Satheesh Thankachan v. Girijan K.V. and The New India Assurance Co. Ltd.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN** **THURSDAY, THE 16[TH] DAY OF DECEMBER 2021 / 25TH AGRAHAYANA, 1943 MACA NO. 907 OF 2013** **AGAINST THE AWARD IN O.P(M.V) No.222/2009 OF SPECIAL C SPE/CBII&3 ADDITIONAL DISTRICT COURT/I ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL, ERNAKULAM** ## **APPELLANT/CLAIMANT IN OP:** SATHEESH THANKACHAN, S/O.THANKACHAN, ARUKANDATHIL HOUSE, KAKKAD P.O., ERNAKULAM. BY ADVS. SRI.MAJO K. JACOB SMT.LIJIN A.GEORGE SRI.A.N.SANTHOSH ## **RESPONDENTS/RESPONDENTS IN THE OP:** 1 GIRIJAN K.V., S/O.M.S.VELAPPAN, KANICHIRAKUNNEL HOUSE, KUREEKKAD P.O., THIRUVANKULAM, PIN 682305. 2 THE NEW INDIA ASSURANCE CO.LTD., TRIPPUNITHURA. BY ADVS. SRI.DENY JOSEPH SRI.LAL K. JOSEPH THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 16.12.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **M.A.C.A No.907 of 2013** 2 ## **JUDGMENT** Award in O.P(M.V) No.222/2009 dated 04.08.2012 on the file of Motor Accidents Claims Tribunal, Ernakulam is under challenge in this appeal, moved by the original petitioner before the Tribunal. Respondents herein are the respondents before the Tribunal. 2. Brief facts of the case: According to the appellant on 05.08.2008 at about 2:00 p.m., while the appellant was riding his motor cycle from Thiruvankulam to Thevara through Karingachira-Thripunithura road, he was hit down by a lorry bearing registration No.KL7M-7101 driven by the 1[st] respondent in a rash and negligent manner. The appellant, alleged that he sustained serious injuries and underwent treatment. Accordingly, an application under Section 166 of the Motor Vehicles act was preferred before the M.A.C.T, **M.A.C.A No.907 of 2013** 3 Ernakulam claiming compensation to the tune of Rs.10,00,000/-. 3. The 2[nd] respondent, Insurance Company filed written statement admitting policy. The negligence as well as quantum were disputed. 4. The Tribunal went on trial and PWs.1 and 2 were examined and marked Exts.A1 to A18 on the side of the appellant. No evidence let in by the respondents. Exts.X1 to X5 also marked. 5. The Tribunal appraised the evidence and finally granted Rs.5,29,820/- as compensation along with 9% interest. 6. The learned counsel for the appellant would submit that the Tribunal fixed Rs.4,500/as the monthly income of the appellant though it has been specifically contended before the Tribunal that the appellant was earning Rs.6,500/- per month by doing the work of technician in pest control service. It is submitted further that Exts.X1 to X4 series ## **M.A.C.A No.907 of 2013** 4 documents also were let in to prove the employment. 7. It is urged by the learned counsel further that following the ratio in _**Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Ltd.**_ : **(2011) 13 SCC** **236,** where the Apex Court fixed the income of a coolie at Rs.4,500/-, during the year 2004, Rs.6,500/-ought to have been fixed as the monthly income in this case also, since the accident is of the year 2008. This argument is appreciable. Therefore, much discussion based on Exts.X1 to X4 series does not arise. Accordingly, Rs.6,500/- fixed as the monthly income. 8. The learned counsel for the appellant submitted that the multiplier fixed by the Tribunal is correct. It also submitted that 30% disability assessed by the Medical Board as per Ext.A18 was also considered by the Tribunal and the appellant has no grievance in that regard. ## **M.A.C.A No.907 of 2013** **==> picture [7 x 9] intentionally omitted <==** But the grievance of the appellant is confined in the matter of fixation of lower income and no consideration of future prospects in the case of the appellant, where his left foot was amputated. He placed decision of the Apex Court reported in _**Erudhaya Priya v. State Express Transport Corporation Ltd**_ **: 2020 (4) KLT 730** **(SC)** , where the Honourable Apex Court added 40% income towards future prospects while fixing the monthly income for arriving disability income in a case involving disability at 31.1%. 9. In fact, grant of future prospects in case of disability is approved by the Apex Court in a three bench decision reported in ## _**Pappu Deo Yadav v. Naresh Kumar and Others**_ **: 2020 KHC 6547.** 10. When considering the nature of injury sustained by the appellant herein led to amputation of left foot, resulted in 30% disability. 40% addition towards 'future prospects' in the case of appellant, who was **M.A.C.A No.907 of 2013** 6 aged 23 years, at the time of accident is justifiable. Though the learned counsel for the Insurance Company pointed out that the foot as such was not amputated, Exts.A14 and A18 disability certificates along with other treatment records would go to show that left foot of the appellant was fully amputated. Thus, the 'loss of disability income' required to be recalculated as follows: 6500+40% = 9100x12x18x30% = 5,89,680/- Out of which, Rs.2,91,600/- was granted by the Tribunal. Thus, **Rs.2,98,080/-** more is granted under the head 'loss of disability income'. 11. It is urged by the learned counsel for the appellant that the Tribunal granted only three months' 'loss of earnings' in a case of amputation, which required prolonged treatment. Similarly, the Tribunal not granted sufficient compensation under the heads 'pain and sufferings' as well as 'loss of amenities'. Per ## **M.A.C.A No.907 of 2013** 7 contra, the learned counsel for the Insurance Company submitted that reasonable compensation under these heads, taking note of the economic situation prevailed during the year 2008, was granted by the Tribunal and no increase under these heads is warranted. 12. I have already discussed the injuries sustained to the appellant led to amputation of left foot. In view of the matter, **Rs.10,000/-** more is granted under the head 'pain and sufferings' and **Rs.10,000/-** under the head 'loss of amenities' also. It is true that 'loss of earnings' granted by the Tribunal is limited to three months. Having considered the nature of injuries and the prolonged treatment, 'loss of earnings' for a period of ten months ought to be granted. Thus, the 'loss of earnings' is recalculated as, 6,500x10 = 65,000/-. Out of which, Rs.13,500/- granted by the Tribunal. Thus, **Rs.51,500/-** more is granted under the head 'loss of earnings'. ## **M.A.C.A No.907 of 2013** 8 13. In the result, this appeal is allowed. It is held that the appellant is entitled to get Rs.8,99,400/- as compensation out of which Rs.5,29,820/- was granted by the Tribunal and the balance amount of **Rs.3,69,580/-** (Rupees Three Lakh Sixty Nine Thousand Five Hundred and Eighty Only) is granted as enhanced compensation with the same rate of interest awarded by the Tribunal, payable by the 2[nd] respondent, Insurance Company from the date of petition till the date of deposit or realisation. The Insurance Company is directed to deposit the amount in the name of the appellant within two months from today. On deposit, the appellant is entitled to release the same. Sd/- ## **A.BADHARUDEEN, JUDGE.** ww