Allowed

Vivek @ Vivek Singh v. National Insurance Co.Ltd

Kerala HC17 Feb 2023MACA/4608/2019

Case brief

AI extract

What is this about?

The High Court allowed appeals against compensation awards of the Motor Accidents Claims Tribunal. The Court held the awarded sums inadequate due to insufficient loss of earning periods, under-calculated pain and suffering, and lack of future prospects awards, wherein the appellants are granite workers, enhancing compensation and directing the insurer to deposit the extra amount.

What did the court decide?

Enhancement of compensation by Rs.61,000/- and Rs.8,34,600/- directed to be deposited by the insurer with 7% interest; no order as to costs.

Vivek @ Vivek Singh Vs National Insurance Co.Ltd — Motor Accident Claims | Kerala HC (2023)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT

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THE HONOURABLE MRS. JUSTICE SOPHY THOMAS

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FRIDAY, THE 17THDAY OF FEBRUARY 2023 / 28TH MAGHA,1944

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MACA NO. 4349 OF 2019

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OPMV 1643/2016 OF PRINCIPAL MOTOR ACCIDENTS CLAIMS TRIBUNAL, KOZHIKODE

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APPELLANT/PETITIONER:

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PRADEEP @ PRADEEP SINGH,

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AGED 29 YEARS, S/O DALEL SINGH, SIGAROLI, SINGHROLI,
KERALAS JOUVA, MORENA STATE OF MADHYA PRADESH-476224.

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BY ADV SRI.AVM SALAHUDIN

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RESPONDENT/2ND RESPONDENT:

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NATIONAL INSURANCE CO.LTD., 4TH FLOOR,
PARCO TOWERS, P.M.TAJ ROAD, KOZHIKODE-673001.

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BY ADV SRI.N.S.NAJEEB

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THISMOTORACCIDENTCLAIMSAPPEALHAVINGBEENFINALLYHEARD
ON10.02.2023,ALONGWITHMACA.4608/2019,THECOURTON
17.02.2023 DELIVERED THE FOLLOWING:

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MACAs 4349 & 4608 of 2019

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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE SOPHY THOMAS
FRIDAY, THE 17THDAY OF FEBRUARY 2023 / 28TH MAGHA,1944

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MACA NO. 4608 OF 2019

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OPMV 1644/2016 OF PRINCIPAL MOTOR ACCIDENTS CLAIMS TRIBUNAL,
KOZHIKODE

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APPELLANT/PETITIONER:

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VIVEK @ VIVEK SINGH, AGED 27 YEARS,
S/O. MALKHAN SINGH, GRAMJHIRI, DHOLPUR JHIRI,
RAJASTHAN-328026.

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BY ADVS.
SRI.AVM SALAHUDIN
SMT.A.D.DIVYA

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RESPONDENT/2ND RESPONDENT:

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NATIONAL INSURANCE CO.LTD.,
4TH FLOOR, PARCO TOWERS, P M TAJ ROAD, KOZHIKODE-673001,
REPRESENTED BY BRANCH MANAGER.

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BY ADV SRI.N.S.NAJEEB

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THISMOTORACCIDENTCLAIMSAPPEALHAVINGBEENFINALLYHEARD
ON10.02.2023,ALONGWITHMACA.4349/2019,THECOURTON
17.02.2023 DELIVERED THE FOLLOWING:

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MACAs 4349 & 4608 of 2019

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J U D G M E N T

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These appeals are preferred by the injured persons in OP(MV) No.1643 of 2016 and 1644 of 2016 on the file of the Principal Motor Accidents Claims Tribunal, Kozhikode. Both of them are challenging the impugned award, on the ground of inadequacy of compensation.

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The brief facts necessary for these appeals could be

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stated as follows:

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On 02.08.2016, at about 9.00 p.m., while the appellants were travelling in a motorcycle, KL-11/AR-7117 jeep driven by the 1^st respondent in a rash and negligent manner, dashed against their motorcycle and both of them fell down and sustained serious injuries. Both of them were taken to hospital and the appellant in MACA No.4608 of 2019 suffered very serious injuries to his right leg and foot resulting in amputation of his right leg below knee. Both are youngsters aged only 25 and 26, doing granite work and earning monthly income of Rs.30,000/-. Though the appellants approached the Tribunal claiming adequate compensation, the amount awarded by the Tribunal was too meager and hence, they preferred these appeals.

