Wilson s/o Poulose v. Thareeyath and The Manager, National Insurance Company Ltd.

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MRS. JUSTICE SOPHY THOMAS MONDAY, THE 1[ ST ] DAY OF APRIL 2024 / 12TH CHAITHRA, 1946`** ## **`MACA NO. 1261 OF 2014`** ``` AGAINST THE ORDER/JUDGMENT DATED 24.02.2014 IN OPMV NO.732 OF 2009 OF MOTOR ACCIDENT CLAIMS TRIBUNAL , IRINJALAKUDA ``` ## **`APPELLANT/PETITIONER:`** ``` WILSON S/O.POULOSE, PALLITHARA HOUSE, MAPRANAM DESOM, MADAYIKONAM VILLAGE, P.O., MUKUNDAPURAM TALUK, THRISSUR DISTRICT. ``` ``` BY ADV SRI.V.BINOY RAM ``` ## **`RESPONDENTS/RESPONDENTS:`** ``` 1 THAREEYATH S/O.JACOB @ CHAKKAPPAN, VITHAYATHIL HOUSE, CHERUMUNDASSERY DESOM, AMBALAPPARA VILLAGE, OTTAPPALAM TALUK, PALAKKAD DISTRICT, PIN - 679 512. ``` ## **`2 THE MANAGER`** ``` NATIONAL INSURANCE COMPANY LTD., DIV. NO.10, FLAT NO.101-106, N-1, BMC HOUSE, CONNAUGHT PLACE, NEW DELHI, PIN - 110 001. ``` ``` BY ADVS. SRI.AGI JOSEPH K.S.SANTHI ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 01.04.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` MACA 1261 OF 2014 2 ## **J U D G M E N T** ``` This appeal is filed by the petitioner in OP(MV) No.732 of 2009 on the file of Motor Accidents Claims Tribunal, Irinjalakuda, challenging the award on the ground of inadequacy of compensation. ``` ``` 2. The appellant met with a road traffic accident on 24/5/2009 at about 3.00 pm, while he was standing in front of a shop near Mapranam Lal Memorial Hospital. KL 42/A 1111 Maruti car driven by the 1 st respondent in a rash and negligent ``` ``` manner, knocked him down whereby he sustained serious injuries including amputation of his left leg above knee. He suffered permanent disability also due to that incident. He was a taxi driver aged 45 years, earning monthly income of ``` MACA 1261 OF 2014 ``` Rs.5,000/-. He approached the Tribunal claiming compensation of Rs.12 lakh. But leaned Tribunal awarded only Rs.8,85,100/-, and hence this appeal. ``` ``` 3. The 1st respondent was the owner cum driver ``` ``` of the offending Maruti car. The 2nd respondent was ``` ``` the insurer. The 1st respondent remained ex-parte ``` ``` before the Tribunal. The 2 nd respondent contested the case, but admitted the policy during the period ``` ``` of accident. ``` `4. In the appeal, notice to 1 st respondent was` ``` dispensed with, as the 2 nd respondent/insurer ``` ``` entered appearance, and admitted the policy. ``` MACA 1261 OF 2014 4 `5. Now this Court is called upon to find out` ``` whether there is any irregularity, illegality or ``` ``` impropriety in the impugned award warranting ``` ``` interference by this Court. ``` ``` 6. Heard learned counsel for the appellant and learned counsel for the 2 nd respondent insurer. ``` `7. The main grievance of the appellant is that,` ``` though he was earning monthly income of Rs.5,000/- ``` ``` as a taxi driver, learned Tribunal fixed his ``` ``` notional income at Rs.4,000/- only. He produced ``` ``` Ext.A8 letter issued from INTUC, Irinjalakuda ``` ``` branch showing that, he was a member of taxi ``` MACA 1261 OF 2014 5 ``` driver’s union, Mapranam Unit. Ext.A9 is his driving license. Ext.A13 is the RC particulars of ``` ``` the vehicle, in which he was working as a driver. ``` ``` PW2 was examined to prove his monthly income. Anyhow, since he was a taxi driver by profession, his income may fluctuate,and he may not have been ``` ``` getting a fixed amount as his monthly income. According to the appellant, he was earning monthly ``` ``` income of Rs.5,000/-. As per the decision ``` ``` Ramachandrappa v. Manager, Royal Sundaram Alliance ``` ``` Insurance Company Limited [AIR 2011 SC 2951] , even ``` ``` a coolie worker was entitled to get his notional ``` MACA 1261 OF 2014 6 ``` income fixed in the year 2009 @ Rs.7,000/- per ``` ``` month. Considering that aspect, the appellant is ``` ``` entitled to get his monthly income fixed @ ``` ``` Rs.5,000/- as claimed by him. ``` ``` 8. Exhibit A7 