Prasanth v. Lucky Road Lines and Ors. (MACA Nos. 1862/2013, 1869/2013 and 2449/2014)

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. WEDNESDAY, THE 14[TH] DAY OF FEBRUARY 2024 / 25TH MAGHA, 1945 MACA NO. 1862 OF 2013** **AGAINST THE AWARD DATED 03.01.2013 IN OP(MV) 1513/2007 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, IRINJALAKUDA APPELLANT/PETITIONER:** PRASANTH, S/O.SUBRAN, MADATHIL HOUSE, KOSANODY DESOM, VARANDRAPPILLY VILLAGE AND P.O., MUKUNDAPURAM TALUK, THRISSUR DISTRICT. BY ADVS. SRI.P.V.BABY SRI.A.N.SANTHOSH ## **RESPONDENTS/RESPONDENTS:** 1 LUCKY ROAD LINES, 100, KOMARAPALAYAM, PALLIPALAYAM P.O., THIRUCHENGODE TALUK, TAMILNADU 638 006. 2 VELLAICHAMY , S/O.CHAKKINA THEVAR CHANGANPETTY P.O., KAMAKSHIPURAM VIA, PERIYAKULAM TALUK, THENI DISTRICT, TAMILNADU 636 915. 3 NEW INDIA ASSURANCE COMPANY LTD. 66-C, NORTH CAR STREET, THIRUCHANGODE - 637 211. BY ADVS. SRI.G.HARIHARAN SRI.LAL K.JOSEPH SRI.PRAVEEN.H. SRI.RAJESH THOMAS THOMAS MATHEW NELLIMOOTTIL -R3, KC SANTHOSH KUMAR R1, R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 14.02.2024, ALONG WITH MACA.1869/2013, 2449/2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.A.C.A. No.1862/2013 & connected cases : 2 : ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.** **WEDNESDAY, THE 14[TH] DAY OF FEBRUARY 2024 / 25TH MAGHA, 1945** **MACA NO. 1869 OF 2013** **AGAINST THE AWARD DATED 03.01.2013 IN OP(MV) 1514/2007 OF** **MOTOR ACCIDENT CLAIMS TRIBUNAL, IRINJALAKUDA** ## **APPELLANTS/PETITIONERS:** 1 VELAYUDHAN, ALIKKAL HOUSE, ARUVAI DESOM, PASHANJI VILLAGE AND P.O., THALAPPLLY TALUK, THRISSUR DISTRICT. 2 MOHINI, W/O.VELAYUDHAN,ALIKKAL HOUSE, ARUVAI DESOM, PASHANJI VILLAGE AND P.O., THALAPPLLY TALUK, THRISSUR DISTRICT. 3 VIPINKUMAR, S/O.VELAYUDHAN,ALIKKAL HOUSE, ARUVAI DESOM, PASHANJI VILLAGE AND P.O., THALAPPLLY TALUK, THRISSUR DISTRICT. 4 AJITHA KUMARI, D/O.VELAYUDHAN,ALIKKAL HOUSE, ARUVAI DESOM, PASHANJI VILLAGE AND P.O., THALAPPLLY TALUK, THRISSUR DISTRICT. BY ADVS. P.V.BABY A.N.SANTHOSH ## **RESPONDENTS /RESPONDENTS:** 1 LUCKY ROAD LINES, 100, KOMARAPALAYAM, PALLIPALAYAM P.O., THIRUCHENGODE TALUK, TAMILNADU-638 006. 2 VELLAICHAMY, S/O.CHAKKINA THEVAR, CHANGANPETTY P.O., KAMAKSHIPURAM VIA, PERIYAKLAM TALUK, THENI DISTRICT, TAMILNADU-636 915. 3 NEW INDIA ASSURANCE COMPANY LTD 66-C, NORTH CAR STREET, THIRUCHANGODE-637 211. BY ADVS. SRI.RAJESH THOMAS THOMAS MATHEW NELLIMOOTTIL THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 14.02.2024, ALONG WITH MACA.1862/2013 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.A.C.A. No.1862/2013 & connected cases : 3 : # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. WEDNESDAY, THE 14[TH] DAY OF FEBRUARY 2024 / 25TH MAGHA,** ## **1945** **MACA NO. 2449 OF 2014** **AGAINST THE AWARD DATED 03.01.2013 IN OP(MV) 1513/2007 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, IRINJALAKUDA** ## **APPELLANT/1ST RESPONDENT:** LUCKY ROADLINES, 100, KOMARAPALAYAM, PALLIPALAYAM P.O., THIRUCHENGODE TALUK, TAMILNADU, REPRESENTED BY ITS MANAGING PARTNER. BY ADVS. SRI.G.HARIHARAN SRI.PRAVEEN.H. ## **RESPONDENTS/CLAIMANT/RESPONDENT 2 & 3:** 1 PRASANTH, S/O.SUBRAN, MADATHIL HOUSE, RESIDING AT KOSANODY DESOM, VARANDRAPILLY VILLAGE & P.O., KUKUNDAPURAM TALUK, THRISSUR DISTRICT. 2 VELLAICHAMY, S/O.CHAKKINA THEVAR, CHANGAN PETTY P.O., KAMAKSHIPURAM VIA, PERIYAKULAM TALUK, THENI DISTRICT, TAMIL NADU. 3 MS. NEW INDIA ASSURANCE CO. LTD., 66-C, NORTH CAR STREET, THIRUCHENGODE, NAMAKKAL DISTRICT, TAMILNADU - 637 211. BY ADVS. SRI.K.C.SANTHOSHKUMAR **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 14.02.2024, ALONG WITH MACA.1862/2013 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** M.A.C.A. No.1862/2013 & connected cases : 4 : ## **JUDGMENT** All these appeals arise from a common award passed by the Motor Accident Claims Tribunal, Irinjalakuda, in OP(MV) Nos.1513/2007 and 1514/2007. M.A.C.A. Nos.1869/2013 and 1862/2013 were filed by the claimants in OP(MV) Nos.1514/2007 and 1513/2007 respectively. The 1[st] respondent, the owner of the vehicle involved in the accident, filed M.A.C.A. No.2449/2014 challenging the right of recovery granted to the 3[rd] respondent from him, in the light of the finding of the tribunal to the effect that the driver of the vehicle was not having a valid driving license at the time of the accident. 