Rajendran v. Oriental Insurance Co. Ltd & Ors.

MACA.No.2735/2008 1 # _IN THE HIGH COURT OF KERALA AT ERNAKULAM_ # _PRESENT_ _THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A._ _THURSDAY, THE 7[TH] DAY OF DECEMBER 2023 / 16TH AGRAHAYANA,_ _1945_ ## _MACA NO. 2735 OF 2008_ _AGAINST THE ORDER/JUDGMENT OPMV 884/2003 OF MOTOR ACCIDENT_ _CLAIMS TRIBUNAL ,NEYYATTINKARA_ ## _APPELLANT/APPLICANT:_ _RAJENDRAN,_ _S/O.BHARGAVAN, VADAKKUMKARA PUTHEN VEEDU, POTTAVILAKOM, NELLIMOODU, KOTTUKAL, NEYYATTINKARA._ _BY ADVS. SRI.G.S.REGHUNATH RINU S ASWAN_ ## _RESPONDENTS/RESPONDENTS:_ - _1 P.DIVAKARAN, ONAMCODE KARIKKAKAMTHALA-MELEPUTHEN VEEDU, THANNIMOODU, NEYYATTINKARA._ - _2 SURESH KUMAR, S/O.KRISHNAN PANICKER,KUZHIVILAKATHU VEEDU, PAYATTUVILA P.O., KOTTUKAL, NEYYATTINKARA._ - _3 THE DIVISIONAL MANAGER, OREIENTAL INSURANCE CO.LTD, THAKARAPARAMBU ROAD, THIRUVANANTHAPURAM._ _BY ADVS. SRI.GEORGE CHERIAN (SR.) SMT.K.S.SANTHI SMT.LATHA SUSAN CHERIAN M.RAMASWAMY PILLAI_ MACA.No.2735/2008 2 _PREETHY R. NAIR P.C.VIJAYAKUMAR_ _THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 07.12.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:_ MACA.No.2735/2008 3 ## **JUDGMENT** The appellant was the petitioner in O.P.(MV).No.884 of 2003 on the file of the Motor Accidents Claims Tribunal, Neyyattinkara. The said claim petition was submitted by the appellant seeking compensation for the injuries sustained to him in a motor accident that occurred on 12.05.2003. 2. According to the appellant, the accident occurred when the lorry loaded with granite stones took a sudden reverse in a rash and negligent manner at high speed without any signal, the rear side of the lorry hit the appellant, who was standing behind the lorry. Due to the impact, he fell down, and the granite stones kept in the lorry fell on the leg of the appellant. As a result, both his legs were crushed into pieces beyond any medical repair. The claim petition was submitted in such circumstances seeking compensation. 3. The 1st and 2nd respondents, the owner and driver of the said vehicle, filed written statements disputing the negligence on their part. They also contended that the vehicle was insured with the 3rd respondent. The 3rd respondent filed a written statement admitting the coverage of the policy. However, they MACA.No.2735/2008 4 disputed the liability on various grounds. They also disputed the quantum of compensation. 4. The evidence in this case consists of oral testimony of PW1 and PW2 and Exts.A1 to A15 from the side of the appellant. After the trial, the Tribunal came to the conclusion that the accident occurred due to negligence on the part of the driver of the lorry and being the insurer of the said vehicle, the 3[rd] respondent was held liable to pay the compensation. The compensation was fixed as Rs.5,62,000/-, and the said amount was directed to be deposited by the 3[rd] respondent with interest at the rate of 7.5% per annum from the date of petition till realization. This appeal is submitted in such circumstances seeking enhancement of compensation. 5. Heard Sri.Rinu S.Aswan, learned counsel for the appellant and Smt.Latha Susan Cherian, learned counsel for the 3[rd] respondent Insurance Company. 6. The main contest, in this case, relates to the quantum of compensation. The first contention raised by the learned counsel for the appellant is regarding the inadequacy of the compensation awarded under the head of loss of earning power owing to the disability. It was pointed out that this is a case in MACA.No.2735/2008 5 which both the legs were amputated, and the Tribunal took the percentage of disability as 100%. However, the Tribunal took a meagre monthly income of Rs.2,000/-. It was pointed out by the learned counsel that to substantiate the monthly income, the appellant produced Ext.A11 income certificate which was proved by PW1 and PW2. According to him, he was a head load worker and was earning Rs.200/- per day. 7. After considering the materials placed on record, I find some force in the said contention. The monthly income of Rs.2,000/- is very much on the lower side. The evidence in the form of Ext.A1 coupled with deposition of PW1 and PW2 will clearly indicate that he was a head load worker at the relevant time. It is contended that he was getting an amount of Rs.200/per day as his earnings. Therefore, even if it is assumed that he was working for 25 days in a month, he will get a monthly income of Rs.5,000/-. Therefore, the said amount can be accepted in the facts and circumstances of the case. The next aspect relates to the future prospects the Tribunal omitted to grant. In the light of the observations in **National Insurance Co. Ltd v. Pranay Sethi [2017 (4) KLT 662 (SC)]** , the future prospects are to be considered, and the rate of the same is 40% as he comes within MACA.No.2735/2008 6 the age group of below 40 years. Therefore, while re-working the compensation with the revised monthly income and with future prospects as mentioned above, the amount would come to Rs.12,60,000/- [(5000+40%) x 12 x 15]. The amount already awarded by the Tribunal is Rs.3,84,000/- and the additional amount would come to **Rs.8,76,000/-.