Subramannian v. The New India Assurance Company Limited

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THE HONOURABLE MRS. JUSTICE MARY JOSEPH TUESDAY, THE 27[TH] DAY OF SEPTEMBER 2022 / 5TH ASWINA, 1944 MACA NO. 2199 OF 2014 ``` ``` AGAINST THE AWARD DATED 17.05.2014 IN O.P(M.V) NO.1106/2011 OF PRINCIPAL MOTOR ACCIDENT CLAIMS TRIBUNAL, KOZHIKODE ``` ## **`APPELLANT/PETITIONER:`** ``` SUBRAMANNIAN, S/O.RARU, AGED 49 YEARS, RESIDING AT EDAYAMVEETTIL HOUSE, P.O.PUTHUKKODE, MALAPPURAM-673 633. ``` ``` BY ADVS.SRI.A.V.M.SALAHUDDEEN SMT.EMIL STANLEY ``` ## **`RESPONDENT/3RD RESPONDENT:`** ``` THE NEW INDIA ASSURANCE COMPANY LIMITED SHANIWAR PETH, P.B.NO.7, KARAD, MAHARASHTRA 400080. ``` ``` BY ADVS.SRI.VIJU THOMAS SMT.M.MEENA JOHN SRI.VIJU ABRAHAM ``` ## **`THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD`** ``` ON 27.09.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` M.A.C.A.No.2199 of 2014 ``` ``` 2 ``` ## **`JUDGMENT`** ``` Dated this the 27[th] day of September, 2022 ``` This appeal is directed against an award passed by Principal Motor Accidents Claims Tribunal, Kozhikode (for short ‘the Tribunal’) on 17.05.2014 in O.P(M.V) No.1106/2011 challenging the quantum of compensation awarded by it in favour of a victim of a motor accident. For the sake of convenience the parties to this appeal will hereinafter be referred to as the petitioner and the 3[rd] respondent in accordance with their status in the Original Petition. 2. The petitioner met with a road traffic accident at 7.15 am on 08.12.2010 while travelling in a bus from Vydiarangadi to Ramanattukara. A Lorry hit the bus in which the petitioner was travelling and thereby he sustained serious injuries. He was transported to Medical College Hospital, Kozhikode and treated there as an inpatient for 43 days. Alleging that the accident was occurred due to the rash and ``` M.A.C.A.No.2199 of 2014 ``` ``` 3 ``` negligent driving of the Lorry by its driver, the Original Petition was preferred before the Tribunal. A sum of Rs.5,00,000/- was claimed as compensation from the owner, driver and insurer of the Lorry arrayed respectively as respondents 1 to 3 in the Original Petition seeking compensation. The respondents are alleged as jointly and severally liable to compensate the petitioner. 3. Despite service of notice on them from the Tribunal, respondents 1 and 2 did not turn up to contest the Original Petition and therefore were declared ex parte. The 3[rd] respondent had filed written statement admitting insurance coverage for the Lorry but disputing the liability, the quantum of compensation claimed and the age, occupation and monthly income of the petitioner. An allegation that the motor accident was occurred due to the negligence of the driver of the bus was also raised. The Original Petition was also contended as bad for non joinder of necessary parties, due to non-impleadment of the driver, owner and insurer of the bus in the Original Petition. ``` M.A.C.A.No.2199 of 2014 ``` ``` 4 ``` 4. Before the Tribunal, the petitioner marked Exts.A1 to A12 series, Ext.X1 and C1 in evidence. The 3[rd] respondent did not adduce any evidence. On appreciation of the evidence on record the court below found the 2[nd] respondent who was driving the Lorry at the relevant time of the accident liable for causing the accident due to his rash and negligent driving. The Tribunal also found the petitioner entitled to get compensation from the respondents and Rs.3,39,601/- was arrived at as the compensation payable. The 3[rd] respondent insurer was directed to deposit the sum arrived at as compensation with interest at the rate of 8% fixed on it, from the date of filing of the Original Petition till the date of realisation, within 30 days from the date of passing of the award. 5. Sri.A.V.M.Salahuddeen, the learned counsel for the petitioner has contended that though the motor accident was occurred in the year 2010 and the petitioner had pleaded to be the Manager in a Tile Factory, the Tribunal had fixed Rs.4,000/as the monthly income notionally. According to him, in ``` M.A.C.A.No.2199 of 2014 ``` ``` 5 ``` Ramachandrappa vs. Manager, Royal Sundaram Alliance Insurance Company Limited [(2011) 13 SCC 236] in the case of a coolie worker who had sustained injuries in a motor accident occurred in the year 2004, in the absence of any evidence, Rs.4,500/- was fixed by the Apex Court notionally as his monthly income and Rs.7,000/- a proportionate sum for 2010, being the year of occurrence can be adopted. It is further contended that the sums stand awarded by the Tribunal as compensation also are on the lower side and the Tribunal is unjustified in doing so. Accordingly interference with the assessment is sought to make the compensation, just and reasonable. 