Ratheesh T.S. v. Sivakumar S/O Arumughom V.S and V. Tamil Selvi and United India Insurance Co. Ltd.

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ## **`THE HONOURABLE MRS. JUSTICE SOPHY THOMAS`** ## **`MONDAY, THE 1[ ST ] DAY OF APRIL 2024 / 12TH CHAITHRA, 1946`** ## **`MACA NO. 1680 OF 2014`** ``` AGAINST THE ORDER/JUDGMENT DATED 29.01.2014 IN OPMV NO.1466 OF 2007 OF ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL , ALAPPUZHA ``` ## **`APPELLANT/PETITONER:`** ``` RATHEESH.T.S. S/O.SASI, THAIPARAMBIL HOUSE, BEACH ROAD, ALAPPUZHA BY ADV SRI.A.N.SANTHOSH ``` ## **`RESPONDENTS/RESPONDENTS:`** - **`1 SIVAKUMAR S/O.ARUMUGHOM V.S, 2, PALANI NAGAR, ERUMPETTY P.O NAMAKKAL DISTRICT, TAMILNADU.`** - **`2 V. TAMIL SELVI W/O.VAIDHYA SWAMY, DOOR NO.11/7/22, EASWARI KOIL STREET, METTOOR, MECHERI SELAM DISTRICT.`** - **`3 THE UNITED INDIA INSURANCE CO. LTD. DIVISIONAL OFFICE, MULLACKAL, ALAPPUZHA-688 001. BY ADVS. SRI.P.JACOB MATHEW SRI.MATHEWS JACOB SR.`** ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 01.04.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` MACA No.1680 of 2014 2 ## **`J U D G M E N T`** ``` The petitioner in OP(MV)No.1466 of 2007 on the file of Motor Accidents Claims Tribunal, Alappuzha, filed this appeal challenging the quantum of compensation awarded by the Tribunal. ``` `2. The appellant/petitioner was a 24 year old` ``` man, working as cleaner in a truck owned by Alappuzha parcel service. On 20/4/2007 at 4.10 am, ``` ``` while he was traveling in that truck as its cleaner, through Edappaly-Vyttila National Highway, ``` ``` TN-04/J-4974 container lorry driven by the 1st respondent in a rash and negligent manner, dashed against the truck, and he sustained very serious injuries, and he became paraplegic. Moreover, his ``` ``` left leg was amputated below the knee. He suffered ``` ``` 90% permanent disability, and 100% functional disability. He is bedridden, since the date of ``` MACA No.1680 of 2014 3 ``` accident, and he cannot move on without the aid of a full time attendant. He lost his future, ``` ``` including marriage prospects. He approached the Tribunal claiming compensation of Rs.60 lakh. But learned Tribunal awarded only Rs.20,40,100/-. Hence this appeal. ``` `3. The 1st respondent was the driver of the` ``` offending container lorry. The 2nd respondent was its owner, and the 3rd respondent was its insurer. ``` ``` Respondents 1 and 2 remained exparte. The 3rd respondent insurer contested the case, but admitted the policy. ``` ``` 4. In the appeal, notice to respondents 1 and 2 was dispensed with as the 3 rd respondent insurer entered appearance, and admitted the policy. ``` `5. Now this Court is called upon to find out` ``` whether there is any irregularity, illegality or ``` MACA No.1680 of 2014 4 ``` impropriety in the impugned award warranting interference by this Court. ``` `6. Heard learned counsel for the appellant and` ``` learned counsel for the 3rd respondent/insurer. ``` `7. Learned counsel for the appellant would` ``` submit that the appellant was a 24 year old cleaner working in a truck owned by Alappuzha parcel service, and he was earning monthly income of Rs.11,000/-. Ext.A19 identity card of the appellant ``` ``` was produced before the Tribunal to prove his occupation, and PW5 the employer was also examined from his part. But learned Tribunal found that, the appellant was not a direct employee under PW5, as deposed by him and he was working under a contract. ``` ``` The payment voucher also was not produced by PW5, to show the actual salary given to the appellant. So learned Tribunal fixed his notional income at ``` MACA No.1680 of 2014 5 ``` Rs.4,500/-. ``` ``` 8. Learned counsel for the appellant would rely on the decision Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited [AIR ``` ``` 2011 SC 2951] , to say that even a coolie worker in the year 2007, was eligible to get his notional income fixed @ Rs.6,000/-. Since the appellant was working as a cleaner in a truck, he was eligible to get his notional income fixed even more than that. ``` ``` This Court is inclined to fix his notional income @ ``` ``` Rs.6,000/- based on Ramachandrappa’s case cited (supra) . Since he suffered 90% permanent disability, his functional disability was assessed by the Tribunal as 100%, as he became paraplegic. ``` `9. Based on the decision` _**`National Insurance`**_ ``` Company Ltd. v. Pranay Sethi and Others, [(2017) 16 SCC 680] , this Court is inclined to give 40% ``` MACA No.1680 of 2014 6 ``` addition, towards future prospects also, as his functional disability was 100%. So, for assessing compensation for permanent disability, his monthly income could be fixed @ 8,400/-(6000+40%). Learned counsel for the appellant would submit that, still the appellant is bedridden. The multiplier applicable is 18, as he was aged only 24 at the time of accident. So the compensation for 100% disability could be assessed as Rs.18,14,400/- (8400x18x12). After deducting Rs.9,72,000/-, ``` ``` awarded by the Tribunal, the appellant is entitled to get Rs.8,42,400/-towards permanent disability. Since the appellant was given disability ``` ``` compensation for the entire period of his life, from the date of accident, Rs.45,000/- awarded by the Tribunal, towards loss of earning is liable to be