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In the claim petitions, the 1^st respondent was the

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MACAs 4349 & 4608 of 2019

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owner-cum-driver of the offending jeep and the 2^nd respondent was its Insurer. The 1^st respondent remained ex parte , and the 2^nd respondent/Insurer contested the case.

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The Insurer is admitting the accident, injuries as well as the Policy. But according to them, negligence from the part of the rider of the motorcycle contributed to the accident, and according to them, the compensation awarded is more than sufficient, and it needs no modification.

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Before the Tribunal, PWs 1 and 2 were examined and Exts.A1 to A19 and C1 were marked. No oral or documentary evidence was adduced from the side of the Insurer.

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In the appeals, only the Insurer was made a

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respondent.

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Now we have to re-analyse the facts and evidence to find out whether there is any illegality or impropriety in the impugned awards.

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Heard learned counsel Sri.A.V.M. Salahudin appearing

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for the appellants and learned counsel Sri.N.S.Najeeb appearing for the respondent-Insurer.

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The appellant in MACA No.4349 of 2019 was a 26 year

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MACAs 4349 & 4608 of 2019

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old granite worker and according to him, he was getting monthly income of Rs.30,000/- and he is relying on Ext.A15 document to substantiate his claim. But nobody was examined from the side of the employer to prove the job or income of the appellant. Learned counsel for the respondent pointed out that even going by the decision

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Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited [AIR 2011 SC 2951] , in the year 2016, he was eligible to get his notional income fixed @ Rs.10,500/-, but the Tribunal fixed his monthly income @ Rs.12,000/- and it is more than the eligible amount. Since no cogent evidence was there to prove his monthly income, the notional income fixed by the Tribunal @ Rs.12,000/- is quite reasonable, and it even exceeds the amount that could have been awarded on the basis of Ramachandrapppa’s case cited ( Supra ). He had suffered fracture of both bones of right leg and Type II open fracture of I^st , II^nd and III^rd Meta Tarsal of right foot. The disability assessed by a Private Orthopaedic Doctor @ 18% was accepted by the Tribunal to the extent of 15%. That also is on the higher side, according to the Insurer. Since there is no appeal from the part of the Insurer, it needs no modification. So the compensation awarded by the Tribunal under the head ‘permanent disability’ needs no interference.

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MACAs 4349 & 4608 of 2019

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Now regarding the amount awarded under the head ‘pain and suffering’, the Tribunal awarded Rs.25,000/- only. The appellant had suffered fracture of both bones of right leg and open fracture of I^st , II^nd and III^rd Meta Tarsal right foot. He was hospitalised for six days, and suffered disability of 15% as found by the Tribunal. Considering that fact, an addition of Rs.10,000/- towards pain and suffering is quite reasonable.

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Towards loss of amenities also, considering the disability of 15% due to fracture of both bones of right leg, Rs.10,000/- more is awarded under the head ‘loss of amenities’.

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Towards bystander expenses, the Tribunal awarded only Rs.3,600/- @ Rs.600/- for six days of hospitalisation. Since he had suffered fracture of both bones of right leg, even after discharge from hospital, he might have been pulling on with the help of a bystander for his daily pursuits. Considering that fact, this Court is inclined to award Rs.5,000/- more towards bystander expenses.

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Considering the loss of earnings, the Tribunal took only three months @ Rs.12,000/- per month. Since there was fracture of both bones of right leg, accompanied by Type II open fracture of I^st , II^nd and III^rd Meta Tarsal, he may not have been able to do any job at

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MACAs 4349 & 4608 of 2019

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least for six months. Considering that fact, this Court is inclined to award loss of earning @ Rs.12,000/for three more months amounting to Rs.36,000/-.

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Head of claim	Amount awarded by the Tribunal	Amount awarded in appeal	Difference to be drawn as enhanced compensation
Pain & Suffering	Rs.25,000/-	Rs.35,000/-	Rs.10,000/-
Loss of amenities	Rs.25,000/-	Rs.35,000/-	Rs.10,000/-
Bystander expenses	Rs.3,600/-	Rs.8,600/-	Rs.5,000/-
Loss of earning	Rs.36,000/-	Rs.72,000/-	Rs.36,000/-
Total			Rs.61,000/-

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In the result, the appellant in MACA No.4349 of 2019

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is entitled to get Rs.61,000/- (10,000 + 10,000 + 5,000 + 36,000) as enhanced compensation.

