Singi Thomas v. Sadasivan, K.K. Ratnakumari, National Insurance Co. Ltd. & Motor 3rd Party Claim Cell, Ernakulam

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MRS. JUSTICE MARY JOSEPH WEDNESDAY, THE 9[TH] DAY OF NOVEMBER 2022 / 18TH KARTHIKA, 1944 MACA NO. 550 OF 2013 ``` ``` AGAINST THE AWARD DATED 10.07.2012 IN O.P(M.V) NO.2548/2007 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, ERNAKULAM ``` ## **`APPELLANT/PETITIONER:`** ``` SINGI THOMAS, AGED 62 YEARS (57 AT THE TIME OF ACCIDENT), SON OF LATE C.K.THOMAS, KANNUKUZHIYIL HOUSE, U.C.COLLEGE P.O., ALUVA, ERNAKULAM. BY ADV SRI.JOSEPH GEORGE ``` ## **`RESPONDENTS/RESPONDENTS:`** ``` 1SADASIVAN, AGED 47, S/O.KOCHUNARAYANAN, PADINJAREKARAYIL CHIRAYIL HOUSE, VADAKKEMURI VILLAGE, VAIKOM TALUK, KOTTAYAM DISTRICT. 2K.K.RATNAKUMARI, SATHYAM, NALUKETTIL HOUSE, THEKKUMBHAGOM, TRIPUNITHURA, ERNAKULAM DISTRICT. 3NATIONAL INSURANCE CO.LTD. MOTOR 3RD PARTY CLAIM CELL, KOCHI DIVISIONAL OFFICE, P.B.NO.1715, AJAY VIHAR, M.G.ROAD, ERNAKULAM. NATIONAL INSURANCE CO.LTD. 4MOTOR 3RD PARTY CLAIM CELL, KOCHI DIVISIONAL OFFICE, P.B.NO.1715, AJAY VIHAR, M.G.ROAD, ERNAKULAM. R3 AND R4 BY SRI.M.A.GEORGE, S.C SRI.S.K.AJAY KUMAR ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 09.11.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` M.A.C.A No.550 of 2013 ``` ``` 2 ``` ## **JUDGMENT** ## **Dated this the 09[th] day of November, 2022** This appeal is filed challenging an award passed by Motor Accidents Claims Tribunal, Ernakulam (for short ‘the Tribunal’) on 10.07.2012 in O.P (M.V) No.2548 of 2007. 2. The appellant is the injured who had preferred the above Original Petition before the Tribunal. He claimed a sum of Rs.30,00,000/- as compensation and the Tribunal had awarded Rs.9,75,167/- and permitted him to realise interest at the rate of 8% per annum from the date of the Original Petition till the date of realisation and also proportionate costs. Aggrieved by the quantum awarded as compensation, the petitioner is before this Court in the appeal on hand seeking for enhancement. 3. For the sake of convenience, the parties to this appeal will hereinafter be referred to as the petitioner and respondent Nos.1 to 4 in accordance with their status in the Original Petition. ``` M.A.C.A No.550 of 2013 ``` ``` 3 ``` 4. The claim of the petitioner in the Original Petition was that at about 2.30 pm on 20.10.2007 while travelling in a Car bearing Registration No.KL-4 T 2116 through KaringachiraThiruvankulam road, a bus bearing Registration No.KL-7 BC 3888 dashed against his vehicle at Hill Palace Junction, Tripunithura. He had sustained injuries and was treated at Ernakulam Medical Centre. He was getting a monthly salary of Rs.1,00,000/- equivalent to 2400 Canadian dollars. He was aged 57 years at the relevant time of accident. The driver, owner and insurer of the bus were arrayed as respondents 1 to 3 in the Original Petition seeking compensation. Respondents 1 and 2 did not turn up to contest the Original Petition even after receiving the notice and therefore declared ex parte. Respondents 3 and 4 entered appearance and filed written statements. It was admitted that the bus bearing Registration No.KL-7 BC 3888 was insured with them as on date of accident. 5. It was contended that the insured violated the policy conditions by failing to give intimation to the insurer about the accident, that the insurer is not liable to pay compensation since the insured has violated policy conditions and that the accident ``` M.A.C.A No.550 of 2013 ``` ``` 4 ``` was occurred not due to the negligence of the 1[st] respondent but due to the negligence of the petitioner himself. It is also contended that the petitioner did not suffer any disability due to the injuries sustained by him in the motor accident and the compensation claimed is exorbitant. 