Pradeep v. Tomy P.V., M/S. Teepeeyem Container Terminal, Wellington Island, Cochin, and The New India Assurance Co. Ltd.

``` 2025:KER:23145 ``` **==> picture [58 x 58] intentionally omitted <==** ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE C.PRATHEEP KUMAR`** ``` THURSDAY, THE 20[TH] DAY OF FEBRUARY 2025 / 1ST PHALGUNA, 1946 ``` ## **`MACA NO. 1652 OF 2017`** ``` AGAINST THE AWARD DATED 22.06.2016 IN OPMV NO.876 OF 2007 OF ADDITIONAL DISTRICT COURT-II & IST ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL, MAVELIKKARA ``` ## **`APPELLANT:`** ``` PRADEEP MADATHIL VEEDU, NJACKANAL P.O, KRISHNAPURAM ``` ``` BY ADVS. SRI.GEORGE VARGHESE(PERUMPALLIKUTTIYIL) SRI.A.R.DILEEP SRI.P.J.JOE PAUL SRI.MANU SEBASTIAN ``` ## **`RESPONDENTS:`** - **`1 TOMY P.V. [DELETED], PUTHENPURACKAL, COCHIN CORPORATION BEACH ROAD,THOPPUMPADY, ERNAKULAM 682 005`** - **`[ RESPONDENT NO.1 IS REMOVED FROM THE ARRAY OF RESPONDENTS AT THE RISK OF THE APPELLANT AS PER ORDER DATED 1/11/2023 IN IA 1/2023 IN MACA 1652/2017 ]`** - **`2 THE SOLE PROPREITOR M/S. TEEPEYEM CONTAINER TERMINAR,WELLINGTON ISLAND, COCHIN 3`** - **`3 THE NEW INDIA ASSURANCE CO.LTD REPRESENTED BY ITS BRANCH MANAGERBRANCH OFFICE, KAYAMKULAM 690 502`** ``` MACA NO. 1652 OF 2017 2 ``` **==> picture [58 x 58] intentionally omitted <==** ``` 2025:KER:23145 ``` ``` BY ADVS. SRI.LAL K.JOSEPH- SC SRI.SURESH SUKUMAR SRI.ANZIL SALIM SRI.V.S.SHIRAZ BAVA ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 20.02.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA NO. 1652 OF 2017 3 ``` **==> picture [58 x 58] intentionally omitted <==** ``` 2025:KER:23145 ``` ## **J U D G M E N T** Dated this the 20[th] day of February, 2025 The petitioner in O.P.(M.V.) No.876/2007 on the file of the Additional Motor Accident Claims Tribunal, Mavelikkara, is the appellant herein. (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 28.02.2007. According to the petitioner, on 28.02.2007 at about 9.30 a.m., while he was riding a motorcycle through the public road, a trailer bearing Reg.No.KL 7 V8937driven by the 1[st] respondent in a rash and negligent manner hit him down. As a result of the accident, the petitioner fell down and sustained serious injuries. 3. The 1[st] respondent is the driver, the 2[nd] respondent is the owner 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.4,81,000(limited 4,50,000) 4. The insurance company filed a written statement, admitting the ``` MACA NO. 1652 OF 2017 4 ``` **==> picture [58 x 58] intentionally omitted <==** `2025:KER:23145` 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 oral testimonies of PW1 and PW2 and documentary evidence Exts.A1 to A17 and B1. 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.2,78,557/- 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.P.J.Jeo Paul, the learned counsel who represented Sri. George Varghese, for the petitioner/appellant, and Sri.Lal K. Joseph the learned Standing Counsel for the 3[rd ] respondent. 10. The Point: In this case the accident as well as valid insurance policy of the offending vehicle are admitted. One of the contentions raised by the learned counsel for the petitioner is regarding the notional income of the petitioner as fixed by the Tribunal at Rs.3,000/-. At the time of the accident ``` MACA NO. 1652 OF 2017 5 ``` **==> picture [58 x 58] intentionally omitted <==** `2025:KER:23145` the petitioner was working in Assam rifles and the monthly income claimed was Rs.8,200/-. However the tribunal fixed his notional income at Rs.3,000/-. The reason given by the tribunal for fixing the notional income at Rs.3,000/is that, the petitioner has not produce his salary certificate as on the date of the accident. Along with the memorandum of appeal, the petitioner has produced his salary particulars along with I.A.No.1968/2017, signed by Officer Commanding, Assam Rifles Transit camp Kolkatta, showing the salary particulars of the petitioner for the quarter ending 28.02.2007, which is marked as Ext.A18 for the purpose of reference. As per Ext.A18 his quarterly salary for the quarter ending 28.02.2007 was Rs.25,779/-. Therefore his monthly salary during the period of accident was Rs. 8,593/- (25,779/3). 11. In the accident the petitioner sustained the following injuries: “Diagnosis revealed fracture nasal bone, fracture nasoethmoid bone, fracture right lateral wall of orbit, fracture maxilla Lefort II level, fracture midpalatine, fracture maxilliary antral walls, fracture floor of the nose, fracture mandible left para symphasis, total avulsion of nose. Bone deep wound running from left frontal area to the left corner of the mouth.” 