Sugathan v. Thomas Mathew and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN & THE HONOURABLE MR.JUSTICE K.RAMAKRISHNAN** **MONDAY, THE 23RD DAY OF MAY 2016/2ND JYAISHTA, 1938** **MACA.No.1391 of 2006 ( )** **-------------------------AGAINST THE AWARD IN OPMV 620/2000 of M.A.C.T., KOTTAYAM, DATED 17-08-2005.** ## **APPELLANT(S)/APPELLANT/PETITIONER:** **---------------------------------** **SUGATHAN, S/O.DAMODARAN,** **KUTTIKKATTU HOUSE, NEAR SACHIVOTHAMAPURAM COLONY, KURICHI.** **BY ADV. SRI.K.A.HASHIM** ## **RESPONDENT(S):** - **--------------** **1. THOMAS MATHEW,PULIYODIYIL HOUSE, KOCHUKOYIKAL KARA, CHITTAR, SEETHATHODU VILLAGE.** **2. P.C.THOMAS, SALEM COTTAGE, MILADY TOWN P.O., PATHANAMTHITTA.** **3. THE NATIONAL INSURANCE COMPANY LTD., PATHANAMTHITTA.** **4. VIJAYAN @ VIJAYAPPAN, VALIYAPARAMBIL HOUSE, NEAR RAILWAY OVER BRIDGE, ENNAKACHIRA BHAGOM, KURICHI.** **5. THE SECRETARY, CHANGANACHERRY TALUK, AUTORICKSHAW THOZHILALY SAHAKARANA SANGAM, CHANGANACHERRY.** **6. THE NEW INDIA ASSURANCE CO.LTD., CHANGANACHERRY.** **R6 BY ADV.SRI.LAL GEORGE R3 BY ADV.SRI.M.A.GEORGE** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 23-05-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ss ## **P.N.RAVINDRAN & K.RAMAKRISHNAN, JJ.** -------------------------------------------------------------------- **M.A.C.A. No.1391 of 2006** -------------------------------------------------------------Dated this the 23[rd] day of May, 2016 ## **JUDGMENT** ## **K.RAMAKRISHNAN, J** The claimant in O.P.(M.V.)No.620/2000 on the file of the Motor Accidents Claims Tribunal, Kottayam is the appellant herein. The claim petition was filed by the petitioner, claiming compensation for the personal injuries and disability suffered by him in a motor vehicle accident occurred on 15.06.1999. According to the petitioner, he was travelling in the autorickshaw with No.KL-5/1273, which was driven by the 4[th] respondent and owned by the 5[th] respondent and insured with the 6[th] respondent. When it reached the place of occurrence, a jeep with No.KL-3C/9594 driven by the first respondent, owned by the second respondent, insured with the third respondent came and hit against the autorickshaw in which he was travelling and he sustained severe injuries. According to the claimant, the accident occurred due to the negligence of the driver of the jeep. He was a driver by profession getting 3,750/- per month. He sustained severe injuries₹ and suffered permanent disability. He claimed a total compensation of ₹8,00,000/-, but limited to 5,00,000/- under various heads.₹ _**M.A.C.A. No.1391 of 2006**_ 2 2. The respondents 1 and 2 filed a written statement admitting that they are the driver and owner of the jeep. According to them, the accident occurred due to the negligence of the autorickshaw driver and there was no negligence on the part of the first respondent. The vehicle was insured with the third respondent with comprehensive policy and the compensation if any awarded has to be paid by them. 3. The third respondent filed written statement denying the issuance of policy in respect of Jeep with Reg.No.KL-3C/9594 at the time of accident. They have also contended that the first respondent has no driving licence to drive the vehicle and the vehicle was driven against the policy conditions. They attributed negligence on the part of the 4[th] respondent and there was no negligence on the part of the first respondent. They denied the age, income, occupation and disability etc., claimed in the petition. According to them, the total compensation claimed is exorbitant. They prayed for dismissal of the application. 4. Respondents 4 and 5 remained absent. 5. The 6[th] respondent filed written statement admitting the insurance of the autorickshaw involved in the accident. They have further contended that the Chingavanam police has charge sheeted the _**M.A.C.A. No.1391 of 2006**_ 3 first respondent/the driver of the jeep in connection with the accident. There is no liability on them to pay the compensation to the petitioner as there was no negligence on the part of the driver of the autorickshaw. They have further contended that the total compensation claimed is exorbitant and they prayed for dismissal of the application. 6. The petitioner was examined as PW1 and the doctor who issued the disability certificate was examined as PW2 and Exts.A1 to A18 series and Ext.X1 series were marked on the side of the claimant. After considering the evidence on record, the tribunal found that the accident occurred due to the negligent driving of the jeep by the first respondent and respondents 1 to 3 are jointly and severally liable to pay compensation and exonerated respondents 4 to 6 from the liability to pay compensation to the petitioner. The tribunal also awarded a total compensation of 3,66,100/- as follows:₹ |**_Heads_**|**_Amount_**| |---|---| |Loss of earning|₹ 13,500/-| |Medical expenses|₹22,000/-| |Bystanders expenses|₹9,000/-| |Extra nourishment|₹5,000/-| |Pain and suffering|₹30,000/-| |Loss of earning capacity|₹1,83,600/-| |Permanent disability|₹50,000| |Loss of inconvenience|₹50,000/-| |Transport to hospital|₹3,000/-| |Total|₹3,66,100| _**M.A.C.A. No.1391 of 2006**_ 4 The tribunal directed the third respondent insurance company to pay the amount with interest at 6% per annum. 7. Dissatisfied with the quantum of compensation awarded by the tribunal, the above appeal has been preferred by the appellant/claimant before the court below. 