Shijo v. National Insurance Co. Ltd.

``` MACA No. 2449 of 2017 ``` ``` 1 ``` ``` 2025:KER:24190 ``` **==> picture [58 x 58] intentionally omitted <==** ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE C.PRATHEEP KUMAR ``` ``` THURSDAY, THE 20[TH] DAY OF MARCH 2025 / 29TH PHALGUNA, 1946 MACA NO. 2449 OF 2017 ``` ``` AGAINST THE AWARD DATED 27.06.2016 IN OP(MV) NO.132 OF 2013 OF MOTOR ACCIDENT CLAIMS TRIBUNAL,PERUMBAVOOR ``` ## **`APPELLANT/PETITIONER:`** ``` SHIJO AGED 30 YEARS, S/O. VARGHESE, NEDUMPILLY HOUSE, PULLUVAZHY KARA, RAYAMANGALAM VILLAGE ``` ``` BY ADV SRI.ELSON SIMON ``` ## **`RESPONDENT/2ND RESPONDENT:`** ``` NATIONAL INSURANCE CO.LTD. BRANCH OFFICE, EDAPALLY PIN-682 024. ``` ``` BY ADV SRI.P.JACOB MATHEW ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 20.03.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA No. 2449 of 2017 ``` ``` 2 ``` ``` 2025:KER:24190 ``` **==> picture [58 x 58] intentionally omitted <==** ## **J U D G M E N T** ## Dated this the 20[th] day of March, 2025 The petitioner in O.P.(M.V.) No. 132/2013 on the file of the Motor Accident Claims Tribunal, Perumbavoor is the appellant herein. (For the purpose of convenience, the parties are hereafter referred to as per their rank before the Tribunal). 2. The petitioner filed the above O.P. under Section 166 of the Motor Vehicles Act, 1988, claiming compensation for the injuries sustained in a motor vehicle accident that occurred on 19.08.2012. According to the petitioner, on 19.08.2012 at about 6.45 p.m., while he was riding his motorcycle No.KL-07/X-8270 through the Valayanchirangara- Mannoor road, a car bearing Reg.No.Kl-03/M5657,driven by the 1[st] respondent in a rash and negligent manner, knocked him down and as a result of the accident, the petitioner sustained serious injuries. 3. The 1[st] respondent is the owner cum driver and 2[nd] respondent is the insurer of the offending vehicle. According to the petitioner, the accident occurred due to the negligence of the driver of the offending vehicle. The quantum of compensation claimed in the O.P. is Rs. 18,10,000/-. ``` 3 2025:KER:24190 ``` ``` MACA No. 2449 of 2017 ``` 4. The insurance company filed a written statement, admitting the accident as well as policy, but disputing the negligence on the part of the driver of the offending vehicle. 5. The evidence in the case consists of the oral testimony of PW1 and documentary evidence Exts.A1 to A14 and Ext.B1 and Ext.C1. 6. After evaluating the evidence on record, the Tribunal found negligence on the part of the driver of the offending vehicle, awarded a total compensation of Rs.7,14,151/- with 9% interest and directed the insurer to pay the same. 7. Aggrieved by the quantum of compensation awarded by the Tribunal, the petitioner preferred this appeal. 8. Now the point that arises for consideration is the following: Whether the quantum of compensation awarded by the Tribunal is just and reasonable? 9. Heard Sri.Elson Simon, the learned Counsel appearing for the appellant, and Sri. P. Jacob Mathew, the learned Standing Counsel for the 2[nd] respondent. 10. The Point: In this case the accident as well as valid ``` 4 ``` ``` MACA No. 2449 of 2017 ``` **==> picture [58 x 58] intentionally omitted <==** ``` 2025:KER:24190 ``` insurance policy of the offending vehicle are admitted. One of the contentions raised by the learned counsel for the petitioner is regarding the income of the petitioner as fixed by the Tribunal. According to him, the petitioner was working as Production Associate in a private company, earning Rs.7,500/-. On the basis of Ext.A13 salary certificate and the evidence by the PW1, the Tribunal fixed his monthly income at Rs.10,137/-. The learned counsel for the insurer would argue that the income fixed by the tribunal is on the higher side. 11. As per the dictum laid down by the Hon’ble Supreme Court in the decision in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Co. Ltd.** [2011 (13) SCC 236], the notional income of a coolie, in the year 2012 will come to Rs.8,500/-. Since the Tribunal fixed his monthly income at Rs.10,137/- on the basis of Ext.A13 salary certificate and the evidence by the PW1, and the same is not under challenge, the notional income of the petitioner is accepted as Rs.10,137/- as fixed by the Tribunal. 12. In the accident the petitioner sustained lacerated wound on the right leg, abrasions on the left arm and fracture of shaft of right femur with posteriomedial displacement. Ext.A7 discharge summary shows that the petitioner had sustained closed fracture shaft of right ``` MACA No. 2449 of 2017 ``` ``` 5 ``` **==> picture [58 x 58] intentionally omitted <==** ``` 2025:KER:24190 ``` femur. Type IIIB open both bone fracture of right leg and 6 x 6 cm contaminated wound over anteromedial aspect of right leg. The treatment undergone are wound debridement followed by intrameduliary nailing of right femur and right tibia. Ext.A8 discharge summary for the second admission shows that there was nonunion of right tibia and exchange nailing + fibular osteotoany etc. was done. Ext.A9 medical certificate shows that the petitioner had sustained intramedulary nailing femur and tibia right and he has shortening of 1 ½ inch of right lower limb and he requires shoe raise permanently. 