Allowed

Shijo Joseph v. Sreekumar

Kerala HC5 Nov 2020MACA/2827/2014

Case brief

AI extract

What is this about?

The High Court disposed of two Motor Accident Claims Appeals. It upheld the Tribunal's finding that the insurance company is liable despite alleged procedural irregularities regarding the driver's license and insurance validity. The Court enhanced compensation for loss of earning capacity by accepting a higher monthly income and awarding future prospects, dismissing the insurer's appeal and allowi

What did the court decide?

M.A.C.A.No.1168 of 2014 dismissed; M.A.C.A.No.2827 of 2014 allowed with enhancement of compensation to Rs.9,23,640/-; insurer directed to deposit additional amount.

Shijo Joseph Vs Sreekumar — Motor Accident Claims | Kerala HC (2020)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶2

PRESENT

¶3

THE HONOURABLE MR.JUSTICE C.S.DIAS

¶4

THURSDAY, THE 05TH DAY OF NOVEMBER 2020 / 14TH KARTHIKA, 1942

¶5

MACA.No.1168 OF 2014

¶6

AGAINST THE AWARD IN OPMV 1046/2009 DATED 31-01-2014 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,KOTTAYAM

¶7

APPELLANT/S:

¶8

RELIANCE GENERAL INSURANCE CO. LTD ERNAKULAM, REP. BY ITS DEPUTY MANAGER, REGIONAL OFFICE ERNAKULAM

¶9

BY ADVS. SRI.GEORGE CHERIAN (SR.) SMT.LATHA SUSAN CHERIAN SMT.K.S.SANTHI

¶10

RESPONDENT/S:

¶11

1 SHIJO JOSEPH ALUNKAL HOUSE, ARPOOKKARA VILLAGE, KOTTAYAM 686001

¶12

2 SREEKUMAR NAMBOORIYIL HOUSE, NARAIYAMPARA KARA, AYYAPPAN COIL, IDUKKI 685602

¶13

3 REMA SASIDHARAN AZHAKATTU HOUSE, NARIYAMPARA PO, IDUKKI 685602

¶14

R1 BY ADV. SMT.ACHU SUBHA ABRAHAM R1 BY ADV. SMT.CHITHRA CHANDRASEKHARAN R1 BY ADV. SMT.K.R.MONISHA R1 BY ADV. SRI.PHILIP T.VARGHESE R1 BY ADV. SRI.THOMAS T.VARGHESE

¶15

MACA.No.1168 & 2827 OF 2014

¶16

..2..

¶17

THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 04-11-2020, ALONG WITH MACA.2827/2014(C), THE COURT ON 05-11-2020 DELIVERED THE FOLLOWING:

¶18

MACA.No.1168 & 2827 OF 2014

¶19

..3..

¶20

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶21

PRESENT

¶22

THE HONOURABLE MR.JUSTICE C.S.DIAS

¶23

THURSDAY, THE 05TH DAY OF NOVEMBER 2020 / 14TH KARTHIKA, 1942

¶24

MACA.No.2827 OF 2014

¶25

AGAINST THE AWARD IN OPMV 1046/2009 DATED 31-01-2014 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,KOTTAYAM

¶26

APPELLANT/S:

¶27

SHIJO JOSEPH AGED 39 YEARS ALUNKAL HOUSE, ARPOOKKARA VILLAGE, KOTTAYAM

¶28

BY ADVS.

¶29

SRI.PHILIP T.VARGHESE SMT.ACHU SUBHA ABRAHAM SRI.THOMAS T.VARGHESE

¶30

RESPONDENT/S:

¶31

1 SREEKUMAR NAMBOORIYIIL HOUSE, NARAYAMPARA KARA, AYYAPPAN COVIL, IDUKKI 685511

¶32

2 THE RELIANCE GENERAL INSURACE CO LTD ERNAKULAM 686020

¶33

3 SAMINATHAN KUMAR KOIL STREET, THIRUVANNAMALAI, TAMILNADU 606601

¶34

4 THE ORIENTAL INSURACE CO LTD KOTTYAM 686001

¶35

MACA.No.1168 & 2827 OF 2014

¶36

..4..

