T.G.BIBU v. K.O.ANTU

FOR R7 BY SRI.A.R.GEORGE FOR R3 BY SRI.P.JACOB MATHEW SRI.MATHEWS JACOB SR. THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 12.03.2024, ALONG WITH MACA.3400/2014 AND 3180/2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: MACA Nos.3400/2014, 3180/2014 & 1101/2015 5 IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. TUESDAY, THE 12TH DAY OF MARCH 2024 / 22ND PHALGUNA, 1945 MACA NO. 3180 OF 2014 AGAINST THE AWARD DATED 05.05.2014 IN OPMV NO.884 OF 2011 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,ERNAKULAM APPELLANTS/PETITIONERS: 1 2 3 4 KAVITHA M.K. W/O.DECEASED PRADEEP KUMAR P, DEVI NILAYAM, PAZHAVEEDU MUNICIPAL WARD, ALAPPUZHA. BHAGYALEKSHMI P., AGED 16 YEARS (MINOR) D/O.DECEASED PRADEEP KUMAR P, DEVI NILAYAM, PAZHAVEEDU MUNICIPAL WARD, ALAPPUZHA. HARIHARAN P. (MINOR) AGED 11 YEARS S/O.DECEASED PRADEEP KUMAR P, DEVI NILAYAM, PAZHAVEEDU MUNICIPAL WARD, ALAPPUZHA. SULOCHANAMMA AGED 79 YEARS W/O.LATE PADMANABHA PANICKER, M/O.DECEASED PRADEEP KUMAR P, DEVI NILAYAM, PAZHAVEEDU MUNICIPAL WARD, ALAPPUZHA. (APPELLANTS 2 AND 3 ARE MINORS REPRESENTED BY THEIR MOTHER AND LEGAL GUARDIAN THE 1ST APPELLANT - KAVITHA M.K) BY ADVS. SRI.A.T.ANILKUMAR SMT.V.SHYLAJA RESPONDENTS/RESPONDENTS: 1 2 K.O. ANTO KOZHIKKADAN HOUSE, SOUTH VELLARAPPILLY P.O, KALADY ALUVA 683 574 V.P. RAJENDRAN, S/O.PERUMAL VELIPARAMPIL HOUSE, PERUMPADAPPU, KOCHI-682 006 MACA Nos.3400/2014, 3180/2014 & 1101/2015 6 3 4 5 6 THE ROYAL SUNDARAM ALLIANCE INSURANCE CO. LTD. AMRITHA TOWERS, KPCC JUNCTION, M.G.ROAD, KOCHI 682011 ALEX P. CYRIAC PERUMMALIL GRANITES, VALIYAKAVALA, VAIKOM, KOTTAYAM 686 141 SURENDRAN S/O.ASHOKAN NAIR, KEECHERIL HOUSE, NADAKKAVU MANAKKUNNAM VILLAGE, UDAYAMPEROOR P.O. 682 307 THE ORIENTAL INSURANCE CO. LTD. THRIPUNITHURA, ERNAKULAM REP. BY ITS MANAGER 682 301 BY ADVS. SRI.T.B.HOOD SRI.K.H.ANSAR FOR R6 BY SRI.A.R.GEORGE SMT.M.ISHA FOR R3 BY SRI.P.JACOB MATHEW SRI.T.R.JERRY SEBASTIAN SRI.MATHEWS JACOB SR. SRI.THOMAS M.JACOB THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 12.03.2024, ALONG WITH MACA.3400/2014 AND 1101/2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: MACA Nos.3400/2014, 3180/2014 & 1101/2015 7 JUDGMENT [MACA Nos.3400/2014, 1101/2015, 3180/2014] ... All these claim petitions arose from a common award passed by the Motor Accidents Claims Tribunal, Ernakulam in O.P.(MV).Nos.1409 of 2008, 1410 of 2008, 1411 of 2008, 1412 of 2008, 1415 of 2008, 1469 of 2008, 2157 of 2008, 2160 of 2008, 547 of 2010, 884 of 2011 and 968 of 2011, out of which, three awards are under challenge in these appeals. M.A.C.A.No.3180 of 2014 is filed against the award passed in O.P.(MV).No.884 of 2011, M.A.C.A. No.3400 of 2014 is filed against an award passed in O.P.(MV).No.1469 of 2008 and M.A.C.A.No.1101 of 2015 is filed against the award in O.P. (MV).No.2160 of 2008. OP(MV) 884/2011 was filed seeking compensation for the death of one Pradeep Kumar, whereas the other claim petitions were filed seeking compensation for the injuries sustained by the respective claimants. The accident in these cases occurred due to a collision of four vehicles.

