYAVEETTIL HOUSE, P.C.KADAVU,VADAKKUMPURAM KARA, CHENDAMANGALAM VILLAGE PIN 683 320 (DIED, LEGAL HEIRS IMPLEADED) ADDL.2 VINNY THOMAS,W/O LATE THOMAS, PUTHIYAVEETTIL HOUSE,P.C. KADAVU, VADAKKUMPURAM KARA,CHENNAMANGALAM VILLAGE. ADDL.3 ANTONY THOMAS,S/O LATE THOMAS, PUTHIYAVEETTIL HOUSE,P.C. KADAVU, VADAKKUMPURAM KARA,CHENNAMANGALAM VILLAGE.** **(ADDITIONAL RESPONDENTS 2 AND 3 ARE IMPLEADED AS THE LEGAL REPRESENTATIVES OF THE DECEASED RESPONDENT AS PER ORDER DATED 24/6/19 IN IA 2718/15 IN MACA 1175/214)** **BY ADV. SRI.A.N.SANTHOSH** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 27.05.2020, THE COURT ON 01.06.2020 DELIVERED THE FOLLOWING:** MACA No. 1175/2014 2 ## **JUDGMENT** The second respondent-Insurance Company in OP(MV) No. 400/2009 of the Motor Accidents Claims Tribunal, North Paravur is before this Court in appeal invoking Section 173 of the Motor Vehicles Act, 1988. 2. The first respondent – claimant while walking through the side of Vadakkumpuram – Andippillikkavu Road on 09.05.2009, met with an accident. A car driven by the first respondent in the OP(MV), in a rash and negligent manner while overtaking an autorikshaw, hit the petitioner causing serious injuries. The petitioner was 54 years old employee claiming a monthly income of `6,000/-. The 1st respondent - Claimant calculated damages at `26,61,000/- and the claim was limited to `15 lakhs. 3. The appellant - Insurance Company as well as the first respondent in OP(MV) filed written statements. The appellant admitted insurance policy of the offending vehicle, MACA No. 1175/2014 3 but contended that there is violation of insurance policy. The accident did not occur due to the rash and negligent driving by the first respondent in OP(MV). The accident occurred only due to the carelessness of the first respondent/claimant herein. 4. The first respondent/claimant produced Exts. A1 to A6 documents, Ext.X1 Disability Certificate issued from Government Medical College Hospital, Kottayam and examined himself as PW1. The appellant did not adduce any oral or documentary evidence. 5. The Claims Tribunal on evaluation of evidence, held that first respondent in OP(MV) alone is responsible for the accident. Taking into consideration the nature of the injuries and disability factor, the Claims Tribunal awarded an amount of `9,59,300/- as compensation under the following heads: MACA No. 1175/2014 4 |Sl.<br>No.|Head of claim|Amount<br>claimed (in<br>`)|Amount<br>awarded (in<br>`)|Basis – Vital<br>detail<br>in<br>nursing| |---|---|---|---|---| |1|Damage to clothings|1,000|1,000|| |2|Transportation expenses|24,000|15,000|| |3|Medical<br>and<br>treatment<br>expenses|1,50,000|44,700|(Ext.A6<br>series)| |4|Bystander expenses|30,000|30,000|| |5|Extra Nourishment|20,000|10,000|| |6|Loss of income for 6 months|36,000|30,000|(500 x 6)| |7|Physiotherapy|1,00,000|Nil|| |8|Futurephysiotherapy|3,00,000|Nil|| |9|Pain & sufferings|3,00,000|2,00,000|| |10|Loss of amenities of life,<br>discomforts & inconvenience<br>caused|3,00,000|1,50,000|| |11|Loss of earning power|5,00,000|Nil|| |12|Permanent disability|5,00,000|2,24,400|| |13|Attendant expenses|Nil|4,200|(21 days IP)| ||||**7,09,300**|| |14|Future bystander expenses|3,00,000|1,50,000|| |15|Future medical expenses|1,00,000|1,00,000|| ||Total|26,61,000/-<br>limited to<br>15,00,000/-|**9,59,300**<br>**========**|| The claimant was also held entitled to get 8% interest for an amount of `7,09,300/- from the date of original petition. 6. Aggrieved by the Award, the appellant-Insurance MACA No. 1175/2014 5 Company is before this Court. The Standing Counsel for the appellant submitted that the award amount is highly excessive. The original claim of ` 3 lakhs made was later amended and enhanced to `15 lakhs without valid grounds. The Tribunal is not justified in fixing `5,000/- as monthly income of the claimant. The Tribunal went wrong in granting `30,000/- towards Bystander Expenses in addition to `4,200/granted towards Attendant Expenses. The learned Standing Counsel further argued that the amount of `1,50,000/awarded by the Tribunal towards Future Bystander Expenses, is without any evidence. Similarly there is no evidence justifying more than `1 lakh as Future Medical Expenses. `2 lakhs granted towards Pain and Sufferings and `1,15,000/- towards Loss of Amenities are also on the higher side, contended the Standing Counsel. 