Thomas V.L. @ Joy v United India Insurance Company Ltd

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MRS. JUSTICE MARY JOSEPH`** ``` WEDNESDAY, THE 22[ND] DAY OF MARCH 2023 / 1ST CHAITHRA, 1945 ``` ``` MACA NO. 2095 OF 2012 ``` ``` AGAINST THE AWARD IN OPMV 281/2009 OF DISTRICT COURT & SESIONS & MOTOR ACCIDENT CLAIMS TRIBUNAL, KALPETTA DATED 22/12/2011 ``` ## **`APPELLANT/PETITIONER:`** ``` THOMAS V.L. @ JOY AGED 37 YEARS S/O.LUCKA, VALIYAVEETTIL HOUSE, REPRESENTED BY HIS AGNET WIFE BEENA JOSEPH, AGED 28 YEARS, RESIDING AT VALIYAVEETTIL HOUSE, EACHOME POST PANAMARAM, MANANTHAVADY TALUK, WAYANAD DISTRICT. ``` ``` BY ADV SMT.CELINE JOSEPH ``` ## **`RESPONDENT/RESPONDENT NO.3:`** ``` THE UNITED INDIA INSURANCE COMPANY LTD. UNITED INDIA INSURANCE COMPANY LTD, KALPETTA POST – 673 121 ``` ``` BY ADVS.SRI.P.K.MANOJKUMAR, SC, ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 22.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA NO. 2095 OF 2012 ``` ``` 2 ``` ## **JUDGMENT** Dated this the 22[nd] day of March, 2023 The appeal on hand is directed against an award passed by Motor Accidents Claims Tribunal, Wayanad, Kalpetta (for short the Tribunal) on 22.12.2011 in O.P (MV)No.281/2009. 2. For the sake of convenience, the parties to this appeal will hereinafter be referred to as the petitioner and respondents 1 to 3 in accordance with their status in the Original Petition. 3. The petitioner has been awarded with a sum of ₹7,65,100/- as compensation for the injuries sustained by him in a Motor accident occurred at about 11 a.m. on 01.02.2009. On the fateful day he was riding a Motorcycle bearing Registration No.KL19-Q-943 from Eachome to Kambalakkad and a Jeep bearing Registration No.KL-12/9836 hit on his Motorcycle at Pullathikunnu and thereby he sustained ``` MACA NO. 2095 OF 2012 ``` ``` 3 ``` serious injures. Raising a claim for ₹20,00,000/- as compensation from the driver, the owner and the insurer of the Jeep, who were arrayed as respondents 1 to 3, the above Original Petition was filed by him before the Tribunal. 4. A joint written statement was filed by the 1[st] and the 2[nd] respondents before the Tribunal raising contentions that the motor accident was occurred solely due to the negligent riding of the Motorcycle by the petitioner and not due to negligence of the driver of the jeep. Claims regarding the age, the occupation and the monthly income of the petitioner were also disputed. The Jeep was admittedly insured with them at the relevant time of the motor accident. 5. In the written statement filed, the 3[rd] respondent had taken a contention that the motor accident was occurred solely due to the rash and negligent riding of the Motorcycle by the petitioner, ``` MACA NO. 2095 OF 2012 ``` ``` 4 ``` that the driver of the jeep, who was arrayed as the 1[st] respondent was not responsible for the accident and that the compensation claimed is excessive and without any basis. 6. The Original Petition was filed by the wife of the victim of the motor accident who died, as his agent. Before the Tribunal, Exts.A1 to A17 series, Exts.X1 and Ext.C1 were marked in evidence. Evidence was not adduced by the respondents. 7. The Tribunal found on the basis of the evidence that the motor accident in question was occurred due to the rash and negligent driving of the Jeep by the 1[st] respondent. The Tribunal also found that the petitioner who had sustained serious injuries in the motor accident is entitled to get compensation from respondents 1 to 3 jointly and severally. ₹7,65,100/- was arrived at by the Tribunal as the compensation payable to the petitioners and the 3[rd] ``` MACA NO. 2095 OF 2012 ``` ``` 5 ``` respondent was directed to deposit the above sum with interest at the rate of 7.5% per annum from the date of filing of the Original Petition till the date of payment. The Tribunal has also permitted the petitioner to realise proportionate costs from the respondents. 8. It is contended by Smt.Celine Joseph, the learned counsel for the petitioner that ₹3,000/- fixed by the Tribunal as monthly income of the petitioner for the purpose of calculation of compensation is too low. According to her, a sum excess than ₹3,000/needs to be considered in the case on hand. 9. According to her, the petitioner had undergone several surgical procedures for the severe head injuries sustained in the motor accident and treatment was prolonged till November 2010, but the Tribunal in total disregard of the said period of treatment took only five months for the purpose of ``` MACA NO. 2095 OF 2012 ``` ``` 6 ``` calculation of compensation for loss of earning. According to her, the period taken by the Tribunal is disproportionate to the actual loss of income suffered by the petitioner on account of the prolonged treatment. She canvassed for consideration of a period proportionate to the period of treatment for awarding compensation for loss of earning. 