Thilakan (Died) and Deepak P. T. and Santha K.A. v. Abu and The Oriental Insurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. TUESDAY, THE 12[TH] DAY OF MARCH 2024 / 22ND PHALGUNA, 1945** **MACA NO. 2578 OF 2014** **OPMV NO.1059 OF 2009 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,** ## **IRINJALAKUDA** ## **APPELLANT/S:** **1 THILAKAN (DIED)*, S/O.KUNJANDY, PINDIYATHPADY HOUSE, S.N.NAGAR DESOM, ERIYAD VILLAGE, MADAVANA P.O., KODUNGALOORE TALUK, THRISSUR DISTRICT (UNSOUND PERSON REPRESENTED BY HIS NEXT FRIEND GURRDIAN SON DEEPAK) ADDL.2 DEEPAK P T., AGED 37, S/O LATE THILAKAN, PINDIYATH PADI HOUSE, BILAL PALLI NORTH, ERIYAD PO, AZHIKODE, THRISSUR DISTRICT ADDL.3 SANTHA K.A., AGED 53, W/O. LATE THILAKAN, PINDIYATH PADI HOUSE, BILAL PALLI NORTH, ERIYAD P.O., AZHIKODE, THRISSUR DISTRICT 680 666 (*ADDITIONAL APPELLANTS 2 AND 3 ARE IMPLEADED AS PER ORDER DATED 12.03.2024 IN I.A. NO.2/2024.) BY ADVS. SRI.P.V.BABY josephgopuran** ## **RESPONDENT/S:** **1 ABU, S/O.KOCHUNNI, MANNAMTHARA HOUSE, KODUNGALLUR P.O. - 680 664. 2 THE ORIENTAL INSURANCE CO. LTD. KODUNGALLUR - 680 664. BY ADVS. SRI.K.J.MOHAMMED ANZAR SRI.GEORGE CHERIAN SR. SMT.LATHA SUSAN CHERIAN SMT.K.S.SANTHI** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 12.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** M.A.C.A. No.2578/2014 : 2 : ## **JUDGMENT** This appeal was initially submitted by the claimant in O.P(M.V) No. 1059/2009 on the files of the Motor Accidents Claims Tribunal, Irinjalakkuda. During the pendency of this appeal, the original appellant passed away and the appellants 2 and 3 who are the son and wife of the deceased respectively, were impleaded as the appellants 2 and 3. 2. The claim petition was filed by the original appellant, seeking compensation for the injuries sustained to him in a motor accident that occurred on 21.01.2009. According to him, the accident occurred when the bicycle ridden by him was hit by an autorickshaw bearing registration No.KL-08-1965 driven by the 2[nd] respondent in a rash and negligent manner. The 1[st] respondent was the owner of the said vehicle and it was insured with the 3[rd] respondent. According to the appellants, the claimant was aged 49 years at the time of the accident and he was working as a Cook in Metro Hotel at Chanthapura, Kodungallur with a monthly income of Rs.9,000/-. He sustained very serious injuries and was completely bedridden consequent to the same. The claim petition was M.A.C.A. No.2578/2014 : 3 : ## submitted in such circumstances. 3. The 1[st] and 2[nd] respondents did not contest the matter. The 3[rd] respondent filed a written statement, admitting the coverage of the policy for the vehicle. However, they denied the negligence on the part of the 2[nd] respondent and according to them, the accident occurred due to the negligence of the claimant himself. It was also contended that the 2[nd] respondent was driving the autorickshaw without a valid fitness certificate and therefore, there was violation of policy conditions. The quantum of compensation was also disputed by them. 4. To substantiate the contentions, the claimant examined PWs1 and 2 and as documentary evidence, Exts.A1 to A7 were marked. From the side of the respondents, Exts.B1 and B2 were marked. 5. After the trial, the tribunal found that the accident occurred due to negligence on the part of the 2[nd] respondent and being the insurer, the 3[rd] respondent was held liable to pay the compensation. The contention of the 3[rd] respondent with respect to the violation of policy condition was also rejected. The quantum of compensation was fixed as Rs.11,23,050/- and the said amount M.A.C.A. No.2578/2014 : 4 : was directed to be deposited by the 3[rd] respondent with interest at the rate of 7.5% per annum from the date of petition till realisation with proportionate costs. This appeal is submitted by the appellant in such circumstances seeking enhancement of compensation. 6. Heard Sri. Joseph Gopuran, the learned counsel appearing for the appellant and Smt. Latha Susan Cherian, the learned counsel appearing for the 3[rd] respondent. 7. The only question that arises for consideration is whether the amount awarded by the tribunal is reasonable or not. After carefully going through the materials placed on record, I find that, under certain heads, reassessment of compensation is required. The first head to be considered is the compensation for loss of earning power consequent to the permanent disability suffered by the appellant. Ext.A7 is the disability certificate issued by the Doctor, wherein the percentage of disability certified was 91.57%. The Doctor who issued the certificate was examined as PW2 as well. After considering the disability certified therein and the impact of the same on the claimant, the tribunal considered it as a case where 100% disability is to be taken and the compensation was calculated accordingly. However, while assessing the M.A.C.A. No.2578/2014 : 5 : compensation, the tribunal took the monthly income of the claimant as Rs.3,500/- only, which appears to be grossly inadequate, considering the fact that the accident occurred in the year 2009. As far as the avocation of the appellant is concerned, the same is specifically mentioned in Ext.A1 FIR itself which was recorded immediately after the accident. Since the appellant was referred to a cook working in Metro Hotel, Chanthappura, Kodungallur in the FIS itself, I do not find any reason to