Thomas K.D. v. Mathew, Shibu & Oriental Insurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN & THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** **FRIDAY, THE 28TH DAY OF JULY 2017/6TH SRAVANA, 1939** **MACA.No. 1919 of 2017 () -------------------------** **AGAINST THE AWARD IN OPMV 1291/2008 of III ADDL. DISTRICT JUDGE/ADDL.MACT, THRISSUR DATED 31-08-2016** ## **APPELLANT/PETITIONER:** **-----------------------** **THOMAS K.D.,** **S/O DEVASSY,AGED 57 YEARS,RESIDING AT KALLELI HOUSE, PARIYARAM,CHALAKUDY,NOW RESIDING AT P.O.OLLUR, THRISSUR DISTRICT.** **BY ADVS.SRI.T.C.SURESH MENON** **SRI.P.S.APPU SRI.A.R.NIMOD** ## **RESPONDENTS/RESPONDENTS:** **--------------------------** **1. MATHEW, S/O.CHACKO,RESIDING AT KUNNAMPURATH HOUSE, KODASSERY,IRINJALAKUDA,THRISSUR-680725.** **2. SHIBU,** **S/O.VARUTHUNNY PARAPPUKARAN, RESIDING AT CHAYPPANKUZHI VEEDU,KUTTICHIRA, THRISSUR DISTRICT, PIN:680721.** **3. ORIENTAL INSURANCE COMPANY LIMITED,** - **K.P.N.NAMBOODIRI'S SHOPPING COMPLEX,SHORNUR ROAD, THRISSUR DISTRICT,PIN:680001.** **R3 BY ADV. SMT. K.S. SANTHI** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 28-07-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **kp** ## **P.N. RAVINDRAN & DEVAN RAMACHANDRAN, JJ** - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - M.A.C.A. No. 1919 of 2017 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 28[th] day of July, 2017 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - ## **JUDGMENT** ## _**P.N. RAVINDRAN, J.**_ The appellant is the claimant in O.P.(MV).No.1291 of 2008 on the file of the Motor Accidents Claims Tribunal, Thrissur. He sustained very severe injuries in a motor accident that took place on 18.5.2008. The case set out by the appellant in O.P.(MV).No.1291 of 2008 is that while he was walking along the public road at about 11 am on 18.5.2008, he was hit by a tipper lorry bearing registration No.KL-8Z4514, owned by the first respondent, driven by the second respondent and insured with the third respondent. He had alleged that the accident took place on account of the rash and negligent driving of the lorry by the second respondent and contended that as a result of the injuries sustained by him in the accident, he is disabled to do the work of a head load worker which he was doing at the relevant time. Before the Motor Accidents Claims Tribunal he claimed in all a sum of Rs.12,50,000/- as compensation under various heads. 2. Though notice was served, respondents 1 and 2, who are the owner and driver respectively of the motor vehicle involved in the accident, did not enter appearance or file written statement with the M.A.C.A. No.1919 of 2017 -2- result, they were set ex-parte. The third respondent insurer entered appearance and filed a written statement admitting insurance coverage. It however contended that the second respondent driver had no valid driving licence and the insured motor vehicle did not have a fitness certificate and therefore, it is not liable to indemnify the insured. It also denied the allegation that the second respondent was negligent in driving the vehicle and further contended that the compensation claimed is excessive and exorbitant. 3. Before the Motor Accidents Claims Tribunal, the claimant examined the President of the trade union of which he was a member as PW1 and the Doctor who had issued Ext.A7 disability certificate as PW2. He also produced and marked Exts.A1 to A12. No evidence oral or documentary was adduced on the side of the respondents. After considering the rival contentions and the evidence on record, the Tribunal held, relying mainly on the police records that the accident took place on account of the rash and negligent driving of the second respondent. The Tribunal also held that in that accident, the claimant sustained very serious injuries. The Tribunal thereafter proceeded to award the sum of Rs.3,34,895/- as compensation under various heads, as detailed below: M.A.C.A. No.1919 of 2017 -3- |**_Sl.No_**|**_Head of claim_**|**_Amount claimed_**<br>**_(in rupees)_**|**_Amount awarded_**<br>**_(in rupees)_**| |---|---|---|---| |1|Loss of earning|160000|30000| |2|Transportation to hospital|7000|1000| |3|Extra Nourishment|7000|2000| |4|Damage to clothings and articles|1000|1000| |5|Medical expenses|35000|31151| |6|Bystander expenses|---|2000| |7|Pain and suffering|100000|15000| |8|Permanent disability & loss of<br>earning power|7.9 lakhs|237744| |9|Compensation for injuryitself|235000|---| |10|Loss of amenities and enjoyment in<br>life|50000|15000| ||Total|1250000|334895| 4. In view of the fact that the third respondent insurer had admitted insurance coverage and had not pleaded or proved breach of policy conditions, the Tribunal directed the third respondent insurer to pay the said amount together with interest at the rate of 9% per annum from 30.7.2008, the date of petition, till the date of payment along with proportionate costs quantified at Rs.28,464/-. The claimant has, dissatisfied with the quantum of compensation awarded by the Tribunal, filed this appeal. 