7. The learned counsel for the respondent/claimant argued that in fact the amount awarded by the Claims MACA No. 1175/2014 6 Tribunal is on a lower side. The claim petitioner had stated before the Tribunal that his monthly income is `6,000/-. But the Tribunal fixed his monthly income as `5,000/-. In case `6,000/- was taken as monthly income of the claimant, the claimant would have been entitled to a much higher amount of compensation. It was further argued on behalf of the claimant that the Medical Board assessed the disability of the claimant at 33.83%. The nature of injuries sustained by the claimant was so severe that the claimant could not carry on with his normal activities. Therefore, though the Medical Board fixed the disability at 33.83%, as far as claimant's employment and future earning capacity are concerned, it should have been treated as 100%. The petitioner was inpatient for 21 days consequent to the accident and suffered a lot. Therefore, the amount awarded as compensation towards pain and suffering and loss of amenities by the Tribunal is justified. There is nothing wrong in the Tribunal MACA No. 1175/2014 7 awarding future bystander expenses taking note of the permanent disability suffered by the claimant. The grievous nature of the injuries and the continuing treatment required to the claimant would justify the award towards future medical expenses. Therefore, no interference is called for in the award. 8. I have heard the learned Standing Counsel for the appellant and Counsel for the respondent. 9. Going through the pleadings and evidence adduced, I find that the claimant had stated his monthly income as `6,000/-. The accident was in the year 2009. In view of the judgments of the Hon’ble Apex Court in **Syad Sadik v. Divisional Manager, United India Insurance Company Ltd.** [(2014) 2 SCC 735], the notional income should have been taken as `7,000/- per month, in the absence of any evidence regarding his monthly income. The appellant claimed only `6,000/- towards monthly income. MACA No. 1175/2014 8 The Tribunal fixed claimant's monthly income at a still reduced rate of `5,000/-. However, the Tribunal has taken a liberal view in awarding compensation to the claimant under the heads Pain and Sufferings, Loss of Amenities and Future Bystander Expenses. Therefore and especially in the absence of any challenge to the Award by the respondent, no interference is warranted in the matter of fixing monthly notional income. In the facts of the case, the argument of the Standing Counsel of the Insurance Company that the income fixed by the Tribunal is on the higher side is only to be rejected. 10. As regards bystander expenses, it is to be noted that the Tribunal awarded `30,000/-. In addition thereto, the Tribunal awarded attendant expenses amounting to `4,200/for 21 days of in-patient period. The Tribunal awarded the entire claim of `30,000/- towards bystander expenses, though the period for which the appellant was treated as in- MACA No. 1175/2014 9 patient is only 21 days. This was done taking note of the fact that the claimant may not be able to do any work at least for six months even after his discharge. Therefore grant of bystander expenses of `30,000/- is justified. 11. The contention of the Standing Counsel is that `2 lakhs awarded by the Tribunal towards Pain and Suffering is on higher side. The following injuries were suffered by the claimant:- - “1. Multiple abrasions and contusions right cheek. 