Ousepachan and others v. National Insurance Co. Ltd.

``` 2025:KER:20219 ``` ``` MACA NO.1131 OF 2014 ``` ``` 1 ``` **==> picture [57 x 58] intentionally omitted <==** ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE C.PRATHEEP KUMAR ``` ``` THURSDAY, THE 27[TH] DAY OF FEBRUARY 2025 / 8TH PHALGUNA, 1946 ``` ``` MACA NO. 1131 OF 2014 ``` ``` AGAINST THE ORDER/JUDGMENT DATED 30.11.2013 IN OPMV NO.408 OF 2010 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,PERUMBAVOOR ``` ## **`APPELLANTS/PETITIONER:`** - **`1 OUSEPACHAN AGED 48 YEARS S/O.POULOSE, PARAKKA HOUSE, PUTHIYEDAM, KANJOOR.`** - **`2 GRACY OUSEPACHAN AGED 52 YEARS`** - **`W/O LATE OUSEPECHAN, PARACKA HOUSE, KANJOOR P.O, KIZHAKKUMBHAGAM, KANJOOR, ERNAKULAM.`** - **`3 GEETHU P.O D/O LATE OUSEPECHAN, PARACKA HOUSE, KANJOOR P.O, KIZHAKKUMBHAGAM, KANJOOR, ERNAKULAM.`** - **`4 ANU OUSEPACHAN D/O LATE OUSEPECHAN, PARACKA HOUSE, KANJOOR P.O, KIZHAKKUMBHAGAM, KANJOOR, ERNAKULAM.`** - **`5 POULOSE S/O PAPPU, PARACKA HOUSE, KANJOOR, KOZHIKKADANPADY, VADAKKUMBAGOM VILLAGE, KIZHAKKUMBHAGOM, KANJOOR, ERNAKULAM.`** - **`6 ANNIE POULOSE W/O POULOSE, PARACKA HOUSE, KANJOOR P.O, KIZHAKKUMBHAGAM, KANJOOR, ERNAKULAM (*P2 TO P6 ARE`** ``` 2025:KER:20219 ``` ``` MACA NO.1131 OF 2014 ``` ``` 2 ``` **==> picture [57 x 58] intentionally omitted <==** ``` IMPLEADED AS THE SUPPLEMENTAL APPELLANTS 2 TO 6 AS PER ORDER DATED 10/03/2021 IN IA-3/2021 IN MACA 1131/2014). ``` ``` BY ADVS. SRI.REJI GEORGE ANUPAMA JOHNY ``` ## **`RESPONDENT/RESPONDENT NO.3:`** ``` NATIONAL INSURANCE CO.LTD PB NO.6, IST FLOOR, SHANTI PARK,N.H.49, KOLENCHERRY PO, PIN 682 311. ``` ``` BY ADV SMT.P.A.REZIYA ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 27.02.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA NO.1131 OF 2014 ``` ``` 3 ``` **==> picture [57 x 58] intentionally omitted <==** ``` 2025:KER:20219 ``` ## **J U D G M E N T** The petitioner in O.P.(M.V.) No.408/ 2010 on the file of the Motor Accident Claims Tribunal, Perumbavoor, is the appellant herein. During the pendency of the appeal, on 7.3.2015 he died and his legal representatives have impleaded as additional appellants 2 to 6 (For the purpose of convenience, the parties are hereafter referred to as per their rank before the Tribunal) 2. The petitioner filed the above O.P. under Section 166 of the Motor Vehicles Act, 1988, claiming compensation for the injuries sustained in a motor vehicle accident that occurred on 30.12.2009. According to the petitioner, on 30.12.2009 at about 10.15 p.m., while he was riding a motor cycle, a tempo traveller bearing reg.no.KL-40/B-5666 driven by the 2[nd] respondent in a rash and negligent manner, knocked him down and as a result of the accident, the petitioner sustained serious injuries. 3. The 1[st] respondent is the owner , the 2[nd] respondent is the driver and 3[rd] respondent is the insurer of the offending vehicle. According to the petitioner, the accident occurred due to the negligence of the driver of the offending vehicle. The quantum of compensation claimed in the O.P. is Rs.12,96,000 limited to Rs.10,00,000/-. **==> picture [57 x 58] intentionally omitted <==** ``` 2025:KER:20219 ``` ``` MACA NO.1131 OF 2014 ``` ``` 4 ``` 4. The insurance company filed a written statement, admitting the accident as well as policy, but disputing the negligence on the part of the driver of the offending vehicle. 5. The evidence in the case consists of the documentary evidence Exts.A1 to A11, X1. No evidence was adduced by the respondents. 6. After evaluating the evidence on record, the Tribunal found negligence on the part of the driver of the offending vehicle, awarded a total compensation of Rs.7,64,970/- and directed the insurer to pay the same. 7. Aggrieved by the quantum of compensation awarded by the Tribunal, the petitioner preferred this appeal. 