Royal Sundaram Alliance Insurance Company Ltd. v. Babu Rajan

1 [ MACA.2001/2014, CO.56/2016 ] ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **FRIDAY, THE 25TH DAY OF SEPTEMBER 2020 / 3RD ASWINA, 1942** ## **MACA.No.2001 OF 2014** **AGAINST THE AWARD IN OPMV 1239/2011 DATED 20-02-2014 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,KOLLAM** ## **APPELLANT/S:** **ROYAL SUNDARAM ALLIANCE INSURANCE COMPANY LTD. CHENNAI NOW REPRESENTED BY ITS MANAGER, SUBRAMANIAM BUILDING, CLUB HOUSE ROAD, ANNASALAI, CHENNAI -600 002.** **BY ADVS. SRI.MATHEWS JACOB (SR.) SRI.P.JACOB MATHEW** ## **RESPONDENT/S:** **BABU RAJAN S/O.GOPALANACHARI, 617, REVATHY VILASAM, 2,KALAVAYAL, VELINALLOOR NOW RESIDING AT USHA MANDIRAM, KAVANADU P.O., KANNIMEL CHERRY,KOLLAM. PIN - 691 320.** **R1 BY ADV. SMT.P.LISSY JOSE. R1 BY ADV. SRI.S.SANTHOSH KUMAR** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 25.09.2020, ALONG WITH CO.56/2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 [ MACA.2001/2014, CO.56/2016 ] **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **FRIDAY, THE 25TH DAY OF SEPTEMBER 2020 / 3RD ASWINA, 1942** **CO.No.56 OF 2016 IN MACA. 2001/2014** **IN MACA 2001/2014 AGAINST THE ORDER IN OP(MV) 1239/2011 OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, KOLLAM DATED 20.2.2014** ## **PETITIONER/S:** **BABURAJAN AGED 41 YEARS GOPALANACHARI, 617, REVATHYVILASAM 2, KALAVAYAL, VELINALLOOR, NOW RESIDING AT USHAMANDIRAM, KAVANADU P.O., KANNIMEL CHERRY, KOLLAM.** **BY ADVS. SRI.S.SANTHOSH KUMAR SMT.P.LISSY JOSE** ## **RESPONDENT/S:** **THE DIVISIONAL MANAGER,ROYAL SUNDARAM ALLIANCE INSURANCE CO. LTD. NEW NO.3, OLD NO: 2, 2ND FLOOR, KHADARNAWAZKHAM ROAD, NEDUMBHAKKAM, CHENNAI, TAMILNADU** **R1 BY ADV. SRI.P.JACOB MATHEW** **THIS CROSS OBJECTION HAVING BEEN FINALLY HEARD ON 25.09.2020, ALONG WITH MACA.2001/2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 3 [ MACA.2001/2014, CO.56/2016 ] ## **C.S.DIAS, J.** **====================== MACA No.2001 of 2014 and Cross Objection No.56 of 2016 ====================== Dated this the 25[th] day of September, 2020.** ## **JUDGMENT** The appellant – Insurance Company - was the third respondent in OP (MV) No.1239 of 2011 on the file of the Motor Accidents Claims Tribunal, Kollam. The respondent - cross objector - was the petitioner before the Tribunal. The respondents 1 and 2 were the owner and driver of the offending vehicle. 2. The appellant had admitted the Insurance Policy. Hence, the Tribunal directed the appellant to pay the compensation. Therefore, the owner and driver of the offending vehicle are not impleaded as parties in the appeal or cross objection. The parties are, for the sake of convenience, referred to as per their status in the claim petition. 4 [ MACA.2001/2014, CO.56/2016 ] 3. The petitioner had filed the claim petition under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of the injuries he sustained in a motor accident that took place on 5.3.2011. 4. It is the case of petitioner that on 5.3.2011 while he was riding pillion on motor cycle bearing registration No.KL-24/1455, on Punalur – Thenmala road, a lorry bearing registration No.TN67-AY-5940 driven by the second respondent, in a rash and negligent manner, hit the motor cycle. 5. According to the petitioner, he was aged 42 years and that he was a rubber tapper by profession. He was earning a monthly income of Rs.9,000/-. He was treated as an inpatient at the Medical College Hospital, Thiruvananthapuram from 5.3.2011 to 30.5.2011 and, thereafter, at S.P Fort Hospital, Thiruvananthapuram from 30.5.2011 to 28.7.2011. He sustained a fracture on his hip bone, fracture on his right leg knee bone, infected implant (Rt) femur and bed sore sacral region 8 x 7 5 [ MACA.2001/2014, CO.56/2016 ] cm. Accordingly, he filed the claim petition claiming a total compensation of Rs.25,00,000/under various heads. 6. The respondents 1 and 2 were set ex parte. The third respondent – the Insurance Company filed a written-statement, inter alia, contending that the accident occurred due to the rash and negligent driving of the motor cycle by its driver. It was only because the rider of the motor cycle could not control the vehicle, the accident took place. The motor cycle hit against an electrical post, which caused the injuries. The offending vehicle was not responsible for the accident. The claim petition is bad for non-joinder of necessary parties. The amounts claimed under the various heads in the claim petition were excessive. Hence, the claim petition may be dismissed. 