2. M.A.C.A. No.2449/2014 was filed by the 1[st] respondent in OP(MV) No.1513/2007, challenging the right of recovery in the said award. OP(MV) No.1513/2007 was filed by the appellant in M.A.C.A. No.1862/2013 seeking compensation for the injuries sustained to him in the motor accident, whereas OP(MV) No.1514/2007 was filed by the appellants in M.A.C.A. No.1869/2013 under Section 163 A of the Motor Vehicles Act M.A.C.A. No.1862/2013 & connected cases : 5 : seeking compensation for the death of one Arun Kumar in the said motor accident. 3. According to the claimants, the accident occurred when the motorcycle ridden by the said Arun Kumar along with the petitioner in OP(MV) No.1513/2007 as the pillion rider, collided with a tanker lorry bearing registration No.TN-34C 1462. The said tanker lorry was being driven by the 2[nd] respondent, owned by the 1[st] respondent and was insured with the 3[rd] respondent. 4. The 1[st] and 2[nd] respondents, the owner and driver of the tanker lorry, were set ex-parte. The 3[rd] respondent, the insurer of the said lorry, filed a written statement admitting the existence of a valid insurance policy for the tanker lorry. However, it was contended that, the 2[nd] respondent was driving the tanker lorry without a valid driving licence and a badge at the time of the accident. Therefore, the contention of violation of policy conditions was raised. It was also averred that, the Police charge sheeted the 2[nd] respondent under Section 3(1) r/w 181 of the Motor Vehicles Act. An additional written statement was also filed by the 3[rd] respondent to the effect that, the deceased was not ## M.A.C.A. No.1862/2013 & connected cases : 6 : wearing a helmet as prescribed by law. They also disputed the negligence on the part of the 2[nd] respondent and challenged the quantum of compensation claimed by the respective claimants. 5. In the joint trial conducted, from the side of the claimants, PWs1 and 2 were examined, and Exts.A1 to A18 were marked. No evidence was adduced from the side of the respondents. 6. After the trial, the tribunal found that the accident occurred due to the negligence of the 2[nd] respondent and it was also found that at the relevant time, he was not holding a valid driving licence. Even though the primary liability to pay the compensation was fixed upon the 3[rd] respondent/insurer, they were permitted to recover the said amount from the 1[st] respondent after satisfaction of the awards. In OP(MV) No.1513/2007, an amount of Rs.2,62,540/- was awarded, which was recoverable from the 3[rd] respondent with interest at the rate of 7.5% per annum from the date of petition till realisation and with proportionate cost. Similarly, in OP(MV) No.1514/2007, the award was passed for Rs.1,91,000/- which was recoverable with interest at the rate of 7.5% per annum from the date of petition till ## M.A.C.A. No.1862/2013 & connected cases : 7 : realisation and with proportionate costs. These awards are under challenge in these appeals at the instance of the respective claimants and also by the 1[st] respondent. 7. Heard Sri. P.V. Baby, the learned counsel appearing for the claimants/appellants in M.A.C.A Nos.1862/2013 and 1869/2013, Sri. G. Hariharan, the learned counsel appearing for the appellant in M.A.C.A. No.2449/2014, the 1[st] respondent in the claim petition, Sri. K.C. Santhosh Kumar, the learned counsel appearing for the 3[rd] respondent in M.A.C.A. No.2449/2014, Sri. Thomas Mathew Nellimoottil, the learned counsel appearing for the 3[rd] respondent in M.A.C.A. No.1869/2013 and Sri. Lal K Joseph, the learned counsel appearing for the 3[rd] respondent in M.A.C.A. No.1862/2013. 