¶37

5 REMA SASIDHARAN AZHAKKATTU HOUSE, NARIYAMPARA P.O, IDUKKI 685511

¶38

6 RAMESH 9TH STREET, 9D-IBV VOC NAGAR, THIRUVANNAMALA TALUK,, TAMILNADU 606603

¶39

R1 BY ADV. SRI.GEORGE CHERIAN SR. R1, R4 BY ADV. SRI.P.JACOB MATHEW R1 BY ADV. SMT.LATHA SUSAN CHERIAN R1 BY ADV. SRI.MATHEWS JACOB SR. R1 BY ADV. SMT.K.S.SANTHI R2 BY ADV. SRI.GEORGE CHERIAN (SR.)

¶40

THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 04-11-2020, ALONG WITH MACA.1168/2014, THE COURT ON 05-11-2020 DELIVERED THE FOLLOWING:

¶41

MACA.No.1168 & 2827 OF 2014

¶42

..5..

¶43

COMMON JUDGMENT

¶44

[ MACA.1168/2014 & MACA.2827/2014 ] Dated this the 5^th day of November 2020

¶45

The appellant in M.A.C.A.No.1168 of 2014 ―the

¶46

― insurance company was the 3rd respondent in O.P.(M.V.) No.1046 of 2009 of the Motor Accidents Claims Tribunal, Kottayam. The appellant in M.A.C.A. No.2827 of 2014 was the petitioner in the above claim petition. The appellants in both the appeals are aggrieved by the award dated 31.01.2014 passed by the Tribunal. As the appeals arise out of the same award passed in connection with the injuries sustained by the appellant in M.A.C.A. No.2827 of 2014, they were consolidated and jointly heard and are being disposed of by this common judgment. The parties are, for the sake of convenience, referred to as per their litigate status in the claim petition.

¶47

The petitioner had filed a claim petition under Section 166 of the Motor Vehicles Act, 1988 claiming

¶48

MACA.No.1168 & 2827 OF 2014

¶49

compensation on account of the injuries that he sustained in the accident that took place on 11.10.2008.

¶50

The case of the petitioner in the claim petition, in brief, is that on 11.10.2008, while he was travelling in the jeep bearing Regn. No.KL-06/D-651, which was driven by the 1^st respondent in a rash and negligent manner at excessive speed, when the vehicle reached in front of the Farmers Cooperative Society Bank on the KanjirappallyKottayam route, the car bearing Regn. No.TN-25/H-2500 driven by the 4^th respondent in a rash and negligent manner lost control and hit the jeep. The petitioner suffered serious injuries and he was treated as an inpatient from 11.10.2008 to 31.10.2008 at the Medical College Hospital, Kottayam. The petitioner suffered a head injury and also fractures of the frontal bone, temporal bone, sphenoid, zygomatic arch and medial wall of the orbit. There was a CSF leak from the forehead, CSF rhinoria, epidural hematology and acute hemorrhagic etc. The petitioner was 34 years of age and

¶51

..7..

¶52

MACA.No.1168 & 2827 OF 2014

¶53

was working as a mason under a civil contractor. He was getting a monthly income of Rs.7,500/-. Due to the injuries that he sustained in the accident, the petitioner was not in a position to carry on with his avocation. He is permanently disabled and deprived of earning power and has lost all his amenities and comforts in life. He was subjected to two surgeries for rectification of the ophthalmic nerves. The accident occurred due to the rash and negligent driving of the 1^st and 4^th respondents. The jeep belonged to the 2^nd respondent and the car belonged to 4^th respondent. The vehicles were insured with the respondents 3 and 5, respectively. Therefore, the respondents are jointly and severally liable to pay compensation to the petitioner. The petitioner was entitled for compensation to the tune of Rs.8,02,000/-, which he limited to Rs.7,00,000/-.

¶54

Respondents 1,6 and 7 were set ex parte. The 3^rd respondent filed a written statement, inter alia, contending that the jeep was not having insurance

¶55

MACA.No.1168 & 2827 OF 2014

¶56

..8..

¶57

coverage on the date of accident. The jeep was in the possession and control of the 1^st respondent, who was not having a valid licence to drive a transport vehicle. The 2^nd respondent, who was no more, was not having any interest over the vehicle. Therefore, the 3^rd respondent was not liable to pay compensation to the petitioner.

