The Oriental Insurance Co. Ltd v. V.K. Pradeep Kumar

M.A.C.A.No.3050 of 2015 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE M.B. SNEHALATHA FRIDAY, THE 19[TH] DAY OF JULY 2024 / 28TH ASHADHA, 1946** **MACA NO. 3050 OF 2015** **AGAINST THE JUDGMENT DATED 23.05.2015 IN OPMV NO.44 OF 2009 OF ADDITIONAL DISTRICT AND ADDL. MACT. COURT IV, PATHANAMTHITTA APPELLANT:** **THE ORIENTAL INSURANCE CO. LTD PATHANAMTHITTA, REPRESENTED BY ITS REGIONAL MANAGER, REGIONAL OFFICE, ERNAKULAM NORTH, KOCHI - 18. BY ADVS. SRI.GEORGE CHERIAN (SR.) SMT.LATHA SUSAN CHERIAN SMT.K.S.SANTHI** **RESPONDENT:** **V.K. PRADEEP KUMAR @ PRADEEP S/O.K.G.VENUGOPALAN NAIR, KOIPURATHU VEEDU, KADAPRA-MANNAR P.O., THIRUVALLA, PATHANAMTHITTA, PIN - 689 622. BY ADV SRI.T.R.HARIKUMAR** ## **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP** **FOR HEARING ON 20.6.2024, THE COURT ON 19.7.2024 DELIVERED THE FOLLOWING:** M.A.C.A.No.3050 of 2015 2 ## **M.B.SNEHALATHA, J.** **-------------------------------------------** **M.A.C.A.No.3050 of 2015** **------------------------------------------Dated, this the 19[th] July, 2024** ## **JUDGMENT** This appeal has been preferred by R3 insurance company in OP(MV) No.44/2009 of Motor Accident Claims Tribunal-IV, Pathanamthitta [hereinafter referred to as ‘the Tribunal’] challenging the award passed by the Tribunal. 2. For the sake of convenience, the parties shall be referred to as per their rank before the Tribunal as claimant and respondent. 3. On 05.08.2008 while the claimant in O.P (MV) No.44/2009 was travelling as a pillion rider of a scooter ridden by his friend, a lorry bearing registration No.KL-5-D-1395 hit on the scooter causing fatal injuries to the claimant and the rider of the scooter. The rider of the scooter succumbed to the injuries on the same day. The accident occurred due to the rash and negligent driving of R2 who was the driver of the offending lorry. R1 is the RC owner of the offending lorry and R3 is the insurer of the said vehicle. M.A.C.A.No.3050 of 2015 3 4. Before the Tribunal, R3 insurance company filed written statement admitting the existence of a valid insurance policy for the offending lorry. But it was contended that there was violation of policy conditions; that R2 had no valid driving licence at the time of accident. It was also contended that accident occurred due the negligence of the rider of the scooter. 5. By the impugned award, the Tribunal awarded a sum of ₹39,91,356/- as compensation with interest at the rate of 9% per annum from the date of petition. 6. Challenging the said award, R3 Insurance Company has preferred this appeal contending that the amount awarded towards compensation is exorbitant; that the Tribunal went wrong in taking the monthly income as ₹9,000/- instead of ₹5,000/- as shown by the claimant; that the Tribunal went wrong in relying on Ext.26 document, which was not properly proved. Further, it is contended that the compensation awarded under the head of permanent disability is excessive and the percentage of functional disability taken by the Tribunal as 95% is incorrect. According to the learned counsel for R3 insurance company, at the most the Tribunal ought to have taken only 80% as the functional disability as shown in M.A.C.A.No.3050 of 2015 4 disability certificate. It is also contended that the Tribunal went wrong in adopting the multiplier 18 after having allowed the loss of earnings for 4 years. 7. Per contra, the learned counsel for the claimant contended that the award of the Tribunal is just and reasonable. The learned counsel pointed out that the claimant sustained grievous injuries in the incident and suffered permanent disability as shown in the disability certificate issued by the Medical Board and the Tribunal passed the award after satisfying itself with the physical condition of the claimant who appeared before the Tribunal and therefore, there are no reasons at all to interfere with the amount awarded by the Tribunal. 8. It is an admitted case that the claimant met with a motor vehicle accident on 05.08.2008 and he sustained fatal injuries. It is also not in dispute that accident occurred due to the rash and negligent driving of R2 who was the driver of the offending lorry bearing registration No.KL-5-D-1395. The medical records would reveal that the claimant sustained severe head injury with right brachial plexus injury and also with cervical spine, sub archoid haemorrhage, fracture in right humerus, right radius, right ulna, M.A.C.A.No.3050 of 2015 5 chest-bilateral opacities, lacerated wound in right arm etc. and he had undergone inpatient treatment at various hospitals. 