New India Assurance Co. Ltd. v. Bipin Kishore A.T.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.HARILAL WEDNESDAY, THE 11TH DAY OF APRIL 2018 / 21ST CHAITHRA, 1940 MACA.No. 1847 of 2013 AGAINST THE AWARD DATED 04.01.2013 IN OPMV 2213/1998 OF PRINCIPAL MACT, KOZHIKODE APPELLANT/3RD RESPONDENT: ------------------------- NEW INDIA ASSURANCE CO.LTD. NADAKKAVU BRANCH, KOZHIKODE, REPRESENTED BY ITS DEPUTY MANAGER, REGIONAL OFFICE, KOCHI. BY ADV.SRI.RAJAN P.KALIYATH RESPONDENT/CLAIM PETITIONER: ---------------------------- BIPIN KISHORE A.T., @ VIPIN KISHORE, AGED 47 YEARS, S/O.A.T.KRISHNAN, MELEPAT HOUSE, CHALIVAYAL PARAMBA, CHAKKORATHKULAM, POST NADAKKAVU, KOZHIKODE, PIN 673526. BY ADV. SRI.JACOB ABRAHAM THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 11-04-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: DST ## **K. HARILAL, J.** **= = = = = = = = = = = = = = = = = M.A.C.A. No.1847 of 2013(F)** **- - - - - - - - - - - - - - - - - - - - - -** _Dated this the 11[th] day of April, 2018_ ## **J U D G M E N T** New India Assurance Company Limited, the 3[rd] respondent in O.P.(MV) No.2213 of 1998 of the Principal Motor Accidents Claims Tribunal _(hereinafter referred to as 'the Tribunal'),_ Kozhikode filed this appeal challenging the adequacy and correctness of the quantum of compensation granted to the respondents under various heads of claim. The parties are referred to as in the Original Petition. The aforesaid Original Petition was filed under Section 166 of the Motor Vehicles Act, 1988, claiming compensation for the injuries sustained to him, in a road traffic accident. 2. According to the petitioner, while he was riding a motorcycle, a bus driven by the 2[nd] respondent, owned by the 1[st] respondent and insured ## **M.A.C.A. No.1847 of 2013(F)** ## **-: 2 :-** with the 3[rd] respondent hit him, causing grievous injuries to him. According to the petitioner, at the time of accident, he was aged 30 years and employed as a videographer. He was getting an income of `2,400/- per month. 3. The 3[rd] respondent Insurance Company opposed the said application, disputing the quantum of compensation claimed under various heads of claim; but admitted the coverage of the insurance policy. After considering the evidence on record, the Tribunal has passed the impugned award, granting `4,57,384/- as compensation to the petitioner. This appeal has been filed mainly on the grounds that the monthly income of the petitioner determined by the Tribunal is excessive and the quantum of compensation granted under the heads 'pain and sufferings' and 'permanent disability', is ## **M.A.C.A. No.1847 of 2013(F)** ## **-: 3 :-** exorbitant and disproportionate with the actual damages caused to the petitioner. 4. Heard the learned counsel for the appellant and the learned counsel for the respondents. 5. The sum and substance of the arguments advanced by the learned counsel for the appellant Insurance Company is that the amount granted under the heads 'pain and sufferings', 'loss of future earning power' is exorbitant. So also, it is contended that the Tribunal went wrong by fixing an exorbitant amount as monthly income of the petitioner. 6. Per contra, the learned counsel for the respondent advanced arguments to justify the quantum of compensation determined under the heads 'pain and sufferings' and 'loss of future earning power'. **M.A.C.A. No.1847 of 2013(F)** ## **-: 4 :-** According to him, there is no scope for interference on the ground that the amount granted under different heads of claim are exorbitant. 7. In view of the arguments at the Bar, the only point to be considered is, whether the Tribunal is justified in determining the monthly income of the petitioner and the quantum of compensation under the heads 'pain and sufferings' and 'loss of future earning power'? According to the petitioner, he was aged 30 years and working as a videographer at the time of accident. Though, he contended that he was earning `2,400/- per month, the Tribunal fixed the monthly income as `1,500/- only. The accident occurred on 21.08.1996. The decision reported in _**Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Co. Ltd.**_ [(2011) 13 SCC 236], the Supreme Court held that in the case of an accident occurred ## **M.A.C.A. No.1847 of 2013(F)** ## **-: 5 :-** in the year 2004, an amount of `3,500/- to `4,500/can be fixed as monthly notional income, in the absence of any convincing evidence to prove the exact income of the claimant or victim, as the case may be. In the above view also, this Court finds that the Tribunal is justified in fixing the monthly income at `1,500/-, in the case of an accident, which occurred in the year 1996. Therefore, this Court does not find any reason to interfere with the monthly income fixed by the Tribunal. 8. As regards compensation for 'pain and sufferings', it is seen that the Tribunal has granted `1,00,000/- under the said head of claim. It has come out in evidence from Ext.A4 Medical Prescription Card, Exts.A5 to A7 discharge summaries, Ext.A12 treatment certificate and Exts.A15 and A16 discharge summaries that the **M.A.C.A. No.1847 of 2013(F)** ## **-: 6 :-** respondent/petitioner had undergone treatment for 120 days as an inpatient. That apart, the aforesaid documents show the grievous nature of the injuries suffered by him. Ext.A3 is the reference card issued by Medical College Hospital, Kozhikode and it shows that the petitioner was treated as an inpatient from 21.08.1996 to 09.09.1996. Thereafter he was referred to Kasthurba Hospital, Manipal. Ext.A5 is a discharge summary issued from the said hospital at Manipal and it shows that he had undergone treatment as an inpatient from 15.11.1996 to 06.01.1997. Ext.A6 is another discharge summary issued from the very same hospital and it shows that he was again admitted and treated as an inpatient from 26.02.1999 to 13.03.1999. Ext.A7 is another discharge summary, which shows that he was again admitted as an inpatient in the very same hospital ## **M.A.C.A. No.1847 of 2013(F)** ## **-: 7 :-** from 04.03.1998 to 13.03.1998. Thus, as per the discharge summary, he had sustained “open communited fracture lower end of right femur and bone loss, supra condylar fracture right femur with one loss, fracture 3[rd] , 4[th] proximal phalanx meta carpal right hand, anterior cruciate ligament injury, multiple abrasion, lacerated wound on lower leg and posterior aspect of left ankle”. The grievous nature of the injuries referred above coupled with long duration of treatment, as an inpatient would justify the amount granted by the Tribunal for pain suffered by him, during the said period. In the above view, I do not find any reason to interfere with the amount granted under the head 'pain and sufferings'. 9. Coming to the compensation granted for 'loss of future earning power', it is seen that the Tribunal has relied on the disability certificate **M.A.C.A. No.1847 of 2013(F)** ## **-: 8 :-** issued by the Medical Board. The Medical Board certified that he has 40% disability. Therefore, the Tribunal is justified in determining the compensation for loss of future earning power, on the basis of the said disability certificate, taking the monthly income at `1,500/-. On an appraisal of the evidence on record, I do not find any reason to interfere with the quantum of compensation determined under the aforesaid heads of claim. Consequently, this appeal will stand dismissed. All pending Interlocutory Applications will stand closed. Sd/- ## **K. HARILAL, JUDGE** DST //True copy// P.A. To Judge