¶58

The 4^th respondent filed a written statement, inter alia, contending that the car belonged to him and it was driven by the additional 7^th respondent. There was no rashness or negligence on the part of the 7^th respondent in driving the car. The accident occurred due to the rash and negligent driving of the jeep by the 1^st respondent.

¶59

― 6. The 5^th respondent the insurance company of ― the car admitted the policy. It was contended that the accident occurred solely due to the negligence of the 1^st respondent, who was not duly licensed to drive the vehicle. The 4^th respondent who drove the car, was not

¶60

MACA.No.1168 & 2827 OF 2014

¶61

..9..

¶62

having a valid and effective licence.

¶63

The petitioner and a witness were examined as PWs 1 and 2. Exhibits A-1 to A-14 were marked through them. Exhibit B-1 was marked on the side of the respondents. Exhibit X-1 disability certificate was also marked in evidence.

¶64

After considering the pleadings and materials on record, the Tribunal by the impugned award, came to the conclusion that the accident occurred due to the rashness on the part of the 1^st respondent. Therefore, the 3^rd respondent being the insurer of the offending vehicle was directed to indemnify the 2^nd respondent and pay a compensation of Rs.5,02,000/- with interest at the rate of 8.5% from 20.08.2009 till the date of realisation and proportionate costs.

¶65

The comparative table of compensation that was claimed by the petitioner and that was awarded awarded by the Tribunal is as follows:-

¶66

MACA.No.1168 & 2827 OF 2014

¶67

..10..

¶68

Sl. No.	Head of claim	Amount claimed	Amount awarded
1	Loss of earnings	70,000	27,000
2	Partial loss earnings	14,000	Nil
3	Transport to hospital	2,000	2,000
4	Extra nourishment	3,000	2,000
5	Damage to clothings	1,000	500
6	Bystander expenses	12,000	9,000
7	Medical expenses	1,25,000	45,500
8	Pain and sufferings	75,000	30,000
9	Loss of amenities, discomforts and inconvenience in life	1,00,000	40000
10	Loss of earning capacity	1,00,000	3,45,600
11	Continuing permanent disability	1,00,000	Nil
	Total	Rs.8,02,000 limited to Rs.7,00,000/-	Rs.5,01,600/- rounded to 5,02,000/-

¶69

A dispute was also raised by the 3^rd respondent that the offending vehicle driven by the 1^st respondent was not having a valid insurance coverage and that the 1^st respondent was not having a badge to drive a transport vehicle. The Tribunal after considering Exhibit A-2 final report filed by the Police came to the conclusion that the vehicle was covered by the 3^rd respondent and that the want of badge to drive a transport vehicle was no longer a valid ground in view of the law laid down in 2011 (4)

¶70

MACA.No.1168 & 2827 OF 2014

¶71

..11..

¶72

ACJ 1104. Therefore, the said issue was answered against the 3^rd respondent.

¶73

Aggrieved by the finding that the 3^rd respondent was liable to pay the compensation, the 3^rd respondent has preferred MACA No.1168 of 2014. The petitioner who is dissatisfied with the quantum of compensation awarded by the Tribunal has preferred M.A.C.A. No.2827 of 2014.

¶74

Heard the learned counsel appearing for the appellant/3^rd respondent and the learned counsel appearing for the appellant/petitioner.

¶75

The points that arise for consideration in this appeal are:-

¶76

(i) Whether the 3^rd respondent is liable to indemnify the 2^nd respondent and pay compensation to the petitioner on the ground that the vehicle did not have insurance coverage and that the 1^st respondent did not have a valid badge to drive the transport vehicle?

¶77

(ii) whether the compensation awarded by the

¶78

MACA.No.1168 & 2827 OF 2014

¶79

Tribunal is reasonable and just?

¶80

Point No.1

¶81

On going through the claim petition, it is seen that the petitioner had specifically pleaded in the cause title that the jeep bearing Regn.No.KL-06/D-651the (offending vehicle) was covered by a policy bearing No.200701979880 which was valid till 29.01.2009. The Police after investigation, in Exhibit A-2 charge sheet dated 31.10.2008, has specifically found that the offending vehicle was having a valid insurance coverage as per policy No.200701979880 valid till 29.01.2009, which is the same policy as mentioned in the claim petition.

