P.S. Dharmararajan vs United India Insurance Company Ltd. and Ors.

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. ``` ``` TUESDAY, THE 3[RD] DAY OF OCTOBER 2023 / 11TH ASWINA, 1945 ``` ## **`MACA NO. 2020 OF 2009`** ``` AGAINST THE AWARD DATED 19.08.2008 IN OP(MV) 1397/2002 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, ERNAKULAM ``` ## **`APPELLANT/PETITIONER:`** ``` 1*P.S.DHARAMARAJAN S/O SANKU, AGED 45 YEARS, PULLUKATTU HOUSE, NADAKKAVU, UDAYAMPEROOR, MANAKUNNAM VILLAGE, RESIDING AT MAMPILLY LANE, EAST OF ANAPPARAMBU, EROOR, NADAMA VILLAGE. ``` ``` *DECEASED – LR’S IMPLEADED. ``` ``` *ADDL.2SHINI DHARMARAJAN AGED 53 YEARS W/O LATE P.S. DHARMARAJAN, PULLUKATTU HOUSE, NADAKKAVU, UDAYAMPEROOR, ERNAKULAM *ADDL.3ASWIN RAJ P.D. AGED 24 YEARS S/O LATE P.S. DHARMARAJAN, PULLUKATTU HOUSE, NADAKKAVU, UDAYAMPEROOR,ERNAKULAM *ADDL.4ARJUN RAJ AGED 22 YEARS S/O LATE P.S. DHARMARAJAN, PULLUKATTU HOUSE, NADAKKAVU, UDAYAMPEROOR, ERNAKULAM ``` ``` *APPELLANTS 2 TO 4 ARE IMPLEADED AS SUPPLEMENTAL APPELLANTS 2 TO 4 IN MACA 2020/2009 AS PER ORDER DATED 02/08 2023 IN I.A.1/2021. ``` ``` BY ADVS. ``` ``` P.G.JAYASHANKAR VISHNU BABU P.K.RESHMA (KALARICKAL) REVATHY P. MANOHARAN S.RAJEEV (K/001711/2019) ``` ``` MACA NO. 2020 OF 2009 ``` ``` 2 ``` ## **`RESPONDENTS/RESPONDENTS:`** - `1 SHANMUKHAVEL SON OF CHIDAMBHARAN, AGED 48 YEARS, MUTHUPANDIYAR STREET, K.K.NAGAR, MADURAI CITY, TAMIL NADU.` - `2* VELMURUGAN (DELETED) SON OF ALAGARSWAMY, 6/14, MECHANICAL STREET, ARAPALAYAM VILLAGE, MADURAI DISTRICT, TAMIL NADU.` - `3 UNITED INDIA INSURANCE COMPANY LTD. DGI NO.4, PROCENADE ROAD, TRICHY, PIN-620 001.` - `4* K.T.THAMPI (DELETED) KOOVASSERY HOUSE, PERUMPILLY, MULAMTHURUTHY.` - `5 NATIONAL INSURANCE COMPANY LTD. THRIPUNITHURA.` ``` * R2 & R4 ARE DELETED FROM THE ARRAY OF PARTIES AT THE RISK OF THE APPELLANT/ PETITIONER VIDE ORDER DT 6/8/2012 IN 1.A. NO.1889/2012 IN MACA 2020/09. ``` ``` BY ADVS. SRI.RAJAN P.KALIYATH SMT.P.A.REZIYA - S.C. ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 03.10.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA NO. 2020 OF 2009 ``` ``` 3 ``` ## **`JUDGMENT`** The appellant is the petitioner in O.P.(M.V.) No.1397/2002 on the files of the Motor Accident Claims Tribunal, Ernakulam. The said claim petition was submitted by him seeking compensation for the injuries sustained to him in a motor accident that occurred on 05.03.2001. In the said application, he also claimed damages to the motorcycle of the appellant, which was involved in the accident. 2. According to the appellant, the accident occurred when the motorcycle ridden by the appellant was hit by a tanker lorry bearing Registration No.TN 45 K 4299 driven by the 2[nd] respondent. The said vehicle was owned by the 1[st] respondent and was insured with the 3[rd] respondent herein. The 4[th] and 5[th] respondents are the owner and the insurer of the motorcycle. According to the appellant, he was working as an Insurance Surveyor with a monthly income of Rs.15,000/-. The claim petition was submitted seeking a total compensation of Rs.12,00,000/-. 3. The respondents 1, 2 and 4 remained ex parte. The 3[rd] respondent filed a written statement admitting the policy for the ``` MACA NO. 2020 OF 2009 ``` ``` 4 ``` lorry. However, they disputed the liability by contending that there was no negligence on the part of the 2[nd] respondent in driving the vehicle, and the accident occurred due to the negligence of the appellant himself. They also disputed the quantum of compensation claimed. The 5[th] respondent Insurance Company filed a written statement admitting the policy for the motorcycle. However, they contended that they were not necessary parties in the said petition as the Police laid a charge sheet against the 2[nd] respondent for the incident. The evidence in this case consists of oral evidence of PW1, who was the appellant himself and Exts.A1 to A16(a) from the side of the appellant. No evidence was adduced from the side of the respondents. 4. After examining the materials placed on record, the Tribunal came to the conclusion that the accident occurred due to the negligence on the part of the 2[nd] respondent and therefore, the 3[rd] respondent Insurance Company was held liable to pay the compensation. The quantum of compensation was fixed as Rs.2,41,342/- and the 3[rd] respondent was directed to deposit the said ``` MACA NO. 2020 OF 2009 ``` ``` 5 ``` amount along with interest @ 7.5% per annum from the date of petition till the date of realisation. This appeal is submitted in such circumstances being dissatisfied with the quantum of compensation. 