The Oriental Insurance Co. Ltd. v. Ajaykumar

1 MACA 16 OF 2014 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **WEDNESDAY, THE 30TH DAY OF SEPTEMBER 2020 / 8TH ASWINA, 1942** ## **MACA.No.16 OF 2014** **AGAINST THE AWARD IN OPMV 500/2007 OF THE MOTOR ACCIDENT CLAIMS TRIBUNAL , NORTH PARAVUR DATED 26.9.2013** ## **APPELLANT/S:** **THE ORIENTAL INSURANCE CO.LTD. REGIONAL OFFICE, METRO PLAZA, ERNAKULAM, REPRESENTED BY ITS DULY AUTHORISED OFFICER** **BY ADV. SRI.VPK.PANICKER** ## **RESPONDENT/S:** ## **AJAYKUMAR** **S/O VENUGOPALAN, VALIYAPARAMBIL HOUSE, MATHAKULAM, PUTHENVELIKKARA 683512** **R1 BY ADV. SMT.ANUPAMA JOHNY R1 BY ADV. SRI.REJI GEORGE** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 30.09.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 MACA 16 OF 2014 ## **C.S.DIAS, J. ====================== MACA No.16 of 2014 ====================== Dated this the 30[th] day of September, 2020.** ## **JUDGMENT** The appellant – Insurance Company - was the third respondent in OP (MV) No.500 of 2007 on the file of the Motor Accidents Claims Tribunal, North Paravur. The respondent in this appeal was the petitioner in the claim petition. The respondents 1 and 2 in the claim petition were the owner and driver of the offending vehicle. Since the appellant had admitted the Insurance Policy, the respondents 1 and 2 are not impleaded as parties in this appeal. The parties are, for the sake of convenience, referred to as per their status in the claim petition. 2. The petitioner had filed the claim petition under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of the injuries he sustained in a motor accident that took place on 3 MACA 16 OF 2014 ## 17.12.2006. He claimed that he was 29 years at the time of accident. 3. It was the case of petitioner in brief, that on 17.12.2006 while he was riding motor cycle bearing registration No.KRH 7746, the bus bearing registration No.KL-7/AP 1500, driven by the second respondent, in a rash and negligent manner, hit the motor cycle of the petitioner near TripunithuraPuthenvelikkara road, Ernakulam District. In the accident, the petitioner sustained the following injuries: - ➢ Severely contaminated wound with open fracture (R) ankle. - ➢ Lacerated injury on the left leg with avulsed skin exposing the cartilage. - ➢ Abrasion left shoulder - ➢ Wounds sutured. - ➢ X-ray-fracture tibial shaft. - ➢ Fracture fibula. 4. The petitioner was treated at the Specialist Hospital, Ernakulam. He claimed an amount of Rs.10,00,000/-, as compensation, under various heads. 5. The respondents 1 and 2 were set ex parte. The third respondent filed a written- 4 MACA 16 OF 2014 statement, inter alia, contending that the claim petition was not maintainable; that the offending vehicle did not have a valid fitness certificate; that the vehicle was being used for a purpose not allowed by the permit; that the owner of the vehicle had not reported about the accident; that the petitioner drove the vehicle in a rash and negligent manner and that the amounts claimed under the various heads in the claim petition were excessive. Hence, the claim petition may be dismissed. 6. The petitioner was examined as PW1 and Exts A1 to A10(b) were marked through him. The respondents produced Ext B1. The report issued by the General Hospital, Ernakulam was marked as Ext C1. 7. After considering the pleadings and materials on record, the Tribunal by the impugned award allowed the claim petition, in part, by directing the third respondent to pay an amount of Rs.8,78,800/- with interest at the rate of 8% per 5 MACA 16 OF 2014 annum from the date of petition till the date of realisation with proportionate cost of Rs.12,000/-. 8. The comparative table of compensation that was claimed by the petitioner and that was awarded by the Tribunal is as follows:- |SI<br>.<br>N<br>o|Head of claim|Amount<br>claimed<br>(in rupees)|Amount awarded (in<br>rupees)| |---|---|---|---| |1|Pain and sufferings and<br>continuing physical ailments|3,00,000/-|2,00,000/-| |2|Loss of amenities of life,<br>discomforts & inconvenience<br>caused|2,00,000/-|1,50,000/-| |3|Loss of earnings|1,50,000/-|30,000/-| |4|Transportation expenses|100,000/-|45,500/-| |5|Extra nourishment|50,000/-|20,000/-| |6|Partial loss of earning|10,000/-|Nil| |7|Medical expenses|4,00,000/-|1,82,900/-| |8|Bystander expenses|1,00,000/-|26,000/-| |9|Damage to clothing and<br>articles|10,000/-|1,000/-| |10|Compensation for permanent<br>disability|5,00,000/-|1,73,400/-| |11|Compensation for loss of<br>earning power|2,50,000/-|Nil| |12|Compensation<br>for<br>disfiguration|1,00,000/-|50,000/-| ||Total|21,70,000/-<br>limited to<br>10,00,000/-|8,78,800/-| 9. Aggrieved by the quantum of compensation awarded by the Tribunal, the Insurance Company has preferred this appeal. 