Sojan v. Vijayyan, C.P. Shaji and United India Insurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN & THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** **FRIDAY, THE 8TH DAY OF APRIL 2016/19TH CHAITHRA, 1938** **MACA.No. 1030 of 2006 ( ) --------------------------** **AGAINST THE AWARD IN OP(MV)NO.202/2000 of MACT MUVATTUPUZHA DATED 03-06-2004** **APPELLANT/PETITIONER::** **----------------------** **SOJAN, S/O. MATHAI,** **PANDIYAMATTATHIL HOUSE, PERUMBANKUTHU,, MANKULAM P.O., IDUKKI DISTRICT.** ## **BY ADV. SRI.JOHN JOSEPH(ROY)** ## **RESPONDENTS/RESPONDENTS:** **-----------------------** ***1. VIJAYAN, S/O. KESAVAN, KOCHUPARAMBIL HOUSE, KALLARKUTTY,, VELLATHOOVAL, IDUKKI DISTRICT.** **2. C.P. SHAJI, CHAKKAPARAMBIL HOUSE, KOKKAPPILLY P.O.** **3. UNITED INDIA INSURANCE CO.LTD., BR.OFFICE, JASMINE BUILDING,, PERUMBAVOOR.** ***R1 IS DELETED FROM THE PARTY ARRAY AT THE RISK OF THE APPELLANT AS PER ORDER DATED 29.2.2016 IN IA.NO.618/2016 IN MACA.NO.1030/2006** ## **R3 BY ADV. SRI.JOHN JOSEPH VETTIKAD** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 08-04-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **P.N. RAVINDRAN & K. RAMAKRISHNAN, JJ.** .................................................. M.A.C.A.No.1030 of 2006 ....................................................... Dated this the 8[th] day of April, 2016. ## **JUDGMENT** ## **K. RAMAKRISHNAN, J:** The claimant in OP(MV)No.202/2000 on the file of the Motor Accidents Claims Tribunal, Muvattupuzha is the appellant herein. The appellant filed the claim petition claiming compensation for the injury sustained by him in a motor vehicle accident occurred on 1.1.2000. According to him, he was travelling in the cabin of the lorry bearing registration No.KL0-9595 driven by the first respondent, owned by the second respondent and insured with the third respondent as the person accompanying the owner of the goods carried in the vehicle and due to the negligence of the driver of the lorry, the accident occurred. He has suffered serious injuries. He was working as a headload worker and getting Rs.4,000/- per month. He has been permanently disabled and claimed a total compensation of Rs.12,00,000/- but restricted his claim to Rs.8 lakhs. 2. Respondents 1 and 2 though entered appearance, did not file any written statement. The third respondent entered appearance and filed written statement admitting the insurance of the vehicle involved in the accident. But according them, there was no negligence on the part of the driver of the vehicle. They denied the 2 M.A.C.A.No.1030 of 2006 allegation that the appellant was travelling in the vehicle as an agent of the owner of the goods. The amount claimed is exorbitant. The income, disability etc of the claimant etc are also denied. They prayed for dismissal of the petition. 3. They filed I.A.No.48 of 2004 to permit them to contest the case under section 170 of the Motor Vehicles Act and the same was allowed. Pws 1 to 3 were examined and Exts.A1 to A8 were marked on the side of the petitioner. No oral evidence was adduced on the side of the respondents. Ext.B1 policy was marked on the side of the third respondent. After considering the evidence on record, the tribunal found that the accident occurred due to the negligence of the driver of the vehicle, the second respondent, and awarded a total compensation of Rs.5,00,800/- on various heads as follows: Loss of earnings :Rs.6,000/Transport to hospital :Rs.3,000/Damage to clothings : Rs.300/Extra nourishment :Rs.5,000/Treatment expenses :Rs.17,500/Future medical expenses :Rs.15,000/Bystander's expenses :Rs.15,000/Pain and sufferings :Rs.25,000/Loss of amenities in life :Rs.30,000/Loss of earning capacity :Rs.3,84,000/---------------Total :Rs.5,00,800/========== and directed the third respondent insurance company to deposit the M.A.C.A.No.1030 of 2006 3 amount with 9% interest from the date of petition till payment on Rs,4,50,000/-. Dissatisfied with the quantum of compensation awarded by the tribunal, the present appeal has been preferred by the appellant, claimant before the court below. 4. Heard Sri.John Joseph (Roy), learned counsel appearing for the appellant and Sri.John Joseph Vettikad, learned counsel appearing for the third respondent as the first respondent was deleted from the party array and notice to the second respondent was dispensed with. 5. Learned counsel for the appellant submitted that the court below was not justified in fixing the monthly income of the petitioner as Rs.2,000/- and no future prospects have been considered for the purpose of awarding the compensation. Further the amount awarded under the heads pain and suffering, future treatment expenses, loss of amenities in life are very low as he was aged only 32 years and has been suffering from paraplegia and consequently bedridden and he is entitled to get enhanced compensation . 6. On the other hand, learned counsel for the insurance company submitted that the tribunal had properly appreciated the evidence and awarded just and fair compensation. 