5. Head Smt. P.K. Reshma, learned counsel appearing for the appellant, Smt.P.A. Reziya, learned counsel appearing for the 3[rd] respondent and Sri.Rajan P. Kaliyath, the learned counsel for the 5[th] respondent Insurance Company. 6. The learned counsel for the appellant would contend that the amount awarded by the Tribunal, for disability and consequent loss of earning power is on the lower side. It was pointed out that even though a monthly income of Rs.15000/- was claimed, the income taken was only Rs.2,000/-, which was grossly inadequate. The learned counsel also relies on the income tax return produced along with the appeal as Annexure A, wherein the total income from his avocation was shown as Rs.95,260/- for the assessment year 2002-2003. It was also pointed out that, even though the percent of disability certified by the Medical Board was 23%, the Tribunal ought to have taken the functional disability of ``` MACA NO. 2020 OF 2009 ``` ``` 6 ``` the appellant, considering the impact of such injuries on the earning capacity of the appellant. To substantiate the same, the learned counsel also places reliance upon the decision rendered by the Hon’ble Supreme Court in **Indra Bai v. Oriental Insurance Company Ltd. and Another** [2023 liveLaw (SC) 543] and **Sarnam Singh v. Sriram General Insurance Co. Ltd. and Ors.** [2023 liveLaw SC 498]. 7. The learned counsel for the Insurance Company would oppose the aforesaid contention by pointing out that the amount awarded by the Tribunal is reasonable and the same is as per standards prevailing in the year 2001, the year of the accident. 8. After carefully going through the materials placed on record, I find some force in the contention put forward by the learned counsel for the appellant. It is seen from the records that the avocation of the appellant has not been seriously disputed. Even though no records were produced before the Tribunal showing the income of the appellant, the appellant has produced Annexure A income tax certificate (Saral form) in this appeal. It is true that, as ``` MACA NO. 2020 OF 2009 ``` ``` 7 ``` pointed out by the learned counsel for the Insurance Company, the said document was not produced before the Tribunal, and hence, the same cannot, as such, be accepted. However, considering the fact that it is a document from a Government authority, the contents of the same need not be completely ignored. The same would give some indication as to the financial status of the appellant as well. In such circumstances, taking note of the entire facts and circumstances of the case, I am of the view that the monthly income of the appellant can be taken as Rs.6,000/- for the purpose of computing compensation, even though the entire income as shown in Annexure A need not be accepted. 9. As regards the contention raised by the learned counsel for the appellant as to the functional disability, I am of the view that the same cannot be accepted in this case. Of course, it is true that in the decisions rendered by the Hon’ble Supreme Court in **Sarnam Singh’s** case and **Indra Bai’s** case, the Hon’ble Supreme Court, taking note of the injuries and consequential physical disability sustained by the victims, functional disability was taken at a higher ``` MACA NO. 2020 OF 2009 ``` ``` 8 ``` rates than certified in the medical records. However, both cases were regarding claims submitted by the persons working as a gunman and loading and unloading workers. The impact of the disability upon the employment of such nature would be different from the nature of employment in which the appellant is engaged. In this case, the percentage of disability certified by the Medical Board is 23%, and the appellant was working as an Insurance Surveyor. Therefore, considering the possible impact of the physical disability upon his avocation, the same would be beyond any comparison with the categories of employees whose claims were decided by the honourable Supreme Court in the decisions referred to above. Therefore, the principles laid down in the said