Prince Jose v. Bajaj Alliance General Insurance Company Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **TUESDAY, THE 18TH DAY OF JULY 2017/27TH ASHADHA, 1939** **MACA.No. 2551 of 2012 () ------------------------AGAINST THE AWARD IN OPMV 294/2011 of MOTOR ACCIDENTS CLAIMS TRIBUNAL, WAYANAD, KALPETTA DATED 09-08-2012 -------------** **APPELLANT(S)/PETITIONER :-** **----------------------------** **PRINCE JOSE, AGED 25 YEARS, S/O.JOSE @ CHACKO, KARIKOMBIL HOUSE, EACHOME P.O., PANAMARAM, WAYANAD DISTRICT.** **BY ADV. SMT.CELINE JOSEPH** **RESPONDENT(S)/RESPONDENTS NO.3. :- --------------------------------** **THE MANAGER, BAJAJ ALLIANCE GENERAL INSURANCE COMPANY LTD., 403, 404, IVTH FLOOR, CRYSTAL ARC BUILDINGS, BALMATTA ROAD, MANGALORE, KARNATAKA – 575 001.** **BY ADV. SRI.K.B RAMANAND(BY ORDER) BY ADV. SRI.P.S.RAMU** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 18-07-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **jvt** ## **C.T.RAVIKUMAR, J. & ANIL K. NARENDRAN, J.** **--------------------------------------M.A.C.A. No.2551 of 2012 ---------------------------------------Dated this the 18[th] day of July 2017** ## **J U D G M E N T** ## **Anil K. Narendran, J.** This appeal arises out of the award passed by the Motor Accidents Claims Tribunal, Kalpetta dated 9.8.2012 in O.P.(MV) No.294 of 2011, a claim petition filed under Section 166 of the Motor Vehicles Act, 1988 claiming compensation on account of the injuries sustained by the appellant/claimant in a motor accident, which occurred on 7.11.2010 while he was travelling in a motor bike bearing registration No.KA 27/L-2903 as a pillion rider. When the motor bike reached the place of accident, an APE Truck bearing registration No.KA 14/A-6245 driven and owned by respondents 1 and 2 respectively and insured with the 3[rd] respondent hit the motor bike. As a result of the accident, the appellant/claimant sustained serious injuries. Alleging that the accident occurred due to the rash and negligent driving of the APE Truck by the 1[st] respondent driver, a claim petition was filed before the Tribunal claiming a total compensation of .6,00,000/- under different heads.₹ M.A.C.A. No.2551 of 2012 -: 2 :- 2. Before the Tribunal, Exts.A1 to A17 series were marked on the side of the appellant/claimant. The disability certificate issued by the District Medical Board was marked as Ext.C1. The respondents have not chosen to adduce any oral or documentary evidence. 3. After considering the materials on record, the Tribunal arrived at a finding that the accident occurred due to the rash and negligent driving of APE Truck by the 1[st] respondent driver. Since the said vehicle was covered with a valid insurance policy, the 3[rd] respondent insurer was held liable to indemnify the 2[nd] respondent owner. Under different heads, the Tribunal awarded a total compensation of 2,57,900 and₹ directed the 3[rd] respondent insurer to deposit the said amount before the Tribunal together with interest at the rate of 7.5% per annum from the date of claim, ie; from 26.8.2011 till the date of payment with proportionate costs. 4. Dissatisfied with the quantum of compensation awarded by the Tribunal under different heads, the appellant/ claimant is before this Court in this appeal. 5. We heard arguments of the learned counsel for the appellant/claimant and also learned counsel for the 3[rd] respondent, insurer. M.A.C.A. No.2551 of 2012 -: 3 :- 6. The sole issue that arises for consideration in this appeal is as to whether the appellant/claimant is entitled for enhancement of the compensation already awarded by the Tribunal under different heads. 7. The accident is of the year 2010 and at the time of the accident, the appellant/claimant was aged below 25 years, who had appeared for the Final BDS examination and was undergoing the Compulsory Rotating Internship. The said fact is evident from Ext.A16 Internship Certificate dated Nil. Ext.A15 is the BDS Degree Certificate issued by the Rajiv Gandhi University of Health Sciences, Karnataka, which would show that he had completed the Compulsory Rotatory Internship on 9.2.2012 and accordingly, found eligible for the award of BDS degree. The said certificate is dated 16.2.2012. As borne out from Ext.A16 Internship Certificate, as the time of accident the appellant/claimant was a student of Sharavathi Dental College and Hospital, Shimoga, a dental college recognised by the Dental Council of India and affiliated to Rajiv Gandhi University of Health Sciences, Bangalore. Therefore, the materials on record make it explicitly clear that as on the date of the accident, he cannot be treated as an earning member. Being a BDS student, he can only be treated as a non-earning member. M.A.C.A. No.2551 of 2012 -: 4 :- The Tribunal, after considering the fact that the appellant/ claimant had completed a professional degree course, fixed his monthly income notionally at ₹3,500/- for the purpose of assessing compensation under different heads. 