8. As the challenge raised in M.A.C.A. No.2449/2014 at the instance of the 1[st] respondent/registered owner of the vehicle was pertaining to the liability imposed upon him, it is only proper that the said issue be decided at first. It is seen from the records that the right of recovery was granted to the 3[rd] respondent in both the claim petitions by the tribunal. However, it is seen that the challenge against the said finding has been made by the M.A.C.A. No.1862/2013 & connected cases : 8 : appellant only in OP(MV) No.1513/2007. Therefore, the finding imposing liability upon them in OP(MV) No.1514/2007 remains unchallenged. Therefore, this appeal cannot be entertained as it is hit by the principles of _res judicata._ 9. Besides the same, Annexure-1 driving license particulars produced along with the appeal contains the details of the licence issued to the 2[nd] respondent. The categories mentioned are LMV and transport vehicles. The vehicle involved in this case was a heavy vehicle, which is not mentioned in the said licence particulars. In such circumstances, I do not find any scope for entertaining MACA No 2449/2014 and accordingly, it is dismissed. 10. The issues involved in M.A.C.A. Nos.1869/2013 and 1862/2013 pertains to the quantum of compensation, as the respective claimants are not satisfied with the amount awarded by the tribunal. The said issues are dealt with in the following manner: ## **MACA 1869/2013 which arises from OP(MV) No.1514/2007** 11. This is a claim petition submitted under Section 163 A of the Motor Vehicles Act. The claim was for the death of the M.A.C.A. No.1862/2013 & connected cases : 9 : person who was riding the motorcycle at the relevant time. He was aged 21 years and a tile worker with a monthly income of Rs.3,300/-. The tribunal awarded compensation by fixing the monthly income as Rs.2,000/- applying the multiplier of 14 with a deduction of ½ towards personal expenses. Thus, the total compensation awarded was Rs.1,91,000/-. 12. As the claim was under Section 163 A of the Motor Vehicles Act, the compensation has to be calculated by strictly following the structured formula as contemplated under the 2[nd] schedule of the Motor Vehicles Act, which stood prior to the amendment in the year 2018. In the second schedule, specific figures are shown with reference to the age of the deceased and the annual income which he used to earn, for the purpose of assessing the compensation. Once the age and monthly income are determined, to assess the compensation, one needs to look at the figures shown in the table provided in the second schedule to quantify the compensation. In this case, even though an amount of Rs.3,300/- was claimed as the monthly income, the tribunal accepted only Rs.2,000/-. Considering the fact that the accident occurred in the year 2007, the monthly income of ## M.A.C.A. No.1862/2013 & connected cases : 10 : Rs.2,000/- is very low. It is to be noted in this regard that in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Co.Ltd** [(2011) 13 SCC 236] **,** the Hon’ble Supreme Court was pleased to take the monthly income of an ordinary worker as Rs.4,500/- for an accident occurred in the year 2004. Therefore, under no circumstances the monthly income of Rs.3,300/- could be considered unreasonable for the purpose of assessment of compensation. Accordingly, I deem it appropriate to fix it as Rs.3,300/-. As far as the age of the deceased is concerned, it was stated to be 20 years and eight months as on the date of the accident. Therefore, he would fall under the category between the age group of 20-25. When the second schedule is considered for determining the compensation with reference to the age and monthly income of the victim, it can be seen that the amount specified for the persons coming within that category is Rs.7,20,000/-. One-third of the same has to be deducted towards personal expenses to determine the actual compensation