9. In Ext.A27 Standing Disability Assessment Board Certificate issued by the District Medical Board, General Hospital, Pathanamthitta, his permanent disability has been assessed as 80%. In the impugned award, it has been stated that the learned Judge had occasion to observe the physical condition of the claimant so as to assess his disability; that he cannot raise his right hand; that his right hand was seen slim; that he lost his vision of right eye and the chances of recovery is very remote. 10. The principles with regard to determination of just compensation contemplated under the Motor Vehicles Act, 1988 are well settled. It is impossible to equate human sufferings and personal deprivation with money. The court has to make a judicial attempt to award damages so as to compensate the claimant for the loss suffered by the victim. It is also a well settled principle that the compensation or damages assessed for personal injuries should be substantial to compensate the injured for the deprivation suffered by the injured throughout his life and it should not be just token damages. M.A.C.A.No.3050 of 2015 6 11. While fixing the amount of compensation payable to a victim of an accident, the damages have to be assessed separately as pecuniary damages and special damages. Pecuniary damages are those which the victim has actually incurred and which are capable of being calculated in terms of money. Non-pecuniary damages are those which are incapable of being assessed by arithmetical calculations. Section 168 of the Motor Vehicles Act, 1988 stipulates that there should be grant of just compensation. It is the duty of the Tribunal or court of law to determine “just compensation” which is neither a bonanza nor a windfall and simultaneously should not be pittance. 12. It is trite that, it would be open to the Claims Tribunal or the High Court and virtually it is the duty of the Tribunal and the High Court to award ‘just compensation’ under each head and if found necessary, by ignoring the claim made in the application for compensation. 13. The Tribunal calculated the compensation under the head Permanent Disability by taking notional income as ₹9000/- per month and added 50% future prospects and by taking functional M.A.C.A.No.3050 of 2015 7 disability as 95%. Since the injured was aged 21 during the period of accident, multiplier 18 was applied. 14. The contention of R3 insurance company before this Court is that the notional income taken by the Tribunal is very high. It is contended that, when claim petition was filed, monthly income was shown as ₹5000/- and subsequently it was amended as ₹10000/-. According to the learned counsel for the insurance company, since the claimant himself has stated that his monthly income during the period of accident was ₹5000/-, the Tribunal ought to have taken only that much income for the purpose of assessment of compensation. 15. I find no merit in the said argument advanced by the learned counsel for the R3 insurance company for the reason that for arriving at a just compensation in a motor accident claim, it is open to the court to fix reasonable amount as notional income. Moreover, in the case on hand, claimant had amended the petition showing his monthly income as Rs.10000/-. His specific case is that, during the period of accident he was conducting stationery and vegetable business. In the said circumstances, this Court find no M.A.C.A.No.3050 of 2015 8 reason to reduce the notional income monthly income of Rs.9000/taken by the Tribunal. 16. The evidence on record would reveal that the claimant suffered severe head injury with right brachial plexus injury and also with cervical spine, sub archoid haemorrhage, fracture in right humerus, right radius, right ulna, chest-bilateral opacities etc. Medical records would reveal that he had undergone inpatient treatment and outpatient treatment at various hospitals. Ext.A27 is the standing disability Certificate issued by Standing disability Board, Pathanamthitta. In Ext.A27, his permanent disability has been assessed as 80%. The permanent disability would definitely cause several inconvenient situations and it would have larger impact on his earning power. Regard being had to the nature of injuries sustained by him, the nature of avocation of the claimant, his functional disability is taken as 80% instead of 95% taken by the Tribunal and the compensation under the head loss of earning due to permanent disability is assessed accordingly. 