8. In **Paul Varghese** v. **Shanveen** [2016 (3) KLT 961], after referring to the judgments of the Apex Court in **Arvind Kumar Mishra** v. **New India Assurance Co. Ltd.** [(2010) 10 SCC 254] and **Ashibinbhai Jayantilal Modi** v. **Ramkaran Ramachandra Sharma** [(2015) 2 SCC 180], a Division Bench of this Court, in which one among us (Anil K. Narendran, J.) was a member, held that, the academic brilliance of the injured/ deceased, who was undergoing professional degree course at the time of the accident, the reputation of the educational institution, the prospects of the injured/deceased securing admission for higher studies based on his academic brilliance, etc., are relevant for consideration while fixing future income for computing dependency compensation, as the case may be. 9. In the instant case, the fact that the appellant/ claimant had successfully completed the BDS course from Rajiv Gandhi University of Health Sciences, Bangalore after completing the Compulsory Rotating Internship, is evident from Exts.A15 and A16. In such circumstances, considering the facts M.A.C.A. No.2551 of 2012 -: 5 :- and circumstances of the case, we deem it appropriate to refix the notional income of the appellant/claimant as 10,000/- for₹ the purpose of assessing compensation under different heads. 10. The injuries sustained by the appellant/claimant as borne out from Ext.A5 wound certificate reads thus :- - “1. An incized wound of 1 inch x ½ inch x ½ inch over left eye brow. 2. An incized wound of 1 inch x ½ inch x ½ inch over the left side of face. 3. Swelling of right shoulder. 4. Swelling deformity of right hip and right thigh. 5. An abrasion of 2 inch x 2 inch over right thigh. 6. An abrasion of 2 inch x 2 inch over the left foot. 7. Fracture basal neck of right femur bone. 8. Fracture of right femur bone.” On account of the injuries sustained in the accident, the appellant/claimant had undergone inpatient treatment for a total period of 36 days, which is evident from the documents on record. 11. Ext.C1 is the disability certificate issued by the District Medical Board, in which a permanent disability of 10% has been assessed and the assessment was based on Mc-Bride. Though, in the said disability certificate, assessment of disability as per the National Institute of Orthopedically Handicapped Scale (N.I.O.H) was shown as 55%, the Tribunal has rightly M.A.C.A. No.2551 of 2012 -: 6 :- taken the whole body disability of 10% based on Mc-Bride scale for the purpose of assessing disability compensation. The procedure so adopted by the Tribunal is perfectly legal, which warrants no interference in this appeal. 12. The compensation awarded by the Tribunal under different heads reads thus :- |Sl.<br>No.|Head of Claim|Amount<br>Claimed<br>( .)<br>₹|Amount<br>Awarded<br>( .)<br>₹| |---|---|---|---| |1|Income/notional income|10,000.00|3,500.00| |2|Loss of earning (Total)|1,20,000.00|10,500.00| |3|Medical and Miscellaneous<br>expenses|2,00,000.00|1,11,100.00| |4|Future treatment|1,00,000.00|10,000.00| |5|Bystander expenses|50,000.00|3,600.00| |6|Transportation expenses|75,000.00|18,000.00| |7|Extra nourishment|50,000.00|3,600.00| |8|Damage to clothing, etc.|2,000.00|500.00| |9|Pain and suffering|1,50,000.00|15,000.00| |10|Compensation for permanent<br>disability|5,00,000.00|75,600.00| |11|Loss of amenities and conveniences<br>caused|2,00,000.00|5,000.00| |12|Loss of earning power|5,00,000.00|5,000.00| ||TOTAL|19,47,000/-<br>limited to<br>.6,00,000/-<br>₹|**2,57,900.00**| 13. Towards 'loss of earning' the Tribunal awarded a sum of 10,500/- for a period of three months, taking a monthly₹ income 3,500/-. Since the appellant/claimant was only a₹ M.A.C.A. No.2551 of 2012 -: 7 :- student, who had completed BDS course at the time of the accident, he is not entitled for any amount as compensation towards 'loss of earning'. Therefore, the compensation of ₹10,500/- awarded by the Tribunal under the said head cannot be sustained. 