13. The petitioner was treated as inpatient for 22 days. As per Ext.C1 disability certificate issued by the Medical Board, the permanent disability of the petitioner was assessed as 12%, and it was accepted as such by the Tribunal. So, I do not find any grounds to disbelieve the same. Therefore, the permanent physical disability of the petitioner is accepted as 12%, as fixed by the Tribunal. 14. On the date of accident, the petitioner was aged 30 years. Therefore, 40% of the monthly income is to be added towards future prospects, as held in the decision in **National Insurance Co. Ltd v. Pranay Sethi** [(2017) 16 SCC 680] and the multiplier to be applied is 17 as held in **Sarla Verma v. Delhi Transport Corporation,** [(2009) 6 SCC ``` 6 ``` ``` MACA No. 2449 of 2017 ``` **==> picture [58 x 58] intentionally omitted <==** ``` 2025:KER:24190 ``` 121]. In the above circumstances, the loss of disability will come to Rs.3,47,415/- (14191.8 x 12x 17 x 12%). 15. Towards loss of earning, the tribunal has awarded only Rs.40,548/- being the income for a period of 4 months @Rs.10,137/-. Considering the nature of the injuries sustained and the percentage of disability suffered by the petitioner, the petitioner might have lost income at least for a period of 6 months. On the other hand according to the learned counsel for the insure the tribunal has awarded 4 months notional income on the ground that he has availed leave for a period of four months. It is true that the petiitoner has taken leave on account of the injury sustained in the accident for a period of four months. Therefore, succeeding the facts, towards loss of income, notional income for a period of four months can be allowed. Therefore, towards 'loss of income' the petitioner is entitled to get a sum of Rs.50,685/- (10137 x 5 months). 16. Towards the head ‘pain and sufferings’, the Tribunal has awarded Rs.45,000/-. Towards 'loss of amenities of life' Rs. 25,000/was awarded and towards 'extra nourishment' Rs.2,000/- was awarded. According to the learned counsel for the petitioner, the compensation awarded on those heads are on the lower side. ``` 7 ``` ``` MACA No. 2449 of 2017 ``` **==> picture [58 x 58] intentionally omitted <==** ``` 2025:KER:24190 ``` 17. The petitioner sustained serious injuries in the accident and was treated as inpatient for 22 days. Because of the injuries sustained, the percentage of disability suffered and he had to undergo surgery, and there is shortening of 1½ inch on right lower limb, and I hold that the compensation awarded by the Tribunal on the heads ‘pain and sufferings’, 'loss of amenities of life' and 'extra nourishment' are on the lower side and hence they are enhanced to Rs.75,000/-, Rs.50,000/- and Rs.5,000/- respectively. 18. No change is required, in the amounts awarded on other heads, as the compensation awarded on those heads appears to be just and reasonable. 19. Therefore, the appellant is entitled to get a total compensation of Rs.8,96,147/-, as modified and recalculated above and given in the table below, for easy reference: |**Sl.**<br>**No.**|**Head of claim**|**Amount awarded**<br>**by Tribunal (in**<br>**Rs.)**|**Amount awarded**<br>**in Appeal (in Rs.)**| |---|---|---|---| |1|Loss of study & income|40,548|50,685| |2|Partial loss of earnings|Nil|Nil| |3|Transport to hospital|10,000|10,000| |4|Extra nourishment|2,000|5,000| |5|Payment to bystander|5,500|5,500| |6|Damage to clothes|1,000|1,000| ``` 8 ``` ``` 2025:KER:24190 ``` ``` MACA No. 2449 of 2017 ``` **==> picture [58 x 58] intentionally omitted <==** |7|Medical expenses|3,51,547|3,51,547| |---|---|---|---| |8|Pain & suffering|45,000|75,000| |9|Loss of amenities etc.|25,000|50,000| |10|Permanent disability|2,33,556|3,47,415| |11|Loss of earning power|Nil|Nil| ||**Total**|**7,14,151**|**8,96,147**| ||Enhanced**Rs.1,81,996/-**||| 20. In the result, this Appeal is allowed in part, and the 2[nd] Respondent is directed to deposit a total sum of Rs.8,96,147/- (Rupees Eight lakh ninety six thousand one hundred and forty seven only), less the amount already deposited, if any, along with interest at the rate ordered by the Tribunal), from the date of the petition till deposit/realisation, excluding interest for a period of 292 days, the period of delay in filing the appeal, with proportionate costs, within a period of two months from today. (Enhanced compensation will carry interest @8%) On depositing the aforesaid amount, the Tribunal shall disburse the entire amount to the petitioner, excluding court fee payable, if any, without delay, as per rules. Sd/- **C. PRATHEEP KUMAR, JUDGE** S.M.K.