6 MACA 16 OF 2014 10. Heard Sri.V.P.K Panicker, the learned counsel appearing for the appellant and Smt.Anupama Johny, the learned counsel appearing for the respondent. 11. The learned counsel appearing for the appellant submitted that the appellant was confining the contentions in appeal to the quantum of compensation awarded by the Tribunal under the various heads. The learned counsel appearing for the respondent, on the other hand, argued that the respondent underwent treatment for two years and is permanently disabled, therefore, the Tribunal ought to have also granted the respondent compensation for future prospects. 12. A Constitution Bench of the Hon'ble Supreme Court in **National Insurance Company Ltd. v. Pranay Sethi [(2017) 16 SCC 680],** has held that Section 168 of the Motor Vehicles Act, 1988, deals with the concept of 'just compensation' and the same has to be determined on the foundation of fairness, reasonableness and 7 MACA 16 OF 2014 equitability on acceptable legal standards. The conception of 'just compensation' has to be viewed through the prism of fairness, reasonableness and non-violation of the principle of equitability. 13. It is an undisputed fact that the petitioner sustained injuries on account of the accident that occurred on 17.12.2006. In view of Exts A1 to A5(b), the findings of the Tribunal that the accident occurred due to the negligence of the second respondent is only to be accepted. The Tribunal had fixed the income of the petitioner at Rs.5,000/- per month, as stated in the claim petition. 14. The petitioner pleaded and deposed that he was a Mechanic by profession and getting a monthly income of Rs.5,000/-, which was accepted by the Tribunal. 15. Going by the law laid down in **Ramachandrappa v. Manager, Royal Sundaram Alliance [(2011) 13 SCC 236]** and **Syed Sadiq and others v. Divisional Manager, United India** 8 MACA 16 OF 2014 **Insurance Co.Ltd. - [(2014) 2 SCC 735],** wherein the Hon'ble Supreme Court fixed the notional income of a coolie worker in the year 2004 @ Rs.4,500/- per month and that of a vegetable vendor in the year 2008 @ Rs.6,500/- per month, I am of the opinion that the notional income of the petitioner, who was a Mechanic by profession,fixed by the Tribunal as on the date of accident i.e., on 17.12.2006 @ Rs.5,000/- per month is reasonable and just. 16. It is on record that the petitioner was referred by the Tribunal to the Medical College Hospital, Kottayam, to assess his disability. The Medical Board by Ext A8 certificate assessed the partial/permanent disability of the petitioner at 17%. Neither the petitioner nor the third respondent have disputed the findings of the Medical Board by filing an objection to the report or letting in any evidence to discredit the findings of the Board. 17. Nevertheless, it is seen that the Tribunal, 9 MACA 16 OF 2014 in paragraph 13 of the award, has held that the disability assessed by the Medical Board in Ext A8 is on the lower side and as a further reference to the Medical Board would further delay the disposal of the case; the Tribunal was adopting a liberal approach in granting compensation under the head - loss of amenities. 18. The Hon'ble Supreme Court in **Union of India and another vs. Talwinder Singh [(2012) 5 SCC 480]** has categorically laid down the law that Courts should not ordinarily interfere with the opinion of the experts. 19. Undisputedly, it was on the direction of the Tribunal, that the petitioner was referred to the Medical Board. The Board after medical evaluation of the petitioner came to a definite conclusion that the petitioner suffers from partial/permanent disability to the extent of 17%. Therefore, with no material on record or evidence to discredit the finding of the Board. Hence, the finding of the Tribunal that the assessment made by the Medical 10 MACA 16 OF 2014 Board was wrong, cannot be sustained. It was based on the said finding that the Tribunal awarded an amount of Rs.1,50,000/- under the head - loss of amenities, Rs.2,00,000/- under the head - pain and sufferings and Rs.45,500/- under the head - transportation expenses, which according to me is excessive and on the higher side. The Tribunal, merely for the reason felt that the Board had wrongly assessed the disability of the petitioner, could not have awarded higher amounts under the above heads, which course is irregular, improper and unsustainable in law. 20. On a further scrutiny of the impugned award, it is seen that the Tribunal has rightly awarded compensation to the petitioner under the head - compensation for permanent disability at the rate of Rs.1,73,400/-, after considering his age, income and adopting the correct multiplier and the disability assessed by the Board, as per the principles in **Sarla Verma v. Delhi Transport Corporation [(2009) 6 SCC 121], National** 11 MACA 16 OF 2014 **Insurance Co.Ltd v Pranay Sethi [(2017) 16 SCC 680]** and **United India Insurance Co. Ltd vs. Satinder Kaur @ Satwinder Kaur and others [2020 (3) KHC 760].