¶82

The 3^rd respondent filed a written statement making a bald assertion that the offending vehicle was not insured with the 3^rd respondent. It was also contended that the 1^st respondent was not having a valid badge, on the date of accident, to drive a transport vehicle. So there is willful violation of the policy conditions.

¶83

MACA.No.1168 & 2827 OF 2014

¶84

..13..

¶85

The 3^rd respondent filed I.A.No.4521 of 2011, seeking a direction to the 1^st respondent ― the driver, to produce the policy of the vehicle bearing Regn. No. KL06/651 as on 11.10.2008. The Tribunal by its order dated 27.07.2013 dismissed the application, holding that the 1^st respondent against whom the direction is sought for is exparte and that only a contesting party can be directed to produce documents in his custody. It was also held that if the number given in the petition is not the policy of the 3^rd respondent, the 3^rd respondent should substantiate its assertion by producing the relevant document.

¶86

Undisputedly the above order has become final. Moreover, other than for making the bare plea, the 3^rd respondent had not mounted the box and let in any evidence to substantiate its defence.

¶87

The Division Benches of this Court in New India Assurance Company Ltd. v. Pazhaniammal [2011 (3) KLT 648] and National Insurance Company Ltd. v. Ramla and others [2016 (4) KHC 891] have

¶88

MACA.No.1168 & 2827 OF 2014

¶89

..14..

¶90

succinctly laid down the law that the production of charge sheet is prima facie evidence of negligence.

¶91

It was held in New India Assurance

¶92

Company Ltd. v. Pazhaniammal as follows:-

¶93

“7. In this context we feel it appropriate to refer to the practice adopted by many Tribunals in the State. Wherever a crime has been registered in respect of the accident and the investigation has culminated in the filing of a charge sheet by the police, such charge sheet is filed and the same is reckoned as sufficient to establish negligence on the part of the indictee. The practice has not received formal judicial approval and hence some Tribunals insist on oral evidence in support of negligence invariably. This consumes a lot of judicial time and the heavily over worked Tribunal spends its time on unnecessary oral evidence of negligence. We would certainly not want the Tribunals to be prisoners of the conclusions of police officers. If the Tribunal finds it suspicious, it can insist for better evidence. But as a general rule it can safely be accepted that production of the police charge sheet is prima facie sufficient evidence of negligence for the purpose of a claim under Section 166 of the Motor Vehicles Act. A system cannot feed itself on a regular diet of distrust of the police. Prima facie, charge sheet filed by a police officer after due investigation can be accepted as evidence of negligence against the indictee. If any one of the parties do not accept such charge sheet, the burden must be on such party to adduce oral evidence. If oral evidence is adduced by any party, in a case where charge sheet is filed, the Tribunals should give further opportunity to others also to adduce oral evidence and in such a case the charge sheet will pale into insignificance and the dispute will have to be decided on the basis of the evidence. In all other cases such charge sheet can be reckoned as sufficient evidence of negligence in a claim under Section 166 of the Motor Vehicles Act. We mean to say that on production of such

¶94

..15..

¶95

MACA.No.1168 & 2827 OF 2014

¶96

charge sheet the shifting of burden must take place. It is not as though we are not conscious of the dangers and pit falls involved in such an approach. But we feel that adoption and recognition of such practice would help to reduce the length of the long queue for justice before the Tribunals. The judicial recognition of the practice will help the Tribunals to ensure the optimum use of judicial time at their disposal for productive ventures.

¶97

We do not intend to say that collusive charge sheets need be accepted. Wherever on the facts of a given case the Tribunals feel that the police charge sheet does not satisfy their judicial conscience, the Tribunals can record that the charge sheet cannot be accepted and can call upon the parties, at any stage, to adduce oral evidence of the accident and the alleged negligence. In such a case, the issue of negligence must be decided on the other evidence, ignoring the charge sheet.”