decisions cannot be made applicable to the facts of this case. 10. The next aspect relates to the multiplier to be adopted. The learned counsel for the appellant pointed out that the Tribunal had taken only 13 as the multiplier by holding that the appellant was aged 45 years at the time of the accident. However, in the cause title of the petition itself, the age of the appellant was shown as 38 years, ``` MACA NO. 2020 OF 2009 ``` ``` 9 ``` and in Annexure A income tax return, the date of birth of the appellant is shown as 20.10.1964. Going by the same, he would be only 37 at the time of the accident. In the facts and circumstances of the case, I do not doubt the veracity of Annexure A. Therefore, the date of birth mentioned therein can be accepted, thereby treating the age of the appellant as 37 at the time of the accident. In such event, the proper multiplier would be 15. 11. In such circumstances, while reassessing compensation for physical disability with the revised monthly income and with a multiplier of 15, the amount would come to Rs.2,48,400/- (6000 x 12 x 15 x 23/100). After deducting Rs.71,760/- already awarded by the Tribunal under this head, the additional amount would come to Rs.1,76,640/-. 12. Consequent to the revision of monthly income, the appellant would be entitled to an additional amount under the head of ‘loss of earning’. The Tribunal has granted compensation under this case for a period of 5 months by taking the monthly income as Rs.2,000/-. Therefore, the additional amount under this head would ``` MACA NO. 2020 OF 2009 ``` ``` 10 ``` be Rs.20,000/- and it is granted. 13. Another head which requires reconsideration is ‘loss of amenities’. The Tribunal has awarded an amount of Rs.20,000/under this head. However, it is discernible that the appellant sustained serious injuries, resulting in a permanent disability of 23%. The petitioner was aged only 37 years, and he has to live with that disability his entire life. When considering the difficulties he has to face on account of such disability, I deem it appropriate to grant a further amount of Rs.20,000/- under this head. 14. Another aspect pointed out by the learned counsel for the appellant relates to the compensation of Rs.19,000/- claimed by him for damages sustained to his motorcycle. The Tribunal has awarded an amount of Rs.10,000/- under this head. The only document the appellant relied on is the survey report submitted by the appellant wherein the total amount to restore the motorcycle was shown as Rs.31,886/-. The learned counsel also places reliance on the decision rendered by the Full Bench of this Court in **Joseph M.M. v. Venkata Rao M. and Others** [2016 (1) KHC 756], ``` MACA NO. 2020 OF 2009 ``` ``` 11 ``` wherein it is held that when a third party claim for the property damages is raised, the claimant is entitled to the actual value of spare parts used for repairing the vehicle and there cannot be any depreciation for the actual value of spare parts. However, the crucial aspect to be noticed is that, in this case, apart from the survey report, no evidence was adduced. The surveyor who prepared the survey report was not examined, and no bills evidencing the expenditure incurred by the appellant in this regard were also produced. In such circumstances, I do not find any reasonable ground to interfere in the amount awarded by the Tribunal under this head. Thus, the total additional compensation receivable by the appellant is determined as Rs.2,16,640/-. In the light of the aforesaid observations and findings, the award dated 19.08.2008 in O.P.(M.V.) No.1397/2002 passed by the Motor Accident Claims Tribunal, Ernakulam is modified by granting an additional amount of Rs.2,16,640/- (176640 + 20000 + 20000) [Rupees two lakhs sixteen thousand six hundred and forty) and the 3[rd] respondent Insurance Company is directed to deposit the ``` MACA NO. 2020 OF 2009 ``` ``` 12 ``` said amount along with interest at the rate as ordered by the Tribunal, along with proportionate cost, within a period of three months from the date of receipt of the copy of this judgment. ``` Sd/- ZIYAD RAHMAN A.A. JUDGE ``` scs ## **`MACA NO. 2020 OF 2009`** ## **`13`** ## **`APPENDIX OF MACA NO. 2020/2009`** ``` PETITIONER ANNEXURES Annexure ATRUE COPY OF THE INCOME TAX RETURN FOR THE YEARS 2001 - 2002 ```