disability certificate shows ``` ``` that, he suffered permanent disability of 58%. ``` ``` Since he was a taxi driver by profession, ``` ``` amputation of his left leg above the knee may ``` ``` amount to functional disability even more than ``` ``` that. Learned Tribunal fixed his disability at 85% ``` ``` for assessing compensation for permanent disability. Since he was not able to do the job of ``` MACA 1261 OF 2014 7 ``` a driver anymore, this Court is inclined to give ``` ``` future prospects also in tune with the guidelines ``` ``` given in National Insurance Company Ltd. v. Pranay ``` ``` Sethi and Others, [(2017) 16 SCC 680] . Since he was ``` ``` self-employed, and aged below 50 years, he was ``` ``` eligible to get an addition of 25%, towards future ``` ``` prospects. So his notional income for computing ``` ``` compensation for permanent disability can be taken ``` ``` as Rs.6,250/-(5,000+25%). The multiplier applicable ``` ``` is 14, as he was aged 45. So for permanent ``` ``` disability of 85%, he is eligible to get ``` ``` compensation of Rs.8,92,500/-(6,250x14x12x85%). He ``` MACA 1261 OF 2014 8 ``` was already awarded Rs.4,48,800/- as compensation ``` ``` for permanent disability. After deducting the same, ``` ``` he is entitled to get the balance amount of ``` ``` Rs.4,43,700/- as enhanced compensation for ``` ``` permanent disability. ``` ``` 9. Learned Tribunal assessed loss of earning for ``` ``` six months @ Rs.4,000/-. This Court has fixed his ``` ``` monthly income @ Rs.5,000 as claimed by him. On ``` ``` computing loss of earning, at that rate for six months, he is eligible to get Rs.30,000/-. Deducting Rs.24,000/- already awarded, he is entitled to get the balance Rs.6,000/-. ``` MACA 1261 OF 2014 9 ``` 10. Towards extra nourishment, though the ``` ``` appellant claimed Rs.25,000/-, learned Tribunal ``` ``` awarded only Rs.500/-. The appellant was ``` ``` hospitalized for 41 days with crushed injury on ``` ``` both legs, and left leg was amputated initially below knee, and subsequently it became gangrenous, ``` ``` and so it was amputated above knee. During the ``` ``` period of hospitalization, he might have been under ``` ``` extra care and nourishment, and considering that ``` ``` fact, this Court is inclined to award an addition ``` ``` of Rs.5,000/-, towards extra nourishment. ``` ``` 11. The compensation awarded under all other ``` MACA 1261 OF 2014 10 ``` heads seems to be reasonable, and so it needs no ``` ``` modification. ``` ``` 12. The enhanced compensation awarded in this ``` ``` appeal is stated in the table below:- ``` |`Head of`<br>`claim`|`Amount`<br>`awarded by`<br>`the`<br>`Tribunal`|<br>`Amount`<br>`awarded in`<br>`appeal`|`Difference`<br>`to be drawn`<br>`as enhanced`<br>`compensation`| |---|---|---|---| |`Loss of`<br>`earning`|`24,000/-`<br>`(4,000x6)`|`30,000/-`<br>`(5,000x6)`|`6,000/-`| |`Permanent`<br>`Disability`|`4,48,800/-`|`8,92,500/-`|<br>`4,43,700/-`| |`Extra`<br>`nourishment`|`500/-`|`+5,000/-`|`5,000/-`| |`TOTAL Rs.4,54,700/-`|||| ``` 13. So the appellant is entitled to get ``` MACA 1261 OF 2014 11 ``` enhanced compensation of Rs.4,54,700/- (4,43,700 + ``` ``` 6,000 + 5,000) as enhanced compensation. ``` ``` 14. The 2 nd respondent/insurer is directed to deposit the enhanced compensation in the bank account of the appellant, with 7.5% interest per annum, from the date of petition till the date of deposit within a period of two months from the date of receipt of a copy of this judgment. The deposit must be in terms of the directives issued ``` ``` by this Court in Circular No.3 of 2019 dated ``` ``` 06/09/2019 and clarified in O.M.No.D1/62475/2016 ``` ``` dated 07/11/2019 after deducting the liabilities, ``` MACA 1261 OF 2014 12 ``` if any, of appellant towards Tax, balance court fee ``` ``` and legal benefit fund. ``` ``` The appeal is allowed to the extent as above, and no order is made as to costs. ``` ``` Sd/- ``` ``` ska ``` ``` SOPHY THOMAS, JUDGE ```