Sathyanarayanan @ Sathyan vs Shine, Unnikrishnan and The Oriental Insurance Company Limited

MACA.No.1942/2013 1 # _IN THE HIGH COURT OF KERALA AT ERNAKULAM_ ## _PRESENT_ _THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A._ _WEDNESDAY, THE 14[TH] DAY OF FEBRUARY 2024 / 25TH MAGHA,_ _1945_ ## _MACA NO. 1942 OF 2013_ _AGAINST THE ORDER/JUDGMENT OPMV 1838/2007 OF MOTOR ACCIDENT CLAIMS TRIBUNAL & SPECIAL COURT FOR E.C. ACT CASES, THRISSUR_ ## _APPELLANT/S:_ _SATHYANARAYANAN@ SATHYAN, AGED 34 YEARS, S/O.SIVARAMAN, RESIDING AT ERINJERY HOUSE, KOLANGATTUKKARA P.O, THRISSUR TALUK._ _BY ADVS.SRI.T.C.SURESH MENON SRI.A.R.NIMOD_ ## _RESPONDENTs/RESPONDENTS:_ _1 SHINE, S/O.KOSHY, RESIDING AT PLAKKAL HOUSE, AVENUE ROAD, PERAMANGALAM P.O, THRISSUR TALUK, PIN 680 545._ _2 UNNIKRISHNAN.P.M., S/O.P.M.MADHAVAN, RESIDING AT PANDIYATH HOUSE, PERAMANGALAM PO, THRISSUR TALUK, PIN 680 545._ - _3 THE ORIENTAL INSURANCE COMPANY LIMITED, BRANCH OFFICE NO.1, T.D.BUILDING, PB NO.158, ROUND WEST, THRISSUR 680 001._ _BY ADV.SRI.VPK.PANICKER_ _THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR_ _ADMISSION ON 14.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:_ MACA.No.1942/2013 2 ## **JUDGMENT** The appellant was the petitioner in O.P.(MV). No.1838 of 2007 on the file of the Motor Accidents Claims Tribunal, Thrissur. The said claim petition was submitted by the appellant seeking compensation for the injuries sustained to him in a motor accident that occurred on 04.03.2007. 2. The accident occurred when the motorcycle on which the appellant was travelling as a pillion rider, took a sudden turn when it reached near Chembissery Bridge at Pamboor in a rash and negligent manner by its rider, and due to the impact, the appellant fell down, thereby sustained serious injuries. The 2[nd] respondent was the rider of the said motorcycle, the same was owned by the 1[st] respondent and the vehicle was insured with the 3[rd] respondent. The appellant was aged 28 years at the time of the accident and was working as a painter with a monthly income of Rs.8,000/-. He sustained very serious injuries and it resulted in physical disability as well. The claim petition was submitted in such circumstances. 3. The 3[rd] respondent filed a written statement admitting the insurance coverage for the motorcycle but denied the liability on various grounds. The quantum of MACA.No.1942/2013 3 compensation was also disputed by them. To substantiate the contentions, the claimant examined PW1 and PW2, and as documentary evidence, Ext.A1 to A15 were marked. No evidence was adduced by the respondent. After the trial, the Tribunal found that the accident occurred due to the negligence of the 2[nd] respondent in riding the motorcycle and being the insurer, the 3[rd] respondent was held liable to pay the compensation. The quantum of compensation was fixed as Rs.4,86,600/- and the said amount was directed to be deposited by the 3[rd] respondent with interest at the rate of 8% per annum from the date of petition till realization with proportionate costs. This appeal is submitted in such circumstances seeking enhancement of compensation. 4. Heard Sri.T.C.Suresh Menon, learned counsel for the appellant and Sri.VPK Panicker, learned counsel for the 3[rd] respondent. 5. The specific contention raised by the learned counsel for the appellant relates to the inadequacy of the compensation awarded under various heads, particularly under the head of disability. The grievance of the appellant is with respect to the low monthly income taken by the Tribunal and MACA.No.1942/2013 4 the omission in considering the future prospects. As far as the monthly income is concerned, as against the claim of Rs.8,000/-, the Tribunal accepted the monthly income as only Rs.3,500/-. Considering the fact that the accident occurred in the year 2007, the monthly income of Rs.3,500/- appears to be inadequate. In this regard, it is to be noted that when the method of computation of monthly income evolved from the principles laid down by the Honourable Supreme Court in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Co. Ltd.[2011 (13) SCC 236] and Syed Sadiq v. Divisional Manager, United India Insurance Co.[2014 (2)** **SCC 735]** is adopted, the monthly income for an ordinary worker, even in the absence of any evidence, can be fixed as Rs.4,500/- for the year 2004. In order to determine the monthly income for the subsequent years, an addition of Rs.500/- per year is usually made. When such a method is adopted for assessing the compensation, the monthly income would come to Rs.6,000/- in respect of an ordinary worker without any skills, for the year 2007. As far as the appellant is concerned, the specific case advanced by him is to the effect that he was a painter with a monthly income of Rs.8,000/-. Even though no MACA.No.1942/2013 5 documents in this regard were produced, the fact that he mounted the box and asserted his avocation, cannot be ignored. No serious challenge is seen raised against the nature of the avocation in which he was engaged. Therefore, I am of the view that, the avocation of the appellant can be accepted as a painter and thus, being a skilled employment, a slightly higher monthly income than usually taken in respect of an ordinary worker, can be accepted. Thus, in the facts and circumstances of the case, I deem it appropriate to fix it as Rs.7,000/-. 