Rony v. Kabeer and Baby Antos and United India Insurance Co Ltd.

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN FRIDAY, THE 3[RD] DAY OF MARCH 2023 / 12TH PHALGUNA, 1944 ``` ## **`MACA NO. 671 OF 2016`** ``` AGAINST THE AWARD DATED 30.04.2015 IN OP(MV) NO.67/2014 OF THE ``` ``` MOTOR ACCIDENT CLAIMS TRIBUNAL, PALA ``` ## **`APPELLANT:`** ``` RONY, S/O SEBASTIAN, AREEKATTU HOUSE, ALANADU KARA, BHARANANGANAM VILLAGE ``` ``` BY ADVS. SRI.DINNY THOMAS SRI.JAISHANKAR V.NAIR ``` ## **`RESPONDENTS:`** ``` 1KABEER, S/O ABOOBAKKER, NARIKUNNEL HOUSE, NADACKAL PO, ERATTUPETTA-686 124 ``` ``` 2BABY ANTOS, S/O P J JOSEPH, PARAYIL HOUSE, EDAMURUKU, MELUKAVU-686 652 ``` ``` 3THE MANAGER, UNITED INDIA INSURANCE CO LTD, CHANGANANASSERY BRANCH, CHANGANASSERY-686 652 ``` ``` BY ADVS. SRI.M.A.GEORGE SRI.P.K.MANOJKUMAR - SC SRI.RAJESH THOMAS ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 03.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` MACA 671/16 2 ## **`JUDGMENT`** The appellant met with an accident on 24.11.2013, while riding his motor cycle, when the offending stage carriage rammed into it, being driven in a rash and negligent manner. He sustained very serious injuries and had to be treated for a prolonged period; which constrained him to file OP(MV)No.67/2014, before the Motor Accidents Claims Tribunal, Pala (‘Tribunal’ for short), seeking a total compensation of Rs.22,64,000/-; and which has been awarded to a sum of Rs.21,61,900/-. The appellant contends that the compensation awarded by the Tribunal is not adequate and thus impugns it in this appeal. 2. Sri.Dinny Thomas – learned counsel for the appellant, submitted that, even though his client has lead evidence to establish his income to be Rs.16,000/- per month - by producing and proving Ext.A10 - Salary Certificate - the Tribunal has, without any cogent reason, reduced it to Rs.12,000/-. He added that, to make matters worse, no future prospects has been MACA 671/16 3 allowed, even though the medical evidence establishes that he had suffered amputation of leg on account of the injuries sustained. On the same reasoning, he argued that the compensation under the head ‘Pain and Sufferings’ ought to have been much more than what has been granted; while, at least Rs.1,50,000/- ought to have been granted under the head ‘Future Treatment’, since Ext.A9 – Treatment Certificate would show that his prosthetic has to be changed every two years. He concluded his submissions asserting that, even the amount of compensation under the head ‘Bystander’s Expenses’ is exigous because, only Rs.250/- per day was awarded. He, therefore, pleaded that the compensation awarded by the Tribunal be enhanced as prayed for. 3. In response, Sri.P.K.Manoj Kumar – learned Standing Counsel for the Insurance Company, submitted that, though the appellant had produced Ext.A10 - Salary Certificate, it is doubtless that it is issued by a private enterprise and the testimony of PW2 - the person who issued it, can only be seem to be an interested one. He argued that, unless Ext.A10 has been MACA 671/16 4 properly proved, it could not have been accepted by the Tribunal and therefore, that it was justified in having adopted the notional income of Rs.12,000/-, which has been arrived at adding Rs.3,000/- to the standardized notional income posutalated by the Hon’ble Supreme Court in Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Ltd. [(2011) 13 SCC 236]. He concluded arguing that the compensation awarded by the Tribunal under other heads is without error, particularly, because it has already been offered Rs.1,50,000/-, for change of his artificial limb, after the life of the present one expires. 4. I have considered the afore rival submissions, on the touchstone of the evidence on record, which I have examined very carefully. 5. It is without need to expatiate that, when a person claims a particular figure as his income, he has to prove it as per law. In this case, the appellant produced Ext.A10 - Salary Certificate and cited PW2 to offer testimony in his support. However, PW2, who is the issuer of Ext.A10, is running a private business and his deposition cannot be fully believed, unless the MACA 671/16 5 actual payment or receipt of money had been established through reliable means. This, not having been done, I cannot find fault with the Tribunal in not having accepted Ext.A10. The only other option available to the Tribunal was to go by the declarations in Ramachandrappa (supra) and to add a sufficient increment to it, taking note of the fact that the appellant was a technically qualified person. The Tribunal has done so, by adopting the notional income to be Rs.12,000/-, which is Rs.3,000/- more than what has been permitted in Ramachandrappa (supra) in the case of a ‘Coolie’. I cannot find fault with this. 6. However, I am certain that the Tribunal ought to have added 40% future prospects to the notional income of the appellant, as per the ratio in National Insurance Company Ltd. v. Pranay Sethi [2017 (4) KLT 662 (SC)], because the medical records show – and as is also undisputed – that the appellant suffered amputation of his leg, on account of the injuries sustained. 