P.S. Ratnan v. K.A. Nazar and The Oriental Insurance Co. Ltd.

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THEHONOURABLEMRS.JUSTICESOPHYTHOMAS ``` ``` WEDNESDAY,THE5[TH]DAYOFJULY2023/14THASHADHA,1945 MACANO.2419OF2012 ``` ## **`AGAINST THE ORDER/JUDGMENT IN OPMV 683/2008 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, ERNAKULAM`** ## **`APPELLANT/PETITIONER:`** ``` P.S.RATNAN,AGED40YEARS, S/O.SREEDHARAN,PANIKKASSERYHOUSE,WARD NO.6,EDAVANAKAD,ANDNOWRESIDINGAT PANIKKASSERYVEETTIL,SOUTH THAMARAPARAMBU,FORTCOCHIN,COCHIN-1. ``` ``` BYADVSRI.B.PRAMOD ``` ## **`RESPONDENTS/RESPONDENTS:`** ``` 1K.A.NAZAR S/O.ABDULKARIM,KAITHAKKAPARAMBIL HOUSE,3/765,ELAMKUNNAPUZHAP.O., - ERNAKULAM682031. ``` ``` 2THEORIENTALINSURANCECO.LTD. BRANCHOFFICE,JYOTHISUPERBAZAAR, THODUPUZHA,PIN-685584,REPRESENTEDBY ITSMANAGER. ``` ``` THISMOTORACCIDENTCLAIMSAPPEALHAVINGBEENFINALLY HEARDON21.06.2023,THECOURTON05.07.2023DELIVEREDTHE FOLLOWING: ``` MACA No.2419 of 2012 2 ## **SOPHY THOMAS, J.** ## **--------------------------------------MACA No.2419 of 2012** **---------------------------------------** Dated this the 5[th] day of July, 2023 ## **J U D G M E N T** The appellant herein is the claimant in OP(MV) No.683 of 2008 on the file of Motor Accidents Claims Tribunal, Ernakulam, impugning the award dated 06.03.2012, on the ground of inadequacy of compensation. ## 2. Brief facts are as follows: The appellant, a 40 year old man doing prawns business earning monthly income of Rs.15,000/-, met with a road traffic accident on 31.08.2007 at about 10 a.m while he was travelling in a goods autorickshaw bearing registration No.KL-42/893 along with the load of prawns. The 1[st] respondent, who was the owner cum driver of that autorickshaw, drove the vehicle in a rash and negligent manner, and it overturned while swerving towards left, without proper care. The appellant sustained serious injuries which resulted in amputation of his left leg. He was treated at MACA No.2419 of 2012 3 various hospitals as an inpatient for 82 days. Due to amputation of his left leg, he suffered disability of 40%, and he lost his job as well as livelihood. He approached the Tribunal claiming compensation of Rs.15 lakh. But, the Tribunal awarded only Rs.8,10,757/- and that is under challenge in this appeal. 3. The 1[st] respondent/owner cum driver of the autorickshaw, remained ex parte. The 2[nd] respondent/insurer admitted that the offending vehicle was validly insured with them during the period of accident. 4. Before the Tribunal, no oral evidence was adduced from either side. Exts.A1 to A14, B1 and X1 were marked. 5. The appellant is assailing the award on the following grounds: Learned Tribunal, though accepted 40% disability reported by the Medical Board as per Ext.X1 certificate, the monthly income of the appellant was notionally fixed @ Rs.4,000/-. The appellant is aggrieved by the notional income fixed by the learned Tribunal. Moreover, the Tribunal awarded only Rs.50,000/- for the MACA No.2419 of 2012 4 cost of artificial limb though the expenses for fixing artificial limb exceeds Rs.2 lakh. 6. Now let us see whether any illegality, irregularity or impropriety is there in the award of the Tribunal warranting interference by this Court. 7. Heard learned counsel for the appellant and learned counsel for the 2[nd] respondent. 8. The appellant was a 40 year old businessman doing prawns business and that fact is not disputed. Though he claimed monthly income of Rs.15,000/-, no evidence is there to prove the income. Since he was only 40 and he was a prawns merchant, even going by the decision _**Ramachandrappa**_ vs. _**Manager, Royal Sundaram Alliance Insurance Company Limited**_ [AIR 2011 SC 2951], his notional income could have been fixed @ Rs.6,000/- per month, as the accident was in the year 2007. Learned Tribunal assessed his loss of earning for six months @ Rs.4,000/-. Since he was eligible to get his notional income fixed @ Rs.6,000/-, he was entitled to get Rs.36,000/- towards loss of MACA No.2419 of 2012 5 earning. Since he was already paid Rs.24,000/- under that head, he is eligible to get the balance amount of Rs.12,000/-. 