8. Heard Sri.K.A.Hashim, counsel appearing for the appellant and Sri.M.A.George, counsel appearing for the third respondent and Sri.Lal George, counsel appearing for the 6[th] respondent. 9. The counsel for the petitioner submitted that he was an autorickshaw driver by profession and the tribunal has taken only Rs.1,500/- per month as his income and no future prospects have been taken. Further the evidence of PW2 will go to show that he is totally disabled from doing any work. So the court below ought to have taken 100% disability for the purpose of assessing compensation under the head loss of earning capacity. The amounts awarded under other heads, pain and suffering, permanent disability, inconvenience is also on the lower side. No amount is awarded under the head future treatment. So under such circumstances, the appellant is entitled to get enhancement on all heads. _**M.A.C.A. No.1391 of 2006**_ 5 10. On the other hand, the counsel for the third respondent submitted that the court below had correctly assessed the compensation and the total compensation awarded is just and proper. Further, after awarding compensation under the head loss of earning capacity, the court below had awarded compensation under the head permanent disability as well as loss of inconvenience and amenities separately, which is unsustainable in law. 11. Since the question of negligence and liability to pay compensation etc., were not challenged by the insurance company, (third respondent) we are not going to those questions in this case. The case of the petitioner was that he was a autorickshaw driver by profession and getting 3,750/- per month. He had produced Ext.A17₹ to prove this fact. But the court below had verified Ext.A17 and found that, after 1995, he had not renewed his badge and when he was questioned by the police, he had no case that he was a driver by profession, but stated by him, he was a political worker and the Area Secretary of Democratic Youth Federation of India at the relevant time. So the court below had taken the monthly income as 1,500/- per₹ month. But the accident in this case occurred in the year 1999. Even in 1994, the legislature has taken the annual income of a non earning 6 ## _**M.A.C.A. No.1391 of 2006**_ person as 15,000/- per annum. So considering these aspects, this₹ court feels that the monthly income of the petitioner can be taken as ₹2,000/- per month. 12. It is seen from the evidence of PW2 and also Ext.X1 series that he sustained an extensive abdominal injury which resulted in conducting two surgeries namely, laprotomy as well as Cecostomy and it is also seen from the evidence of PW2 and the documents produced that he had undergone surgery twice and also the injury was repaired with implanting of mesh inside his abdomen. The evidence of PW2 will go to show that hernia is likely to recur and he has to under treatment for the same and he may not be able to bend and take heavy articles and he may have difficulty. The doctor had stated that the disability has been assessed as 60%. No question was put to him that he was not able to do any work on account of the disability suffered. But he had stated that there is a possibility of recurring of hernia and he had to undergo treatment for the same. So considering the circumstances, the court below had taken 60% disability assessed by the doctor for the purpose of assessing compensation under the head loss of earning capacity. But the court below had not taken any future prospects while assessing the compensation under the head. _**M.A.C.A. No.1391 of 2006**_ 7 13. In the decision reported in **Rajesh v. Rajbir Singh [2013(3) KLT 89 (SC)]** , the Supreme Court has held that, even in the case of persons having no permanent income, future prospects will have to be taken into consideration and that can be assessed at the rate of 50% up to 40 years; 30% up to the age of 50 years and 15% up to the age of 60 years. That was considered for the purpose of assessing compensation under the head loss of dependency in the case of death. But the same principle has been extended in the case of injuries as well in **S** _**yed Sadiq v. Divisional Manager, United India**_ _**Insurance Company**_ [AIR 2014 (SC) 1052] _**.**_ Further there is some force in the submission made by the counsel for the third respondent that the proper multiplier has not been taken. The court below had taken 17 as multiplier. As per _**Sarla Verma (Smt) and Others v. Delhi Transport Corporation and Another**_ (2009 (6) SCC 121), the proper multiplier will be 16 for the age group of persons coming under the group of 34 years. If a recalculation is made on that basis, he will be entitled to get an amount of Rs.3,45,600/- (₹2,000x150%) = (₹3,000x12x16x60%) and deducting Rs.1,83,600/- awarded by the tribunal, he is entitled to get an additional amount of Rs.1,62,000/under the head loss of earning capacity. _**M.A.C.A. No.1391 of 2006**_ 8 14. The tribunal has awarded 13,500/- under the had₹ loss of earning for 9 months taking his monthly income as 1,500/- per₹ month. Since this court has taken his monthly income as 2,000/-, he₹ will be entitled to get an amount of 18,000/- instead of 13,500/-₹ ₹ under the head loss of earning during the period of treatment, thereby he will be entitled to get an additional amount of 4,500/- under that₹ head. The tribunal has awarded only 