receivable by the legal heirs of the deceased. Thus, the amount would come to Rs.4,80,000/-. In addition to the ## M.A.C.A. No.1862/2013 & connected cases : 11 : above, Rs.2,000/- has to be granted towards funeral expenses and towards loss of estate Rs.2,500/- is to be granted as per the entries contained in the second schedule. Compensation under no other heads are permissible. Thus, the total compensation in this case is determined as Rs.4,84,500/- [480000+2000+2500] and after deducting Rs.1,91,000/- which the tribunal already awarded, the additional compensation would come to Rs.2,93,500/-. ## **MACA 1862/2013 which arises from OP(MV) No.1513/2007** 13. This is a claim submitted by the petitioner seeking compensation for the injuries sustained. The appellant/petitioner was aged 23 years and claimed to be a tile worker with a monthly income of Rs.5,000/-. 14. In the accident, he sustained very serious injuries, and it resulted in physical disability, which was certified by the Doctor as evidenced by Ext.A9 as 40%. The functional disability was mentioned as 80% therein. Ext.A9 was proved by examining PW1, the Doctor who issued the said certificate, who reiterated the contents of Ext.A9. M.A.C.A. No.1862/2013 & connected cases : 12 : 15. The Tribunal, after appreciating the entire materials, fixed the monthly income of the appellant as Rs.2,500/- and accepted the physical disability as 40%. The total amount of compensation awarded was Rs.2,62,540/- and the said amount was permitted to be recovered with interest @ 7.5% per annum. 16. The main challenge raised by the learned counsel for the appellant in this case is with respect to the amount of compensation fixed for disability. The contentions raised by him are mainly two fold. Firstly, with respect to the monthly income, and secondly, with respect to the percentage of disability. As far as the monthly income is concerned, the Tribunal accepted it as only Rs.2,500/- which appears to be on the lower side. The accident in this case occurred in the year 2007 and in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Co.Ltd** [(2011) 13 SCC 236], the Honourable Supreme Court was pleased to take the monthly income for an ordinary worker as Rs.4,500/- for an accident occurred in the year 2004. Therefore, under no circumstances the monthly income of Rs.5,000/- claimed by the appellant, could be treated as unreasonable in respect of an accident that occurred in the year ## M.A.C.A. No.1862/2013 & connected cases : 13 : 2007, even if no evidence in this regard was adduced. Therefore, the monthly income is fixed as Rs.5,000/-. 17. The next aspect to be considered is the percentage of disability. The Tribunal fixed the percentage of disability as 40% by accepting the Ext.A9 certificate which stands proved by PW1. The specific contention put forward by the learned counsel for the appellant in this regard is that, this is a case in which the functional disability ought to be taken into account, as certified in Ext.A8. He brought the attention of this Court to the injury sustained by him as evidenced by Ext.A3 wound certificate and Ext.A4 discharge summary. The nature of injuries is also specifically mentioned in the Ext.A9 disability certificate. The injuries noted as per the wound certificate, discharge summary and C.T. scan of the brain are as follows: _“Severe head injury – Subarachnoid haemorrhage, fracture right frontal bone and temporal bone, mesencephalic bleed. He developed left Otorrhoea and Anisocoria._ _The final diagnosis was:-_ _Right Frontal extra axial bleed, Subarachnoid haemorrhage, Inter hemispheric bleed, pneumocephalus, fracture left frontal bone, fracture anterior cranial fossa, fracture right temporal bone left CSF Otorrhoea._ _Pupils were reacting but unequal. Ophthalmological consultation was also done. He was managed_ M.A.C.A. No.1862/2013 & connected cases : 14 : _conservatively.”