12. As per Exhibit A17 disability certificate the petitioner suffered 20% permanent physical disability. It was issued by PW2. The Tribunal, has accepted the permanent physical disability of the petitioner as such and hence, ``` MACA NO. 1652 OF 2017 6 ``` **==> picture [58 x 58] intentionally omitted <==** ``` 2025:KER:23145 ``` I do not find any grounds to disbelieve the same. Therefore, the permanent physical disability of the petitioner is accepted as 20%, as fixed by the Tribunal. 13. It was argued by the learned counsel for the petitioner that, because of the injuries sustained in the accident the petitioner lost his promotions and consequently, he had incurred huge financial loss. In order to substantiate the above contention, he has relied upon Exts.A7 to A11 documents. Ext. A7 is the medical certificate issued by the CMO Headquarters, Inspector General Office Assam Rifles (South), stating that after examination the petitioner was categorizsed as P3(permanent). Ext.A8 is the details of the loss of pay suffered by the petitioner and he was denied promotion on account of the injuries sustained in the accident issued by the Lt.Col. SO 1(Comn), Headquarters, Inspector General Office Assam Rifles (South), which shows that the petitioner has suffered a total loss of Rs.38,26,470/- on account of the fact that he was not permitted to continue after 30 years and also because of the denial of promotion. 14. Ext.A9 is the certificate issued by the Major Adjutant for Comdt. stating that since the petitioner was categorized as P3(permanent ) due to road traffic accident, he was not given promotion/upgradation in the ``` MACA NO. 1652 OF 2017 7 ``` **==> picture [58 x 58] intentionally omitted <==** `2025:KER:23145` organization due to his permanent category and also states that he suffered huge financial loss due to the accident. Ext.A10 is the certificate issued by Lt. Col. SO 1(Comn), Headquarters, Inspector General Office Assam Rifles (South), stating that because of the injuries sustained in the accident the petitioner became unfit for active combat and he was rehabilitated in sheltered employment. It further states that because of the injuries sustained in the accident he was not retained in service beyond the 30 years of qualified service and that he was also denied the promotion. Ext.A11, another certificate issued by the Major, Adjutant for Commandant, states that the petitioner was not given promotion/upgradation in the organization due to downgrade of his medical category. Ext.A11 further states that, if he was not affected by the injuries sustained in the accident, he would have been eligible for three promotions up to the rank of Subedar Major during his entire after 60 years of age and if he had maintained his medical criteria SHAPE-I and qualifying the classes/cadres for promotion. It further states that, he was eligible for two financial upgradation on completion 10/20 years of service, if he had maintained his medical criteria SHAPE-I and qualifying in classes/cadres for promotion. 15. On a perusal of the above documents it can be seen that, ``` MACA NO. 1652 OF 2017 8 ``` **==> picture [58 x 58] intentionally omitted <==** `2025:KER:23145` because of the injuries sustained in the accident the petitioner lost his promotion opportunities and hence he was rehabilitated in sheltered employment. He had also suffered huge financial loss, because, on account of the injuries sustained in the accident his service was not extended beyond 30 years, up to the age of 60. 16. The learned counsel for the 3[rd] respondent would argue that, the petitioner has failed to prove that he has suffered any financial loss, as he has not produced the details of the salary he received during the period up to 2024, as admittedly he was in service till the year 2024. He further contended that the promotion is not automatic and it is based on the performance and as such no benefit can be given to the petitioner for the loss of promotion. He further contended that, the actual financial loss arose only after the retirement and as such the multiplier to be applied is the one as on the date of his retirement. He would also contend that Exts.A1 to A11 and A17 could not be relied upon as the persons who issued those documents were not examined before the tribunal. 