30,000/- under the head pain₹ and suffering. Considering the nature of injury sustained, period of treatment undergone, the nature of treatment undergone, this court feels that the amount of 30,000/- awarded by the tribunal is on the₹ lower side and we enhance the same to 50,000/- and thereby he is₹ entitled to get an additional amount of 20,000/- more under that₹ head. 15. It is true that the court below had awarded 50,000/-₹ under the head permanent disability and also another 50,000/- under₹ the head loss amenities in life, taking into consideration the disability suffered. But once the compensation is awarded under the head loss of earning capacity, then the petitioner is entitled to get only a nominal amount or reasonable amount as compensation under the head loss of amenities in life. So the tribunal was not justified in awarding amount _**M.A.C.A. No.1391 of 2006**_ 9 of 50,000/- each under two heads. But at the same time, considering₹ the fact he sustained 60% disability and also the evidence given by PW2 will go to show that he will have to suffer with this difficulty for the remaining period of his life and it is very difficult for him to lead a normal life as well. So considering these aspects, the total amount of ₹1,00,000/- awarded under these two heads can be treated as compensation payable under the head loss of amenities in life and under such circumstances, this court is not inclined to interfere with the amount awarded under those heads. No amount was awarded under the head future medical treatment. It is seen from the evidence of PW2 the he may have future difficulties and require future treatment as recurring hernia cannot be ruled out. In such circumstances, hospitalization treatment will be required. So considering these aspects we feel that an amount of 20,000/- can be₹ awarded under the head future medical expenses. We are not inclined to enhance any amount under other heads as it appears to be just and proper on all other heads. In all the appellant will be entitled to get an additional compensation of ₹2,06,500/-, over and above the compensation awarded by the tribunal, which the third respondent insurance company is liable to pay with 9% interest from the date of _**M.A.C.A. No.1391 of 2006**_ 10 petition till payment, excluding the amount of 20,000/- awarded by₹ this court under the head future medical expenses. The third respondent is directed to deposit the amount within three months. If the amount is deposited, the petitioner is permitted to withdraw 50% of the amount and the balance amount can be deposited in a nationalised bank for a period of three years subject to his entitlement for apply for release of the amount, showing the reason for the same. With the above modification of the impugned award passed by the tribunal, the appeal is allowed in part and disposed of accordingly. _Sd/-_ ## **( P.N. Ravindran, Judge)** _Sd/-_ ## **(K. Ramakrishnan, Judge)** //True Copy// P.A. to Judge ss _**M.A.C.A. No.1391 of 2006**_ 11 ## **P.N.RAVINDRAN & K.RAMAKRISHNAN, JJ.** -------------------------------------------------------------------- **C.M.Appln.No.1505 of 2006 in M.A.C.A. No.1391 of 2006** -------------------------------------------------------------Dated this the 20[th] day of May, 2016 ## **ORDER** ## **P.N.RAVINDRAN, J** Registry has reported that respondents 1 and 5 have not been served. The first respondent is the driver of a jeep, owned by the second respondent and insured with the third respondent. The fifth respondent is the owner of the auto-rickshaw in which the appellant/claimant was travelling as a passenger. The tribunal has after considering the rival contentions held that the accident took place on account of the negligence of the first respondent. Consequently an award was passed only as against respondents 1 and 2. The third respondent, the insurer of the jeep was directed to satisfy the award. In view of the fact that the appellant does not challenge the exoneration of respondents 4, 5 and 6 and the third respondent does not dispute its liability to indemnify respondents 1 and 2, we are of the opinion that notice to respondents 1 and 5 can be dispensed with. We 12 ## _**M.A.C.A. No.1391 of 2006**_ accordingly dispense with notice to respondents 1 and 5. Service complete. The prayer in this application is to condone the delay of 33 days in filing M.A.C.A.No.1391 of 2006. Heard, not opposed allowed. Consequently the delay of 33 days in filing the appeal shall stand condoned. ## **( P.N. Ravindran, Judge)** ## **(K. Ramakrishnan, Judge)** ss _**M.A.C.A. No.1391 of 2006**_ 13 ## **P.N.RAVINDRAN & K.RAMAKRISHNAN, JJ.** -------------------------------------------------------------------- ## **M.A.C.A. No.1391 of 2006** -------------------------------------------------------------Dated this the 20[th] day of May, 2016 ## **ORDER** ## **P.N.RAVINDRAN, J** Admit. Sri.M.A. George, learned counsel takes notice for the third respondent. Sri.Lal George, learned counsel takes notice for the 6th respondent. Notice to the other respondents dispensed with for the reason that the third respondent does not dispute its liability to indemnify respondents 1 and 2 and also for the reason that respondents 4, 5 and 6 have not been held liable and no relief is sought against them in this appeal. Service complete. ## **( P.N. Ravindran, Judge)** ## **(K. Ramakrishnan, Judge)** ss ## _**M.A.C.A. No.1391 of 2006**_ 14