¶98

Notwithstanding S.140 and 163 A of the Motor Vehicles Act even now in a claim under S.166 of the Motor Vehicles Act negligence has to be established. But the quality of evidence to prove negligence and the extent of negligence to be established is certainly different from culpable negligence punishable under the criminal law. Tribunals cannot look at the question as an umpire in an adversarial litigation between parties. Even in the absence of specific pleadings and evidence, if the totality of the circumstances convince the Tribunal that there has been negligence, the Tribunal will certainly be justified in passing an award under S.166 of Motor Vehicles Act. Tribunals called upon to discharge the legislature mandate of ensuring just and reasonable compensation to the victims cannot function merely as umpires in an adversarial litigative process. The Tribunals should play dynamic role expected of them under a welfare legislation in a socialist republic to effectively and expeditiously translate the compassion of the legislature into tangible benefits to the victims. The primary mandate to and the very purpose of constitution of the Tribunal under the provisions of the Motor Vehicles Act is to ensure just and reasonable compensation to the victims and the Tribunal should not and can never afford to ignore that basic tenet. In that view of the matter we are satisfied that the materials available sufficiently justify the impugned

¶99

MACA.No.1168 & 2827 OF 2014

¶100

..16..

¶101

award.

¶102

The Hon'ble Supreme Court in Punam Devi and another v. Divisional Manager [(2004) 3 SCC 386] has held that so far as the insurance company does not plead or prove that the driver had no valid insurance policy, it is estopped from taking such a contention. Similarly in National Insurance Company v. Swaran Singh [2004 (1) KLT 781 SC], it has been laid down that fake or invalid licence except is not a valid defence for the insurance company. It is for the insurance company to plead and prove inter say disputes between the insurer and insured. Likewise, the contention of the insurance company that the 1^st respondent did not have a valid badge to drive a transport vehicle to drive a transport vehicle does not hold good in view of the law laid in by this Court in Shaji V. Pradeesh and Others [2016 (1) KLT 1] and National Insurance Company V. Jisha and others [2015 (1) KLT 1].

¶103

In view of the categoric enunciation of law by

¶104

MACA.No.1168 & 2827 OF 2014

¶105

..17..

¶106

the Division Benches of this Court and the investigation conducted by the Police, it is found that the offending vehicle was covered Exhibit A-2 insurance policy, which tallies with the policy number given in the claim petition, and that if the 3^rd respondent wanted to dispute the same, the onus of proof was on the 3^rd respondent to have mounted the box and let in evidence to disprove Exhibit A-2, which has not been done. Therefore, after suffering an order passed by the Tribunal and not letting in any cogent evidence to disprove Exhibit A-2, I am afraid that the contention advanced by the 3^rd respondent cannot stand. Therefore, the findings of the Tribunal in this regard is upheld. Accordingly, point No.1 is found against the appellant in M.A.C.A. No.1168 of 2014/3^rd respondent. Point No.2

¶107

Now coming to the next point whether the compensation awarded by the Tribunal is reasonable and just?

¶108

The Hon'ble Supreme Court in Sarla Verma v.

¶109

MACA.No.1168 & 2827 OF 2014

¶110

..18..

¶111

Delhi Transport Corporation [(2009) 6 SCC 121] has held that 'just compensation' is 'adequate compensation', which is fair and equitable depending on the facts and circumstances of the case, to make good the loss suffered as a result of a wrong, as far as money can do so, by applying the well settled principles relating to the award of compensation.

¶112

A Constitution Bench of the Hon'ble Supreme Court in National Insurance Company Ltd. v. Pranay Sethi [(2017) 16 SCC 680], has held that Section 168 of the Motor Vehicles Act, 1988 deals with the concept of 'just compensation' and the same has to be determined on the foundation of fairness, reasonableness and equitability on acceptable legal standards. The conception of 'just compensation' has to be viewed through the prism of fairness, reasonableness and nonviolation of the principle of equitability.

¶113

In a recent decision, a three Judge Bench of the Hon'ble Supreme Court in Pappu Deo Yadav Vs. Naresh

¶114

MACA.No.1168 & 2827 OF 2014

¶115

..19..

¶116

Kumar and others (Civil Appeal No.2567 of 2020), relying on the decision in Govind Yadav v. New India Insurance Company Ltd [(2011) 10 SCC 683] has held that the principle consistently followed by the Supreme Court in assessing motor vehicle compensation is to place the victim in as near a position as he was before the accident, with the other compensatory directions for the loss of amenities and other claims, and that 'just compensation' should include all elements that would go to place the victim as a near position as he was before the occurrence of the accident. It is also emphasized that the Courts should not adopt a stereotypical or myopic approach, but instead hear the matter taking into account the realities of life both in assessment of the extent of disabilities and compensation under the various heads.

