Sajan Varghese v. Pauloose Payyampally House & The Oriental Insurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. TUESDAY, THE 5[TH] DAY OF MARCH 2024 / 15TH PHALGUNA, 1945** **MACA NO. 1932 OF 2013** **AGAINST THE ORDER/JUDGMENT DATED 09.05.2013 IN OPMV NO.13 OF 2010 OF MOTOR ACCIDENT CLAIMS TRIBUNAL , KOTTAYAM** ## **APPELLANT/PETITIONER:** ## **SAJAN VARGHESE** **KAVALACKAL HOUSE, CHEMMANATHUKARA KARA & POST, NEAR JOSEPURAM CHURCH, VAIKOM VILLAGE, REPRESENTED BY THE POWER OF ATTORNEY HOLDER K.V.VARKEY, KAVALACKAL HOUSE, CHEMMANATHUKARA KARA & POST, NEAR JOSEPURAM CHURCH, VAIKOM VILLAGE.** **BY ADVS. SRI.MATHEW JOHN (K) SRI.DOMSON J.VATTAKUZHY** ## **RESPONDENT/RESPONDENTS:** - **1 PAULOSE PAYYAMPALLY HOUSE, MALAYATHOOR POST, MALAYATHOOR KARA & VILLAGE.** - **2 THE ORIENTAL INSURANCE CO. LTD. REPRESENTED BY ITS DIVISIONAL MANAGER, KOTTAYAM.** **BY ADVS. SRI.K.JANARDHANAN Dinesh Mathew J Murikan SRI.M.JACOB MURICKAN SRI.K.J.MANU RAJ** THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 05.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.A.C.A No.1932 of 2013 2 ## **JUDGMENT** The appellant was the petitioner in OP(MV) No.13/2010 on the files of the Additional Motor Accident Claims Tribunal, Kottayam. The said claim petition was submitted by him seeking compensation for the injuries sustained to him in a motor accident that occurred on 18.5.2009. 2. According to him, the accident occurred when the motorcycle ridden by him was hit by a mini tipper lorry bearing registration number KL-5E-6210 coming from the opposite direction. The said mini tipper lorry was being driven by the 1st respondent, who was also the owner of the said vehicle. It was insured with the 2nd respondent as well. The appellant was a CNC machine operator working in UAE with a monthly income of Rs.75,000/- and he was aged 33 years. According to him, he sustained very serious injuries, and it resulted in physical disability as well. The claim petition was submitted in such circumstances. 3. The 2[nd] respondent alone contested the matter by filing a written statement wherein, they admitted the coverage of policy for the said vehicle. However, they denied negligence on the part of the 1st respondent. According to them, the accident occurred M.A.C.A No.1932 of 2013 3 due to the negligence of the appellant himself. The quantum of compensation was also disputed by them. 4. The evidence in this case consists of Ext.A1 to A16. The disability certificate was marked as Ext.X1. After the trial, the Tribunal came to the conclusion that the accident occurred due to negligence on the part of the 1st respondent in driving the mini tipper lorry and being the insurer, the 2nd respondent was held liable to pay the compensation. The quantum of compensation was fixed as Rs.3,01,200/- and the 2nd respondent was directed to deposit the said amount along with interest at the rate of 8.5% per annum from the date of petition till the realisation. This appeal is submitted by the appellant in such circumstances seeking enhancement of compensation. 5. Heard Sri.Mathew John, the learned counsel appearing for the appellant and Sri. Dinesh Mathew J Murikan, the learned counsel appearing for the 2nd respondent. 6. The only question to be considered is whether the quantum of compensation awarded by the Tribunal is reasonable or not. The learned counsel for the appellant specifically raised the contention that even though a monthly income of Rs.75,000/- was M.A.C.A No.1932 of 2013 4 claimed, which the appellant was receiving from his employment abroad, the Tribunal took only a meagre monthly income of Rs.5,000/-. 7. On the other hand, the learned counsel appearing for the 2nd respondent would oppose the said contention by pointing out that absolutely no materials are produced to substantiate the contention that the claimant was working abroad with a monthly income of Rs.75,000/-. Therefore, the Tribunal rightly determined the compensation by taking the monthly income as Rs.5,000/-. Therefore, no interference is required, contends the learned counsel for the 2nd respondent. 8. After carefully going through the materials placed on record, I do not find any material to conclude that the appellant was indeed working abroad at the relevant time. The only document produced to substantiate the same was the Ext.A9 salary certificate issued by a company abroad. However, the said document was not properly attested, and no evidence was adduced to substantiate the genuineness of the same. The most crucial aspect in this regard is that the appellant did not care to produce a copy of the passport, the travel documents or the bank M.A.C.A No.1932 of 2013 5 statements, which would have given some indication as to his employment abroad and the income which he used to receive from the same. In the absence of any such documents, the contention of the appellant that he was working abroad with a monthly income of Rs.75,000/- cannot be accepted. Therefore, I do not find any scope in interfering with the finding of the Tribunal in this regard. 