10. The learned counsel contended further that compensation stood awarded by the Tribunal towards bystander expenses, extra nourishment, transportation expenses and loss of earning are also inadequate since calculation of those are not made by the Tribunal on a proper appreciation of the evidence on record. According to her, the Tribunal ought to have calculated the compensation towards bystander expenses strictly in tune with the multiplier method adopted by the Apex Court in **Kajal v Jagdish Chand And Others** [(2020) 4 SCC 413]. ``` MACA NO. 2095 OF 2012 ``` ``` 7 ``` 11. It is contended furthermore by the learned counsel that though the permanent disability of the petitioner was assessed by the Medical Board and certified as 90% in Ext.C1 Certificate, there is every reason for considering 100% as his functional disability and to calculate compensation on its basis. The learned counsel also canvassed for consideration of loss of future prospects of the victim while calculating compensation. 12. It is submitted by the learned counsel that the petitioner is still continuing his treatment. For the reason, she also canvassed for grant of some amount towards future treatment expenses. 13. The learned counsel for the 3[rd] respondent insurer contended on the contrary that the compensation being calculated by the Tribunal by considering all aspects of the claims of the petitioner, interference is totally unwarranted. According to her ``` MACA NO. 2095 OF 2012 ``` ``` 8 ``` the permanent disability of the petitioner having been certified by the Medical Board in Ext.C1 there is no basis for canvassing for calculation of compensation by taking 100% as his disability. It is further contended by the learned counsel that evidence is also not forthcoming to take a view that the petitioner has become totally incapacitated to do the job he was doing at the relevant time of the motor accident. For that reason, he also seeks to discard consideration of loss of future prospects while calculating the compensation payable. The learned counsel also opposed the prayer of the petitioner to adopt multiplier method for calculation of compensation towards bystander expenses on the basis of the dictum in **Kajal** Supra. 14. It is noticed from the claim raised in the Original petition filed by the wife of the victim as his agent, that the victim was an agriculturist by ``` MACA NO. 2095 OF 2012 ``` ``` 9 ``` profession. The accident being occurred in the year 2009, the monthly income is re-fixed as ₹6,500/-. It is evidenced from Ext.A5 that the petitioner had sustained a deep lacerated wound 5x1 cm over his right parietal region, fracture of parietal bone, extradural haematoma on left fronto temporo parietal region, subdural haematoma on right fronto temporo parietal region, hemorrhagic contusion on right temporal and both frontal region and extensive submacular haemorrhage in the motor accident. 15. Petitioner was primarily treated at Community Health Centre, Kalpatta and was shifted to Medical College Hospital, Kozhikode for further management. Petitioner was subjected to procedures like fronto temporo parietal craniotomy, evacuation of extra dural haematoma and decompression craniotomy of right temporal region. He was also subjected to fronto parietal craniotomy, frontal ``` 10 ``` ``` MACA NO. 2095 OF 2012 ``` lobotomy, evacuation of EDH, duroplasty, temporal craniotomy and temporal lobe resection at a local hospital at Kalpetta, whereto he was shifted on his own request. As per the medical documents on record, the treatment was continued till 11.11.2010. 16. Therefore, the Tribunal is totally unjustified in considering only 5 months' period for the purpose of calculation of compensation for loss of earning and this Court is inclined to consider 12 months for calculation of compensation for loss of earning and thus, a sum of ₹78,000/- (₹6,500/- x 12) is arrived at. ₹15,000/- stood awarded by the Tribunal when adjusted against the compensation arrived at now, the petitioner will get ₹63,000/- as additional compensation. 17. As compensation towards damages to clothing, ₹500/- being the sum stood awarded by the Tribunal as compensation, ₹500/- more is granted. ``` MACA NO. 2095 OF 2012 ``` ``` 11 ``` As compensation towards extra nourishment, this Court is inclined to award ₹30,000/-. ₹12,900/-, stood awarded by the Tribunal when adjusted against, the petitioner will get ₹17,100/- as additional compensation. Petitioner had undergone treatment in three different hospitals. It is revealed from the treatment book marked in evidence as Ext.A11 that petitioner had also attended various hospitals as out-patient on several occasions. Having due regard to those aspects, ₹10,000/- more is awarded towards transportation expenses. 