VIPIN VARGHESE v. VIMAL KUMAR, Rahul T.N. and The New India Assurance Company Limited

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE N.NAGARESH** **FRIDAY, THE 29TH DAY OF MAY 2020 / 8TH JYAISHTA, 1942** ## **MACA.No.1866 OF 2015(A)** **AGAINST THE AWARD IN OP(MV) 1636/2012 DATED 25-02-2015 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL ,ERNAKULAM** ## **APPELLANT:** **VIPIN VARGHESE AGED 32 YEARS S/O.VARGHESE, PARAPURATH HOUSE, VATTAPPARA P.O., EDAKKATTUVAYAL VILLAGE, KANAYANNOOR TALUK, ERNAKULAM DISTRICT.** **BY ADVS. SRI.MATHEWS K.PHILIP SMT.T.MANASY** ## **RESPONDENTS:** **1 VIMAL KUMAR S/O.SANKARAN NAIR, THIRUVONAM HOUSE, MURIAMANGALAM, THIRUVANIYOOR P.O., THIRUVANIYOOR VILLAGE, ERNAKULAM** **2 RAHUL T.N. S/O.NARAYANA PILLAI, PUSHPA VILAS, MAMALA P.O., KAKKAD, ERNAKULAM - 682 305.** - **3 THE NEW INDIA ASSURNCE COMPANY LIMITED MADAPARAMBIL CHAMBERS, MUVATTUPUZHA.** **R3 BY ADV. SRI.P.JACOB MATHEW** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 22-05-2020, THE COURT ON 29-05-2020 DELIVERED THE FOLLOWING:** **MACA. No.1866 OF 2015(A)** **2** ## **J U D G M E N T** ~ ~ ~ ~ ~ ~ ~ ~ ~ _**Dated this the 29[th] day of May, 2020**_ The claimant in O.P.(MV) No.1636/2012 on the files of the Court of the Motor Accidents Claims Tribunal, Enrnakulam, is before this Court in appeal invoking Section 173 of the Motor Vehicles Act, aggrieved by the Award dated 25.02.2015 passed by the Claims Tribunal. 2. The appellant-claimant, who is a freelance photographer, met with an accident on 13.11.2011 while he was riding a motor cycle on Kochi-Madurai NH. Another motor cycle driven by the 1[st] respondent hit him. The appellant sustained injuries and was admitted in Ernakulam Medical Centre first and then, in the Medical College Hospital, Kottayam. The appellant claimed ₹5 lakhs towards compensation initially and the claim was revised to ₹7,60,000/- subsequently. **MACA. No.1866 OF 2015(A)** **3** 3. Respondents 1 and 2 were set _ex-parte_ . The 3[rd] respondent-Insurance Company contested the claim filing written statement. 4. The Tribunal found that the accident had occurred due to the rash and negligent driving of motor cycle by the 1[st] respondent. On appreciation of evidence, the Tribunal brushed aside the contention of the insurer that the 1[st] respondent has no valid driving licence. After appreciating the evidence inclusive of Exts.A1 to A13, and Ext.C1 Medical Board certificate from the Government Medical College Hospital, Kottayam, the Tribunal passed an Award permitting the appellant to realise a sum of ₹4,57,867/- together with interest at 8% per annum from respondents 1 to 3, under the following heads:- |_Heads_|_Amount_<br>_claimed_|_Amount_<br>_awarded_<br>_(in Rs.)_|| |---|---|---|---| |Loss of earnings|24000|24000|| |Partial loss of earnings|0|0|| |Transport to Hospital and back to<br>home|5000|5000|| |Extra nourishment|20000|5000|| |Damage to clothes and articles|1000|500|| **MACA. No.1866 OF 2015(A)** **4** |_Heads_|_Amount_<br>_claimed_|_Amount_<br>_awarded_<br>_(in Rs.)_|| |---|---|---|---| |Attendant Expenses|20000|20000|| |Medical Expenses|145000|123500|| |Compensation for pain and<br>sufferings|80000|50000|| |Compensation for disfiguration|0|0|| |Compensation for continuing and<br>permanent/partial disability|400000|229867|4000x28.17/100x1<br>7| |Compensation for earning power|0|0|| |Compensation<br>for<br>future<br>treatments|15000|0|| |Compensation for loss of<br>amenities and enjoyment in life|50000|0|| |Total|760000|457867|| |Claim limited to Rs.7,60,000/-|||| Dissatisfied by the amount awarded, the petitioner is in appeal. 5. The learned counsel for the appellant submitted that the appellant is a freelance photographer, earning ₹8,000/- per month during the period of accident and the Tribunal took only ₹4,000/- as professional income for assessing claim under the head 'permanent disability'. The Medical Board assessed appellant's disability at 28.17%, but due to the low monthly income assessed by the **MACA. No.1866 OF 2015(A)** **5** Tribunal, only ₹2,29,867/- was awarded by the Tribunal towards compensation for continuing and permanent/partial disability. 6. Learned counsel for the appellant further insisted that the Tribunal should have awarded at least ₹80,000/towards compensation for pain and suffering instead of ₹50,000/-, in the facts of the case. The Tribunal did not take into account future prospects of the appellant. In the circumstances, the Tribunal should have awarded a higher amount, it was contended. 