VIJAYAKUMAR N. v. PALANI SAMY S. and UNITED INDIA INSURANCE CO. LTD.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** **WEDNESDAY, THE 22[ND] DAY OF MARCH 2023 / 1ST CHAITHRA,** **1945** **MACA NO. 2893 OF 2018** **AGAINST THE JUDGMENT AND AWARD DATED 15.12.2017 IN OPMV** **2362/2014 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,ERNAKULAM** ## **APPELLANT/PETITIONER:** **VIJAYAKUMAR N AGED 52 YEARS S/O. P. NARAYANA PILLAI, KAVYA BHAVAN, (KAIPURATH HOUSE), ANNAL, MANIKKAL VILLAGE, PIRAPPANCODE P.O., THIRUVANANTHAPURAM - 695 607** **BY ADVS. P.N.SUKUMARAN AKHIL S.VISHNU** ## **RESPONDENTS/RESPONDENTS:** **1 PALANI SAMY S. S/O. CHENNAYYAN, HOUSE NO.27/1218A, MALIYEKKAL HOUSE, NEAR KOITHARA RAILWAY OVERBRIDGE, PANAMPILLY NAGAR, ELAMKULAM, KOCHI - 36 2 T.J. VAISAKH THOPPIL (H), EROOR P.O., THRIPUNITHURA, ERNAKULAM DISTRICT - 682031 3 UNITED INDIA INSURANCE CO. LTD. T.P. CELL, 4TH FLOOR, JOS TRUST BUILDING, CHITTOOR ROAD, ERNAKULAM - 682035, REPRESENTED BY ITS MANAGER.** **BY ADVS. SRI.T.U.SUJITH KUMAR SRI.JOHNSON MANAYANI SRI.P.K.MANOJKUMAR,SC,UNITED INDIA INSU SRI.BENHUR JOSEPH MANAYANI** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 22.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **M.A.C.A No.2893 of 2018** **2** ## **JUDGMENT** This appeal is filed by the appellant, who was injured in a road accident on 07.05.2014 - when the offending vehicle hit him as he was walking on a public road – alleging that the compensation awarded to him by the Motor Accidents Claims Tribunal, Ernakulam ('Tribunal' for short), in OP(MV) No. 2362/2014, is inadequate. 2. Sri.D.Chandrasenan – learned counsel appearing for the appellant, vehemently argued that the accident left his client with grave injuries and a permanent disfigurement on his forehead, with severe incapacity qua many of his faculties; and therefore, the compensation awarded by the Tribunal under the heads 'Pain and Suffering', 'Loss of Amenities' and 'Disfigurement' is woefully insufficient. He then argued that the compensation for 'Permanent Disability' awarded by the Tribunal has no rational nexus to his actual condition because, only Rs.1,08,000/- has been awarded against the claim of Rs.5,00,000/- . He thus prayed that this appeal be allowed. 3. Sri.D.Chandrasenan thereafter proceeded to say that the impugned Award, to the extent to which exonerated the Insurance Company, is also in grave error because it has done so solely for the reason that the offending vehicle did **M.A.C.A No.2893 of 2018** **3** not have a Fitness Certificate at the time of accident. He argued that law in this regard has been settled affirmatively by the Honourable Supreme Court in **Amrit Paul Singh vs Tata Aig General Insurance Co. [2018 (3) KHC 197];** and, therefore, prayed that said findings be vacated. 4. Sri.P.K.Manoj Kumar – learned Standing Counsel for the Insurance Company, on the other hand, submitted that the learned Tribunal has been very generous in awarding compensation in this case, particularly because the 'Permanent Disability' suffered by the appellant is only 10% as recorded in Ext.X1 - Disability Certificate issued by the Medical College Hospital, Alappuzha. He thus prayed that this appeal be dismissed. 5. On the question of exoneration of his client, Sri.P.K.Manoj Kumar submitted that the learned Tribunal has acted correctly because the offending vehicle did not have a Fitness Certificate at the time of accident. However, to a pointed question from this Court, on the impact of the ratio in **Amrit Paul Singh** (supra), he submitted that this judgment was delivered only in the year 2018, while the accident in this case happened in the year 2014. 6. Sri.Jeevan Mathew Manayani - learned counsel appearing for the 2[nd] respondent, submitted that his client **M.A.C.A No.2893 of 2018** **4** does not intend to make any comment on the controversy projected by the appellant; but that the findings of the Tribunal against his client are unfair and baseless. 7. I have considered the afore submissions and have also gone through the evidence on record – copies of which have been handed over across the Bar by the learned counsel for the parties, with the express consent that it can be acted upon by this Court without dispute. 8. The appellant claimed to be working in a Private Limited Company and to be drawing Rs.15,000/- as income. The learned Tribunal did not speak about this, but went on to say that any compensation under the head 'Loss of Disability' would be applicable only after he retires, when he attains 55 years in age. It then went on to fix the notional income of the appellant, after retirement, to be Rs.10,000/- per month and to adopt the multiplier of '9' because, as said above, it was presumed that he would retire at the age of 55. For the same reason as afore, it denied compensation under the head 'Loss of Earnings', being under the assumption that he would not suffer any loss in his earning capacity on account of the accident because, his Company would pay him salary even for the period when he was under treatment. **M.A.C.A No.2893 of 2018** **5** 9. I further notice that the learned Tribunal has awarded Rs.80,000/- under the head 'Pain and Suffering' and Rs.30,000/- under the head 'Loss of Amenities'. The appellant seeks that this be revised, as also under the head 'Disfiguration', based on the evidence on record. 