17. The claimant was aged 21 years and self employed at the time of accident. Therefore, 40% of the income is to be added towards future prospects instead of 50% added by the Tribunal M.A.C.A.No.3050 of 2015 9 [ _National Insurance Co. Ltd. v. Pranay Sethi (2017) 16 SCC 680]_ . If 40% is thus added to the notional income of ₹9000/-, the monthly income would come to ₹12,600/-. As the claimant was aged 21, the multiplier applicable to him is 18. So under the head loss of earning power due to permanent disability, an amount of ₹21,77,280/(12600x12x18x80/100) is awarded. 18. Under the head loss of earnings, the Tribunal has awarded a sum of ₹4,32,000/- by calculating loss of earning at the rate of ₹9,000/- for a period of 48 months. The learned counsel for R3 insurance company contended that loss of earning for a period of 48 months cannot be granted since compensation under the head permanent disability is calculated by applying 18 as the multiplier. 19. There is merit in the above argument. Loss of earning due to permanent disability has been calculated by taking multiplier as 18. Therefore, there is no further necessity for awarding loss of earning during treatment more than one year. Accordingly, loss of earning during the period of treatment is calculated as ₹9000x12. Thus under the head loss of earning, claimant is entitled only to ₹1,08,000/-. M.A.C.A.No.3050 of 2015 10 20. It is in evidence that claimant was under prolonged treatment and he had undergone inpatient treatment in several hospitals. Therefore, this Court is of the view that the amount of Rs.25,000/- awarded under the head bystander expenses is on a lower side. Accordingly, an additional sum of Rs.25,000/- is awarded under the said head. 21. Regard being had to the nature of the injuries and the permanent injuries sustained by the claimant this Court find force in the argument advanced by the learned counsel for the claimant that sufficient amount has to be awarded for future treatment. From the nature of injuries and the disability sustained by him, it goes without saying that he requires future treatment. Accordingly an addtional sum of Rs.1,00,000/- awarded under the head future treatment. 22. The compensation under all other heads stand unaltered. 23. In the result, appeal allowed in part and the award passed by the Tribunal stands recalculated as mentioned above. 24. The compensation payable to the respondent/claimant is as indicated in the tabular statement herein below:- M.A.C.A.No.3050 of 2015 11 |Sl.<br>No.|Head of Claim|Amount<br>awarded by<br>the Tribunal|Total amount after<br>reduction in appeal| |---|---|---|---| |1|Loss of earnings|4,32,000|1,08,000<br>(9000x12)| |2|Pain,sufferings & trauma|100000|100000| |3|Loss of amenities|100000|100000| |3|Transport to hospital|10000|10000| |4|Extra nourishment|5000|5000| |5|Loss of earning power<br>(Permanent Disability)|2770200|2177280<br>(12600x12x18x80/100)| ||Loss of good marriage<br>prospects|100000|100000| ||Future Treatment|50000|150000<br>(100000+50000)| ||Others:<br>(a)Medical expenses|399156|399156| ||(b) Bystanders|25000|50000<br>(25000+25000)| ||**TOTAL**|39,91,356|3199436| 25. The claimant in the O.P is entitled to get the compensation of ₹31,99,436/-. R1 to R3 in the O.P are jointly and severally liable to pay the award amount as modified by this Court with 9% interest per annum from the date of petition till the date of deposit. 26. R3 insurance company shall deposit the award amount as modified by this Court in the Bank Account of the claimant within a M.A.C.A.No.3050 of 2015 12 period of two months from the date of receipt of a copy of this judgment. 27. The claimant shall produce the details of the bank account before the Motor Accident Claims Tribunal-IV, Pathanamthitta within two months from the date of receipt of a certified copy of this judgment. 28. The deposit must be in terms of the directives issued by this Court in Circular No.3 of 2019 dated 06.09.2019 and clarified in O.M.No.D1/62475/2016 dated 07.11.2019 after deducting the liabilities, if any of the appellants towards tax, balance Court Fee and legal benefit fund. Sd/- **M.B.SNEHALATHA, JUDGE** ab