SHIBEESH.K v. SHRIRAM GENERAL INSURANCE CO. LTD.

# `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ``` PRESENT ``` ``` THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN TUESDAY, THE 21[ST] DAY OF FEBRUARY 2023 / 2ND PHALGUNA, 1944 ``` ``` MACA NO. 2912 OF 2022 ``` ``` [AGAINST THE AWARD DATED 11.12.2019 IN OP(MV)NO.982/2017 ON THE FILE OF MOTOR ACCIDENT CLAIMS TRIBUNAL, VADAKARA] ``` ## `APPELLANT/PETITIONER:` ``` SHIBEESH.K, S/O.BALAN, AGED 22 YEARS, KALARAYULLATHIL HOUSE, MEPPAYYUR.P.O., KIZHPPAYYUR KOILANDY THALUK, KOZHIKODE DISTRICT – 673624. ``` ``` BY ADV ZUBAIR PULIKKOOL ``` ## `RESPONDENT/RESPONDENT NO.3:` ``` SHRIRAM GENERAL INSURANCE CO. LTD. REPRESENTED BY ITS MANAGER, E-8, EPIP RIICO INDUSTRIAL AREA, SITAPURA, JAIPUR, RAJASTHAN, PIN – 302022. (INSURER) ``` ``` BY ADV SRI.LINTO FRANCIS, SC ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 21.02.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA NO. 2912 OF 2022 ``` ``` -2- ``` ## `JUDGMENT` ``` The appellant was a driver, of mere 19 years in age, when he was involved in a road accident on 19.08.2017, when the offending lorry collided with the vehicle he was driving. The Police investigation found the driver of the offending vehicle to be negligent. ``` ``` 2.Consequent to the aforesaid accident, the appellant suffered injuries and had to undergo treatment, thus forcing him to file OP(MV) No.982/2017 before the Motor Accidents Claims Tribunal, Vadakara (hereinafter referred to as ‘the Tribunal’ for short), seeking compensation of Rs.32,53,000/-, limited to ``` ``` Rs.10,00,000/-; but which has been allowed by it only to an extent of Rs.4,23,304/-. The appellant thus impugns the Award of the Tribunal, as being too exiguous. ``` ``` MACA NO. 2912 OF 2022 ``` ``` -3- ``` ``` 3.In response, the learned Standing ``` ``` Counsel for the Insurance Company – Sri.Linto Francis, submitted that the computation adopted ``` ``` by the Tribunal is without error and that the ``` ``` compensation awarded is just and fair. He thus prayed that this Appeal be dismissed. ``` ``` 4.I have considered the afore rival ``` ``` contentions on the touchstone of various ``` ``` evidence produced on record – copies of which ``` ``` have been handed over across the Bar by the ``` ``` learned counsel for the parties, with the ``` ``` express consent that it can be acted upon by ``` ``` this Court without dispute. ``` ``` 5.The appellant confines his plea to ``` ``` enhancement of compensation under five heads, ``` ``` namely ‘Permanent Disability’, ‘‘Pain and ``` ``` Suffering’, ‘Loss of Amenities and Enjoyment of ``` ``` Life’, ‘Extra Nourishment and Bystander’s ``` ``` MACA NO. 2912 OF 2022 ``` ``` -4- ``` ``` Expenses’ and ‘Loss of Earnings’. ``` ``` 6.Sri.Zubair Pulikkool –learned counsel for the appellant, submitted that adoption of the notional income of his client as Rs.10,250/- by the Tribunal is illegal, particularly because he had led evidence to show that he was earning Rs.800/- per day. He submitted that, going by the medical evidence on record, the amounts granted under the heads ‘Pain and Suffering’ and ``` ``` ‘Loss of Amenities and Enjoyment of Life’ are ``` ``` extremely inadequate; while that under the head ``` ``` ‘Loss of Earnings’ is too low. ``` ``` 7.When I examine the afore submissions, it ``` ``` becomes evident that the Tribunal has taken the ``` ``` notional income of the appellant to be Rs.10,250/-, but without adverting to the fact that, inRamchandrappa v. Manager, Royal Sundaram Alliance Insurance Company Ltd. [(2011) 13 SCC 236], theHonourable Supreme Court has ``` ``` MACA NO. 2912 OF 2022 ``` ``` -5- ``` |`postulated that the income of a person – which`| |---| |`is otherwise unascertainable in the year 2017,`| |`when the accident occurred – ought to be a`| |`minimum of Rs.11,000/-.