7. The petitioner was examined as PW1 and Exts A1 to A18 were marked through him in evidence. The disability certificate issued by the Medical Board was marked as Ext C1. 6 [ MACA.2001/2014, CO.56/2016 ] 8. After considering the pleadings and materials on record, the Tribunal by the impugned award allowed the claim petition, in part, by allowing the petitioner to recover an amount of Rs.12,76,547/- with interest at the rate of 9% per annum from the date of petition till the date of realization. 9. The comparative table of compensation that was claimed by the petitioner and that was awarded by the Tribunal is as follows:- |SI<br>.<br>N<br>o|Head of claim|Amount<br>claimed<br>(in rupees)|Amount awarded (in<br>rupees)| |---|---|---|---| |1|Loss of earnings|1,50,000/-|72,000/-| |2|Partial loss of earnings|Nil|Nil| |3|Transportation to hospital|50,000/-|39,390/-| |4|Extra nourishment|2,00,000/-|18,800/-| |5|Damage to clothing and<br>articles|5000/-|500/-| |6|Others<br>i)salary and expenses for the<br>bystanders<br>ii)medicine|6,00,000/-|37,600/-<br>5,54,257/-| |7|Compensation for pain and<br>sufferings|1,00,000/-|50,000/-| |8|Compensation for continuing<br>or permanent disability if any|8,10,000/-|Nil<br>5,04,000/-| |9|Compensation for loss of<br>earning power||| |10|Compensation for loss of<br>amenities and enjoyment|2,00,000/-|Nil| ||Total|25,00,000/-|12,76,547/-| 7 [ MACA.2001/2014, CO.56/2016 ] 10. Aggrieved by the quantum of compensation awarded the third respondent – Insurance Company has preferred the appeal, and dissatisfied with the quantum of compensation awarded, the petitioner – respondent in the appeal has filed the cross objection. 11. Heard the learned counsel appearing for the appellant/respondent in the cross objection and the learned counsel appearing for the respondent/cross objector. 12. The sole question that emerges for consideration in this appeal and cross objection is whether the quantum of compensation awarded by the Tribunal is just and reasonable. 13. A Constitution Bench of the Hon'ble Supreme Court in **National Insurance Company Ltd. v. Pranay Sethi [(2017) 16 SCC 680],** has held that Section 168 of the Motor Vehicles Act, 1988, deals with the concept of 'just compensation' and the same has to be determined on the foundation of fairness, reasonableness and 8 [ MACA.2001/2014, CO.56/2016 ] equitability on acceptable legal standards. The conception of 'just compensation' has to be viewed through the prism of fairness, reasonableness and non-violation of the principle of equitability. 14. The petitioner met with the accident on 5.3.2011. He was aged 42 years at the time of accident. The petitioner claimed that he was a rubber tapper by profession and was earning a monthly income of Rs.9,000/-. The Medical Board by Ext C1 disability certificate certified that the petitioner has 60% permanent disability. The Tribunal after appreciating the materials on record and seeing the petitioner in-person, assessed his permanent disability at 50%. The Tribunal also found that the petitioner had lost his earning capacity for a period of one year. The Tribunal fixed the income of the petitioner at Rs.6,000/- per month. Based on the above parameters, the Tribunal awarded the aforesaid amount of Rs.12,76,547/-. 15. The bone of contention of the learned 9 [ MACA.2001/2014, CO.56/2016 ] counsel for the appellant before this Court is that the notional income of the petitioner fixed by the Tribunal @ Rs.6,000/- per month is on the higher side. Per contra, the learned counsel appearing for the respondent/cross objection argued that as the respondent is a rubber tapper, his income can easily be fixed at Rs.9,000/- per month. 16. The specific case of the petitioner was that he was a rubber tapper by profession. Admittedly, the respondent did not let in any contra evidence. ## **Income** 17. Going by the law laid down by the Hon'ble Supreme Court in **Ramachandrappa v. Manager, Royal Sundaram Alliance [(2011) 13 SCC 236]** and **Syed Sadiq and others v. Divisional Manager, United India Insurance Co.Ltd. - [(2014) 2 SCC 735]** and a decision of this Court in **Soman vs. Jinesh James and others [ILR 2020 (3) Kerala 1003]** the notional income for persons who are working in 10 [ MACA.2001/2014, CO.56/2016 ] unorganized sectors has been fixed in **Ramachandrappa** (supra) @ Rs.4,500/- per month in the year 2004. In **Syed Sadiq** (supra), the notional income of a vegetable vendor was fixed @ Rs.6,500/- per month in the year 2006. This Court in **Soman** (supra) fixed the notional income of a coolie at Rs.7,500/- per month in the year 2010. 