U. Dinesan v. Asha Devi, Anil Kumar, The Divisional Manager, Oriental Insurance Company Limited

``` IN THE HIGH COURT OF KERALA AT ERNAKULAM ``` ## `PRESENT` ``` THE HONOURABLE MRS. JUSTICE MARY JOSEPH THURSDAY, THE 6[TH] DAY OF JULY 2023 / 15TH ASHADHA, 1945 ``` ``` MACA NO. 1785 OF 2009 ``` ``` AGAINST THE AWARD DATED 08.12.2005 IN OP(MV)NO.1404/2001 OF MOTOR ``` ``` ACCIDENTS CLAIMS TRIBUNAL, THIRUVANANTHAPURAM ``` ## `APPELLANT/APPLICANT:` ``` U.DINESAN, SALINI NILAYAM, WARD NO.3, MUTTACAUD.P.O,THIRUVANANTHAPURAM. ``` ``` BY ADVS.SRI.G.P.SHINOD SRI.MANU V. ``` ## `RESPONDENTS/RESPONDENTS:` ``` 1ASHA DEVI, W/O JYOTHI KUMAR, J K BHAVAN, CHIRAYIL,MUTTACAUD.P.O,THIRUVANANTHAPURAM. 2ANIL KUMAR, S/O.KRISHNANKUTTY, NEDUMANPARAVILA VEEDU, KOVALAM.P.O, THIRUVANANTHAPURAM. 3THE DIVISIONAL MANAGER, ORIENTAL INSURANCE COMPANY LIMITED,THAKARAPPARAMBU, THIRUVANANTHAPURAM. ``` ``` BY ADV SRI.A.R.GEORGE, STANDING COUNSEL(R3) ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 06.07.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` M.A.C.A.No.1785 of 2009 ``` ``` 2 ``` ## **JUDGMENT** ## **Dated this the 06[th] day of July, 2023** The appeal on hand is directed against an award passed by Motor Accidents Claims Tribunal, Thiruvananthapuram (for short ‘the Tribunal’) on 08.12.2005 in O.P(M.V) No.1404/2001. The appellant is the petitioner before the Tribunal in the above Original Petition. 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 above Original Petition. 3. Petitioner claimed to be a cleaner in a Lorry bearing Registration No.KL-01/F-5400 owned by the 1[st] respondent and earning `2,700/- per month. On 29.10.2000, the petitioner was sitting in a Lorry loaded with a synthetic tank filled with water as it’s cleaner and ``` M.A.C.A.No.1785 of 2009 ``` ``` 3 ``` when water was being transferred to another tank placed near to the Lorry, it moved backwards and thereby dashed against a compound wall. The petitioner was thrown out from the Lorry and thereby sustained serious injuries. It was stated that the motor accident was occurred due to careless parking of the Lorry in a slope without adequate precaution. A sum of `8,00,000/- was claimed as compensation in the above Original Petition. 4. The owner, the driver and the insurer of the Lorry were arrayed as respondents 1 to 3 in the above Original Petition. Notice was served on all respondents. Respondents 1 and 2 filed a joint written statement. It was contended that the monthly salary of the petitioner was not `2,700/- as averred by him in the Original Petition but only `2,200/-. The negligence alleged on the part of the 2[nd] respondent was also denied. The existence of a valid policy for the Lorry covering the date of accident was admitted. The age, occupation and ``` M.A.C.A.No.1785 of 2009 ``` ``` 4 ``` monthly income claimed by the petitioner were also disputed. The compensation claimed was also disputed for being exorbitant in nature. 5. The 3[rd] respondent in its written statement admitted issuance of a valid insurance policy for the Lorry as on date of the motor accident. Admittedly, the 2[nd] respondent was holding a valid and effective driving licence to drive the Lorry at the relevant time. Injuries sustained by the petitioner and the compensation claimed were also disputed by the 3[rd] respondent. 6. Evidence was adduced by the petitioner before the Tribunal and it consists of Exts.A1 to A15 and Exts.X1 and X2. Based on the documentary evidence on record, the Tribunal found that the motor accident in question was occurred due to the rash and negligent driving of the Lorry by the 2[nd] respondent. The Tribunal also found on the basis of the medical documents on record that the petitioner has sustained fracture of spine. ``` M.A.C.A.No.1785 of 2009 ``` ``` 5 ``` According to him, numbness was developed on both lower limbs during hospitalization. In view of catheterization for a long time, the petitioner also developed urinary tract infection. Therefore, he was admitted again at Medical College Hospital, Thiruvananthapuram and undergone treatment for that. He was examined by a Medical Board constituted at Medical College Hospital on 18.04.2005 and obtained a certificate where his permanent disability was certified as 60% based on Mc Bride Scale. 7. The petitioner failed to adduce evidence to establish his monthly income. In the Original Petition, the monthly income was claimed as `2,700/-. But the 1[st] respondent, the alleged employer has stated in the written statement that a sum of `2,200/- was given by her to the petitioner as monthly wages. Admittedly, 1[st] respondent was the employer of the petitioner. Therefore, this Court finds it reasonable to consider the ``` M.A.C.A.No.1785 of 2009 ``` ``` 6 ``` monthly income as stated by the 1[st] respondent in the written statement for the purpose of calculation of compensation. 8. It is pertinent to note from the medical documents on record that the petitioner developed paraplegia during hospitalization. He was discharged from the hospital, but, it is revealed from the documentary evidence on record that the treatment was continued as out-patient since urinary tract infection developed on account of catheterization during hospitalization. The Tribunal has calculated loss of earning for a period of 12 months' and thus arrived at `24,000/-. 