18. True that in **Kajal supra,** the Apex Court had adopted the multiplier method for calculating compensation towards bystander expenses. The factual situation in **Kajal Supra** is different from the one on hand. The victim of the motor accident in the case cited was a minor girl aged 13 years who suffered paraplegia following the injuries sustained in ``` MACA NO. 2095 OF 2012 ``` ``` 12 ``` the motor accident. A certificate where 90% was certified as her permanent disability was marked in evidence as Ext.C1. The doctor who treated her was also examined before the court and he has gone to the extent of stating that the minor girl child's brain was totally damaged and her cognitive function has changed to that of a child aged only nine months. The Doctor had also stated during examination that the girl child has incontinence both in urination and also in faecal deposit. She was reported as completely bed ridden and unable to do any of her physical function. 19. It was found furthermore by the Apex Court that during menstruation also she was not in a position to know what was happening to her and therefore, the assistance of a bystander is inevitable. In the above circumstances that the Apex court had opted for calculation of compensation for bystander expenses based on multiplier method. ``` MACA NO. 2095 OF 2012 ``` ``` 13 ``` 20. In the case on hand, it is established that the petitioner is not totally bed ridden. He can move with the help of others. As discussed in the impugned award he was brought before the Tribunal by his mother. The Tribunal then noticed difficulty to walk and respond to the questions put to him. Inability of the petitioner to perform his daily pursuits was not established. The physical condition of the petitioner is far better than that of the minor girl in **Kajal** supra and therefore, this Court is declined to adopt multiplier method for calculation of compensation payable towards bystander expenses as was done in **Kajal** supra. 21. The petitioner had undergone treatment for almost one year and therefore, ₹45,000/- is granted as compensation towards bystander expenses. ₹12,900/stood awarded by the Tribunal when adjusted against the sum, petitioner will get ₹32,100/- (₹45,000/- - ₹12,900/-) as additional compensation. ``` MACA NO. 2095 OF 2012 ``` **==> picture [16 x 9] intentionally omitted <==** 22. The Tribunal failed to award compensation proportionate to the pain and sufferings and loss of amenities and enjoyments in life suffered by the petitioner on account of the severe injuries sustained and the treatment undergone for a long time. Therefore, ₹1,00,000/- each is granted under the above heads. ₹20,000/- each stood awarded by the Tribunal as compensation under the above heads when adjusted against, the petitioner will get ₹80,000/- each as additional compensation. 23. It is revealed from Ext.C1, the certificate where the permanent disability of the petitioner was certified by the Medical Board that he had minimal vision in both eyes, severe hidden mental faculty derangement and gross Cognitive dysfunction. For those reasons, the Medical Board has assessed 90% permanent disability for him. With the difficulties noticed by the Medical Board as above, it is impossible ``` MACA NO. 2095 OF 2012 ``` ``` 15 ``` for the petitioner to carry out agricultural operations. Therefore, it is appropriate to consider 100% as his occupational disability. For the reason itself loss of future prospects is not considered. 24. When compensation for occupational disability is calculated with the modified factors as above, ₹12,48,000/- [₹6,500/- x 12 x 16 x 100/100] is arrived at. ₹5,50,800/- stood awarded by the Tribunal towards permanent disability when adjusted against, the petitioner will get ₹6,97,200/- (₹12,48,000/- - ₹5,50,800/-) as additional compensation. 25. It is noticed that the impugned award was passed on 22.12.2011 and the appeal on hand was preferred in the year 2012. The appeal is taken up for consideration only in the year 2023. If the petitioner had been continuing treatment as submitted by his wife, medical records evidencing the treatment and the bills evidencing the expenditure incurred towards ``` MACA NO. 2095 OF 2012 ``` ``` 16 ``` that would form part of the evidence. Nothing of that sort is produced and therefore this Court is constrained to take a view against and thus the claim made for future treatment expenses is declined. 26. In the above manner of calculation afresh, the petitioner will get ₹9,79,900/- (₹63,000/- + ₹500/- + ₹17,100/- + ₹10,000/- + ₹32,100/- + ₹80,000/- + ₹80,000/- + ₹6,97,200/-) (Rupees Nine lakh seventy nine thousand nine hundred only) as additional compensation, which will also carry interest at the rate of 7.5% per annum from the date of filing of the Original Petition till the date of realization. 27. The 3[rd] respondent shall pay the above sum with interest accrued on it at the rate fixed within a period of two months from the date on which a certified copy of this judgment is received, in accordance with the directions issued by this Court in ``` MACA NO. 2095 OF 2012 ``` **==> picture [16 x 9] intentionally omitted <==** Circular No.03/2019 dated 06.09.2019. The appeal being filed with a delay of 145 days, the 3[rd] respondent insurer is exonerated from paying interest for that period. M.A.C.A stands allowed accordingly. Sd/- **MARY JOSEPH JUDGE** saap