18. Considering the parameters laid down in the aforecited decisions and taking into consideration the fact that the petitioner was a rubber tapper, and that the accident occurred on 5.3.2011, the income of the petitioner can be safely refixed at Rs.7,500/- as on the date of accident, instead of Rs.6,000/- as fixed by the Tribunal. ## **Disability Certificate** 19. The Tribunal had referred the petitioner to be examined by a competent Medical Board. The Medical Board after examining the petitioner found thus: 11 [ MACA.2001/2014, CO.56/2016 ] ## **On Examination** 1. Wound scar right iliac crest 10cm long. 2. Wound scar seen sacral area 10cm radius. 3. Two punctured wound scar over right iliac crest. 4. Surgery scar right hip and right thigh 70cm long lateral aspect. 5. Wound scar right leg lateral aspect 5 x 2 cm 6. Multiple punctured wound 7 in number anterolateral aspect right leg. 7. Surgery wound seen anterolateral aspect of right leg 20 cm long. 8. Shortening of limb by two inches. 20. It was also certified that the movements of the petitioner have been impaired as follows: ## **Movements** Right Hip-No movements Right knee- No movements Right ankle within normal limits Right lower limb externally rotated External fixator insitu Discharging sinuses present right thigh. 21. Accordingly, the Medical Board fixed the petitioner's permanent disability at 60%. 22. However, the Tribunal after evaluating the materials on record and after interacting with the petitioner, who was examined as PW1, came to the conclusion that the petitioner has 50% 12 [ MACA.2001/2014, CO.56/2016 ] permanent disability. 23. The learned counsel for the appellant argued that, as the petitioner only sustained a fracture of femur, the fixing of 50% permanent disability by the Tribunal is on the higher side. Per contra, the learned counsel for the respondent argued that the Tribunal ought to have fixed 60% permanent disability as certified by the Medical Board. 24. On a reappreciation of the materials on record, particularly Ext C1 certificate and the reasons given by the Tribunal in the impugned award, I find that the 50% permanent disability fixed by the Tribunal to be correct. As the petitioner is a rubber tapper, his free movements have been impaired, due to the lack of movements on his right hip and right knee. He will not be in a position to carry out his avocation as done by him prior to the accident. 25. A three Judge Bench of the Hon'ble Supreme Court in **Pappu Deo Yadav vs. Naresh** 13 [ MACA.2001/2014, CO.56/2016 ] ## **Kumar and others (Civil Appeal No.2567/2020)** after considering a plethora of decisions on the point of permanent disability has held that, the inquiry that has to be conducted by the Court is the resultant loss of income generating capacity of the claimant. The principle to be followed by the Court in assessing motor vehicles compensation claims is to place the victim in the same position as he was before the accident. The Bench referred to the earlier decisions in **Syed Sadiq** (supra) and **Raj Kumar** vs **Ajay Kumar [2011 (1) KLT 620(SC)]** and held that Court should not adopt a stereotypical or myopic approach, but instead, view the matter taking into account the realities supplied both in assessment of the extent of disabilities and compensation under various heads. It was also held that the Court should award compensation on future prospects. 26. Going by the ratio decidendi in **Pappu Deo Yadav, Syed Sadiq** and **Raj Kumar** (supra), I am of the definite opinion that the permanent 14 [ MACA.2001/2014, CO.56/2016 ] disability assessed by the Tribunal at the rate of 50% based on Ext C1 certificate is reasonable and logical. Even though the petitioner has sustained serious injuries and his disability has been certified by the Medical Board at 60% as per Ext C1, that does not prevent him from carrying on his avocation, though not in the same manner prior to the accident. Thus, I uphold the finding of the Tribunal that the petitioner has sustained permanent disability at 50%. ## **Multiplier** 27. As the petitioner was aged 42 years at the time of accident, the multiplier to be adopted is 14 as per the decision in **Sarla Verma v. Delhi Transport Corporation [(2009) 6 SCC 121], National Insurance Co.Ltd v Pranay Sethi [(2017) 16 SCC 680]** and **United India Insurance Co. Ltd vs. Satinder Kaur @ Satwinder Kaur and others [2020 (3) KHC 760].