Vijayan v Yesudas and K.V. Thilakan and Shriram General Insurance Co. Ltd.

# `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ``` THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. MONDAY, THE 11[TH] DAY OF SEPTEMBER 2023 / 20TH BHADRA, 1945 ``` ## `MACA NO. 4109 OF 2019` ``` [AGAINST THE AWARD DATED 6.6.2019 IN OP(MV) No.829/2014 OF THE ADDITIONAL MOTOR ACCIDENTS CLAIMS TRIBUNAL-II, ALAPPUZHA] ``` ``` APPELLANT/PETITIONER: ``` ``` VIJAYAN S/O.RAMANKUTTY, 741, VELIYIL WARD NO.XVI, MANNANCHERRY.P.O, NOW RESIDING AT VIPIN NIVAS, MANNANCHERRY.P.O., ALAPPUZHA THIRUVANANTHAPURAM BY ADVS. GEORGE VARGHESE(PERUMPALLIKUTTIYIL) A.R.DILEEP P.J.JOE PAUL RAJAN G. GEORGE ``` ## `RESPONDENTS/RESPONDENTS:` ``` 1YESUDAS S/O.JOSEPH, PALLIPARAMBIL,WARD NO.XII, CHETTIKAD, MARARIKULAM SOUTH, ALAPPUZHA-688523 THIRUVANANTHAPURAM 2K.V THILAKAN S/O.VASU, KOMBALASSERIL ARTHUNKAL.P.O., CHERTHALA- 688530 3SHRIRAM GENERAL INSURANCE CO.LTD 10003-E-8, RIICO INDUSTRIAL AREA, SITAPURA, JAIPUR, RAJASTHAN-302022, REPRESENTED BY ITS AUTHORISED OFFICER R3 BY ADV SRI.P.JACOB MATHEW THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 11.09.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` MACA No.4109 of 2019 2 ## `JUDGMENT` ``` This appeal is submitted by the petitioner in OP(MV)No.829/2014 on the files of the Additional Motor Accidents Claims Tribunal-II, Alappuzha. ``` ``` 2.The aforesaid claim petition was submitted by the appellant seeking compensation for the injuries sustained to him in a motor accident that occurred on 2.3.2014 at about 2.30 p.m., when the motorcycle on which the appellant was pillion riding was hit by a bus bearing registration No.KL-06/D- ``` ``` 843. According to the appellant, the accident occurred due to the rash and negligent driving of the motorcycle ridden by the 1[st] respondent, which ``` ``` was owned by the 2[nd] respondent and insured by the 3[rd] respondent. At the relevant time, he was aged 48 years, and was working as a driver in the Panchayat Office, Alappuzha. The claim petition was submitted by the appellant seeking a total compensation of Rs.65 Lakhs as according to him, consequent to the injuriessustained,hesufferedpermanent ``` MACA No.4109 of 2019 3 ``` disablement, which was certified as 62% by the ``` ``` Medical Board. ``` ``` 3.The 1[st] and 2[nd] respondents did not contest the matter. The 3[rd] respondent Insurance Company ``` ``` filed a written statement accepting the validity of the policy in respect of the motorcycle. However, it was contended that the accident occurred due to the negligence of the driver of the bus. It was also contended that the appellant was riding the motorcycle at the relevant time under the influence of alcohol, and therefore, the Insurance Company denied their liability. The quantum of compensation was also disputed by them. ``` ``` 4.In support of the contentions, the appellant produced documents marked as Exhibits A1 to A15. The disability certificate of the appellant issued by the Medical Board was marked as X1. From the side of the respondent, Exhibit B1 was marked. ``` ``` 5.After examining the materials placed on record, the Tribunal came to the conclusion that the accident occurred due to the negligent riding of the ``` MACA No.4109 of 2019 4 ``` motorcycle by the 1[st] respondent, and therefore, ``` ``` being the Insurer of the said vehicle, the 3[rd] respondent was held liable to pay compensation. The quantum of compensation was fixed as Rs.8,76,296/- and the said amount was directed to be deposited by the 3[rd] respondent-Insurance Company, along with 9% interest per annum from the date of petition till realization. This appeal is submitted by the appellant, being dissatisfied with the quantum of compensation. ``` ``` 6.Heard Sri George Varghese Perumpallikuttiyil, the learned counsel for the appellant and Sri. Jacob Mathew, the learned Counsel for the 3[rd] respondent. ``` ``` 7.One of the crucial contentions raised by the learned counsel for the appellant is that the amount awarded under the head of permanent disability was on the lower side. According to him, even though the Tribunal fixed the monthly income as Rs.31,094.57 based on the salary certificate produced by him, no compensation for disability was awarded pertaining to the period of his service as a driver in the ``` MACA No.4109 of 2019 5 ``` Panchayat. The Tribunal calculated the permanent disability for the period after the age of superannuation, and for the said purpose, the monthly income taken by the Tribunal was only Rs.6,000/-. In response to the aforesaid ``` ``` contention, the learned counsel for the 3[rd] ``` ``` respondent-Insurance Company, would point out that, even though the percentage of disability certified by the Medical Board was 62%, the Tribunal had taken the functional disability of the appellant as 100% and the compensation was calculated accordingly. Therefore, no interference is warranted as according to the 3[rd] respondent-Insurance Company, a reasonable amount was awarded by the Tribunal under this head. ``` ``` 8.After considering all the relevant aspects, I am of