7. The learned Standing Counsel for the 3[rd] respondent, however, strongly objected to any enhancement in compensation. The Standing Counsel submitted that the appellant did not adduce any evidence whatsoever in proof of his monthly income. When, there is no proof of monthly income, the Tribunal resorted to the guidelines given by the Apex Court and the monthly income was accordingly fixed. The amount of ₹50,000/- awarded under the head compensation for pain and suffering is **MACA. No.1866 OF 2015(A)** ## **6** sufficient. Therefore, the appellant is not entitled to any enhancement in compensation. The Standing Counsel pointed out that the Tribunal has made it clear that the 3[rd] respondent has the right to recover the amount deposited by the 3[rd] respondent from respondents 1 and 2. In the event of this Court making any addition to the compensation, the right of the 3[rd] respondent to recover the said amount also from respondents 1 and 2 should be reserved. 8. I have considered the evidence on record and heard the learned counsel for the appellant and learned Standing Counsel appearing for the 3[rd] respondent. 9. The accident is not disputed. The negligent driving of the offending motor cycle by the 1[st] respondent is established. The appellant was aged 28 years at the time of the accident. The insurance of the offending vehicle is admitted. Though the 3[rd] respondent-Insurer took a contention that the driver of the offending vehicle had no licence and hence the insurance company is not liable to **MACA. No.1866 OF 2015(A)** **7** pay compensation, the issue was considered and rejected by the Tribunal. 10. The dispute in this appeal is mainly related to the assessment of income of the appellant. Though the appellant claimed that he is a freelance photographer and has a monthly income of ₹8,000/-, since the appellant did not adduce any evidence to prove his job or income, the Tribunal fixed notional monthly income at ₹4,000/-. 11. The Hon'ble Apex Court in the judgments in _**Ramachandrappa v. The Manager, Royal Sundaram Alliance Insurance Company Limited (AICL)** [(2011) 13 SCC 236]_ and _**Syed Sadiq and others v. Divisional Manager, United India Insurance Company** [(2014) 2 SCC 735]_ considered similar issues. Going by the said judgments of the Apex Court, the appellant's notional monthly income is liable to be fixed at ₹8,000/-. Accordingly, the appellant will be entitled to consequential enhancement in the amounts awarded under various heads. As regards the loss of earning, the Tribunal has granted six **MACA. No.1866 OF 2015(A)** **8** months' notional income towards loss of earning. When the appellant's notional income is taken as ₹8,000/- per month as against ₹4,000/- by the Tribunal, the appellant will be entitled to an additional amount of ₹24,000/- (₹8000/- x 6 minus ₹24,000/- already awarded) towards additional compensation. 12. Similarly, the Tribunal has fixed ₹2,29,867/towards compensation for continuing disability, taking ₹4,000/- as notional monthly income. When the notional monthly income is taken as ₹8,000/-, the appellant will be eligible for an equal amount of ₹2,29,867/- (₹8,000/- x 12 x 28.17/100 x 17 minus ₹2,29,867/- already awarded). 13. The Tribunal has found that appellant was hospitalised for a period of four months of different durations, consequent to the accident. Taking into account the said fact and attending circumstances, the appellant is eligible for compensation under the head extra nourishment. Accordingly, the appellant will be eligible for an amount of ₹20,000/- towards extra nourishment, as claimed in the **MACA. No.1866 OF 2015(A)** **9** OP(MV). In the result, the Appeal is partly allowed. The appellant is held entitled to additional compensation of ₹2,68,867/- (₹24,000/- towards compensation for loss of earning, ₹2,29,867/- towards compensation for continuing disability and ₹15,000/- towards compensation for extra nourishment). The said amount will also carry interest at the rate of 8% per annum from the date of the petition till realisation. Respondents 1 to 3 are jointly and severally liable to pay compensation. The 3[rd] respondent is directed to deposit the balance amount within one month before the Tribunal. It is made clear that the 3[rd] respondent will have right to recover the deposited amount from respondents 1 and 2 in accordance with law. Sd/- **N. NAGARESH, JUDGE** aks/27.05.2020