_ ## 18. In Ext.A9 disability certificate, his higher mental disabilities are also referred to, which reads as follows: _“His attention, concentration and language functions are impaired (10%). His recent memory is impaired. He has impaired emotional balance with sudden outburst of rage and fear (15%)._ _He has visual, auditory and gustatory hallucinations, delusional behaviour, impaired judgment and poor insight (15%). He also suffers from recurrent episodes of headache and inability to work due to said disabilities._ _Cranial nerve functions, spinomotor and sensory system, skull and spine are normal, No bladder disability like retention or incontinence._ _His major neurological disabilities are due to impaired higher mental functions. The abovesaid permanent disabilities have resulted from the severe brain injuries sustained in the accident. He needs life long anti-psychotic medications for his Posttraumatic (organic) Psychological (personality) disorder._ _According to the persons with Disabilities Act 1998 (Ministry of Social Justice and Empowerment), his permanent total Neurological disability is assessed as 40%.”_ 19. Having assessed the permanent neurological disability as 40%, the Doctor who issued Ext.A9 proceeded to assess the functional disability by treating him as a skilled labourer and fixed it as 80%. PW1, when being examined, asserted the certification made by him in Ext.A9 as well. However, the Tribunal did not ## M.A.C.A. No.1862/2013 & connected cases : 15 : accept the same, by observing that no proper reasons were mentioned for assessing the functional disability as 80%. After carefully going through the contents of the medical records, including the disability certificate and the deposition of PW1, I find that the conclusion arrived at by the Tribunal is a probable one as far as disability is concerned. The major difficulties/disabilities suffered by the appellant pertain to the impairment of concentration and language function, memory impairment and emotional imbalance with sudden outbursts of rage and fear. In addition to the same, the assessment was made for impaired judgment and poor insight. It is also seen that he was advised to have anti-psychotic medications for his posttraumatic (organic) psychological (personality) disorder developed from the said injuries for lifelong. Of course, the said observations in Ext.A9 would indicate that the appellant sustained serious injuries and consequential disabilities, which would certainly affect his earning capacity to a greater extent. But, as far as the assessment of 80% of functional disability is concerned, no reasons were specifically mentioned. On the other hand, the percentage of disability consequent to each and every functional disability has ## M.A.C.A. No.1862/2013 & connected cases : 16 : been assessed in the said disability certificate. Apart from the reduction in concentration, memory impairment, hallucination, delusional behaviour, etc., there are no other aspects were found in Ext.A9 which necessitate disability @ 80%. Therefore, I am of the view that the finding of the Tribunal accepting 40% disability was a probable one. However, the assessment made in disability certificate would certainly indicate that his ability to earn is substantially affected, and such disability was caused to him at the young age of 23 years. Therefore, this is a fit case in which the compensation has to be calculated by considering the future prospects as well. I have already found that the monthly income of the appellant was Rs.5,000/- and since he was aged 23 years at the time of the accident, the multiplier applicable is 18. Thus, while assessing the compensation for disability with the above criteria, the amount would come to Rs. 6,04,800/- [(5,000 + 40%) x 12 x 18 x 40%]. The amount already awarded by the Tribunal is Rs.2,16,000/- and the additional amount would thus come to Rs.3,88,800/-. 