Sreejith M.S. v. Oriental Insurance Company Limited

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN MONDAY, THE 1[ST] DAY OF JULY 2024 / 10TH ASHADHA, 1946 MACA NO. 3659 OF 2019** **OPMV NO.1962 OF 2015 OF MOTOR ACCIDENT CLAIMS TRIBUNAL,** ## **ERNAKULAM** ## **APPELLANT/PETITIONER:** **SREEJITH M.S., AGED 31 YEARS, S/O.SURESH V.A., MANNATHIPARAMBU HOUSE, VADAKKUM BHAGOM, CHEPPANAM, PANANGAD P.O., COCHIN - 682 506.** **BY ADVS. RAHUL SASI SMT.NEETHU PREM** ## **RESPONDENT/2ND RESPONDENT:** **THE ORIENTAL INSURANCE COMPANY LIMITED, REGIONAL OFFICE, METRO PLACE, OPP. NORTH RAILWAY STATION, ERNAKULAM, COCHIN - 682 011, REPRESENTED BY ITS REGIONAL MANAGER.** **BY ADVS. JACOB MATHEW P MATHEWS JACOB (SR.)(M-186)** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR HEARING ON 01.07.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA NO. 3659 OF 2019 **==> picture [31 x 8] intentionally omitted <==** **==> picture [35 x 12] intentionally omitted <==** ## JUDGMENT This appeal has been filed by the claimant in OP(MV) No.1962 of 2015 on the file of the Motor Accidents Claims Tribunal, Ernakulam. The respondent herein was the second respondent before the tribunal. 2. The case of the appellant/claimant is that on 07.06.2015 at 3.50 pm, while he was riding a motorcycle bearing Reg.No.KL-39-D-1218 through Madavana - Panangad public road, a motorcycle bearing Reg.No.KL-39-B-8673 owned and ridden by the first respondent hit against the motorcycle ridden by the appellant, whereby he sustained serious injuries. He approached the tribunal claiming a total compensation of 60,00,000/-.₹ 3. The first respondent remained ex parte before the tribunal. The respondent insurer filed a written statement, admitting the policy coverage for the offending vehicle, but disputing the liability and quantum of compensation claimed. Before the tribunal, the evidence consists of oral evidence of MACA NO. 3659 OF 2019 **==> picture [31 x 8] intentionally omitted <==** PWs 1 & 2 and documentary evidence as Exts.A1 to A17 on the side of the appellant/claimant and Ext.X1 as court evidence. No evidence was adduced by the respondent insurer. The tribunal, after analysing the pleadings and materials on record, held that the accident took place on account of the negligence of the rider of the offending vehicle and awarded a sum of 17,67,600/- as compensation under₹ different heads against the second respondent being the insurer. Dissatisfied with the quantum of compensation awarded by the tribunal, the claimant has come up in appeal. 4. Heard the learned counsel for the appellant and the learned Standing Counsel for the respondent insurer. 5. The learned counsel for the appellant claims enhancement mainly under the following heads; 5.1. Notional income - The learned counsel for the appellant submits that the oral evidence of PWs 1 and 2 would show that the appellant was a painter by profession and the evidence of PW2 would reveal that the appellant was earning ₹800/- per day. Here, in this case, the appellant proved before the tribunal in evidence that he was a painter by profession. MACA NO. 3659 OF 2019 **==> picture [31 x 8] intentionally omitted <==** Further, though PWs 1 and 2 were cross-examined, their depositions could not be controverted by the respondent insurer. It is a fact that even going by the decision in Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Ltd. [(2011) 13 SCC 236], the notional monthly income of a coolie is 10,000/-. However, considering₹ the avocation of the appellant and also considering the fact that the claim of the appellant that he was earning 800/- per₹ day is proved in evidence, I deem it appropriate to fix his notional monthly income at 12,000/-.₹ 5.2. Loss of earnings - Since the notional monthly income of the appellant is refixed at 12,000/-, compensation₹ towards loss of earning for a period of 12 months has to be recalculated, which would come to 1,44,000/-. Thus, the₹ appellant will be entitled to get an additional compensation of ₹24,000/towards loss of earnings after deducting the compensation of 1,20,000/- awarded by the tribunal. ₹ 5.3. Permanent disability - Ext.X1 certificate shows that the appellant was referred to the Medical Board and the disability of the appellant was assessed by the Medical Board MACA NO. 3659 OF 2019 **==> picture [31 x 8] intentionally omitted <==** at 40%. This is a case where the appellant underwent amputation of the left leg below the knee and being a painter by profession, amputation of his left leg may prevent him from continuing with the same avocation. It is seen that the tribunal estimated his disability as functional disability at 50% for awarding compensation towards permanent disability, which does not appear to be reasonable. The learned counsel relied on the judgment of the apex court in Sarnam Singh v. Shriram General Insurance Company Ltd. and others [2023 LiveLaw (SC) 498]. That was a case wherein the injured was working as a Gunman and on account of the amputation of the right leg above the knee, he was terminated from service. The apex court found that a person with his right leg amputated cannot perform his duty as a Gunman. The apex court, while rendering the afore judgment, considered the judgment in Mohan Soni v. Ram Avtar Tomar and