9. Towards compensation for loss of earning capacity, the Tribunal awarded Rs.2,88,000/-, taking his monthly income as Rs.4,000/-. We have taken his monthly income as Rs.6,000/-. Since his left leg was amputated below knee, definitely it has affected his earning capacity to a considerable extent, though we cannot say that, he was totally incapacitated to earn any income by doing any other job. Of course, he can engage himself in some other job which does not need any physical exertion. As he had lost his left leg forever, this Court is inclined to give an addition of 25% towards future prospects, relying on the decision _**National Insurance Company Ltd.** vs._ _**Pranay Sethi and Others**_ [(2017) 16 SCC 680]. So, his monthly income can be fixed for the purpose of assessing loss of earning capacity due to disability as Rs.7,500/- (6000+25%). The multiplier applicable is 15 as he was aged 40. So, the loss of earning capacity due to 40% disability can be assessed as Rs.5,40,000/- MACA No.2419 of 2012 6 (7500x12x15x40/100). He was already awarded compensation of Rs.2,88,000/- under the head ‘compensation for loss of earning power’ and so, he is entitled to get the balance Rs.2,52,000/under that head. 10. Towards future treatment expenses, he claimed Rs.1 lakh. The Tribunal awarded Rs.50,000/- for the cost of artificial limb. Though the appellant produced quotation for below knee prosthesis, he has not produced any bills for fixing the prosthesis, if he had fixed prosthesis on his amputated left leg. So, this Court is not inclined to act upon the quotation given by the appellant. Since the accident was in the year 2007, he might have fixed the prosthesis by this time. But, he has not produced any document to prove the actual bill. The learned Tribunal awarded Rs.50,000/- towards the expenses for fixing the prosthesis. It is a matter of common knowledge that the artificial limb fixed once needs periodical maintenance and repair. Considering that fact, this Court is inclined to award Rs.25,000/- towards expenses for the repair and maintenance of the prosthesis. MACA No.2419 of 2012 7 ## 11. The compensation awarded under all other heads seems to be reasonable and the same needs no interference. |Head of claim|Amount<br>awarded by the<br>Tribunal|Amount<br>awarded in<br>appeal|Difference to be<br>drawn as<br>enhanced<br>compensation| |---|---|---|---| |Loss of earning|Rs.24,000/-|Rs.36,000/-|Rs.12,000/-| |Compensation for<br>loss of earning<br>power|Rs.2,88,000/-|Rs.5,40,000/-|Rs.2,52,000/-| |Future treatment<br>expenses|Rs.50,000/-|Rs.75,000/-|Rs.25,000/-| |**Total**|**Rs.3,62,000/-**|**Rs.6,51,000/-**|**Rs.2,89,000/-**| 12. In the result, the appellant is entitled to get enhanced compensation of Rs.2,89,000/- (12,000+2,52,000+25,000). 13. The 2[nd] respondent is not disputing the accident and the injury suffered by the appellant including amputation of his left leg. The policy also is admitted. No violation of any policy conditions brought to the notice. So, the 2[nd] respondent is liable to pay the enhanced compensation to the appellant. In the result, the 2[nd] respondent/insurer is directed to deposit the enhanced compensation of Rs.2,89,000/- (Rupees Two MACA No.2419 of 2012 8 lakh Eighty Nine Thousand only) in the Bank Account of the appellant with interest @ 8% per annum from the date of petition till the date of deposit (excluding 78 days of delay in filing the appeal) within a period of two months from the date of receipt of a copy of this judgment. The deposit must be in terms of the directives issued by this Court in Circular No.3 of 2019 dated 06/09/2019 and clarified in O.M.No.D1/62475/2016 dated 07/11/2019 after deducting the liabilities, if any, of appellant towards Tax, balance court fee and legal benefit fund. The appeal is allowed accordingly. No order as to costs. Sd/- ## **SOPHY THOMAS JUDGE** smp