Shanil Varghese v. National Insurance Co. Ltd.

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. FRIDAY, THE 20[TH] DAY OF OCTOBER 2023 / 28TH ASWINA, 1945 MACA NO. 2142 OF 2012 AWARD DATED 03.11.2011 IN O.P.(M.V.) 274/2005 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, NORTH PARAVUR ``` ## **`APPELLANT/(PETITIONER IN O.P.(M.V.) NO.274/2005:`** ``` SHANIL VARGHESE AGED 30 YEARS, S/O.VARGHESE, KALATHI PARAMBIL HOUSE, NORTH PARAVUR. ``` ``` BY ADV SRI.A.N.SANTHOSH ``` ## **`RESPONDENT/(RESPONDENT NO.3 IN O.P.(M.V.) NO.274/05:`** ``` NATIONAL INSURANCE CO.LTD. SREE RAM SITE OFFICE, POST BOX NO.3162, THIRU-VI-KA INDUSTRIAL ESTATE, CHENNAI. ``` ``` BY ADV SRI.P.M.M. NAJEEB KHAN ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 20.10.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` M.A.C.A. No.2142/2012 : 2 : ## **JUDGMENT** The appellant is the petitioner in OP(MV) No.274/2005 on the files of the Motor Accident Claims Tribunal, North Paravur. 2. The said claim petition was submitted by the petitioner seeking compensation for the injuries sustained to him in a motor accident that occurred on 07.02.2005. The accident occurred when the motorcycle ridden by the appellant was hit by a bus bearing registration No.KL-8/R9844, owned by the 1[st] respondent in the claim petition. The said vehicle was being driven by the 2[nd] respondent in the claim petition and insured with the respondent herein. According to him, he was working as a mason with a monthly income of Rs.5,000/- and was aged 23 years at the time of the accident. The claim petition was submitted seeking a total compensation of Rs.4,00,000/-. 3. The 3[rd] respondent alone contested the matter by filing a written statement wherein they admitted the coverage M.A.C.A. No.2142/2012 : 3 : of the policy for the bus. However, they contended that the accident occurred due to negligence on the part of the appellant himself, who was riding the motorcycle. They also disputed the quantum of compensation. 4. The evidence in this case consists of the oral testimony of PW1, the appellant and Exts.A1 to A10, were marked from the side of the appellant. The respondents adduced no evidence. 5. After the trial, the tribunal came to the conclusion that the accident occurred due to the negligent driving of the bus by the 2[nd] respondent and being the insurer of the said vehicle, the respondent herein was held liable to pay the compensation. The quantum of compensation was fixed as Rs.2,67,160/- and the respondent herein was directed to deposit the said amount with interest at the rate of 7.5% per annum from the date of petition till realisation with proportionate costs. This appeal is submitted in such circumstances seeking enhancement of compensation. M.A.C.A. No.2142/2012 : 4 : 6. Heard Sri. A.N. Santhosh, the learned counsel appearing for the appellant and Sri. P.M.M. Najeeb Khan, the learned counsel appearing for the respondent. 7. The main contest in this appeal relates to the quantum of compensation awarded under the head of loss of earning capacity owing to the physical disability sustained. To substantiate the said contention, the appellant places reliance upon the Ext.A9 disability certificate issued by the Medical Board, wherein the percentage of disability was certified as 33%. According to the learned counsel for the appellant, considering the fact that the appellant was a mason by profession, the disability sustained to him, as is discernible from the medical records, would seriously affect him and therefore, the functional disability ought to have been taken into consideration. 8. I have carefully gone through the contents of the Ext.A9 disability certificate and the nature of disability certified there. It is discernible that consequent to the injuries, the M.A.C.A. No.2142/2012 : 5 : appellant is suffering from brain stem dysfunction leading to vertigo and dizziness, and he has a visual disability of 10% of his right eye. It is also noted that, he is suffering from sensory ataxia and there is right lower limb and hypertonia and hyper reflexia. In the award passed by the Tribunal there is an observation by the Tribunal that, he was having shortage of vision on his right eye and he was having dizziness and loss of balance occasionally. When all the