V.P. Salim v. The New India Assurance Co. Ltd.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.HARILAL WEDNESDAY, THE 11TH DAY OF APRIL 2018 / 21ST CHAITHRA, 1940 MACA.No. 1661 of 2015 AGAINST THE AWARD IN OPMV 1695/2012 of ADDL.MOTOR ACCIDENTS CLAIMS TRIBUNAL-IV, ERNAKULAM DATED 27-11-2014 APPELLANT(S)/PETITIONER IN OPMV V.P.SALIM S/O.PAREED, ELENJIPILLY HOUSE, KUMBALAM P.O., PANANGAD, ERNAKULAM DISTRICT, PIN-682506. BY ADVS.SRI.K.K.APPU SRI.ISAC SANJAY RESPONDENT(S)/R3 IN OPMV: THE NEW INDIA ASSURANCE CO.LTD BRANCH OFFICE, 2ND FLOOR, YASORAM VICTORIA, BANERJI ROAD, KACHERIPPADY, ERNAKULAM, KOCHI-682018. BY ADV. SRI.P.JACOB MATHEW BY SRI.A.A.ZIYAD RAHMAN THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 11-04-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **K.Harilal, J.** ==================================== M.A.C.A.No.1661/2015 ==================================== Dated this the 11[th] day of April, 2018. ## **JUDGMENT** 1. The appellant is the claimant/petitioner in O.P(MV) No.1695/2012 of the Motor Accidents Claims Tribunal-IV, Ernakulam (hereinafter referred to as 'the Tribunal'). The aforesaid application was filed under Section 166 of the Motor Vehicles Act, claiming compensation for the bodily injuries suffered by him in a road traffic accident. According to him on 11.3.2012 at about 6.50 pm., while he was riding on the pillion of the scooter ridden by the first respondent, the vehicle capsized and the claimant sustained serious injuries therefrom. The second respondent is the owner of the scooter and the third respondent is the insurer of the said scooter. The third Maca1661/2015 ## -:2:- respondent Insurance Company opposed the said application, disputing the quantum of compensation claimed under various heads of claim, but admitted the coverage of the insurance policy. 2. After considering the evidence on record, the Tribunal passed the impugned award, granting ₹9,29,329/- to the petitioner, as compensation. The adequacy and correctness of the quantum of compensation, determined under various heads of claim, are challenged in this appeal. 3. Heard the learned counsel for the petitioner and the learned counsel for the third respondent Insurance Company. - 4.The learned counsel for the appellant contended that the quantum of monthly income determined by the Tribunal is very low and the Tribunal has omitted to consider the loss of future Maca1661/2015 -:3:- prospects. Further, it is contended that the compensation granted for future treatment is inadequate and the compensation for loss of amenities also requires enhancement. 5.Per contra, the learned counsel for the insurance company submits that there is no scope for any interference with the quantum of compensation granted under various heads of claim. According to the learned counsel, the amount determined as monthly maintenance is just and fair. So also the Tribunal has granted considerable amount for future treatment and there is no reason to enhance the amount granted for future treatment. 6.In view of the arguments at the bar, the point to be considered is, whether the Tribunal is justified in determining the quantum of monthly Maca1661/2015 -:4:- income and the compensation for future treatment, loss of amenities and permanent disability. According to the appellant, he was aged 43 years and self-employed in wood churning and housekeeping at the time of accident. No evidence has been adduced to substantiate the exact income of the appellant at the time of accident. In the above circumstances, the Tribunal is justified in taking a notional income, to calculate the loss of earnings and permanent disability. Is the Tribunal justified in fixing the quantum of notional income. In _**Ramachandrappra v. Manager, Royal Sundaram Alliance Insurance Co.Ltd.