Saneesh P.N. v. P.X. Jose, V.T. Rajesh and United India Insurance Company Ltd

# IN THE HIGH COURT OF KERALA AT ERNAKULAM ## PRESENT THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. FRIDAY, THE 3[RD] DAY OF SEPTEMBER 2021 / 12TH BHADRA, 1943 ## MACA NO. 963 OF 2012 [AGAINST THE COMMON AWARD DATED 27.7.2011 IN OP(MV)NO.75/2004 ON THE FILE OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, ERNAKULAM] ## APPELLANT/PETITIONER: SANEESH P.N., AGED 30 YEARS S/O.NARAYANAN, RESIDING AT PALIYAMPARAMBIL HOUSE, AZHEEKAL P.O., VYPEEN, ERNAKULAM DISTRICT. BY ADVS. SRI.ANIL S.RAJ SMT.ANILA PETER SRI.G.ARUN GOPAN SMT.K.N.RAJANI SRI.J.VIVEK GEORGE ## RESPONDENTS/RESPONDENTS: 1 P.X.JOSE,S/O.XAVIER, PARAVARA HOUSE, NEAR LAW COLLEGE HOSTEL, MARKET ROAD, ERNAKULAM,COCHIN-682 011. 2 V.T.RAJESH,S/O.V.N.THANKAPPAN, VELIYIL HOUSE, AYYAMPILLYKAVU, EROOR P.O., TRIPUNITHURA, ERNAKULAM. 3 UNITED INDIA INSURANCE COMPANY LTD DIVISIONAL OFFICER, ERNAKULAM, COCHIN-682 016. BY ADV SMT.P.A.REZIYA THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 03.09.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: MACA No.963 of 2012 2 ## JUDGMENT This is an appeal filed by the petitioner in OP(MV)No.75 of 2004 on the file of the Motor Accidents Claims Tribunal, Ernakulam. The aforesaid claim petition was filed by the appellant seeking compensation for the injuries sustained to him in a motor accident occurred on 13.10.2003. The appellant was a pillion rider on a motor cycle bearing registration No.KL-07/T 6115 and the same collided with another motor cycle bearing registration No.KL-07/AK-6186 ridden by the 1[st] respondent, owned by the 2[nd] respondent and insured with the 3[rd] respondent. He contends that, he was an electrician with a monthly income of Rs.3,500/and was aged 21 years at the time of accident. Due to the injuries sustained in the said accident, he sustained permanent disability which prevented him MACA No.963 of 2012 3 from continuing his avocation as electrician. In such circumstances, he submitted the petition seeking a total compensation of Rs.7,46,000/-. 2. The Insurance Company alone contested the matter by filing a written statement, wherein, they admitted the coverage of policy, but disputed the liability mainly on the ground that, there was violation of policy conditions by the insured. The quantum of compensation was also seriously disputed by them. 3. The aforesaid claim petition was tried along with OP(MV)Nos.209 of 2004 and 119 of 2004 which arose from the very accident. The evidence in this case consists of Exts.A1 to A22 and the oral evidence of PW1. After the trial, the Tribunal allowed the above claim petition by holding that the rider of the motor cycle bearing registration No.KL7/AK-6186 was negligent in causing the MACA No.963 of 2012 4 accident. The quantum of compensation in this case was fixed as Rs.6,87,679/- and the Insurance Company was directed to deposit the same along with interest at the rate of 7.5% per annum. The Tribunal also found that there was violation of policy conditions and the Insurance Company was granted the right to recover the compensation from the 1[st] respondent, after satisfying the award. 4. This appeal is filed by the appellant being dissatisfied with the quantum of compensation. 5. Heard both sides. 6. The learned counsel for the appellant mainly contended that, the percentage of disability suffered by the appellant is 55% by the certificate issued by the Medical Board. However, it is submitted that the nature of physical disability resulted in 100% functional disability particularly in view of the fact that he was an electrician and MACA No.963 of 2012 5 he is completely prevented from continuing his avocation. The learned counsel also relies on the observations made by the Tribunal in the award to the effect that, he is unable to continue any profession consequent to the physical disability suffered by him. It is discernible from the award that, taking note of the above aspect, the Tribunal has taken 70% as the functional disability and the compensation was calculated on the basis of the same. Even though the learned counsel for the appellant strenuously argued that this is a case in which 100% functional disability has to be