8. Now the point that arises for consideration is the following: _Whether the quantum of compensation awarded by the Tribunal is just and reasonable?_ 9. Heard Sri.Reji George, the learned Counsel appearing for the petitioner/appellant, and Smt.P.A. Raziya, the learned Standing Counsel for the 3[rd] respondent. 10. The Point: In this case the accident as well as valid policy of the offending vehicle are admitted. One of the contentions raised by the ``` MACA NO.1131 OF 2014 ``` **==> picture [57 x 58] intentionally omitted <==** ``` 2025:KER:20219 ``` ``` 5 ``` learned counsel for the petitioner is regarding the notional income of the petitioner as fixed by the Tribunal as well as the multiplier applied for the purpose of assessing the disability. According to him, the petitioner was working as peon in the Federal Bank, Budhanoor Branch, Chenganoor, earning Rs.15,556/- per month. Ext.A7 is the salary certificate. The petitioner proved that he was getting a total monthly salary of Rs.15,556/-. However the tribunal found that the petitioner will suffer loss of earning only on retirement at the age of 60 and hence his notional income was taken Rs.3000/- and the multiplier applied was 7. 11. The learned counsel for the petitioner would argue that in this case, the petitioner has sustained very serious injuries including fractures and he had undergone five surgeries. Further the multiplier to be applied is the one applicable on the date of the accident and at least ½ of the salary of the petitioner is to be taken as his notional income for the purpose of assessing loss of disability. In the decision in **Dinesh Singh vs. Bajaj Allianz General Insurance Co Ltd. [2014 (9) SCC 241],** in the case of an Engineer who suffered 60% disability having monthly income of Rs.17200, Hon’ble Apex Court has taken Rs.12840 as his notional income. In the decision in **Akhilesh Chandran vs. Sabu Varghese and Others [MANU/KE/3976/2024],** a **==> picture [57 x 58] intentionally omitted <==** ``` 2025:KER:20219 ``` ``` MACA NO.1131 OF 2014 ``` ``` 6 ``` Single Bench of this Court has fixed the notional income of a victim employed in co-operative bank having 40% disability with the monthly income of Rs.27954/- as Rs.15,000/-. In the decision **Deepa Cyrus vs.** **Divisional Manager Oriental Insurance Company Ltd. [MANU/KE/4197/2024],** in the case of a victim employed in Federal Bank, suffering from 80% disability having a monthly salary of Rs.50047/-, the notional income was fixed as Rs.25,000/-. 12. In the light of the above decisions, the tribunal was not justified in limiting the notional income of the petitioner at Rs.3,000/-. On the other hand, at least 50% of the salary of the petitioner ought to have been taken as his notional income. Since his total monthly salary is Rs.15,556/-, 50% of the same would come to Rs.7778/-. Therefore, his notional income is fixed as Rs.8000/-. Similarly the law is well settled that the multiplier to be applied is applicable on the date of the accident and not on the date of the retirement. **(Vimal Kanwar and others vs. Kishore Dan and others [AIR 2013 SC 3830]** and **Dinesh Singh vs. Bajaj Allianz General Insurance Co Ltd. [2014 (9) SCC 241]).** 13. In the accident the petitioner sustained the following injuries: ``` 2025:KER:20219 ``` ``` MACA NO.1131 OF 2014 ``` ``` 7 ``` **==> picture [57 x 58] intentionally omitted <==** - Distension of abdomen - Lacerated wound on the left hand - Abrasions on the face and extremities - Lacerated wounds on the right eyebrow, chin and right middle finger. - Fracture of both right forearm - Fracture of right patella, right tibial condyle - Fracture right femur - Intertrochanteric fracture of right femur 14. Ext.X1 disability certificate shows that the petitioner suffered 48.24 % permanent physical disability. It was issued by the medical board. The Tribunal, has accepted the permanent physical disability of the petitioner as such and hence, I do not find any grounds to disbelieve the same. Therefore, the permanent physical disability of the petitioner is accepted as 48.24%, as fixed by the Tribunal. 