7. It may be mentioned here that the appeal filed by the M.A.C.A.No.1030 of 2006 4 insurance company against the quantum of compensation as M.A.C.A.No.1718 of 2004 and challenging their liability to pay the amount was dismissed by this court by judgment dated 13.7.2015. So we are not going into the question regarding the negligence or liability of the insurance company in this case as that has become final in that appeal. 8. According to the claimant, he was working as headload worker and getting Rs.4,000/-per month and aged only 32 years. The fact that he has suffered 80% disability and become paraplegic and he is unable to move and he was permanently disabled is not in dispute and that was affirmed by this court in the appeal filed by the insurance company mentioned above as well. The court below had taken Rs.2,000/- as his monthly income. During 2000, it cannot be said that it is very low or excessive as well in the absence of any evidence adduced on the side of the petitioner to prove his actual income. However in the decision reported in _**Syed Sadiq etc. v.**_ ## _**Divisional Manager, United India Ins.Co. (AIR 2014 SC 1052),**_ the Supreme Court has held that future prospects will have to be taken into consideration while assessing compensation under the head loss of earning capacity as well not only in respect of compensation payable under the head loss of dependency as has been held in the 5 M.A.C.A.No.1030 of 2006 decision reported in _**Rajesh v. Rajbir Singh** [2013(3) KLT 89(SC)]_ and 50% of the income has to be added to this purpose if the victim is age group of upto 40 years. So if that principle is applied, the petitioner will be entitled to get a compensation of Rs.5,76,000/= [(2000x150%)=3000x12x16] and deducting Rs.3,84,000/- awarded, he will be entitled to get an additional compensation of Rs. 1,92,000/under the head loss of earning capacity. 9. He was aged 32 years at the time of accident. Has been completely bedridden and 100% disabled. He has lost his amenities in life on account of the disability suffered by him and loss of enjoyment in life as well at the young age. So considering the circumstances, the amount of Rs.30,000/- awarded by the tribunal under the head loss of amenities in life also on the lower side and we can take one fourth of the amount awarded under the head loss of earning capacity as compensation for the loss of amenities in life and discomfort to meet the ends of justice. So he will be entitled to get an amount of Rs.1,44,000/- instead of Rs. 30,000/- awarded by the tribunal and thereby the appellant will be entitled to get an additional amount of Rs.1,14,000/- under that head. 10. The tribunal has awarded only Rs.25,000/- for pain and sufferings. Considering the nature of injury sustained and the M.A.C.A.No.1030 of 2006 6 disability and also the pain he will have to suffer, we feel that the amount awarded is very low and we enhance the same to Rs. 50,000/thereby the appellant will be entitled to get an additional amount of Rs.25,000/- under the head pain and sufferings. The court below awarded Rs.15,000/- for future medical expenses. Considering the nature of injury sustained and considering the fact that he is totally disabled and completely bedridden, he may require the service of a bystander to look after him and also require medicines to improve his health condition and we feel that an additional amount of Rs.50,000/can be awarded for the future expenses over and above Rs.15,000/awarded by the tribunal. We are not inclined to award any enhanced amount under other heads as the tribunal has awarded just and fair compensation under other heads. So the appellant will be entitled to get an additional amount of Rs.3,81,000/- which the third respondent insurance company is liable to pay with 9% interest from the date of petition till payment less for period of 533 days delay excluded by this court as per order in C.M.Appln.No.1116 of 2006 on Rs.3,31,000/-, deducting the amount of Rs.50,000/- awarded for future treatment expenses which is yet to incur. Three months time is granted to the insurance company to deposit the amount. The claimant is permitted to withdraw Rs. One lakh out of the additional M.A.C.A.No.1030 of 2006 7 compensation awarded and the balance amount will be deposited for a period of 5 years with liberty for the petitioner to withdraw the monthly interest accrued for his expenses. We leave it open the right of the petitioner to move the tribunal to disburse the amount if need arises and in such circumstances the tribunal is at liberty to consider the need and pass appropriate orders in the application. The insurance company is directed to take DD if any court fee is payable for the excess amount awarded by this court over and above the amount claimed by the petitioner in the petition for which the court fee was collected earlier. With the above modification of the impugned judgment of the tribunal, the appeal is allowed in part and disposed of accordingly. ## Sd/ ## **P.N. RAVINDRAN, JUDGE.** Sd/- ## **K. RAMAKRISHNAN, JUDGE.** /true copy/ **cl** P.S to Judge