Viswanathan K.S. v Bajaj Allianz General Insurance Company Limited

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MRS. JUSTICE MARY JOSEPH`** ``` TUESDAY, THE 21[ST] DAY OF NOVEMBER 2023 / 30TH KARTHIKA, 1945 MACA NO. 1463 OF 2014 ``` ``` AGAINST THE AWARD IN OPMV 154/2008 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, OTTAPPALAM DATED 03/02/2014 ``` ## **`APPELLANT/PETITIONER:`** ``` VISWANATHAN K.S S/O.K.S.SUBRAMANIAN, AGED 47 YEARS,3/40(1), ADITHYA, 2ND STREET, VENKATESWARA COLONY, AMBIKAPURAM, PALAKKAD. ``` ``` BY ADV SRI.JACOB SEBASTIAN ``` ## **`RESPONDENTS/RESPONDENTS:`** ``` 1NARAYANAKUMAR S/O.PUTHIYANDI, AGE NOT KNOWN, ASWATHI, PARAKKANDY, AREEKKADE, NALLALAM, KOZHIKODE PIN 673 639. *( DELETED) 2PREMRAJAN S/O.PUTHIYANDI, AGED 30 YEARS, KOTTATHODI VEEDU, OLAVALLOOR, KONDOTTI, MALAPPURAM DISTRICT. PIN 673 638. * (DELETED) 3BAJAJ ALLIANZ GENERAL INSURANCE COMPANY LIMITED 5TH FLOOR, M.SONS ARCADE, CHEROOTTY ROAD, CALICUT 673 001. * RESPONDENTS 1 & 2 DELETED RESPONDENTS 1 & 2 ARE DELETED FROM PARTY ARRAY AT THE RISK OF THE APPELLANT AS PER ORDER DATED 04/01/2022 IN I.A. 1/2021 IN MACA 1463/2014. BY ADVS.SRI.AKHIL K.MADHAV ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 30.11.2022, THE COURT ON 21.11.2023 DELIVERED THE FOLLOWING: ``` MACA No. 1463 of 2014 -:2:- ## **MARY JOSEPH, J.** - - - - - - - - - - - - - - - - - - - - - - - MACA No. 1463 of 2014 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 21[st] day of November, 2023 ## **JUDGMENT** The appeal on hand is filed by the petitioner in OP(MV) No.154/2008 on the files of Motor Accident Claims Tribunal, Ottapalam (for short ’the Tribunal’) challenging an award passed on 03.02.2014. The specific contention raised by the appellant against the impugned award was that the Tribunal failed to award just and reasonable compensation in the case on hand. 2. The parties to this appeal will hereinafter be referred to as the petitioner and respondents 1 to 3 in accordance with their status before the Tribunal. 3. The facts of the case being relevant for adjudication are extracted in a nut shell hereunder: At about 6 p.m. on 21.04.2007, while the petitioner was driving his car bearing Registration KL-9 Q 5497 alongwith his wife from Kozhikode to Palakkad, a Pickup Van bearing registration No.KL-11 S 8842 hit the same near Nattukal Post MACA No. 1463 of 2014 -:3:- Office due to the rash and negligent driving by its driver and thereby himself and his wife sustained serious injuries. Both of them were taken to Moulana Hospital, Petinthalmanna and later to Thankom Hospital, Palakkad and treated there for some time. It was contended that the motor accident was occurred due to the rash and negligent driving of the Pickup Van by its driver who was arrayed as the 2[nd] respondent in the Original Petition. The registered owner and the insurer of the offending vehicle were also arrayed as respondents 2 and 3 in the Original Petition. A total sum of ₹11,00,000/- was also claimed as compensation. The Original Petition above was tried alongwith OP(MV) No.155/2008 and a common award was passed on 03.02.2014. The award passed in OP(MV) No. 154/2008 is now under challenge. 4. 1[st] respondent was served with summons from the Tribunal, but it did not turn up and therefore was set ex parte. 2[nd] respondent filed written statement denying all averments made by the petitioner in the Original Petition including negligence. It was contended that the motor accident was occurred solely due to negligent driving of the car by the petitioner herein and that the compensation MACA No. 1463 of 2014 -:4:- claimed is excessive and baseless. A valid and effective driving licence for the 2[nd] respondent and insurance coverage for the vehicle as on date of motor accident were admitted. 5. 3[rd] respondent filed written statement denying all averments made by the petitioner in the Original Petition. It was contended that the motor accident was occurred solely due to the rash and negligent driving of the car by the petitioner. The age, the occupation, the monthly income and the quantum claimed as compensation were disputed. But the policy issued in respect of the vehicle covering the date of accident was admitted. 