20. The Tribunal awarded compensation for loss of earnings for a period of two months @ Rs.2,500/-. Considering ## M.A.C.A. No.1862/2013 & connected cases : 17 : the nature of injuries sustained by the appellant and the prolonged treatment availed by him, both as an inpatient as well as outpatient, I am of the view that the compensation has to be calculated at least for a period of four months. Since the monthly income is already fixed as Rs.5,000/-, the additional amount under this head would come to Rs.15,000/-. The amount awarded towards pain and suffering was Rs.20,000/-. Considering the serious nature of injuries as discernible from medical records, including Ext.A9, I deem it appropriate to grant a further sum of Rs.20,000/-. 21. The next head which requires consideration is loss of amenities and convenience. The Tribunal did not award any compensation under this head. It is evident from the records that the appellant sustained very serious disabilities, which affected his normal life. The neurological disabilities sustained by him affected his normal behaviour with other people, and it will certainly affect the quality of his life, that he was leading until the accident. It is also to be noted that such serious disabilities were sustained to him at the young age of 23 years, and he has to live with the disabilities for his entire life. Therefore, reasonable M.A.C.A. No.1862/2013 & connected cases : 18 : compensation needs to be granted under this head. Accordingly, I deem it appropriate to fix it as Rs.40,000/-. 22. The learned counsel for the appellant further points out that the appellant requires some amount towards future treatment. The said submission was made by the learned counsel by placing reliance upon the contents of Ext.A9, the disability certificate wherein it was observed that he needs lifelong anti-psychotic medications for his posttraumatic (organic) psychological (personality) disorder. Thus, the necessity of lifelong treatment is specifically referred to in the disability certificate and the same is reiterated in the evidence of PW1 as well. In such circumstances, an amount of Rs.50,000/- is awarded towards future treatment expenses. Thus, the total compensation in this case is determined as Rs.5,13,800/[388800+15000+20000+40000+50000]. 23. In the result, M.A.C.A. No.2449/2014 is dismissed confirming the right of recovery granted to the 3[rd] respondent. M.A.C.A. No.1869/2013 is allowed by modifying the award passed by the Motor Accident Claims Tribunal, Irinjalakkuda in M.A.C.A. No.1862/2013 & connected cases : 19 : O.P.(M.V.) No.1514/2007 by awarding a further sum of Rs.2,93,500/-(Rupees two lakhs ninety three thousand and five hundred only) and the said amount shall be deposited by the 3[rd] respondent with interest @ as ordered by the Tribunal with proportionate cost, within a period of three months from the date of receipt of a copy of this judgment. M.A.C.A. No.1862/2013 is allowed by modifying the award passed by the Motor Accident Claims Tribunal, Irinjalakkuda in O.P.(M.V.) No.1513/2007 by - awarding an additional compensation of Rs.5,13,800/ (Rupees five lakhs thirteen thousand and eight hundred only) which shall be deposited by the 3[rd] respondent with interest at the rate as ordered by the Tribunal with proportionate cost, within a period of three months from the date of receipt of a copy of the judgment. As the recovery right granted to the 3[rd] respondent is upheld, the 3[rd] respondent shall be entitled to recover the additional compensation from the 1[st] respondent after satisfaction of the judgment. M.A.C.A. No.1862/2013 & connected cases : 20 : It is further clarified that the claimants shall furnish the details of the PAN card, Aadhar Card and bank details to enable the Insurance Company to make the deposit as ordered above, within period of two months from the date of receipt of a copy of this judgment. In case, they fail to furnish the said details, it shall be open for the insurance company to deposit the same amount before the Tribunal. **Sd/ZIYAD RAHMAN A.A. JUDGE** ncd/scs