the view that the finding of the Tribunal in taking functional disability as 100% cannot be found fault with. This is particularly because the appellant was a driver by profession, and the nature of the injuries would clearly indicate that the same would deprive him in pursuing his employment as a ``` MACA No.4109 of 2019 6 ``` driver. Therefore, it may not be possible for him ``` ``` to earn any amount by pursuing his career as a driver once he retires from service. In such ``` ``` circumstances, I do not find any necessity to ``` ``` interfere with the finding of the Tribunal in taking ``` ``` 100% as the functional disability of the appellant while computing the compensation. ``` ``` 9.When coming to the monthly income fixed by ``` ``` the Tribunal, pertaining to the period after the age of superannuation of the petitioner, I find some force in the contention put forward by the learned counsel for the appellant. Going by the age of the appellant, the year of retirement was 2022, and when ``` ``` the monthly income is to be calculated, the ``` ``` standards that would prevail at the time of 2022 ``` ``` should be taken into account. This is particularly ``` ``` when we are concerned in this case with the loss of ``` ``` earning capacity consequent to the injuries ``` ``` sustained to him for the period after the appellant ``` ``` attains the age of superannuation. Even going by the ``` ``` principles laid down by the Hon’ble Supreme in ``` MACA No.4109 of 2019 7 ``` Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Ltd [(2011)13 SCC 236] and Syed Sadiq v. Divisional Manager, United India Insurance Company Ltd. [(2014)2 SCC 735] even in respect of an ordinary worker, the monthly income in the year 2022 can be fixed as Rs.13,500/-. Therefore, the ``` ``` profession of a driver being a skilled employment, a slightly higher amount has to be taken for the said purpose. In the facts and circumstances of the case, I deem it appropriate to take the monthly income as Rs.15,000/- for computing the compensation for permanent disablement pertaining to the post- retirement stage of the appellant. When re-working the compensation for permanent disability with the said revised criteria, the amount would come to Rs.16,20,000/- [Rs.15,000x12x9x100/100]. The amount awarded by the Tribunal in this head was Rs.6,48,000/- and therefore, the additional amount receivable by the appellant would come to Rs.9,72,000/-. ``` ``` 10.In addition to the above, it is seen from ``` MACA No.4109 of 2019 8 ``` the records that the amounts awarded under the heads ``` ``` of pain and suffering and loss of amenities are Rs.25,000/- each, which are on the lower side. Since the accident occurred in the year, 2014, taking note of the severe nature of injuries and consequential disability, I deem it appropriate to grant an additional amount of Rs.25,000/- each in both heads (totalRs.50,000). The learned counsel for the appellant also sought an amount of ``` ``` Rs.63,223/- towards future treatment, and in support ``` ``` of the said contention, he places reliance upon Annexure-1 series of medical bills produced along ``` ``` with I.A.No.1/2021. The learned Standing Counsel for the 3[rd] respondent-Insurance Company, would stoutly oppose the said claim by pointing out that most of the bills produced by the appellant are that of ``` ``` Ayurvedic medicines and without examining the ``` ``` authenticity of the said documents, the said claim cannot be entertained. However, taking note of the ``` ``` severe nature of the injuries and the physical disability resulting from the same, it is evident ``` MACA No.4109 of 2019 9 ``` that the appellant must have resorted to future ``` ``` treatments. Therefore, even though the entire bills cannot be accepted as such, some amount has to be granted towards the said head. In the facts and ``` ``` circumstances of the case, I deem it appropriate to ``` ``` grant an amount of Rs.30,000/- for the said purpose. ``` ``` Thus, I find that the appellant is entitled to a total compensation of Rs.10,52,000/- (Rupees Ten ``` ``` Lakhs and Fifty two thousand only) over and above the amount already awarded by the Tribunal. ``` ``` 11.Accordingly, this appeal is allowed by ``` ``` fixing the amount ofRs.10,52,000/- (Rupees ten lakhs fifty two thousand only) as the additional ``` ``` compensation receivable by the appellant. It is ``` ``` directed that the 3[rd] respondent-Insurance Company ``` ``` shall deposit the amount of Rs.10,22,000/- along ``` ``` with interest at the rate as ordered by the Tribunal ``` ``` from the date of petition till realization. The ``` ``` remaining amount of Rs.30,000/- also shall be ``` ``` deposited along with interest at the rate as ordered ``` ``` by the Tribunal, from 25.3.2021 onwards, which is ``` MACA No.4109 of 2019 10 ``` the date of I.A.No.1/2021 through which the claim ``` ``` for future treatment was made and the said payment has to be effected within a period of three months ``` ``` from the date of receipt of copy of this judgment. ``` ``` Sd/- ``` ``` ZIYAD RAHMAN A.A. ``` ``` JUDGE ``` ``` pkk ```