discard the same as it is a contemporaneous document. However, there is absolutely no document to establish the monthly income which he used to get from his avocation. When the method of computation evolved from the principles laid down in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Co.Ltd** [(2011) 13 SCC 236], and **Syed Sadiq v. Divisional Manager, United India Insurance Company** [(2014) 2 SCC 735] is adopted, even for an ordinary unskilled worker, the monthly income could be fixed as Rs.7,000/for the year 2009 even in the absence of any evidence. In this case, there is some evidence to show that he was a cook in a particular hotel. Therefore, the same being a skilled employment, a slightly higher monthly income could be fixed than ordinarily M.A.C.A. No.2578/2014 : 6 : accepted for a unskilled employee. Therefore, in the facts and circumstances of the case, I deem it appropriate to fix it as Rs.8,000/-. 8. The learned counsel for the 3[rd] respondent would point out at this juncture that, the addition made by the tribunal towards future prospects were 30% and in the light of **National Insurance Company Ltd. v. Pranay Sethi** [(2017) 16 SCC 680] it should have been 25%. The said contention is accepted as it is in tune with the well settled position of law. Thus, while reassessing the compensation with the above revised criteria, the compensation for disability and consequential loss of earning capacity would come to Rs.15,60,000/- [(8000+25%) x12x13]. The amount already awarded by the tribunal is Rs.7,09,800/-. Thus, the additional compensation comes to Rs.8,50,200/-. 9. The tribunal did not award any compensation for loss of earnings. The learned counsel for the appellant objected the said contention by pointing out that, this is a case in which the compensation for loss of earning capacity has been calculated at the rate of 100% and therefore, no compensation needs to be granted for loss of actual earnings. However, I am inclined to M.A.C.A. No.2578/2014 : 7 : accept the contention of the appellant in this regard. The compensation for loss of earning owing to disability pertains to the actual loss sustained by the claimant due to the injuries suffered and the treatment availed. Even if the loss of earning capacity was calculated at 100%, a reasonable compensation, for a reasonable period, must be granted for the loss of earnings. In the facts and circumstances of the case, I deem it appropriate to grant the said amount for a period of six months and thus, a further sum of Rs.48,000/- [8000x6] is awarded under the said head. 10. The next head which requires consideration is future bystander expenses. The tribunal after evaluating the evidence of PW2 and the contents of Ext.A7 and other medical records came to a definite conclusion that the appellant is bedridden and he is unable to move around without the help of a third person. It is discernible from Ext.A7 certificate that the appellant suffered disability due to severe intellectual impairment manifesting aphasia, moderate right hemi paresis with inability to walk, get up from lying or sitting position without support and inability to carry out activities of daily living using the right hand, urinary and bowel incontinence and cosmetic disfigurement of the (L) half of head as a result of M.A.C.A. No.2578/2014 : 8 : ## skull removal for the head injury. 11. Thus it is evident that, he may require the assistance of a third person throughout his life for his daily pursuits of life. Therefore, certainly, this is a case in which the future bystander expenses have to be granted. In **Kajal v. Jagdish Chand** [2020 ACJ 1042], the Hon'ble Supreme Court was pleased to grant bystander expenses at the rate of Rs.5,000/- per month for two bystanders considering the factual situation existing in that case. In this case, I am of the view that the appellant should be granted compensation for meeting the expenses for atleast one bystander at the rate of Rs.5,000/- each by applying the multiplier of 13. Thus the additional amount under this head would come to Rs.7,80,000/(5000x12x13). In such circumstances, the total additional compensation receivable by the appellant is determined as Rs.16,78,200/-. (850200+48000+780000). In the result, this appeal is allowed. The award dated 24.05.2014 passed by the Motor Accident Claims Tribunal, Irinjalakuda in OP(MV) No.1059/2009 is hereby modified by granting an additional compensation of Rs.16,78,200/- (Rupees sixteen lakhs seventy eight thousand two hundred only) and the M.A.C.A. No.2578/2014 : 9 : said amount shall be deposited by the 3[rd] respondent with interest at the rate as ordered by the tribunal with proportionate costs within a period of three months from the date of receipt of a copy of this judgment. Since the original claimant is no more, and the appellants 2 and 3 who are the son and wife of the original claimant have been impleaded as the additional appellants, the amount of compensation shall be apportioned among them equally. It is further ordered that the appellants 2 and 3 shall furnish the details of the PAN card, Aadhar card and bank details to enable the 3[rd] respondent to make the deposit as ordered above, within a period of two months from the date of receipt of a copy of this judgment. In case, they fail to furnish the said details, it shall be open for the 3[rd] respondent to deposit the said amount before the tribunal. **Sd/ZIYAD RAHMAN A.A. JUDGE** ncd/