9. However, even when considering the monthly income of the appellant as per the Indian standards, the amount of Rs.5000/- fixed by the Tribunal as the monthly income appears to be on the lower side. It is to be noted that the appellant has produced Exts. A11 and A13, which are the certificates evidencing his educational qualifications. After considering the same, the Tribunal found that the appellant was technically qualified. It is to be noted that when the method of computation of monthly income evolved from the principles laid down in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Ltd. [(2011) 13 SCC 236] and Syed Sadiq & Ors. v. Divisional Manager, United India Insurance Company Ltd. [2014 (2) SCC 735]** is adopted, even for an ordinary unskilled worker, the M.A.C.A No.1932 of 2013 6 monthly income could be fixed as Rs.4500/- for the year 2004. The usual method that is adopted to determine the monthly income for the subsequent years is to add Rs.500/- per year. When that method of computation is adopted, for the year 2009, the monthly income could be reasonably fixed as Rs.7000/- even for an unskilled worker without any evidence. However, in this case, the Tribunal has already found, on the basis of the materials produced on record that, the appellant was a technically qualified person; therefore, a slightly higher monthly income, than taken with respect to an ordinary employee can be accepted. Therefore, I deem it appropriate to fix the monthly income as Rs.8000/-. 10. The next element for determining the compensation for disability is the percentage of disability. In this case, as per Ext.X1 certificate issued by the medical board, the percentage of disability was certified as 12%, but the Tribunal scaled down the percentage of disability to 10%. The injuries sustained by the appellant are as follows: - (1) Type III compound comminuted fracture both bones right leg-lower 3[rd] - (2) lacerated wound (R) leg 10 x 5 x 2 cm and M.A.C.A No.1932 of 2013 7 (3) multiple abrasions.” Moreover, the disability of 12% was assessed by a medical board consisting of a panel of expert doctors. In the absence of any specific discrepancy, the percentage of disability certified by such experts should not have been reduced. The Tribunal could not notice any discrepancy, and despite the same, the percentage of disability was scaled down to 10%, which appears to be unwarranted. When the physical disability is assessed by a panel of competent doctors, the Tribunal cannot sit in appeal over the same and reduce the percentage of disability unless there are serious discrepancies in the assessment. In this case, on going through the nature of injuries suffered by the appellant and the percentage of disability certified by the said doctors, I do not find any such discrepancy so as to discard the percentage of disability certified in Ext.X1. Therefore, I deem it appropriate to accept the percentage of disability certified by Medical Board, which was 12%. Thus, while reassessing the compensation with the aboverevised criteria, the amount of compensation for disability would come to Rs.1,84,320/- (8000 x 12 x 16 x 12/100). The amount ## M.A.C.A No.1932 of 2013 8 already awarded by the Tribunal is Rs. 96,000/-; thus, the additional compensation comes to Rs.88,320/-. 11. Since the monthly income of the appellant was revised to Rs.8000/-, he would be entitled to additional compensation under the head of loss of earnings. In this case, the Tribunal granted compensation under this head for a period of 12 months. In such circumstances, a further sum of Rs.36,000/- is awarded towards loss of earnings. 12. The amount awarded by the Tribunal towards pain and suffering was Rs.20,000/- which appears to be on the lower side. It is evident from the records that he sustained the injuries which are referred to in the earlier paragraph, and consequent to the same, he had undergone inpatient treatment for a period of 19 days. It is evident from the records that the appellant continued the treatment even after the discharge and the Tribunal specifically found that he could not pursue his employment for a period of 12 months due to the injuries. Therefore, I am of the view that further amount is to be awarded under the head of pain and suffering, and in the facts and circumstances of the case, I M.A.C.A No.1932 of 2013 9 deem it appropriate to grant a further sum of Rs.15,000/- under the said head. 13. The Tribunal awarded an amount of Rs.15,000/- under the head of loss of amenities, which also requires reconsideration. It is evident from the records that the appellant sustained serious injuries and it resulted in physical disability as well. The said disability was suffered by him at the age of 33 years and he has to live with that disability for the remainder of his life. The said disability would certainly affect the quality of his life, and therefore, he should be adequately compensated for the same. In such circumstances, a further sum of Rs.20,000/- is awarded towards the loss of amenities. Thus, the total additional compensation is determined as Rs.1,59,320 [88,320 +36,000+15,000+20,000]. In the result this appeal is allowed. The award dated 09.5.2013 passed by the Additional Motor Accident Claims Tribunal, Kottayam in OP(MV) No.13/2010 is hereby modified by granting an additional compensation of Rs.1,59,320/- (Rupees one lakh fifty nine thousand three hundred and twenty only) to the appellant. The 2nd respondent shall deposit the said amount along M.A.C.A No.1932 of 2013 **==> picture [13 x 9] intentionally omitted <==** with interest at the rate as ordered by the Tribunal and with proportionate costs within a period of 3 months from the date of receipt of a copy of this judgment. It is further clarified that, as the delay of 50 days in filing the appeal was condoned by this court subject to the condition that the appellant shall not be entitled to interest for the said period, and the 2nd respondent shall be entitled to exclude the said period while computing the interest on the additional compensation awarded. **==> picture [29 x 12] intentionally omitted <==** **ZIYAD RAHMAN A.A. JUDGE** rpk