** Also, the Tribunal has awarded an amount of Rs.50,000/- towards compensation under the head - disfiguration and compensation under the head - loss of earnings @ Rs.30,000/-, (Rs.5,000/- for a period of six months), which this Court feels is reasonable and just. 21. On going through the materials on record, it is seen that the petitioner was treated as inpatient for a period of 122 days. The Tribunal has itself fixed the loss of earnings for a period of six months. Therefore, I hold that the amounts awarded under the head – pain and sufferings at Rs.2,00,000/- and transportation expenses at Rs.45,500/-is on the higher side. The petitioner had deposed that he had spend Rs.700/- on 33 occasions towards to and fro expenses to the hospital, i.e, a total amount of Rs.23,100/-. Likewise, when the Tribunal has awarded 12 MACA 16 OF 2014 compensation for loss of permanent disability and compensation for disfiguration totaling to Rs.2,23,400/-, the further grant of Rs.2,00,000/towards pain and sufferings and continuing physical ailment is excessive and on the higher side. I am of the considered opinion that an amount of Rs.1,00,000/- is the just compensation under the head - pain and sufferings for a period of six months. 22. Therefore, on an overall reappreciation of the pleadings and materials on record, and going by the decisions laid down by the Hon'ble Supreme Court referred to above, I am of the definite opinion that the amount awarded under the head pain and sufferings has to be limited to Rs.1,00,000/- and transportation has to be limited to Rs.23,000/-. Accordingly, I modify the compensation under the said heads, which is recalculated and given in the table below for easy reference. 13 MACA 16 OF 2014 |SI.<br>No|Head of claim|Amount<br>claimed<br>(in rupees)|Amount<br>awarded (in<br>rupees)|Amounts<br>modified and<br>recalculated by<br>this Court| |---|---|---|---|---| |1|Pain and sufferings and<br>continuing<br>physical<br>ailments|3,00,000/-|2,00,000/-|1,00,000/-| |2|Loss of amenities of life,<br>discomforts<br>&<br>inconvenience caused|2,00,000/-|1,50,000/-|1,50,000/-| |3|Loss of earnings|1,50,000/-|30,000/-|30,000/-| |4|Transportation expenses|100,000/-|45,500/-|23,000/-| |5|Extra nourishment|50,000/-|20,000/-|20,000/-| |6|Partial loss of earning|10,000/-|Nil|Nil| |7|Medical expenses|4,00,000/-|1,82,900/-|1,82,900/-| |8|Bystander expenses|1,00,000/-|26,000/-|26,000/-| |9|Damage to clothing and<br>articles|10,000/-|1,000/-|1,000/-| |10|Compensation<br>for<br>permanent disability|5,00,000/-|1,73,400/-|1,73,400/-| |11|Compensation for loss<br>of earning power|2,50,000/-|Nil|Nil| |12|Compensation<br>for<br>disfiguration|1,00,000/-|50,000/-|50,000/-| ||Total|21,70,000/-<br>limited to<br>10,00,000/-|8,78,800/-|7,56,300/-| 23. Even though the learned counsel for the respondent had argued that compensation should be awarded to the petitioner towards future prospects, considering the fact that the petitioner has only suffered 17% disability as evidenced by Ext A8 and that the disability does not impair him from carrying on his avocation as a Mechanic and 14 MACA 16 OF 2014 also that the petitioner has not chosen to file an appeal/cross objection, I am of the view that the petitioner is not entitled to any amount towards future prospects. 24. In the result, the appeal is allowed in part, by modifying the impugned award and directing the appellant/third respondent to deposit only an amount of Rs.7,56,300/-, (Rupees Seven Lakh Fifty Six Thousand Three Hundred only), instead of Rs.8,78,800/- awarded by the Tribunal, with 8% interest from the date of claim petition till the date of realisation with proportionate costs. Needless to mention that, if the appellant has deposited any amount pursuant to the orders of this Court, only the balance amount need be deposited. On making such deposit, the entire amount shall be permitted to be withdrawn by the petitioner, in accordance with law. ## **Sd/-** **C.S.DIAS** SKS/30.09.2020 **JUDGE**