15. On the date of accident, the petitioner was aged 44 years. Therefore, 25% of the monthly income is to be added towards future prospects, as held in the decision in **National Insurance Co.Ltd v Pranay** ``` MACA NO.1131 OF 2014 ``` ``` 8 ``` **==> picture [57 x 58] intentionally omitted <==** ``` 2025:KER:20219 ``` **Sethi** [(2017) 16 SCC 680] and the multiplier to be applied is 14, as held in **Sarla Verma v. Delhi Transport Corporation,** (2009) 6 SCC 121. In the above circumstances, the loss of disability will come to Rs.8,10,432/-. 16. Towards loss of earning, the tribunal has awarded a sum of Rs.73168/- taking his monthly income as Rs.14441/-. Since the monthly salary of the petitioner is fixed as Rs.15556/- he is entitled to a sum of Rs. 78817/- (15556/30x152) towards loss earning. 17. Towards the head ‘pain and sufferings’, the Tribunal has awarded Rs.60000/-. Towards 'loss of amenities of life' Rs.42000/- was awarded and towards 'extra nourishment' Rs.3750/- was awarded. According to the learned counsel for the petitioner, the compensation awarded on those heads are on the lower side. 18. The petitioner sustained very serious injuries in the accident and was treated as inpatient for 34 days. Because of the injuries sustained, the percentage of disability suffered and the length of treatment undergone by the petitioner, I hold that the compensation awarded by the Tribunal on the heads ‘pain and sufferings’, 'loss of amenities of life' and 'extra nourishment' are on the lower side and hence they are enhanced to Rs.1,00,000/-, Rs.60,000/- and Rs.10000/- respectively. ``` 2025:KER:20219 ``` ``` MACA NO.1131 OF 2014 ``` ``` 9 ``` **==> picture [57 x 58] intentionally omitted <==** 19. No change is required, in the amounts awarded on other heads, as the compensation awarded on those heads appears to be just and reasonable. 20. Therefore, the petitioner/appellant is entitled to get a total compensation of Rs.1523736/-, as modified and recalculated above and given in the table below, for easy reference. |Sl.<br>No<br>.|Head of Claim|Amount awarded by<br>Tribunal (in Rs.)|Amount Awarded<br>in Appeal<br>(in Rs.)| |---|---|---|---| |1|Loss of earning|73168|78817| |2|Transportation|1000|1000| |3|Extra nourishment|3750|10000| |4|Damages to clothes|500|500| |5|Bystander expenses|5100|5100| |6|Medical expenses|457887|457887| |7|Pain and sufferings|60000|100000| |8|Loss of amenities|42000|60000| |9|Disability & earning<br>power|121565|810432| ||**Total**|**764970**|**1523736**| ||Enhanced|**758766**|| **==> picture [57 x 58] intentionally omitted <==** ``` 2025:KER:20219 ``` ``` MACA NO.1131 OF 2014 ``` **==> picture [16 x 9] intentionally omitted <==** 21. In the result, this Appeal is allowed in part, and Respondent No.3 is directed to deposit a total sum of Rs.1523736/- (Rupees Fifteen Lakhs Twenty Three Thousand Seven Hundred and Thirty Six Only), less the amount already deposited, if any, along with interest @ 8% per annum, from the date of the petition till deposit/realisation, with proportionate costs, within a period of two months from today. 22. On depositing the aforesaid amount, the Tribunal shall disburse the entire amount to the petitioner, excluding court fee payable, if any, without delay, as per rules. **Sd/C. PRATHEEP KUMAR, JUDGE** Pvv