2. Abraded contusion just above the right eyebrow and just below the right eyebrow and right hand and left palm. 3. Pain right thigh and right hip. 4. Multiple abrasions right foot medial aspect and left ankle medial side.” The final diagnosis of the claimant would reveal that he has suffered from Communitted colles fracture right, Communitted trochanteric fracture right, fracture upper end of right femur and abrasion both hands and both feet. The Tribunal also perused Ext.A5 series of photographs of the MACA No. 1175/2014 10 petitioner, taken during the treatment. The Medical Board of the Government Medical College Hospital, Kottayam considered the severe injuries suffered by the claimant and assessed his whole body permanent disability at 33.83%. The Tribunal personally observed the claimant and found that claimant's right leg is shortened due to the accident. The claimant could move only with the help of a bystander and using creches. In fact, the claimant could not mount the witness box and his deposition was taken permitting him to sit on a chair outside the witness box. It was under such circumstance, that the Tribunal awarded ` 2 lakhs towards pain and sufferings. In the facts of the case, the award under this head cannot be treated as excessive. 12. The further argument of the Standing Counsel is that the amount of `1,50,000/- awarded by the Tribunal under the head of “loss of amenities of life, discomforts and inconvenience caused”, is excessive. It has come in MACA No. 1175/2014 11 evidence that the claimant sustained multiple fracture and other injuries. The petitioner continues to move around only with the help of physical assistance. The claimant also have 33.83% of permanent disability. The claimant can move only with the help of a bystander and using creches. He was 54 years old when the accident took place. In view of the afore facts, it cannot be said that the amount of `1,50,000/awarded by the Tribunal towards Loss of Amenities of life, discomforts and inconvenience caused, is excessive. The arguments of the Standing Counsel in this regard is therefore liable to be rejected. 13. The learned Standing Counsel then argued that the Tribunal committed an error in awarding Future Bystander Expenses. It is evident from the material adduced before the Tribunal that the petitioner could not move by himself and require the help of attendant and creches due to his severe disability. The Tribunal also noted that the claimant would MACA No. 1175/2014 12 require such assistance for a long period in future also. Therefore, there is nothing illegal in the findings of the Tribunal, which were arrived at after perusing the materials on record and after personally observing the claimant. Under similar circumstance, the Apex Court has awarded Future Bystander Expenses to the claimant as can be seen from the judgment in **Kajal v. Jagdish Chand** [2020 (1) KLT 743 (SC)]. Therefore no interference is called for on that aspect also. 14. However examining the pleadings and the documents produced before the Tribunal, it is seen that the claimant has not adduced any evidence justifying future medical expenses. The medical and treatment expenses of the claimant during the accident and till the disposal of the claim petition were only to the tune of `44,700/-. In such situation towards future medical expenses that may be incurred by the claimant, the award of `1 lakh by the Tribunal MACA No. 1175/2014 13 is excessive and unjustified. As the medical expenses incurred during the initial treatment is `44,700/-, the future medical expenses can be reasonably pegged at `25,000/-. 15. Similarly, after awarding `30,000/towards bystander expenses incurred during the period of treatment, there is no justification for the Tribunal to further award an amount of `4,200/- towards attendant expenses. It is to be noted that attendant expenses were not claimed by the respondent before the Tribunal. In the circumstances, award of `4,200/- towards attendant expenses is also liable to be set aside. In the facts of the case, the appeal is allowed in part. It is declared that the respondent-claimant is eligible to only `25,000/- towards future medical expenses and not entitled to `4,200/- towards attendant expenses. Accordingly, the award dated 31.01.2014 in OP(MV) No. 400/2009 of the Motor Accidents Claims Tribunal, North Paravur is modified MACA No. 1175/2014 14 by reducing an amount of `79,200/- from the total awarded amount of `9,59,300/-. The respondent/claimant will be consequentially entitled to recover a sum of `8,80,100/- as compensation, with 8% interest for the sum of `7,05,100/from the date of original petition till realisation. **Sd/N. NAGARESH JUDGE** ncd