** 28. On an re-appreciation of the materials on 15 [ MACA.2001/2014, CO.56/2016 ] record and the comparative table illustrated above, it is seen that the Tribunal had despite assessing the petitioner's permanent disability at 50% and his loss of earning for a period of one year, has erroneously failed to award any compensation for future prospects, as per the principles in **Pappu Deo Yadav, Syed Sadiq and Raj Kumar** (supra) 29. Considering that the petitioner was 42 years, his monthly income is fixed at Rs.7,500/-, his disability is fixed at 50%, the multiplier is 14, his loss of income is for a period of one year and that he was a self employed rubber tapper, his future prospects is fixed at 25%. Thus, the petitioner is entitled to an amount of Rs.7,87,500/- under the head loss due to disability with future prospects instead of Rs.5,04,000/- awarded by the Tribunal under the head - compensation for permanent disability and loss of earning power. ## **Loss of earnings** 30. The Tribunal had fixed the loss of 16 [ MACA.2001/2014, CO.56/2016 ] earnings of the petitioner for a period of one year at the rate of Rs.6,000/-. In view of the refixation of his income at Rs.7,500/-, I enhance the said amount by a further amount of Rs.18,000/-, i.e., 72,000 + 18,000 = 90,000/-. ## **Other heads of claim** 31. With respect to the amounts claimed under the other heads of claim - (i) transport to hospital, (ii) extra nourishment, (iii) damage to clothing, (iv) bystander expenses (v) medical expenses and (vi) compensation for pain and sufferings, I find that the Tribunal has awarded reasonable and just compensation to the petitioner. Therefore, I do not find any reason to enhance the amounts under the above heads of claim. 32. On an overall re-appreciation of the pleadings, materials on record and the law laid down by the Hon'ble Supreme Court in the aforecited decisions, I am of the firm opinion that the petitioner is entitled for enhancement of the amounts as modified and re-calculated above, and 17 [ MACA.2001/2014, CO.56/2016 ] ## given in the table below for easy reference. |SI.<br>No|Head of claim|Amount<br>claimed<br>(in rupees)|Amount<br>awarded (in<br>rupees)|Amounts<br>modified and<br>recalculated<br>by this Court| |---|---|---|---|---| |1|Loss of earnings|1,50,000/-|72,000/-|90,000/-| |2|Partial loss of earnings|Nil|Nil|Nil| |3|Transportation to hospital|50,000/-|39,390/-|39,390/-| |4|Extra nourishment|2,00,000/-|18,800/-|18,800/-| |5|Damage to clothing and<br>articles|5000/-|500/-|500/-| |6|Others<br>i)salary and expenses for<br>the bystanders<br>ii)medicine|6,00,000/-|37,600/-<br>5,54,257/-|37,600/-<br>5,54,257/-| |7|Compensation for pain<br>and sufferings|1,00,000/-|50,000/-|50,000/-| |8|Compensation<br>for<br>continuing or permanent<br>disability if any|8,10,000/-|Nil<br>5,04,000/-|7,87,500/-| |9|Compensation for loss of<br>earning power|||| |10|Compensation for loss of<br>amenities and enjoyment|2,00,000/-|Nil|Nil| ||Total|25,00,000/<br>-|12,76,547/<br>-|15,78,047/-| 33. In the result, the appeal is dismissed and the cross objection is allowed by enhancing the compensation by a further amount of Rs.3,01,500/(Rupees Three Lakh One Thousand Five Hundred only) with interest at the rate of 9% per annum from the date of petition till the date of realisation with proportionate costs. The appellant/third respondent shall deposit the additional 18 [ MACA.2001/2014, CO.56/2016 ] compensation granted in the cross-objection before the Tribunal together with interest and proportionate costs within a period of two months from the date of receipt of a certified copy of the judgment, after deducting the liability, if any, of the petitioner towards balance court-fee and legal benefit fund. The disbursement of the compensation and the additional compensation to the petitioner shall be made, in accordance with law. **Sd/C.S.DIAS JUDGE** SKS/25.9.2020