10. The evidence certainly shows that appellant claimed to be working in a Private Company, drawing Rs.15,000/- as salary. This was sought to be proved by Ext.A11 – Salary Certificate and Ext.A18 – Appointment Letter. Further, Ext.A12 – First Information Statement also records that appellant was working as a 'Senior Supervisor'. When the Insurance Company also did not oppose this obviously, the first question that the Tribunal ought to have considered is whether there was any loss of income that he would suffer on account of the accident. In this regard, pertinently, the appellant led no evidence at all and hence a presumption becomes possible, that his Company would have taken care of entire period of treatment, without stopping his salary. In the absence of any evidence to show that he had lost salary during the period when he was not able to work, I cannot find fault with the Tribunal. 11. That said, the medical evidence on record particularly Ext.A13 – Wound Certificate, establishes the **M.A.C.A No.2893 of 2018** **6** ## injuries suffered by the appellant to be under: “ _nasal bleed, multiple abrasion in the scalp, swelling on right parietal region and occipital region, right colonal suture diastasis with underlying thin extra axial bleed, subarachnoid hemorrhage with evidence of counter coup left TP thin subdural hemorrhage, superficial contusion and all joints of right side were found with restricted movement” (sic)._ 12. Further, Ext.A15 – CT Scan Report shows that, consequent to the accident, the appellant sustained “ _SAH on right parietal and temporal region with fracture of right parietal temporal bone.” (sic)_ 13. Ext.A10 - Photographs, which were taken a few months after the accident luculently show the aftermath of the accident on the appellant's face, which is indubitable from the disfigurement he is now suffering. He was hospitalised as an inpatient for a period of ten days and all these factors were taken into account by the Medical Board, which has issued Ext.X1 – Disability Certificate. 14. The afore injuries suffered by the appellant can certainly be never seen to be trivial particularly, the “ _subarachnoid hemorrhage, subdural hemorrhage and the fracture of right parietal temporal bone”_ , which causes the dis-figuration **M.A.C.A No.2893 of 2018** **7** on his face. I am, therefore, of the firm view that the compensation awarded by the Tribunal under the heads 'Pain and Suffering', 'Loss of Amenities' and 'Disfiguration' requires to be enhanced marginally. This is more so because, the injuries sustained by the appellant must have given him extreme trauma and pain particularly, during the period of treatment, especially since it was on his face and skull. 15. That said, however, as regards the compensation for 'Permanent Disability', I cannot find error in the findings of the learned Tribunal because, when the appellant himself agreed that he was employed in a permanent job, without any 'Loss of Earnings', it could have only taken his notional income after his retirement and to adopt the apposite multiplier which, in my view, it has done correctly. This is more so because, when one goes by **Ramachandrappa v.** ## **Manager, Royal Sundaram Alliance Insurance Company** **Ltd. [(2011) 13 SCC 236],** the notional income to be taken even in the case of a person with an unascertainable income, in the year 2014 – when the accident occurred – is only Rs.9,500/-; and in its place, the Tribunal has adopted Rs.10,000/-. 16. As regards the submission of Sri.Jeevan Mathew Manayani on behalf of the 2[nd] respondent, since the said **M.A.C.A No.2893 of 2018** **8** person is not in appeal, I do not think that this Court should consider the merits of the same at all, I leave it open to invoke any other remedy as may be available to him. 17. _Quad hoc_ the contention of the appellant that the learned Tribunal ought not to have exonerated the Insurance Company is concerned, I am of the firm opinion that he is on _terra firma_ because **Amrit Paul Singh** (supra) declares the law affirmatively that operation of vehicle without a Fitness Certificate is fundamental breach of the policy conditions, but will not exonerate the Insurance Company, though making the liberty available to it to recover the same from the owner or the driver as the case may be. I do not think that this position requires to be restated, even though the accident is of the year 2014, because the judgment operates as a precedent for all cases. Resultantly, this appeal is partly allowed in the following manner: a) The compensation under the head 'Pain and Suffering' is enhanced to Rs.1,00,000/-, from Rs.80,000/- as awarded by the Tribunal. b) The compensation under the head 'Loss of Amenities' is enhanced to Rs.50,000/-, from Rs.30,000/- as awarded by the Tribunal. **M.A.C.A No.2893 of 2018** **9** c) The compensation under the head 'Disfiguration' is enahced to Rs.1,00,000/-, from Rs.70,000/- as awarded by the Tribunal. d). The Insurance Company is granted liberty to recover it, the compensation, as modified by the Court above, after honouring it to the claimant, from respondents 1 and 2, who are the registered owner and transferred owner of the vehicle respectively. Consequently, the appellant will be at full liberty to recover the compensation, as enhanced by this Court, from the Insurance Company, along with interest at the rate of 8% as awarded by the Tribunal, from the date of claim until it is recovered. He will also be entitled to proportionate costs on the enhanced amount as ordered by the Tribunal before it. Needless to say, while computing the interest as afore, a period of 160 days - being the delay in filing this appeal – shall stand excluded. In view of the afore, the amount as fixed above shall be deposited by the Insurance Company before the learned Tribunal, within a period of two months from the date of receipt of a copy of this judgment. ## **Sd/-DEVAN RAMACHANDRAN, JUDGE** lsn