¶117

Keeping in mind the law laid down in the aforecited precedents, I proceed to decide these appeals.

¶118

Undisputedly, the petitioner was aged 34 years

¶119

at the time of accident. He had claimed that he was a

¶120

MACA.No.1168 & 2827 OF 2014

¶121

..20..

¶122

mason by profession. To substantiate his avocation, he had produced Exhibit A-10 salary certificate, wherein his employer had certified that the petitioner was working as a mason since 2006 and was drawing a monthly salary of Rs.7,000/-. It is also certified that even though the petitioner attempted to rejoin his employer on 21.06.2012, he could not continue his work due to disabilities suffered by him in the accident.

¶123

The Tribunal refused to accept the contents of Exhibit A-1 on the ground that the petitioner had not examined his employer/the author of Exhibit A-10. Accordingly, the Tribunal notionally fixed the petitioner's income at Rs.4,500/-.

¶124

It is settled law, as held by this Court in ICICI Lombard General Insurance v. M.D.Pearson @ Jose and another [2019 (3) KLT 652] that the proceedings before the Tribunal is summary in nature. The Tribunal is not bound by the strict rules of evidence and procedure in proving the contents of a document. After marking the

¶125

MACA.No.1168 & 2827 OF 2014

¶126

document in evidence without any opposition from the respondents, the Tribunal ought to have accepted the contents of Exhibit A-10, wherein it is categorically mentioned that the petitioner was working with the author of Exhibit A-10 since 2006 and that his salary was Rs.7,000/-.

¶127

Even going by the law laid down by the Hon'ble Supreme Court in Ramachandrappa v. Manager, Royal Sundaram Alliance [(2011) 13 SCC 236] and Syed Sadiq and others v. Divisional Manager, United India Insurance Co.Ltd. [(2014) 2 SCC 735] and the decision of this Court in Soman vs. Jinesh James and others [ILR 2020 (3) Kerala 1003], wherein the notional income of persons who are working in unorganized sectors have been fixed in Ramachandrappa (supra) @ Rs.4,500/- per month in the year 2004, in Syed Sadiq (supra) @ Rs.6,500/- per month in the year 2006 and in Soman (supra) at Rs.7,500/- per month in the year 2010.

¶128

Considering the law laid down by the Supreme

¶129

MACA.No.1168 & 2827 OF 2014

¶130

..22..

¶131

Court and this Court in the afore cited decisions and Exhibit A-10 salary certificate, I am of the firm opinion that Exhibit A-10 has to be accepted and the petitioner's income is to be accepted at Rs.7,000/- per month.

¶132

The Tribunal had referred the petitioner to the Medical Board under the Government Medical College Hospital, Kottayam. The Medical Board after examination of the petitioner found that the petitioner had permanent disability at 75%. However, the Tribunal, after seeing the petitioner, who was examined as PW1, came to the conclusion that the petitioner had only a functional disability of 40%. The Tribunal proceeded to decide the claim on the assessment made by it. As the Tribunal had seen the petitioner and held that the petitioner has only 40% functional disability, I do not disturb the said finding. 33. The petitioner was aged 34 years at the time of accident. Going by the law laid down in Sarla Verma v. Delhi Transport Corporation [(2009) 6 SCC 121] , National Insurance Company Ltd. v. Pranay Sethi

¶133

..23..

¶134

MACA.No.1168 & 2827 OF 2014

¶135

[(2017) 16 SCC 680] and United India Assurance Company Ltd. Satinderr Kaur @ Satwinder Kaur [2020(3) KLT 760] the correct multiplier is 16, which was rightly adopted by the Tribunal.

¶136

Going by the principles laid down by the Hon'ble Supreme Court in Sarla Verma , Pranay Sethi , Satinderr Kaur @ Satwinder Kaur and Pappu Deo Yadav Vs. Naresh Kumar and others (Civil Appeal No.2567 of 2020), it is seen that the Tribunal has omitted to grant compensation under the head of future prospects to the petitioner, without taking note of Exhibit A-10, wherein the petitioner's employer had certified that he is not in a position to carry out with his avocation. Similarly, in Exhibit X-1 though the petitioner's permanent disability was certified at 75%, the Tribunal held that the petitioner has 40% disability. In the said circumstances, I am of the opinion that the petitioner is entitled to future prospects, which is fixed at 40%.