others [(2012) 2 SCC 267], in which it was held that any physical disability resulting from an accident has to be judged with reference to the nature of work being performed by the person who suffered disability, and enhanced the loss of earning capacity to 100% in the Judgment in Sarnam Singh (supra). In Sarnam Singh MACA NO. 3659 OF 2019 **==> picture [31 x 8] intentionally omitted <==** (supra), the age of the injured was 50 years and 5 months. In the present case, the Medical Board assessed the permanent disability of the injured at 40%. Hence, considering the fact that the appellant was only aged 28 years at the time of the accident and also considering his avocation, I am of the opinion that the functional disability of 30% also has to be taken into account for awarding compensation along with permanent disability. Accordingly, considering permanent disability and functional disability, the percentage of disability is taken as 70% for assessing compensation towards permanent disability. Since there is permanent disability of 70%, future prospects at 40% also is to be considered along with the notional income as the appellant was only 28 years at the time of the accident. Thus, following the decisions reported in National Insurance Co.Ltd. v. Pranay Sethi [2017(4) KLT 662(SC)] and Sarla Verma v. Delhi Transport Corporation [2010(2) KLT 802(SC)], the appellant will be entitled to get a compensation of 23,99,040/- (16800 x 12 x₹ 17 x 70%) towards permanent disability. Hence, there will be an additional amount of 13,79,040/- under the head of₹ permanent disability. MACA NO. 3659 OF 2019 **==> picture [31 x 8] intentionally omitted <==** 5.4. For fixing artificial limb - The learned counsel for the appellant submits that though compensation towards expenses for fixation of artificial limb was sought before the tribunal, the same was awarded towards treatment expenses. Placing reliance on a decision of this Court in Zakeer Hussain v. Jayakumar & Another [2022 (1) KHC 546], the learned counsel for the appellant claims that the tribunal ought to have granted compensation towards expenses for fixing artificial limbs three times during the lifetime of the injured. On a perusal of the award, it is seen that 1,50,000/- was₹ incurred by the appellant for purchase of artificial limb and the said amount was awarded by the tribunal along with medical expenses. However, on a perusal of the memorandum of appeal, it is seen that no claim was raised in the appeal for further compensation towards artificial limb and it was raised for the first time during the final hearing. The appellant cannot take the respondents by surprise for a further claim of compensation for artificial limb. Hence, I am not inclined to grant any enhanced compensation towards expenses for artificial limb. MACA NO. 3659 OF 2019 **==> picture [31 x 8] intentionally omitted <==** 6. Though the appellant claimed enhancement of compensation under other heads also, on a perusal of the records available, I am not inclined to interfere with the compensation awarded by the tribunal under other heads since it appears to be just and reasonable. Thus, the impugned award of the tribunal is modified as follows; |Sl.<br>No.|Head of Claim|Amount<br>claimed<br>(in )<br>₹|Amount<br>awarded<br>by the<br>tribunal<br>(in )<br>₹|Modified<br>in appeal<br>(in )<br>₹|Total<br>compensation<br>(in )<br>₹| |---|---|---|---|---|---| |1.|Loss of earnings|216000|120000|24000|144000| |2.|Transport to<br>hospital and back<br>to home|100000|10000||10000| |3.|Extra<br>nourishment|100000|25000||25000| |4.|Damage to<br>clothes and<br>articles|7000|1000||1000| |5.|Bystander<br>expenses|100000|5750||5750| |6.|Treatment<br>expenses|300000|235850||235850| |7.|For fixing<br>artificial limb|1000000|||| MACA NO. 3659 OF 2019 ..9.. |8.|Pain and<br>suffering|300000|150000||150000| |---|---|---|---|---|---| |9.|Disability|3000000|1020000|1379040|2399040| |10.|Future treatment|200000|50000||50000| |11.|Disfiguration|300000|||| |12.|Loss of earning<br>power|3000000|||| |13.|Short<br>expectation in<br>life|200000|||| |14.|Loss of amenities<br>and comforts|500000|150000||150000| ||Total|9323000|1767600|1403040|3170640| Accordingly, the appeal is allowed in part and the appellant/claimant is awarded an additional compensation of ₹14,03,040/- (Rupees fourteen lakh three thousand and forty only) over and above the compensation awarded by the tribunal with interest @ 8% per annum from the date of petition till realization and proportionate costs. The respondent insurer shall deposit the said amount together with interest and costs within a period of two months from the date of receipt of a certified copy of this judgment. The claimant shall furnish copies of the PAN Card, AADHAAR Card MACA NO. 3659 OF 2019 **==> picture [37 x 8] intentionally omitted <==** and bank details before the respondent insurer within a period of one month so as to enable the insurance company to make the deposit as ordered above. In case of failure to furnish details as above, it shall be open for the insurance company to deposit the said amount before the tribunal. Upon such deposit being made, the entire amount shall be disbursed to the appellant at the earliest in accordance with law. Sd/- SHOBA ANNAMMA EAPEN JUDGE bka/-