Varkey Mathew v. Oriental Insurance Co., Ltd.

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MRS. JUSTICE MARY JOSEPH THURSDAY, THE 30[TH] DAY OF NOVEMBER 2023 / 9TH AGRAHAYANA, 1945 MACA NO. 2979 OF 2023 ``` ``` AGAINST THE AWARD DATED 10.03.2023 IN O.P(M.V) NO.600/2020 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, MUVATTUPUZHA ``` ## **`APPELLANT/PETITIONER:`** ``` VARKEY MATHEW S/O.VREKEY, AGED 73 YEARS, RESIDING AT THEKKEKARA I HOUSE,PERIMBALLOOR P.0.,PERINGAZHA KARA, MARADY VILLAGE, MUVATTUPUZHA TALUK, ERNAKULAM DISTRICT-686673 (BEDRIDDEN) REPRESENTED BY HIS WIFE MARIYAKUTTY MATHEW, W/O.VARKEY MATHEW, AGED 63 YEARS, RESIDING AT THEKKEKARA I HOUSE,PERIMBALLOOR P.O.,PERINGAZHA KARA, MARADY VILLAGE, MUVATTUPUZHA TALUK, ERNAKULAM DISTRICT-686673 AS NEXT FRIEND AND LEGAL GUARDIAN. BY ADVS.SMT.ANEY PAUL SMT.B.PREMALATHA ``` ## **`RESPONDENT/2ND RESPONDENT:`** ``` THE BRANCH MANAGER, THE ORIENTAL INSURANCE CO, LTD. T.H.TOWER 1ST FLOOR, STADIUM ROAD, MARKET P.O., MUAVATTUPUZHA TALUK, ERNAKULAM DISTRICT, PIN – 686673. BY SMT.K.S.SANTHI, SC ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR HEARING ON 30.11.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` M.A.C.A.No.2979 of 2023 ``` ``` 2 ``` ## **JUDGMENT** ## **Dated this the 30[th] day of November, 2023** The appeal on hand is originated from an award passed by Motor Accidents Claims Tribunal, Muvattupuzha (for short ‘the Tribunal’) on 10.03.2023 in O.P.(M.V.) No.600/2020. The appellant is the petitioner before the Tribunal. The appeal on hand is filed seeking for enhancement of compensation. 2. For the sake of convenience, the parties to this appeal will hereinafter be referred to as the petitioner and respondent No.2 in accordance with their status in the Original Petition. 3. The petitioner sustained injuries in a motor accident occurred at about 4 p.m on 21.02.2020 at Peringazhakavala when a car bearing Registration No.KL-17-Q-1631 hit against an Autorickshaw bearing ``` M.A.C.A.No.2979 of 2023 ``` ``` 3 ``` Registration No.KL-36-C-3360 driven by him. He sustained serious injuries and availed treatment for that. The motor accident was allegedly occurred due to the rash and negligent driving of the Car by it’s driver and a sum of ₹25,00,000/-, was claimed as compensation. 4. The owner cum driver and the insurer of the Car were arrayed as respondents 1 and 2 in the Original Petition seeking compensation. 1[st] respondent did not turn up to contest the Original Petition despite service of notice on him from the Tribunal. Therefore he was declared _ex parte_ . The 2[nd] respondent filed written statement admitting insurance coverage of the Car bearing Registration No.KL-17-Q-1631 as on date of the motor accident. He raised contentions against the claims of the petitioner regarding the age, the occupation, the monthly income and the injuries sustained. The amount claimed as compensation is also disputed for it’s exorbitant nature. ``` M.A.C.A.No.2979 of 2023 ``` ``` 4 ``` 5. Before the Tribunal, evidence was adduced by the petitioner as Exts.A1 to A14 and Ext.C1. The 2[nd] respondent marked Ext.B1 in evidence. 6. On appreciation of the entire evidence, the Tribunal found that the motor accident in question was occurred due to the rash and negligent driving of the Car bearing Registration No.KL-17-Q-1631 by the 1[st] respondent. The Tribunal also found that the petitioner sustained C3-C4 disc bulge with cord contusion, spinal injury with weakness of upper and lower limbs, lacerated wound over both knees and also cervical disc prolapse in the motor accident. 7. The Tribunal awarded a sum of ₹12,65,200/as compensation in favour of the petitioner and directed the 2[nd] respondent to pay the same in his favour alongwith interest accrued on it at the rate of 8% per annum from the date of filing of the Original Petition till the date of realisation and proportionate costs. ``` M.A.C.A.No.2979 of 2023 ``` ``` 5 ``` 8. The contention mainly raised by the learned counsel for the petitioner was that the monthly income fixed by the Tribunal is inadequate. According to her, the petitioner was aged 67 years at the relevant time of the motor accident and was a driver by occupation. Ext.A12, the copy of the driving licence was produced by the petitioner to establish his occupation as a driver but the Tribunal discarded it and fixed the monthly income notionally as ₹12,500/-. The learned counsel canvassed for fixation of a modified sum as monthly income of the petitioner on the basis of Ext.A12 and to calculate the compensation payable on its basis. The learned counsel also contended that the Tribunal failed to award any sum as compensation towards loss of earning and loss of amenities and enjoyments in life. According to him, ₹1,00,000/- stood awarded by the Tribunal towards pain and sufferings is also disproportionate to the injuries sustained and the difficulties suffered by him. ``` M.A.C.A.No.2979 of 2023 ``` ``` 6 ``` 9. The learned counsel has also canvassed for calculating compensation towards bystander expenses by adopting the multiplier method as in **Kajal vs. Jagdish Chand and others** [(2020) 4 SCC 413]. 