taken into consideration, the learned counsel for the Insurance Company seriously disputed the same. It is true that the appellant had suffered serious injuries. In the facts and circumstances of this case, I am of the view that, the nature of disablement and the extent thereof is not of that MACA No.963 of 2012 6 severity which would warrant taking 100% functional disability as contended by the appellant. The percentage of occupational disability taken by the Tribunal seems to be reasonable and practical. However, it is noticed that, while computing the compensation, the Tribunal has not taken into consideration the future prospects he might have acquired, if he was continuing in the avocation. As per the decision rendered by the Hon’ble Supreme Court in National Insurance Company Ltd. v. Pranay Sethi [2017(4)KLT 662], in respect of persons below the age of 40 years, 40% of his income can be added towards future prospects and the said addition can be made in this case also. At this juncture, the learned counsel for the appellant points out that even though the monthly income claimed by the appellant was Rs.3,500/-, the Tribunal has taken only Rs.3,000/- which is on lower side. I find some MACA No.963 of 2012 7 force in the said contention. Going by the date of accident and the nature of avocation the petitioner was engaged in, the monthly income can be reasonably fixed as Rs.3,500/-. In such circumstances, while re-computing the compensation for permanent disability with the revised criteria as mentioned above, it comes to Rs.7,40,880/[(Rs.3500+1400)x12x18x70/100]. The Tribunal has awarded an amount of Rs.4,53,600/- under this head and hence the appellant is entitled for an additional compensation of Rs. 2,87,280 /- under this head. 7. The learned counsel for the appellant also contends that the amounts awarded by the Tribunal under the heads of pain and suffering and loss of amenities which are Rs.30,000/- and Rs.20,000/respectively, are on lower side. Even though the learned counsel for the Insurance Company disputed MACA No.963 of 2012 8 the said contentions, taking into account the serious nature of injuries and the percentage of physical disability suffered by him coupled with the young age of the appellant, this Court is of the view that the amounts awarded under the said heads require re-consideration. As regards the amount awarded under the head of compensation for pain and suffering, this Court is of the view that a further amount of Rs. 10,000 /- can be granted. Similarly the amount awarded under the head of compensation for loss of amenities, a further sum of Rs. 20,000 /- is justifiable and reasonable, and it is accordingly awarded. The learned counsel for the appellant further submits that as the nature of disability suffered by him makes it necessary for the appellant a support of a third person throughout his life and some amount is also to be granted under the head of attendant expenses. The MACA No.963 of 2012 9 amount already awarded by the Tribunal under the head of bystander expenses is Rs.4250/-. Considering the nature of injuries and consequent disability, I am of the view that a further sum of Rs. 10,000 /- can be granted towards future attendant expenses. It is further contended that the Tribunal has awarded an amount of Rs.18,000/- under the head of loss of earnings which was calculated at the rate of Rs.3,000/- for a period of six months. Consequent to the revision of monthly income as Rs.3,500/-, he is entitled for a further sum of Rs. 3,000 /- under this head. 8. Accordingly, an amount of Rs. 3,30,280 /- (Rs.2,87,280+ 10,000+ 20,000 +10,000+ 3,000)(Rupees Three Lakhs Thirty thousand and Two hundred and eighty only) is fixed as the total additional compensation and the third respondent Insurance Company shall deposit the said amount along with MACA No.963 of 2012 10 interest at the rate of 7.5% per annum and proportionate cost thereof, within a period of three months from the date of receipt of copy of this judgment. The Insurance Company shall be entitled to recover the compensation from the 1[st] respondent, after depositing the additional amount awarded as per this judgment. The appeal is disposed of as above. Sd/ZIYAD RAHMAN A.A. JUDGE pkk