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In MACA No.4608 of 2019 the appellant was aged only

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25 years and his right leg was amputated below knee. The Tribunal

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MACAs 4349 & 4608 of 2019

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found that though Ext.C1 Disability Certificate was to the effect that he suffered disability of 60%, his functional disability would have been more than that. So the Tribunal fixed his functional disability as 75%. The Insurer did not challenge the finding of the Tribunal that the appellant in MACA No.4608 of 2019 suffered functional disability of 75%. Now the grievance of the appellant is that he was a granite worker and he cannot do that job any more. But even then the Tribunal did not award enhancement towards future prospects. It is true that since he suffered functional disability of 75%, the Tribunal ought to have awarded an addition for future prospects also. Since he was aged only 25, with a self employment, he was eligible to get 40% hike towards future prospects. If so, he was eligible to get his monthly income fixed @ Rs.16,800/(12,000 + 40%). The multiplier applicable was 18 as he was aged only 25. So, on re-calculating the compensation for permanent disability, taking his monthly income @ Rs.16,800/-, it will be Rs.27,21,600/- (16,800 X 12 X 18 X 75 / 100). Since he was already paid Rs.19,44,000/- by the Tribunal, he is eligible to get the balance amount of Rs.7,77,600/as enhanced compensation for permanent disability.

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Towards loss of earning, the Tribunal took the period as only six months. Since he had suffered amputation of his right leg,

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MACAs 4349 & 4608 of 2019

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the period of six months is not reasonable. Loss of earning could have been calculated at least for eight months. So he is entitled to get Rs.96,000/- in total under the head ‘loss of earning’ for eight months. Since he was already paid Rs.72,000/-, he is eligible to get the balance amount of Rs.24,000/-.

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Towards pain and suffering, he was awarded only Rs.30,000/-. Considering the fact that he had suffered mangled extremity of right leg and foot with exposed tibia and fibula which resulted in amputation, this Court is inclined to award Rs.5,000/- more towards pain and suffering.

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Under the head ‘bystander expenses’, he was given only Rs.12,000/- for the actual period of hospitalisation. Considering the nature of injuries, he might have been in need of a bystander even after discharge from hospital. So this Court is inclined to award Rs.3,000/- more under the head ‘bystander expenses’.

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It is admitted that his right leg was amputated below knee. The Tribunal awarded only Rs.25,000/towards future treatment. The artificial limb needs to be repaired and replaced periodically which needs extra expenses. Considering that fact, this Court is inclined to award Rs.25,000/- more towards future treatment

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MACAs 4349 & 4608 of 2019

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expenses.

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Head of claim	Amount awarded by the Tribunal	Amount awarded in appeal	Difference to be drawn as enhanced compensation
Permanent disability/Loss of earning power	Rs.19,44,000/-	Rs.27,21,600/-	Rs.7,77,600/-
Loss of earning	Rs.72,000/-	Rs.96,000/-	Rs.24,000/-
Pain & suffering	Rs.30,000/-	Rs.35,000/-	Rs.5,000/-
Bystander expenses	Rs.12,000/-	Rs.15,000/-	Rs.3,000/-
Future treatment	Rs.25,000/-	Rs.50,000/-	Rs.25,000/-
Total			Rs.8,34,600/-

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So the appellant in MACA No.4608 of 2019 is entitled

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to get enhanced compensation of Rs.8,34,600/- (7,77,600 + 24,000 + 5,000 + 3,000 + 25,000).

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The respondent-Insurer is directed to deposit enhanced compensation of Rs.61,000/- (Rupees Sixty One Thousand

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MACAs 4349 & 4608 of 2019

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only) in the Bank account of the appellant in MACA No.4349 of 2019, and Rs.8,34,600/- (Rupees Eight Lakh Thirty Four Thousand and Six Hundred only) in the Bank account of the appellant in MACA No.4608 of 2019, with 7% 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, if any, of the respective appellants towards Tax, balance court fee and legal benefit fund.

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These appeals are allowed accordingly. No order as to costs.

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Sd/-

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SOPHY THOMAS JUDGE

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DSV/13.02.2023

Vivek @ Vivek Singh v. National Insurance Co.Ltd

Case brief

What is this about?

What did the court decide?

Vivek @ Vivek Singh v. National Insurance Co.Ltd

Case brief

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What did the court decide?

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