10. The learned counsel for the 2[nd] respondent contended on the contrary that the Tribunal has taken 100% as the functional disability of the petitioner, though in Ext.C1, only 77% was certified by the Disability Assessment Board of Govt.Medical College Hospital, Kottayam. According to her when 100% was taken as the functional disability of the petitioner, compensation is not required to be awarded towards loss of earning and loss of amenities and enjoyments in life. The learned counsel also contended that the total compensation stood awarded by the Tribunal being calculated on the basis of 100% occupational disability, modification sought is not liable to be granted. The learned counsel also tried to differentiate the factual ``` M.A.C.A.No.2979 of 2023 ``` ``` 7 ``` background of the case on hand with those in **Kajal** supra by stating that the injured minor girl in that case was fully bed ridden and requires the assistance of a bystander throughout her life for each and every requirements and therefore, the court has adopted multiplier method for the purpose of calculation of compensation towards bystander expenses. Whereas in the case on hand, evidence is not forthcoming to establish that the petitioner was fully bed ridden and requires the help of a bystander for even for doing his daily pursuits. 11. The Tribunal took the monthly income as ₹12,500/- on a notional basis, without adverting to Ext.A12, the copy of the driving licence marked in evidence on the side of the petitioner. As revealed from the pleadings in the Original Petition itself, the petitioner met with the motor accident while driving an autorickshaw. Therefore, there is every reason for the ``` M.A.C.A.No.2979 of 2023 ``` ``` 8 ``` Tribunal to treat the petitioner as a driver by occupation. Since the Tribunal has fixed the monthly income of the petitioner as ₹12,500/- on a notional basis, this Court finds every justification to re-fix it as ₹15,000/- on the basis of Ext.A12. In Ext.C1 issued from Government Medical College Hospital, Kottayam, the permanent disability of of the petitioner was certified as 77%. The Tribunal took 100% as the occupational disability with cogent reasons narrated in the impugned award. On account of the injuries sustained, the difficulties and the permanent disability suffered, he may not be able to continue his occupation as a driver. Taking that aspect into consideration that the Tribunal considered 100% as his occupational disability. No challenge was raised against the above fixation of occupational disability and therefore, the same is maintained. 12. It is found stated by the Tribunal in the impugned award that the petitioner was brought to the ``` M.A.C.A.No.2979 of 2023 ``` ``` 9 ``` court complex and was seen by him. According to the Tribunal, the petitioner was found sitting with support of his wife, who accompanied him. The petitioner informed the Tribunal that he was unable to extent his hands and legs for lack of power of mobility. In that context that the Tribunal was pleased to take 100% as the occupational disability of the petitioner and compensation was calculated on its basis. 13. 100% disability taken by the Tribunal as the basis for calculation of compensation is maintained in the absence of any challenge raised against that. The Tribunal has denied compensation towards loss of earning and loss of amenities in life for the reason that 100% occupational disability was considered while calculating compensation. ₹10,000/- was found awarded towards transportation expenses, ₹25,000/towards extra nourishment and ₹50,000/- towards bystander expenses and compensation was declined ``` M.A.C.A.No.2979 of 2023 ``` ``` 10 ``` towards loss of amenities and enjoyments in life. ₹1,00,000/- was found awarded by the Tribunal towards pain and sufferings. It being reasonable is maintained. The compensation stood awarded towards transportation expenses being inadequate, ₹10,000/- more is awarded. 14. The multiplier method in **Kajal** supra was sought to be adopted in the case on hand for calculation of compensation towards bystander expenses. The Tribunal had the opportunity to see the petitioner and experienced the inability of the petitioner to move and do things on his own. That was also recorded in the impugned award. Therefore, this Court finds justification in following the multiplier method in the case on hand for the purpose of calculation of compensation towards bystander expenses as in **Kajal** supra. ₹3,000/- is taken as the amount payable monthly under that head and in the calculation ₹1,80,000/- (₹3,000/- x 5 x 12) is arrived at. ₹50,000/- ``` M.A.C.A.No.2979 of 2023 ``` ``` 11 ``` already awarded, when adjusted against, the petitioner will get ₹1,30,000/- (₹1,80,000/- - ₹50,000/-) as additional compensation. When compensation for permanent disability is recalculated on the basis of the monthly income modified as ₹15,000/-, ₹9,00,000/(₹15,000/- x 12 x 5) is arrived at. ₹7,50,000/- stood awarded by the Tribunal when adjusted against, the petitioner will get ₹1,50,000/- as additional compensation under that head. 15. In the above manner of calculation afresh, ₹2,90,000/- (Rupees Two lakh ninety thousand only) [ ₹10,000/- + ₹1,30,000/- + ₹1,50,000/-] is arrived at as additional compensation payable. 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 70 days of delay occurred in filing the appeal on hand. 2[nd] respondent shall pay the additional compensation with interest accrued on it and ``` M.A.C.A.No.2979 of 2023 ``` ``` 12 ``` the original compensation with interest and costs fixed by the Tribunal (if not already paid) 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. M.A.C.A stands allowed accordingly. Sd/- **MARY JOSEPH JUDGE** NAB