aforesaid aspects are taken into consideration, I am of the view that the nature of injuries referred to in the medical records would undoubtedly affect his earning capacity, as his employment requires physical exertion. Therefore, the impact of the physical disability upon the petitioner's employment would be higher than what is reflected in the percentage of disability certified in the medical certificate. Therefore, a slightly higher percentage of disability ought to be taken considering it as a functional disability for assessment of loss earning capacity. In the facts and circumstances of the case, M.A.C.A. No.2142/2012 : 6 : after considering the nature of disabilities and the characteristics of his employment, I am of the view that 40% disability can be taken for the said purpose. 9. The next aspect to be considered is the monthly income. Even though an amount of Rs.5,000/- was claimed as the monthly income, the Tribunal took the same as only Rs.3,000/-. Considering the fact that the accident occurred in the year 2005, the said amount appears to be on the lower side. In **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Co.Ltd [(2011) 13 SCC 236]** , the Hon’ble Supreme Court took the monthly income of an ordinary employee, even in the absence of any evidence, as Rs.4,500/- in respect of an accident occurred in the year 2004. Therefore, under no circumstances the monthly income of Rs.5,000/- as claimed by the appellant can be treated as unreasonable. Therefore, Rs.5,000/- can be accepted for the said purpose. Moreover, as the appellant was aged 23 years at the time of the accident, the multiplier applicable is 18. Thus, while re-assessing the compensation with the above revised criteria, the amount of M.A.C.A. No.2142/2012 : 7 : compensation would come to Rs.4,32,000/- [5,000 x 12 x 18 x 40/100]. The amount already awarded by the Tribunal under this head is Rs.2,01,960/-; thus, the additional compensation is determined as Rs.2,30,040/-. 10. In addition to the aforesaid compensation, the appellant is to be awarded a further sum of Rs.10,000/- under the head of pain and sufferings as the amount of Rs.25,000/- awarded under this head appears to be lower side, taking note of the nature of injuries sustained by the appellant and the consequences thereof. Similarly, the amount awarded by the Tribunal for loss of amenities and enjoyment in life was Rs 15,000/-. Considering the disability, he sustained and the impact of the same, which affects the quality of life of the appellant, I am of the view that a further sum of Rs.15,000/- is to be awarded under the said head, and it is ordered accordingly. 11. The next aspect to be noticed is the compensation for loss of income. The Tribunal granted the said compensation for three months @ Rs.3,000/-. I have already revised the monthly income as Rs.5,000/-. Besides the same, considering the nature M.A.C.A. No.2142/2012 : 8 : of the injuries and the prolonged treatment he availed, I am of the view that at least for a period of five months, he must have been prevented from carrying out any avocation. Therefore, I deem it appropriate to fix the compensation for this purpose for five months. Thus, the additional compensation receivable by the appellant under this head is Rs.16,000/-. Accordingly, the total compensation to the appellant, in addition to the amount awarded by the Tribunal, is determined as Rs.2,71,040/-. In light of the aforesaid findings and observations, this appeal is allowed, and the award dated 03.11.2011 passed by the Motor Accident Claims Tribunal, North Paravur, in O.P. (M.V.) No.274/2005 is hereby modified by granting an additional compensation of Rs.2,71,040/- (Rupees two lakh seventy one thousand and forty only). The respondent Insurance Company is directed to deposit the said amount along with interest at the rate as ordered by the Tribunal and proportionate cost within a period of three months from the date of receipt of a copy of this judgment. However, it is M.A.C.A. No.2142/2012 : 9 : clarified that as the appeal was filed with a petition to condone a delay of 153 days, the respondent Insurance Company shall be entitled to exclude the said period while computing the interest on the additional compensation. **Sd/ZIYAD RAHMAN A.A. JUDGE** ncd/scs