5. We heard Sri. T.C. Suresh Menon, learned counsel appearing for the appellant and Smt. K.S. Santhi, learned counsel appearing for the third respondent. We had while admitting the appeal M.A.C.A. No.1919 of 2017 -4- dispensed with notice to the owner and driver of the motor vehicle for the reason that the third respondent insurer does not dispute its liability to indemnify the insured. The materials on record, more particularly Ext.A12 disclose that the appellant was a registered head load worker. He was employed at Chalakkudy. He had in the claim petition averred that he was earning a monthly income of Rs.20,000/-. He had relied on Ext.A8 letter issued by the President of the trade union of which he was a member in support of the said contention. However, for want of more reliable evidence, the Tribunal proceeded to award compensation for loss of earning and permanent disability, taking his monthly income as Rs.6,000/-. The accident took place on 18.5.2008. Having regard to the admitted fact that the appellant was a registered head load worker and the wage structure prevailing in the locality at the relevant time, we are of the opinion that on a modest estimate his monthly income can be taken as Rs.7,800/- (Rs.300 x 26). The Tribunal has awarded compensation for loss of earnings for 05 months taking Rs.6,000/- as his monthly income. In the view that we have taken, we are of the opinion that he is entitled to a further sum of (Rs.7800 x 5) - Rs.39,000/- less Rs.30,000/- awarded by the Tribunal = Rs.9,000/-, as additional compensation under the head loss of earnings for a period of 05 months. M.A.C.A. No.1919 of 2017 -5- 6. The impugned award discloses that the Tribunal has awarded compensation for permanent disability taking the monthly income as Rs.6,000/-. The Tribunal however has not taken into account future prospects while awarding compensation under that head. The Apex Court has in **Syed Sadiq v. Divisional Manager, United India Insurance company** (AIR 2014 SC 1052) held that future prospects can be taken into account even in personal injury claims and that its application is not confined to fatal accident cases. The claimant was aged 48 years as on the date of accident. The Apex Court has in **Rajesh V. Rajbir Singh** 2013 (3) KLT 89 (SC) held that in fatal accident cases 30% of the actual income can be taken into account towards future prospects, in the case of persons in the unorganized sector who are in the age group of 40-50. 7. As the claimant was aged 48 years on the date of accident, the multiplier to be applied is 13. The medical records disclose that the claimant has a whole body disability of 25.4%. He has suffered extensive injuries to his ribs. When he was examined by PW1 on 21.10.2014 more than six years after the accident, it was found that he had difficulty in lifting weight with his left hand and had difficulty in kneeling. The Doctor examined as PW2 has also referred to the fact that he experiences pain on exertion. PW2 has in Ext.A7 certified that M.A.C.A. No.1919 of 2017 -6- the appellant/claimant has 25.4% whole body disability. The disabilities noted by PW1 in Ext.A7 can in our opinion be safely relied on to come to the conclusion that the appellant will experience considerable difficulties in continuing to work as a head load worker. We are therefore of the considered opinion that the functional disability can on a modest estimate be taken as 25%. Computed on that basis, the compensation payable for permanent disability will be Rs.7800 x 130% = Rs.10140 x 12 x 13 x 25/100 = Rs.3,95,460/-. The Tribunal has awarded only the sum of Rs.2,37,744/- under that head. We accordingly award a further sum of Rs.1,57,716/- as additional compensation under the head loss of earning capacity/permanent disability. 8. The Tribunal has awarded the sum of Rs.15,000/- as compensation under the head pain and suffering and a like sum under the head loss of amenities. Having regard to the observations in Ext.A7 disability certificate, we are of the opinion that the compensation awarded under the aforesaid two heads should be enhanced to Rs.25,000/- and Rs.50,000/- respectively. We accordingly award a further sum of Rs.10,000/- as compensation under the head pain and suffering and a further sum of Rs.35,000/- as compensation under the head loss of amenities. The compensation M.A.C.A. No.1919 of 2017 -7- awarded under the other heads does not in our opinion, called for any enhancement. We accordingly allow the appeal in part and award to the appellant/claimant an additional sum of Rs.2,11,716/- as compensation. The third respondent insurer shall deposit the said amount together with interest at 7.5% per annum from the date of petition (30.7.2008) till the date of deposit, within a period of three months from today. Upon such deposit being made, one half of the amount deposited shall be disbursed to the claimant and the balance amount shall be kept in fixed deposit in a nationalised bank in his name for a period of two weeks. The parties shall suffer their respective costs in this court. Sd/- **P.N. RAVINDRAN, JUDGE** sd/- **DEVAN RAMACHANDRAN, JUDGE** kp