6. In the joint trial held, Exts.A1 to A21 and X1 to X3 were marked on the side of the petitioners and the ADM of United India Insurance Co. Ltd Palakad Division, the employer of the petitioner was examined as PW1. The doctor who issued the disability certificate was examined as PW2. Exts.B1 was marked in evidence by the 3[rd] respondent. Though transfer of the Original Petitions was sought to MACT, Palakad, both the Tribunal as well as this Court dismissed those petitions. Therefore the trial was held at MACT, Ottapalam itself. MACA No. 1463 of 2014 -:5:- 7. On the basis of the evidence adduced as above the Tribunal found the 2[nd] respondent, rash and negligent in driving the Pickup Van and therefore fully responsible for the motor accident. The Tribunal also found from the medical documents of the petitioner marked in evidence as Exts.A6 to A10 and A22 that the petitioner had sustained serious injuries in the motor accident and had undergone treatment for a prolonged period. Accordingly, the petitioner was found entitled to get compensation from respondents 1 to 3 jointly and severally. The Tribunal arrived at ₹3,81,000/- as the compensation payable in favour of the petitioner. Interest at the rate of 8% per annum was also allowed and the 3[rd ] respondent, the insurer of the Pickup Van was directed to deposit the same in favour of the petitioner from the date of filing of the Original Petition till the date of realisation. 8. The learned counsel for the petitioner has drawn the attention of this Court to the medical evidence tendered by the petitioner and contended that he had sustained fracture of his two teeth, lacerated wound on Dento Alveolar Region and fracture of ribs 3 to 5 left and fracture of femur, left. He was treated as inpatient in two spells, first from MACA No. 1463 of 2014 -:6:- 21.04.2007 till 05.05.2007 and the other from 04.01.2008 till 05.01.2008 and during the period, fixation was done with DCS plates. He has produced the salary certificate and marked in evidence as Ext.A13. From Ext.A13 and Ext.X3 series, it was convinced that the petitioner sustained a loss of ₹21,886/- on account of the sick leave with half pay, taken for 60 days. He has also availed medical leave with full pay for 60 days and earned leave for 40 days. A certificate showing payment of a sum of `1,26,886/- by the employer to the petitioner towards settlement of medi-claims under the medi-claim policy availed by the former is also produced. 9. On the basis of the evidence adduced as above the Tribunal found that the petitioner is entitled to get `49,526/as compensation towards loss of earning. The Tribunal found that the petitioner is not entitled to get any compensation for treatment expenses since he had already availed `1,26,886/as compensation under that head based on the medi-claim stood issued in his favour. According to the learned counsel the Tribunal went wrong in declining compensation for treatment expenses and awarding only `49,526/- as compensation towards loss of earning. According to him, the MACA No. 1463 of 2014 -:7:- Tribunal failed to appreciate the evidence properly while doing so and interference with the quantum of compensation and modification of the award is required. 10. According to him, `50,000/- was claimed towards future treatment expenses, but the Tribunal awarded only `15,000/-. According to the learned counsel the petitioner was subjected to various procedures as part of treatment and requires a surgery in future for removal of in-plants. Therefore in consideration of the expenses liable to be met with by him in future, the Tribunal ought to have awarded a reasonable sum towards future treatment expenses. According to him the petitioner was at the verge of promotion to the next cadre and the written examination scheduled to be held on 27.05.2007 could not be attended by him due to the motor accident. Therefore, he had lost his seniority in the list for promotion and thereby his further promotions will also be delayed. The letter for the written examination scheduled on 27.05.2007 was produced and marked in evidence as Ext.A19. He had also requested the Chairman to consider his promotion excluding the marks in the promotion test and to grant him another opportunity to attend a second test. It is MACA No. 1463 of 2014 -:8:- established from Ext.A17 produced by him that admission card for another examination held on 17.02.2008 was issued to him for promotion. Thus it is clear that the non-appearance of the petitioner for the examination on 27.05.2007 