12 months' period being a reasonable period is maintained. When compensation for loss of earning is calculated afresh based on `2,200/-, the monthly income re-fixed, `26,400/- (`2,200/- x 12) is arrived at. `24,000/-, the sum stood awarded by the Tribunal when adjusted against, the petitioner will get `2,400/- ``` M.A.C.A.No.1785 of 2009 ``` ``` 7 ``` (`26,400/- - `24,000/-) as additional compensation under that head. 9. Petitioner was residing at Thiruvananthapuram and treatment was availed from Medical College Hospital, Thiruvananthapuram. It is found from the medical documents on record that the petitioner had two spells of in-patient treatment followed by several reviews as out-patient. The Tribunal awarded `2,000/- each as compensation towards transportation expenses and extra nourishment and `12,000/- as compensation towards bystander expenses. The Tribunal awarded only `250/- as compensation for damages to clothing. Since the petitioner turned paraplegic, compensation stood awarded by the Tribunal under the above heads are undoubtedly inadequate. Therefore, `10,000/- each is awarded towards transportation expenses and extra nourishment and `1,000/- and `50,000/- respectively as compensation towards damages to clothing and bystander expenses. ``` M.A.C.A.No.1785 of 2009 ``` ``` 8 ``` 10. Thus, the petitioner will get `8,000/- each as additional compensation towards transportation expenses and extra nourishment, `750/- towards damages to clothing and `38,000/- towards bystander expenses. 11. As compensation towards pain and suffering the Tribunal has awarded only `25,000/-. This Court also finds it reasonable to award `1,00,000/- as compensation under that head. When the sums stood awarded by the Tribunal is adjusted against, petitioner will get `75,000/- (`1,00,000/- - `25,000/-) as additional compensation under that head. 12. It is noticed from the impugned award that `1,00,000/- was awarded by the Tribunal as compensation towards loss of amenities and enjoyments in life and also towards future treatment expenses. It being reasonable is maintained. ``` M.A.C.A.No.1785 of 2009 ``` ``` 9 ``` 13. The Tribunal considered the age of the petitioner as 19 years. Challenge having not been raised against by the 3[rd] respondent, it is maintained. The multiplier applicable in the case of a victim aged 19 years being ‘18’, in view of **Sarla Verma & Ors. v. Delhi Transport Corporation & Anr. [2010 (2) KLT 802 (SC)]** , that is substituted in the place of '16' wrongly adopted by the Tribunal for calculation purpose. 14. The victim was directed by this Court to the Medical Board, Medical College Hospital, Thiruvananthapuram and his permanent disability was certified as 75%. The Medical Board has reported that the petitioner continues in the paraplegic condition as he was earlier. Therefore, petitioner’s inability to pursue his occupation as a Lorry cleaner or to do any other work is well established. In the above circumstances, this Court is inclined to consider 100% as his loss of earning power and to calculate compensation for it, on its basis. There ``` M.A.C.A.No.1785 of 2009 ``` ``` 10 ``` is every justification in considering loss of future prospects also. 15. 1[st] respondent had admitted in her written statement that the petitioner was working under her as Lorry cleaner. Petitioner also had raised the same claim in the Original Petition. Therefore, this Court finds it reasonable to add 50% to the monthly income fixed in consideration of loss of future prospects. Thus, `3,300/(`2,200/- + `1,100/-) is arrived at. When compensation for loss of earning power is calculated on the basis of the above modified factors, `7,12,800/- (`3,300/- x 12 x 18 x 100/100) is arrived at. `2,30,400/- stood awarded by the Tribunal as compensation towards disability when adjusted against, the petitioner will get `4,82,400/(`7,12,800/- - `2,30,400/- ) as additional compensation. 16. In the above manner of assessment afresh, the petitioner will get `6,14,550/- (Rupees Six Lakh Fourteen ``` M.A.C.A.No.1785 of 2009 ``` ``` 11 ``` Thousand Five Hundred and Fifty only) (`2,400/- + `8,000/- + `8,000/- + `38,000/- + `750/- + `75,000/+ `4,82,400/-) as additional compensation. The said amount will carry interest at the rate of 7.5% per annum from the date of filing of the Original Petition till the date of realisation, excluding 79 days of delay occurred in filing the appeal on hand. Liability was fixed by the Tribunal on the 3[rd] respondent to pay the compensation in favour of the petitioner. Challenge having not been raised against that, is maintained. The 3[rd] respondent is thus directed to pay the compensation with interest accrued on it, 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 Circular No.03/2019 dated 06.09.2019. 17. Since the total compensation awarded in favour of the petitioner exceeds the total claim of the petitioner, the petitioner shall pay additional court fee in proportion ``` M.A.C.A.No.1785 of 2009 ``` ``` 12 ``` to the sum stood awarded in excess than the claim. The Tribunal shall take measures to realise that from the petitioner at the time when the amount is disbursed. M.A.C.A stands allowed accordingly. **Sd/-** **MARY JOSEPH JUDGE** NAB