**_ **[2011 (13) SCC 236]** , the Supreme Court held that in the absence of sufficient evidence to prove the exact income of the claimant, Maca1661/2015 ## -:5:- `3,500/- to `4,500/- can be fixed as the notional income per month in a claim for compensation under the Motor Vehicles Act. In the said decision, the accident was one occurred in the year 2004. In the instant case, the accident had occurred in the year 2012. Having regard to the long lapse of eight years after _**Ramachandrappra**_ 's case, this Court is of the view that the Tribunal is not justified in fixing ₹4,000/- as the monthly income of the petitioner. Consequently, the monthly notional income of the petitioner would stand enhanced to ₹7,000/- per month. 7.In _**Royal Sundaram Alliance Insurance Co.Ltd. v.**_ _**Moorthy and another**_ **[2014 ACJ 2418],** the Supreme Court held that in the case of fatal accident also, loss of future prospects can be Maca1661/2015 -:6:- counted for determining the monthly income of the claimant. Therefore, the Tribunal is not justified in omitting loss of future prospects of the petitioner. In the instant case, the petitioner was aged 46 years at the time of accident. Having regard to the age of the petitioner, the future prospects also requires to be considered and taken at 25% and I do so. Therefore, the monthly income of the petitioner, including loss of future prospects also would stand enhanced to ₹8,750/-. Thus, the petitioner is given ₹84,000/- (7000 x 12) towards loss of earnings and ₹3,67,500/(8750x12x14x25/100) as compensation for permanent disability. The Tribunal has granted ₹40,000/- for pain and sufferings and ₹20,000/for loss of amenities. Considering the Maca1661/2015 ## -:7:- - duration of treatment as an inpatient and the gravity of the injuries sustained, the Tribunal is justified in determining the compensation for pain and sufferings. But, the Tribunal is not justified in fixing the compensation for loss of amenities. In view of the degree of disability certified at 25%, the compensation for loss of amenities would stand enhanced to ₹30,000/-. - 8.The learned counsel for the petitioner strenuously contended that after the discharge from the hospital, the petitioner was continuing his treatment and huge amount was being spent per month for future treatment. Therefore, the amount granted for future treatment is not sufficient. The petitioner filed I.A.No. 1365/2018 with Annexures A to D, Maca1661/2015 -:8:- to substantiate the contention that after the discharge from the hospital, the petitioner has been continuing his treatment and it is a life long treatment, which requires considerable amount per day for medicines. Annexure-D is the certificate issued from Medical Trust Hospital, Ernakulam and it is stated in the certificate that the petitioner's case is a known case of post traumatic seizure disorder on multiple antiepileptics. “He is presently on regular OPD follow up. Still having breakthrough seizure. He is on Tab. Eptoin ER 300 mg. HS/Tab Levenue 500mg BD and Tab.Frisium 5mg HS”. The certificate is seen issued on 26.2.2018. - 9.Having regard to the continuous treatment shown in Annexure-D, the compensation for future Maca1661/2015 -:9:- treatment will stand enhanced to ₹1,00,000/-. The total compensation payable to the petitioner is summed up as given below: |Compensation for loss of earnings|84000| |---|---| |Transport to hospital|5000| |Extra-nourishment|3000| |Damage to clothing|1000| |Treatment expenses|4,97,749| |Bystander expenses|10500| |Future treatment|1,00,000| |Compensation for pain and sufferings|40000| |Compensation for permanent disability|367500| |Compensation for loss of amenities|30000| |Total|11,38,749| 10. Thus the total compensation payable to the petitioner is ₹2,09,420/- (11,38,749-9,29,329). It is needless to say, the total compensation would carry interest as stipulated by the Tribunal. All other findings of the Tribunal would stand undisturbed and operative. The third respondent insurance company is directed to deposit the entire compensation payable to Maca1661/2015 ## -:10:- the petitioner within three months from today. The appellant/petitioner is allowed to withdraw the entire compensation, after paying court fee. 11. The MACA is disposed of accordingly. Sd/- **K.Harilal, Judge** sl. //True copy// P.S. To Judge