17. It is true that the officials in Assam Rifles who had issued Ext.A7 to A11 were not examined before the tribunal. However it is to be noted that, those documents were issued by the top officials of Assam Rifles ``` MACA NO. 1652 OF 2017 9 ``` **==> picture [58 x 58] intentionally omitted <==** `2025:KER:23145` and those documents contained their signature and office seal. Therefore I do not find any grounds to disbelieve those documents. From those documents it is revealed that because of the injuries sustained in the accident the petitioner was categorized as P3 and accordingly he was denied promotions and his service was not extended after 30 years. In the decision in James Joseph v. National Insurance Co.Ltd, 2025 ICO 283, this Court has already found that the multiplier to be applied is that prevailing as on the date of the accident and not on the date of retirement. In the above circumstance, I hold that the petitioner is entitled to get compensation on the head ‘loss of disability’, taking his notional income and multiplier prevailing as on the date of the accident. 18. On the date of accident, the petitioner was aged 33 years and he was also a permanent employment. Therefore, 50% of the monthly income is to be added towards future prospects, as held in the decision in **National Insurance Co. Ltd v. Pranay Sethi** [(2017) 16 SCC 680] and the multiplier to be applied is 16, 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.4,94,957/- 19. The tribunal has not awarded any compensation on the head ``` MACA NO. 1652 OF 2017 10 ``` **==> picture [58 x 58] intentionally omitted <==** `2025:KER:23145` loss of earning. The petitioner has not adduced any evidence to show the details of the leave availed by him. However it is revealed that he was treated as inpatient for a period of 33 days. Therefore, considering the nature of the injuries sustained and the percentage of disability suffered by the petitioner, I hold that, he is entitled to get loss of earning for the above 33 days, taking his monthly salary at Rs.8,593/-, which will come to Rs.9452/-. 20. Towards the head ‘pain and sufferings’, the Tribunal has awarded Rs.50,000/-, towards 'loss of amenities of life' Rs.20,000/- and towards bystander expenses Rs.3800/- was awarded. According to the learned counsel for the petitioner, the compensation awarded on those heads are on the lower side. 21. In the accident the petitioner sustained very serious injuries including 8 fractures on his face. He was treated as inpatient for a period of 33 days. Therefore, the compensation awarded by the Tribunal on the heads ‘pain and sufferings’, 'loss of amenities of life' and bystander expenses are on the lower side and hence they are enhanced to Rs.60,000/-, 40,000/- and Rs.6600/- respectively. 22. No change is required, in the amounts awarded on other heads, as the compensation awarded on those heads appears to be just and ``` MACA NO. 1652 OF 2017 11 ``` **==> picture [58 x 58] intentionally omitted <==** ``` 2025:KER:23145 ``` reasonable. 23. Therefore, the petitioner/appellant is entitled to get a total compensation of **Rs.7,24,686/-** as modified and recalculated above and given in the table below, for easy reference: |**Sl.**<br>**No.**|**Head of Claim**|**Amount awarded by**<br>**Tribunal (in Rs.)**|**Amount Awarded in**<br>**Appeal (in Rs.)**| |---|---|---|---| |1|Loss of earning|NIL|Rs.9452/-| |2|Transport to hospital|Rs.3.000/-|Rs.3,000/-| |3|Extra nourishment|Rs.6,000/-|Rs.6,000/-| |4|Damage to clothing|Rs.500/-|Rs.500/-| |5|Others including<br>medical expenses|Rs.4,177/-|Rs.4,177/-| ||bystander expenses|Rs.3,800/-|Rs.6600/-| |6|Pain and suffering|Rs.50,000/-|Rs.60,000/-| |7|Compensation for<br>degradation and rejection<br>retention in service|Rs.1,00,000/-|Rs.1,00,000/-| |8|Compensation for<br>continuing or permanent<br>disability|Rs.91,080/-|Rs.4,94,957/-| |9|Compensation for loss of<br>enjoyment and amenities in<br>life and dis-figuration|Rs.20,000/-|Rs.40,000/-| ||**Total**|**Rs.2,78,557/-**|**Rs.**<br>**7,24,686/-**| ||**Enhanced**|**Rs.446,129/-**|| 24. In the result, this Appeal is allowed in part, and 3[rd] respondent ``` MACA NO. 1652 OF 2017 12 ``` **==> picture [58 x 58] intentionally omitted <==** `2025:KER:23145` **-** is directed to deposit a total sum of **Rs.7,24,686/** (Rupees Seven lakhs twenty four thousand six hundred eighty six only), less the amount already deposited, if any, along with interest at the rate ordered by the Tribunal, from the date of the petition till deposit/realisation, with proportionate costs, within a period of two months from today. (Enhanced compensation will carry interest @8%). 25. 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** vnk/- ``` MACA NO. 1652 OF 2017 13 ``` **==> picture [58 x 58] intentionally omitted <==** ``` 2025:KER:23145 ``` ## **`APPENDIX OF MACA 1652/2017`** ``` PETITIONER ANNEXURES ``` ``` ANNEXURE 1THE PAYSLIP FOR THE MONTH OF FEBRUARY, 2017 ```