`| |`8.`<br>`The factum of the appellant being`| |`engaged in the avocation of a Driver being not`| |`disputed, the further declarations of the`| |`Honourable Supreme Court`<br>`in`<br>`Rajani v. Oriental`| |`Insurance Company Ltd.`<br>`[2022 (5) KLT Online 1012`| |`(SC)], would guide me to take a robust view, the`| |`said occupation being a skilled and technical`| |`one; and I, therefore, propose the notional`| |`income of the appellant to be Rs.11,500/-.`| |`Obviously, when that is done, the compensation`| |`under the head ‘Loss of Earnings’ would have to`| |`be revised; so also, under the head ‘Permanent`| |`Disability’.`| |`9.`<br>`Coming to the compensation claimed by`| |`the appellant under the heads ‘Pain and`| ``` MACA NO. 2912 OF 2022 ``` ``` -6- ``` ``` Suffering’ and ‘Loss of Amenities’, I am of the ``` ``` firm view that the medical evidence oblige me to increase it marginally. This is because, Exts.A3 and A4 - Discharge Certificates and Ext.A5 - series of O.P. Tickets, establish that the appellant suffered fracture of both bones of his ``` ``` right leg. The said documents also show that he has a condition called ‘floating right leg’ and had to undergo surgeries to correct the fractures of the femur and tibia. Ext.C1 is a medical report which records that he has partial ankylosis of knee, ankle and hip, due to these fractures; and thus assesses his permanent disability to be 11%. Taking all these into account,I am of the firm opinion that the compensation under the heads ‘Pain and Suffering’ and ‘Loss of Amenities’ deserves to be revised as Rs.75,000/- and Rs.50,000/- respectively. ``` ``` MACA NO. 2912 OF 2022 ``` ``` -7- ``` ``` 10.Coming to the claim of the appellant for ``` ``` “Extra Nourishment” and “Bystander’s Expenses, ``` ``` the evidence shows that he was hospitalized for ``` ``` nine days and that he has been awarded compensation at the rate of Rs.1,000/- per day under this head. I do not think that this is ``` ``` inadequate, particularly because the accident was of the year 2017. ``` ``` Resultantly this Appeal is allowed in part ``` ``` in the following manner: ``` ``` (a)The compensation under the head “PermanentDisability”isrevisedto Rs.2,73,240/- (Rupees two lakhs seventy three thousand two hundred and forty only), instead of Rs.2,43,540/- awarded by the Tribunal, taking the notional income of the appellant to be Rs.11,500/- per month and his “Permanent Disability” to be 11%, as per Ext.C1 – ``` ``` MACA NO. 2912 OF 2022 ``` ``` -8- ``` ``` Disability Certificate. ``` ``` (b)The compensation under the head “Loss of Earning” is revised to Rs.69,000/-, instead of Rs.61,500/- as awarded by the Tribunal. ``` ``` (c)The compensation under the head “Pain and Suffering” is enhanced to Rs.75,000/-, from Rs.60,000/-. ``` - `(d) The compensation under the heads “Loss` ``` of Amenities” and “Enjoyment of Life” is ``` ``` increased to Rs.50,000/-, from Rs.40,000/-. ``` - `(e) In all other heads, the amounts granted` ``` by the Tribunal will stand intact. ``` ``` Needless to say, theappellant will be at full liberty to recover the compensation, as ``` ``` enhanced by this Court, from the Insurance ``` ``` Company, along with interest at the rate of 8%, ``` ``` as awarded by the Tribunal, from the date of claim until it is recovered.He will also be ``` ``` entitled to proportionate costs on the enhanced ``` ``` MACA NO. 2912 OF 2022 ``` **==> picture [22 x 9] intentionally omitted <==** ``` amount as ordered by the Tribunal. ``` ``` Sd/- ``` ``` DEVAN RAMACHANDRAN ``` ``` JUDGE ``` ``` akv ```