** 8. Consequent to the revision of monthly income, the appellant would also be entitled to additional compensation under the head of loss of income. The Tribunal has awarded compensation for six months under the said head. Therefore, the additional compensation would be **Rs.18,000/-** . The next aspect relates to the compensation for pain and suffering. As rightly pointed out by the learned counsel for the appellant, this is a case in which both his legs were amputated, and he had undergone prolonged treatment. The amount already awarded by the Tribunal is Rs.50,000/-, which appears to be on the lower side. Considering the nature of the injuries and the disability consequent to the same, a further sum of **Rs.50,000/-** is granted under the said head. 9. The next head to be considered is the loss of amenities. The learned counsel for the Insurance Company opposes any MACA.No.2735/2008 7 enhancement under the said head, highlighting that since compensation for disability was calculated with 100% functional disability, any further enhancement for loss of amenities is not necessary. However, the fact that this is a case in which a person who was working as a head-load worker had lost both legs cannot be ignored. The difficulties he will have to face consequent to the said injuries cannot be lost sight of when the compensation for loss of amenities is being fixed. Therefore, I am of the view that the amount of Rs.1,00,000/- awarded by the Tribunal is on the lower side and considering the facts and circumstances of the case, I deem it appropriate to grant a further sum of **Rs.1,00,000/-** under the said head. 10. Yet another contention raised by the learned counsel for the appellant pertains to the expenses to be incurred for artificial limbs. The learned counsel for the appellant produced an estimate of two numbers of below knee prosthetics (Standard Type 3 years Warranty) quotation, which would indicate that the value of the same would be Rs 4,59,100/-. The said estimate is dated 10.07.2023. The learned counsel for the Insurance Company opposed the same by pointing out that, as of now, he has not started using the artificial limb, and what is produced is only a MACA.No.2735/2008 8 quotation for the artificial limb. However, in my view, the said document as such cannot be discarded. There is no dispute that the necessity for artificial limbs arose due to the injuries and consequential disabilities suffered in the accident. Therefore, while assessing the compensation, the court has to pass appropriate orders to restore his original position to the extent possible in terms of money, and the compensation has to be calculated by taking into account the expenses that are likely to be incurred for effecting such restoration. As far as the costs likely to be incurred for an artificial limb are concerned, the same is a step to be taken to restore his original position, which would form an integral part of the compensation. Therefore, I am of the view that some amount has to be granted under the said head, taking note of the pathetic condition of the appellant. When such a person desires to move around like any other person with the support of an artificial limb, every endeavour has to be made to ensure the same. In such circumstances, taking note of the possible expenses that he may incur for the said purpose and for maintaining the same, an amount of **Rs.5,00,000/-** is granted under the said head. MACA.No.2735/2008 9 11. Another head which requires consideration is bystander expenses. The learned counsel for the appellant contends that the appellant was bedridden for a long period, and even now, he requires assistance of persons. The learned counsel for the Insurance Company opposes the said contention by pointing out that he has not sustained any neurological disability and, therefore, bystander expenses for his entire life cannot be granted. However, the fact that he might have required the assistance of a third person during the treatment period cannot be ignored. Moreover, this court awarded the amount considering the expenses necessary for the appellant to purchase artificial limbs, which is likely to enable the petitioner to move around without the help of a third person. In such circumstances, there may not be any necessity to have a bystander with him all the time. Therefore, taking note of the entire aspects of the case, a consolidated sum of **Rs.25,000/-** is granted under the said head. Under the head of extra nourishment, the Tribunal did not give any amount. Thus, **Rs.5,000/-** is to be granted under the said head. Therefore, the additional compensation would come to Rs.15,74,000 (5000+25000+500000+100000+50000+ 876000+18000). MACA.No.2735/2008 10 In the light of the aforesaid observations and findings, this appeal is allowed. The award dated 28.03.2008 in O.P. (MV).No.884 of 2003 is hereby modified by granting an additional amount of Rs.15,74,000 (Rupees fifteen lakhs seventy four thousand only). Out of the said amount, Rs.10,74,000/- (Rupees ten lakhs seventy four thousand only) shall be deposited by the 3[rd] respondent Insurance Company along with interest at the rate as ordered by the Tribunal from the date of petition till realization. As regards the amount of Rs.5,00,000/- granted towards purchasing the artificial limb, the said sum would carry interest at the rate of 8% from the date of this judgment. However, it is clarified that, as the delay of 64 days in filing the appeal was condoned by this court on the condition that, the additional amount, if any, granted in the appeal will not carry interest, the 3[rd] respondent shall be at liberty to exclude the said period from computing the interest on the additional compensation. Sd/- **ZIYAD RAHMAN A.A. JUDGE** DG/12.12.23 MACA.No.2735/2008 11 ## _APPENDIX OF MACA 2735/2008_ ## _PETITIONER ANNEXURES_ _Annexure A1_ _THE ORIGINAL QUOTATION FOR KNEE PROSTHETICS STANDARD TYPE (3-YEAR WARRANTY) ISSUED BY SMART CARE ORTHOPAEDICS AND ARTIFICIAL LIMB CENTER DT. 10/07/23_