6. The learned counsel for the 3[rd] respondent has contended that just and reasonable compensation stands awarded by the Tribunal by the impugned award and therefore interference called for is totally unwarranted. According to him the percentage of disability assessed by the Medical Board as such being taken by the Tribunal, no sustainable grounds are made out to modify the compensation. ``` M.A.C.A.No.2199 of 2014 ``` ``` 6 ``` 7. The motor accident was occurred in the year 2010. In Ramachandrappa supra the Apex Court had fixed Rs.4,500/as the monthly income of a coolie worker who had sustained injuries in a road traffic accident occurred in the year 2004 and the occurrence in the case on hand being in the year 2010, as canvassed by the learned counsel, Rs.7,000/- being the sum proportionate to the year of accident is fixed as the monthly income of the petitioner. 8. Syed Sadiq and Others v. Divisional Manager, United India Ins.Co. [2014 KHC 4027 (SC)] Jagdish v. Mohan and Others [2018 KHC 6166 (SC)] and Pappu Deo Yadav v. Naresh Kumar and Others [2020 KHC 6547 (SC)] were relied on by the learned counsel to contend that the petitioner in the case on hand having been suffered 43.33% of disability is entitled for an addition of 40% to the monthly income fixed in consideration of future prospects. In the cases relied on, the Courts were considering the case of victims of accident who had lost the earning power fully due to amputation of hand and leg ``` M.A.C.A.No.2199 of 2014 ``` ``` 7 ``` etc. and the Medical Board had also certified them to have higher percentage of disability. 9. The petitioner in the case on hand is certified to have only 43.33% of disability. Cogent evidence is not forthcoming to establish that the petitioner on account of the disability suffered by him is totally unfit to do any kind of jobs or avocations. Petitioner did not tender evidence on his own about his inability to pursue with the avocation he was doing at the relevant time of motor accident and any other avocations. The medical practitioner who had treated him after the accident was also not examined to establish his loss of earning capacity in full on account of the injuries sustained in the motor accident. Therefore, this Court is declined to take an enhanced sum in due consideration of future prospects of the petitioner. The argument advanced to consider future prospects in the case of the petitioner being devoid of basis, is repelled. 10. The Tribunal has taken 4 months’ period for assessment of compensation for loss of earnings. The wound ``` M.A.C.A.No.2199 of 2014 ``` ``` 8 ``` certificate of the petitioner prepared at the hospital attended by him firstly reports SAH Hemorrhagic contusion, longitudinal linear fracture in left petrous temporal bone involving roof of EAC, fracture on anterior wall of EAC and Traumatic facial palsy on left side. Petitioner was treated at Medical College Hospital as inpatient only from 08.12.2010 to 19.01.2011. No medical documents are forthcoming to establish further treatment either as in-patient or as out-patient. In that context, the period taken by the Tribunal for assessment of compensation being reasonable, this Court is declined to interfere with. When compensation is calculated with Rs.7,000/-, as the monthly income, Rs.28,000/- is found payable. Rs.16,000/- being the sum stands granted by the Tribunal, the petitioner will get Rs.12,000/- as additional compensation for loss of earning. Under the head transportation expenses, the Tribunal had awarded Rs.1,000/-. The sum being inadequate, it is enhanced to Rs.2,000/- and therefore, the petitioner will get Rs.1,000/-additionally. Under ``` M.A.C.A.No.2199 of 2014 ``` ``` 9 ``` the head extra nourishment, Rs.1,500/- is the sum stands granted and it being low, this Court modifies it to Rs.3,000/and therefore the petitioner will get Rs.1,500/- additionally. Under the head pain and sufferings, the Tribunal has granted Rs.30,000/-, and it being a reasonable sum this Court is declined to interfere with. Under the head loss of amenities and enjoyments in life Rs.5,000/- only was granted and this Court is inclined to award Rs.15,000/-, so that the petitioner will get Rs.10,000/- additionally. When compensation for disability is re-assessed with the monthly income modified as Rs.7,000/- and the other factors adopted by the Tribunal as such Rs.4,73,163/- (7000x12x13x43.33%) will be payable. Rs.2,70,379/- being the sum stands awarded by the Tribunal, the petitioner will get Rs.2,02,784/- as additional compensation under that head. Thus, the petitioner will get Rs.2,27,284/- as the total additional compensation. The said sum would carry interest at the rate of 8% per annum from the date of filing of the Original Petition till the date of realisation. The 3[rd] ``` M.A.C.A.No.2199 of 2014 ``` ``` 10 ``` respondent, insurer shall deposit the amount stands originally awarded by the Tribunal in the Original Petition and the interest fixed therein (if not paid) as well as the additional compensation now arrived at within a period of two months from the date of receipt of a certified copy of the judgment. M.A.C.A stands allowed accordingly. Sd/- **MARY JOSEPH** **JUDGE** NAB