6. The next contention raised by the learned counsel for the appellant is with regard to the future prospects to be taken into account. It is to be noted that, the physical disability taken by the Tribunal was 50%. Medical records produced by the appellant would indicate that consequent to the injuries, he suffered serious disabilities which are discernible from the records. The disability suffered by the appellant includes the following: “Weakness of right upper limb, wasting of muscles, right upper limb, especially around the shoulder, difficulty in opening the mouth, brachial plexur injury C5, C6 has not recovered, flexor abduction and external rotation muscles of right shoulder is MACA.No.1942/2013 6 having grade 0 power, elbow flexion and extension is grade I, C8 T1 has recovered grade 4, finger flexion and hand function is grade 4. He has partial subluxation of right shoulder joint, united fracture of mandible with partial ankylosis of temporomandibular joint.” 7. Thus it is evident from the records that, one arm of the appellant is practically paralysed and this would certainly affect the earning capacity of the appellant. Therefore, I find that, this is a fit case in which future prospects also should be taken into account while assessing compensation for disability. In the light of **National Insurance Company Ltd. v. Pranay Sethi [(2017) 16 SCC 680],** the addition to be made towards future prospects should be 40% of the monthly income as the appellant was aged 28 years at the time of the accident. Thus, while reassessing the compensation for disability and consequential loss of earning capacity with the monthly income as Rs.7,000/- and future prospects of 40%, the compensation for disability comes to Rs.9,99,600/[(7000+40%)x12x17x50/100]. The amount already awarded by the Tribunal under this head is Rs.3,57,000/- and thus the additional compensation comes to Rs.6,42,600/-. MACA.No.1942/2013 7 8. The Tribunal awarded Rs.10,500/- towards loss of earnings by taking the monthly income as Rs.3,500/- for a period of three months. Considering the nature of the injuries and the treatment which he availed, both as inpatient and outpatient, I deem it appropriate to grant compensation under this head for a period of four months. As I have already fixed the monthly income as Rs.7,000/-, the additional compensation under this head would come to Rs.17,500/-(7,000x4-10,500). 9. The amount awarded by the Tribunal towards pain and suffering was Rs.20,000/-. Considering the serious nature of the injuries, the period of treatment and its impact, I deem it appropriate to grant a further sum of Rs.15,000/- under the said head. 10. The next head which requires consideration is the loss of amenities. The amount awarded by the Tribunal was Rs.17,000/- which appears to be very meagre. It is evident that the appellant sustained very serious injuries and it resulted in physical disability which was accepted by the Tribunal as 50%. The said disability was suffered by him at the young age of 28 years and he has to live with that disability for the remaining period of his life. As the said serious disabilities would affect MACA.No.1942/2013 8 the quality of his life, he should be adequately compensated for the same in terms of money. In such circumstances, I deem it appropriate to fix the compensation for loss of amenities as Rs.40,000/- and accordingly, this would result in an additional compensation of Rs.23,000/-. Thus the total additional compensation Is determined as Rs. 6,98,100/(6,42,000+17,500+15,000+23,000). In the result this appeal is allowed. Award dated 21/05/2013 passed by the Motor Accident Claims Tribunal, Thrissur in OP(MV) No.1838 of 2007 is hereby modified by granting an additional compensation of Rs.6,98,100/- [Rupees six lakhs ninety-eight thousand and one hundred only]. The 3rd respondent shall deposit the said amount along with interest at the rate as ordered by the Tribunal with proportionate cost within a period of three months from the date of receipt of copy of this judgment. It is further ordered that the claimant shall furnish the details of the PAN Card, AADHAR Card and Bank details to enable the Insurance Company to make the deposit as ordered above, within a period of one month from the date of receipt of a copy of this judgment. In case, he fails MACA.No.1942/2013 9 to furnish the said details, it shall be open for the Insurance Company to deposit the said amount before the Tribunal. Sd/- **ZIYAD RAHMAN A.A. JUDGE** DG/Sms/27.2.24