6. Before the Tribunal, the petitioner examined PW1 and PW2 and marked Exts.A1 to A11 and Ext.C1. The respondents did not adduce any evidence. After hearing both sides and appreciating the oral as well as documentary evidence on record, the Tribunal reached a finding that the driver of the offending bus was responsible for the accident by his rash and negligent driving. The Tribunal has also arrived at Rs.9,75,167/as the quantum of compensation payable to the petitioner. The 3[rd] respondent was directed to deposit the said amount with interest at the rate of 8% per annum from the date of filing of the Original Petition till the date of realisation. Proportionate cost was also awarded in favour of the petitioner. Dissatisfied with the quantum awarded as compensation, the petitioner has approached this Court in the appeal on hand. ``` M.A.C.A No.550 of 2013 ``` ``` 5 ``` 7. It is contended by Sri.Joseph George, the learned counsel for the petitioner that though he claimed to be a Visiting Faculty cum Educational Consultant at M/s.Abraham and Singi Health Care Network, Welland, Canada and getting 2400 Canadian dollars equivalent to Rs.1,00,000/-, the Tribunal fixed the monthly income as Rs.10,000/- notionally. According to him, the compensation for loss of earning as well as disability were assessed by the Tribunal on the basis of the said notionally fixed monthly income and therefore has gone wrong. The learned counsel has pointed out that in view of the opposition raised against, the Tribunal did not permit the marking of the documents produced. According to him, thus a genuine claim of the petitioner about his job and monthly income stands discarded by the Tribunal. 8. It is noticed that the petitioner failed to bring forth any materials indicative of the nature of the leave availed by the petitioner for treatment purpose following the accident. Therefore, there is absolutely no evidence to show that the petitioner had suffered loss of pay due to the motor accident. ``` M.A.C.A No.550 of 2013 ``` ``` 6 ``` No evidence is also forthcoming to establish the exact income earned by the petitioner at the relevant time. In the above circumstances that the Tribunal was constrained to fix Rs.10,000/- notionally as the monthly income and assessed loss of earnings for three months on it’s basis. The three months’ period taken by the Tribunal being reasonable, is not interfered with. 9. It is noticed that the Tribunal has awarded only Rs.3,000/- as compensation under the head transportation expenses and this Court is inclined to enhance it to Rs.6,000/so that the petitioner will get Rs.3,000/- additionally. Under the head extra nourishment also this Court is inclined to enhance the compensation payable to Rs.6,000/- so that the petitioner will get Rs.1,000/- as compensation additionally. Under the head, bystander expenses the Tribunal has awarded Rs.5,000/- as compensation. This Court is inclined to enhance it to Rs.6,000/- and therefore, the petitioner will get Rs.1,000/more. Under the head pain and suffering and loss of amenities and enjoyments in life the Tribunal has awarded just and reasonable compensation taking into account of the injuries ``` M.A.C.A No.550 of 2013 ``` ``` 7 ``` sustained by the petitioner and the treatment availed for that. This Court finds no reason to interfere with the compensation awarded under those heads. Disability was assessed by the Medical Board as 55% in consideration of the Ophthalmic, Orthopedic as well as Neurological difficulties of the petitioner. The petitioner was aged 57 years at the time of accident. 55% being the disability taken by the Tribunal, it ought to have considered loss of future prospects. As directed by **National** **Insurance Company Limited v. Pranay Sethi [2017 (4)** **KLT 662 (SC)]** , 10% of the monthly income fixed is required to be added to it in consideration of future prospects. This Court is inclined to take Rs.11,000/- as the monthly income for the purpose of computation of compensation for disability. The multiplier had been correctly adopted by the Tribunal as 9. Therefore when the compensation is reassessed based on the modified monthly income of Rs.11,000/- and other factors considered by the Tribunal maintained, Rs.6,53,400/- is found payable. Rs.5,94,000/- being the sum stands awarded by the Tribunal, the petitioner will get Rs.59,400/- as compensation, additionally. ``` M.A.C.A No.550 of 2013 ``` ``` 8 ``` 10. When reassessed in the above manner, a total sum of Rs.64,400/- (Rupees Sixty four Thousand and Four Hundred only) is found payable as additional compensation. The said amount would carry interest at the rate of 7.5% per annum from the date of filing of the Original Petition till the date of realisation. The 3[rd] respondent being the insurer shall deposit the sum now arrived at as additional compensation and also the sum stands awarded by the Tribunal with interest at the rate fixed for it in the impugned award (if not already paid), within a period of two months from the date on which a certified copy of this judgment is received. M.A.C.A stands allowed accordingly. Sd/- **MARY JOSEPH** NAB **JUDGE**