7. Coming to the question of ‘Pain and Sufferings’, the MACA 671/16 6 medical records, particularly Ext.A3 - Wound Certifcate and Ext.A7 – Certificate, show that he suffered compound fracture of the right femur and both bones of the right leg. His right leg was mangled, with his femur being fractured, leading to an amputation to be done above his knee. The trauma and the stress that he must have gone through, can never even be imagined; and I am, therefore, firm in my mind that the compensation under the head ‘Pain and Sufferings’ ought to have been granted to the extent claimed, namely, Rs1,00,000/-. 8. That said, the Tribunal has granted Rs.1,50,000/towards ‘Fixation of Artificial Limb’, should the present one be changed. It has done so, being guided by Ext.A9 - Treatment Certificate, which says that replacement will have to be done after a few years. The compensation for future treatment being liquidated in nature, I do not think that this Court will be justified in awarding anything more under that head, though I am of the opinion that, should he be forced to expend any further amount in future, at least within the currency of the multiplier of sixteen years from the date of the Award of the Tribunal, then he MACA 671/16 7 should have the liberty of moving it appropriately seeking the same. 9. That said, as regards the contention of Sri.Dinny Thomas, that the learned Tribunal ought to have granted compensation to his client both under the heads ‘loss of marriage prospects’ and ‘disfigurement’, I find some force in this because, the amputation of a leg certainly leads to permanent disfiguration and can surely impair the marriage prospects of a young man. 10. Even though the learned Standing Counsel for the Insurance Company opposed the grant of further sums under the above heads, saying that the compensation granted for ‘Loss of Amenities’ is more than what has been asked for, a small amount certainly must be offered, taking note of the financial status of the appellant. I, therefore, propose an amount of Rs.75,000/under these heads, which, however, shall carry interest only from the date of this judgment. In doing so, I am guided by the judgment of the Honourable Supreme Court in Mohammed Sabeer @ Shabir Hussain v. Regional Manager, U.P. State Road Transport Corporation (Special Leave Petition ( Civil) Nos.481-482 of 2019). MACA 671/16 8 Resultantly, this Appeal is partly allowed in the following manner: a) The compensation for ‘Loss of Earning Power’ is revised to Rs.19,35,360/-, reckoning the notional income of the appellant to be Rs.12,000/-, adding 40% future prospects to it and accepting the percentile of disability to be 60%, as adopted by the Tribunal. b) The compensation under the head ‘Pain and Suffering’ will stand enhanced to Rs.1,00,000/-, instead of Rs.75,000/- as awarded by the Tribunal. c) In addition, an amount of Rs.1,00,000/- is granted to the appellant under the head ‘Loss of Marriage Prospectus/Disfiguration’. d) In all other heads, the findings of the Tribunal will remain unaltered. Consequently, the appellant will be at liberty to recover the compensation, as enhanced by this Court, from the Insurance Company, along with interest at the rate of 8%, (reducing from 9% as awarded by the Tribunal, in view of the escalation MACA 671/16 9 granted) – from the date of filing of claim until it is realised – except in the case of the additional compensation under the head ‘Loss of Marriage Prospects/Disfiguration’; the interest on which, shall be entitled to him at the rate of 8% from the date of this judgment until it is realised. He will also be entitled to proportionate costs on the enhanced amount, as ordered by the Tribunal. Needless to say, while calculating the interest for compensation granted, other than for ‘Loss of Marriage Prospects/Disfiguration’, a period of 192 days – being the delay in filing this Appeal – shall stand excluded. Finally as said above, the right of the appellant to move the Tribunal appropriately, in case he is forced to expend any amount for future treatment, is left open. ``` Sd/- ``` ``` RR ``` ``` DEVAN RAMACHANDRAN JUDGE ```