¶137

In view of the fact that I have fixed the

¶138

MACA.No.1168 & 2827 OF 2014

¶139

..24..

¶140

petitioner's salary at Rs.7,000/-, I hold that the petitioner is entitled for an enhanced compensation of Rs.42,000/instead of Rs.27,000/- awarded by the Tribunal. That is an enhancement of Rs.15,000/-, under this head.

¶141

In respect of other heads claims, namely, partial loss of earnings, transport to hospital, extra nourishment, damage to clothing, bystander expenses, medical expenses, pain and sufferings, loss of amenities etc., I find that the Tribunal has awarded reasonable and just compensation.

¶142

In view of the findings of this Court that the petitioner's income is Rs.7,000/- and that his disability is 40% and the relevant multiplier is 16 and his future prospects is 40%, I hold that the petitioner is entitled to loss due to disability with future prospects at Rs.7,52,640/-.

¶143

On an overall reappreciation of pleadings, materials on record and the law laid down by the Hon'ble Supreme Court and this Court in the aforecited decisions,

¶144

..25..

¶145

MACA.No.1168 & 2827 OF 2014

¶146

I am of the definite opinion that the petitioner is entitled for enhancement of amounts as modified and recalculated

¶147

above and given in the table below for easy reference.

¶148

Sl. No.	Head of claim	Amount claimed	Amount awarded	Amounts modified and recalculated by this Court
1	Loss of earnings	70,000	27,000	42,000
2	Partial loss earnings	14,000	Nil	Nil
3	Transport to hospital	2,000	2,000	2,000
4	Extra nourishment	3,000	2,000	2,000
5	Damage to clothings	1,000	500	500
6	Bystander expenses	12,000	9,000	9,000
7	Medical expenses	1,25,000	45,500	45,500
8	Pain and sufferings	75,000	30,000	30,000
9	Loss of amenities, discomforts and inconvenience in life	1,00,000	40,000	40,000
10	Loss of earning capacity	1,00,000	3,45,600	7,52,640
11	Continuing permanent disability	1,00,000	Nil	Nil
	Total	Rs.8,02,000 limited to Rs.7,00,000/-	Rs.5,01,600/- rounded to 5,02,000/-	9,23,640

¶149

Although the petitioner had only claimed an

¶150

amount of Rs.7,00,000/- in the claim petition, in view of

¶151

MACA.No.1168 & 2827 OF 2014

¶152

..26..

¶153

the law laid down by the Hon'ble Supreme Court in Nagappa v. Gurudayal Singh [2003 (2) SCC 274] and Rajesh v, Rajbir Singh [2013 (3) KLT 89 (SC)], wherein it has been held that there is no restriction in the Tribunal awarding more compensation than what is claimed in the claim petition, I hold that the petitioner is entitled for enhanced compensation as per the findings of this Court mentioned in the table above.

¶154

In the result, I dismiss M.A.C.A.No.1168 of 2014 and allowed M.A.C.A.No.2827 of 2014 by enhancing the compensation by a further amount of Rs.4,22,040/(Rupees Four Lakh Twenty Two Thousand and Forty only). The 3rd respondent/appellant in M.A.C.A.No.1168 of 2014 shall deposit the additional compensation granted in M.A.C.A.No.2827 of 2014 with interest at the rate of 8.5% per annum from the date of petition till the date of payment with proportionate cost within a period of two months from the date of receipt of a certified copy of this judgment, after deducting the liability, if any, of the

¶155

MACA.No.1168 & 2827 OF 2014

¶156

petitioner towards balance court fee and Legal Benefit Fund. Disbursement of compensation and additional compensation to the petitioner shall be done by the Tribunal in accordance with law.

Sd/-

C.S.DIAS

JUDGE

kkj

Shijo Joseph v. Sreekumar

Case brief

What is this about?

What did the court decide?

Shijo Joseph v. Sreekumar

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Chandrika Vs Roby Varghese

The New India Assurance Co. Ltd. Vs a.T.Raphael

Narayanan Nair Vs Thankamma

Reliance General Insurance Co. Ltd. Vs Shijo Joseph

Saranya Vs the Managing Director

Soumini Vs the New India Assurance