14. Towards 'bystander expenses', the Tribunal awarded ₹3,600/-. Similarly, towards 'extra nourishment' the Tribunal awarded a sum of 3,600/- at the rate of 100/- per day. Since₹ ₹ the accident is of the year 2010, the appellant/claimant is entitled for compensation under the head 'bystander expenses' at the rate of 200/- per day. In the result, the₹ compensation under the head 'bystander expenses' is refixed at 7,200/- (₹ ₹200/- x 36). Therefore, the appellant/claimant will be entitled for an additional compensation of ₹ **3,600/-** under this head. Since the appellant/claimant has been adequately compensated under the head 'extra nourishment', he is not entitled for any additional compensation under that head. 15. Towards 'damage to clothing', the Tribunal awarded a sum of 500/-. Since the accident is of the year₹ 2010, we deem it appropriate to refix the compensation under this head as 1,000/-, resulting an additional compensation₹ of ₹ **500/-.** M.A.C.A. No.2551 of 2012 -: 8 :- 16. Towards 'pain and suffering', the Tribunal awarded a sum of 15,000/-. Considering the nature of injuries sustained and₹ the treatment the appellant had undergone, as borne out from medical records, the compensation awarded by the Tribunal under this head represents just and reasonable, which warrants no interference in this appeal. 17. Towards 'loss of amenities', the Tribunal awarded a sum of 5,000/-. Considering the nature of injuries sustained and the₹ disability that had arisen therefrom, as certified in Ext.C1, we deem it appropriate to refix the compensation under this head as 15,000/-, resulting an additional compensation of ₹ **₹.10,000/-.** 18. Towards 'compensation for permanent disability', the Tribunal awarded a sum of 75,600/-, taking the notional monthly₹ income as 3,500/-, adopting the multiplier of 18 as applicable to₹ the age group of the appellant, who was aged below 25 years at the time of the accident, and the percentage of disability as 10%, as certified in Ext.C1. Accordingly, the Tribunal awarded a sum of ₹75,600/- (3,500 x 18 x 12 x 10/100) under this head. Since we have already refixed the notional monthly income of the appellant/claimant at ₹10,000/-, on a re-working of the compensation under the head 'permanent disability', taking the monthly income as 10,000/-, the multiplier as 18 and₹ M.A.C.A. No.2551 of 2012 -: 9 :- percentage of disability as 10%, the appellant/ claimant will be entitled for a sum of 2,16,000/- (10,000 x 12 x 18 x 10/100),₹ resulting an additional compensation of 1,40,400/-.₹ However, after awarding compensation under the head 'permanent disability', the Tribunal awarded a further sum of 5,000/- towards₹ 'loss of earning power', which cannot be sustained in law. Therefore, after deducting 5,000/- awarded under the head₹ 'loss of earning power' and a further sum of 10,500/- awarded₹ under the head 'loss of earning' (which we have already interfered with in paragraph 13 of this judgment), the additional compensation payable under the head 'permanent disability' comes to ₹ **1,24,900/-.** 19. On the strength of Ext.A12 medical certificate, the appellant/claimant claimed a sum of 20,000/- towards 'future₹ treatment' for removal of implant. The Tribunal awarded only a sum of 10,000/- under this head. During the pendency of this₹ appeal, in the year 2013, the implant was removed, which is evident from the additional documents produced before this Court along with I.A.No.2552/ 2017. Considering the said fact, we deem it appropriate to grant an additional compensation of **₹..10,000/-** towards 'future treatment, which will carry interest at the rate of 8% per annum only from the date of this judgment. M.A.C.A. No.2551 of 2012 -: 10 :- 20. The compensation awarded by the Tribunal under the other heads represents just and reasonable, which warrants no interference in this appeal. In the result, the appellant/claimant will be entitled for a total additional compensation of ₹ **.1,49,000/-** (3,600+500+ 10,000+1,24,900+10,000) in this appeal, out of which, 1,39,000/-₹ will carry interest at the rate of 8% per annum from the date of petition till realisation and the balance 10,000/- will carry interest₹ at the same rate only from the date of this judgment. Since the insurance coverage of the vehicle is not in dispute, the respondent in this appeal (3[rd] respondent before the Tribunal) shall deposit the said amount before the Tribunal within two months from the date of receipt of a certified copy of this judgment. The appeal stands disposed of as above. No order as to costs. **Sd/JUDGE** ## **C.T.RAVIKUMAR** **Sd/ANIL K. NARENDRAN** ## **J UDGE** //TRUE COPY// P.A. TO JUDGE Jvt/22.7.2017