deducted. So the appellant is entitled to get ``` MACA No.1680 of 2014 7 ``` Rs.7,97,400/- under the head disability compensation. ``` ``` 10. Towards loss of marital status and reduction ``` ``` of longevity in life, he was awarded Rs.1 lakh by the Tribunal. Since he was given disability ``` ``` compensation for the entire period of his life applying multiplier of 18, Rs.1 lakh awarded for ``` ``` the loss of marital status and reduction of longevity in life is liable to be deducted from the ``` ``` total enhancement awarded. So the appellant is entitled to get Rs.6,97,400/- (7,97,400-1,00,000). ``` ``` 11. Learned counsel for the appellant would ``` ``` submit that, the appellant was hospitalized for 79 ``` ``` days in total, and even after discharge he was ``` ``` bedridden, as he is paraplegic, and his left leg was amputated below the knee. Since the date of the ``` ``` accident till today, he is continuing in bed not ``` MACA No.1680 of 2014 8 ``` able to do his ordinary pursuits. Learned counsel for the appellant would submit that, he is entitled to get bystander expenses all these years, and he is relying on the decision Kajal v. Jagdish Chand and others reported in [2020 ACJ 1042] to say that bystander expenses can be given for the period of multiplier. In the case on hand, the accident occurred in the year 2007, learned Tribunal passed the award in the year 2014, and the appeal was filed in the year 2014. Even now the appellant is bedridden, and he needs assistance of a bystander. So learned counsel for the appellant would submit that, bystander expenses can be given for the period of multiplier which is 18 years. It is true that the bystander expenses in the year 2007, may not be the bystander expenses which will have to be paid in the year 2014, and it might have still ``` MACA No.1680 of 2014 9 ``` increased in the year 2024. So this court is ``` ``` inclined to fix an average amount of Rs.5,000/- per ``` ``` month as bystander expenses, for the period of multiplier i.e. 18, which will come to Rs.10,80,000/- (5,000x12x18). He was already ``` ``` awarded Rs.50,000/-, towards bystander expenses. So after deducting that amount, it will come to Rs.10,30,000/-. ``` ``` 12. Learned counsel for the 3 rd respondent ``` ``` would submit that, the bystander expenses have to ``` ``` be treated as a lump sum amount including future ``` ``` bystander expenses, and so it may not carry ``` ``` interest from the date of petition. This Court ``` ``` finds force in that argument as the amount covers ``` ``` future bystander expenses also, covering 18 years ``` ``` after the accident. So this Court is inclined to ``` ``` award interest for that amount only from the date ``` MACA No.1680 of 2014 10 ``` of award of the Tribunal ie.29/1/2014. ``` ``` 13. Towards pain and suffering, learned Tribunal ``` ``` awarded Rs.1,50,000/- against his claim of Rs.6,50,000/-. The appellant became paraplegic with the injuries suffered in the accident,and his left leg was amputated below the knee. He was hospitalized for 79 days in total. Since the date ``` ``` of the accident, he is bedridden. So this Court is of the view that an addition of Rs.50,000/-, towards pain and suffering is quite reasonable, and so Rs.50,000/- is awarded as enhanced compensation under the head pain and suffering. ``` ``` 14. The compensation awarded under all other ``` ``` heads seems to be reasonable, and hence it needs no modification. ``` ``` 15. The enhanced compensation awarded in this appeal is stated in the table below:- ``` MACA No.1680 of 2014 11 |Head of<br>claim|Amount<br>awarded by<br>the Tribunal|Amount<br>awarded in<br>appeal|`Amounts`<br>`deducted`<br>`in`<br>`appeal`|<br>Difference to be<br>drawn as<br>enhanced<br>compensation| |---|---|---|---|---| |Permanent<br>disability|9,72,000/-|18,14,400|-|8,42,400/-| |Loss of<br>earning|45,000/-||45,000/-|| |Loss of<br>marital status<br>& Reduction<br>of longevity|1,00,000/-||1,00,000/-|| |Bystander<br>Expenses|50,000/-|10,80,000/-<br>(5,000x12x<br>18)||10,30,000/-| |Pain and<br>suffering|1,50,000/-|2,00,000/-||50,000/-| |TOTAL|||1,45,000/-|19,22,400/-| ``` 16. So the appellant is entitled to get ``` ``` enhanced compensation of Rs.17,77,400/- (8,42,400+ ``` ``` 10,30,000+50,000)-(45,000 +1,00,000). ``` ``` 17. The 3rd respondent/insurer is directed to ``` MACA No.1680 of 2014 12 ``` deposit the enhanced compensation with 7.5% interest per annum, from the date of petition till the date of deposit (the bystander expenses Rs.10,30,000/- will carry interest @ 7.5% only from the date of award of the Tribunal ie.21/9/2014 til the date of deposit) before the Tribunal concerned within a period of two months from the date of receipt of a copy of this judgment. Learned Tribunal shall disburse 50% the amount deposited to ``` ``` the appellant after deducting the liabilities, if ``` ``` any, of appellant towards Tax, balance court fee and legal benefit fund. The balance 50% shall be deposited as fixed deposit in his name in any nationalized bank, for a period of five years, in such a manner that the appellant can withdraw monthly interest from that deposit to meet his daily needs. ``` MACA No.1680 of 2014 13 ``` The appeal is allowed to the extent as above, and no order is made as to costs. ``` Sd/- **SOPHY THOMAS, JUDGE** ska