had adverse impact on his future prospects. According to him the Tribunal failed to advert to those aspects and thereby he is aggrieved. It is further contended by the learned counsel that though ₹5,50,000/- was claimed as compensation for permanent disability and loss of earning power and a disability certificate issued by PW2 was produced and marked in evidence as Ext.A14, where 17% was assessed as the permanent disability of the petitioner, the Tribunal failed to award adequate compensation under those heads. The learned counsel has also canvassed for grant of a higher sum as compensation towards pain and suffering and loss of amenities and enjoyments in life. Accordingly interference with the impugned award and modification of the compensation stood awarded is sought. 11. It is found from the impugned award that the Tribunal had granted compensation for loss of earning for 60 days. As revealed from Ext.A13 and Ext.X3 series, the MACA No. 1463 of 2014 -:9:- petitioner had availed sick leave with half pay for 60 days. It was certified by PW1 in Ext.A13 that he was getting ₹21,886/- as gross salary from United India Insurance Co. Ltd. The treatment as IP continued for a long duration. The net salary was certified in Ext.A13 as ₹12,888/-. In the said context, the salary payable to him towards sick leave with half pay will be ₹21,886/- (₹12,888/- x 2). He had also availed earned leave for 40 days and 60 days medical leave with half pay. Therefore, ₹72,953/- (₹21886/-/30 x 40 + Rs.21,886/- x 2)) is arrived at. Thus a total sum of ₹94,839/- (₹72,953/- + ₹21,886/-) is found payable as compensation towards loss of earning. ₹49,526/- stood awarded by the Tribunal when adjusted against the sum now arrived at, petitioner will get ₹45,313/- as additional compensation towards loss of earning. 12. Though a claim for future treatment expenses was raised and the Tribunal has awarded ₹15,000/-, the claim of the petitioner for future treatment was not supported by any evidence. Therefore, this Court is declined to modify the same and ₹15,000/- stood awarded is maintained. Petitioner had sustained fracture of two teeth, wound on Dento Alveolar MACA No. 1463 of 2014 -:10:- Region and fracture of ribs 3 to 5 left and fracture of femur left. Petitioner had undergone 7 different spells of hospitalisation at Moulana Hospital, Petinthalmanna and later at Thankom Hospital, Palakkad. He had undergone a surgical procedure as part of treatment and was also advised to undergo a surgery for implant removal. It is disclosed from Ext.A14, the certificate assessing his disability by PW2 that fracture of femur was mal-united with excess callus on the anterior aspect, stiffness of left knee joint with flexion from 180 to 200, wasting of left thigh muscles 3 cm with loss of grade I power, stiffness of left hip with loss of 30 degree flexion and shortening of left thigh segment. Difficulty in squatting, running, climbing and walking is also noticed by PW2 during examination of the petitioner. 12. The permanent disability of the petitioner was assessed as 17%. As per Ext.A13 the petitioner had a net salary of ₹12,888/-. The petitioner has not produced any authentic document to prove his age. But in the medical documents his age being reported as 47 years, the same is taken for the purpose of calculation of compensation. Petitioner being aged 47 years and employed permanently MACA No. 1463 of 2014 -:11:- with a fixed salary, in view of **National Insurance Company Limited v. Pranay Sethi [2017 (4) KLT 662 (SC)]** , 30% is added to the monthly income in consideration of loss of future prospects and thus **₹16,754/(₹12,888/** - x 30/100 + ₹12,888/-) is arrived at. 17% was the disability adopted by the Tribunal and this Court maintains that. 9 adopted by the Tribunal as multiplier being incorrect, is substituted by 13. In the reassessment of compensation for permanent disability, ₹4,44,316/(₹16,754/- x 12x 13 x 17/100) is arrived at. Tribunal has awarded ₹1,50,000/- as compensation towards permanent disability and that when deducted from the above sum, the petitioner will get ₹2,94,316/- as additional compensation under that head. 13. The Tribunal has awarded ₹91,800/- as compensation for loss of earning power without any evidence being adduced by the petitioner in that respect. Petitioner did not mount the box to depose about his loss of earning power following the sufferings in the motor accident. PW1 also did not speak about loss of seniority of the petitioner due to the motor accident. It was found pleaded in the Original MACA No. 1463 of 2014 -:12:- Petition that since the petitioner had met with a motor accident, he could not attend the written examination scheduled on 27.05.2007. It has also been revealed from the pleadings of the petitioner that a request was made by him to the Chairman to consider his promotion excluding his marks in the promotion test or to grant an opportunity to him to attend another test. Ext.A17 marked in evidence by the petitioner would show that he was issued with another admission card to attend an examination for promotion scheduled to be held on 17.02.2008. In the above circumstances there is absolutely no evidence on record to establish the pleading of the petitioner in the Original Petition that his seniority was overlooked on account of his failure to attend the examination held on 27.05.2007. Therefore, the contention in that regard is repelled. The petitioner in the context of the evidence on record is not entitled to get any compensation for loss of earning power. For being entitled to get compensation under the head loss of earning power, the petitioner must have mounted the box to depose that on account of the injury sustained in the motor accident and its complications, he was restrained from attending the job he MACA No. 1463 of 2014 -:13:- was doing at the time of the motor accident or any other job. From the evidence of PW1 this Court is convinced that the petitioner is still in service. Therefore, the Tribunal is highly unjustified in awarding ₹91,800/- as compensation towards loss of earning power. 14. In the backdrop of the discussion made hereinabove this Court finds that compensation stood awarded under bystander expenses, transportation expenses, extra nourishment and pain and suffering are inadequate and disproportionate. In the said circumstances this Court awards ₹11,800/- more as compensation towards bystander expenses, ₹5,000/- more towards transportation expenses, ₹3,200/- more towards extra nourishment and ₹10,000/more towards pain and suffering. The Tribunal failed to award any sum as compensation towards loss of amenities and enjoyments in life. Therefore this Court awards ₹25,000/under that head. 15. In the above manner of assessment afresh, petitioner will get ₹4,78,074/- (Rupees Four lakhs seventy eight thousand and seventy four only) (₹1,28,758/- + ₹2,94,316/- + ₹11,800/- + ₹3,200/- + ₹10,000/- MACA No. 1463 of 2014 -:14:- ₹25,000/- + ₹5,000/-) as additional compensation which 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. 3[rd] respondent being the insurer shall pay the additional compensation with interest accrued on it at the rate fixed and the original compensation stood awarded by the Tribunal with interest fixed on it (if not already paid) and costs, in favour of the petitioner 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. is allowed accordingly. Sd/- **MARY JOSEPH,** ## ttb The judgment dated 21.11.2023 in MACA No.1463/2014 stands modified as per order dated 12.02.2024 in RP No.6/2024 in MACA No. 1463/2014 as follows: Instead of paragraph 11 in the judgment dated 21.11.2023 in MACA No.1463/2014, the following paragraph is substituted: “It is found from the impugned award that the Tribunal had granted compensation for loss of earning for 60 days. As revealed MACA No. 1463 of 2014 -:15:- from Ext.A13 and Ext.X3 series, the petitioner had availed sick leave with half pay for 60 days. The net salary of the petitioner was certified in Ext.A13 as `12,888/-. Therefore, `25,776/(`12,888/30x60) is arrived at and that is payable as compensation towards loss of earning. `49,526/- being the sum stood awarded by the Tribunal under that head, `23,750/- is liable to be deducted from the total additional compensation arrived at as payable.” In paragraph 15 of the judgment, the figures and letters “`4,78,074/- (Rupees Four lakhs seventy eight thousand and seventy four only) (`1,28,758/- + `2,94,316/- + `11,800/- + `3,200/- + `10,000/- + `25,000/- + `5,000/-)” are substituted by the figures and letters, `3,25,566/- (Three lakhs twenty five thousand five hundred and sixty six only) [(`2,94,316/- + `11,800/- + `3,200/- + `10,000/- + `25,000/- + `5,000/-) - `23,750/-]”. Sd/Joint Registrar