2. According to the appellants, a mini tipper lorry MACA Nos.3400/2014, 3180/2014 & 1101/2015 8 bearing Registration No.KL-41/A 5182 driven by the 2nd respondent hit against another tipper lorry bearing registration No.KL-5/P 4105. After the said collision, the said vehicle hit on a Tavera car and a motorcycle. The deceased Pradeep Kumar was the rider of the motorcycle involved in the accident, whereas the claimants in O.P.(MV).No.1469 of 2008 was the driver of the Tavera car and the petitioner in O.P.(MV).No.2160 of 2008 was the cleaner in one of the lorries.

3. The mini tipper Lorry was insured with the 3rd respondent in the claim petition, whereas the tipper lorry bearing registration No.KL-5/P 4105 was insured with M/s.Oriental Insurance Co.Ltd., the 6th respondent in O.P(MV).No.884 of 2011 and the 7th respondent in the other claim petitions. They filed separate written statements. Both of them have admitted the coverage of policy in respect of the respective vehicles but they disputed the liability on various grounds. They seriously disputed the negligence on the part of the respective drivers. Quantum of compensation were also disputed by them. MACA Nos.3400/2014, 3180/2014 & 1101/2015 9

4. All the claim petitions were tried together and were disposed of by a common award. The evidence in these cases consists of oral testimonies of PW1 and PW2 and Exts.A1 to A87. Court exhibits were marked as Exts.C1 to C3. From the side of the respondents, RW1 was examined and Ext.B1 was marked. After the trial, the Tribunal came to the conclusion that the accident occurred due to the negligence of the driver of the lorry and tipper lorry and the liability was apportioned among them equally. Thus, the 3rd respondent and the 7th respondent (6th respondent in O.P.(MV).No.884 of 2008) were imposed with the liability to pay the compensation equally. In O.P.(MV).No.884 of 2011, Rs.10,42,500/- was awarded by the Tribunal. In O.P(MV).No.1469 of 2008, Rs.7,28,580/- was awarded and in O.P.(MV).No.2160 of 2008 Rs.4,74,500/- was awarded. The said amounts were directed to be deposited by the respective insurers equally along with interest at the rate of 8% from the date of petition till realization with proportionate costs. These appeals are filed in such circumstances seeking enhancement of compensation. MACA Nos.3400/2014, 3180/2014 & 1101/2015 10

5. Heard Smt.V.Shylaja, learned counsel for the appellant in M.A.C.A.No.3180 of 2014, Sri.K.V.Rajan, learned counsel for the appellant in M.A.C.A.No.3400 of 2014 and Smt.R.Vijayakumari, learned counsel for the appellant in M.A.C.A.No.1101 of 2015.

6. The question that arises for consideration in these appeals pertains to the quantum of compensation. The said issues are dealt with in the following manner:-

7. MACA No.3180/2014 which arises from OP (MV) No. 884/2011:

7.1 This claim petition is submitted by the legal heirs of the deceased Pradeep Kumar. The said Pradeep Kumar was the husband of the 1st appellant, father of the appellants 2 & 3 and the son of the 4th appellant. According to the appellants, he was aged 36 years at the time of accident. He was a Contractor for cleaning works in Ernakulam city and the monthly income claimed to be Rs.12,000/-. It was also contended that he also worked in Bahrain for a short period. After evaluating the materials, Tribunal took the monthly income of the deceased as MACA Nos.3400/2014, 3180/2014 & 1101/2015 11 Rs.5000/-. Considering the fact that this is a case in which the accident occurred on 20.11.2007, the monthly income appears to be on the lower side. To substantiate the avocation of the deceased, the appellants relied on various documents including Ext.A69 permit issued from the Sales Tax Office, Alappuzha showing that he was granted license for the sale and purchase of coconut oil, soaps, tars etc. The appellants also placed reliance upon Ext.A70 series invoices and slips to substantiate that the said Sri. Pradeep Kumar purchased so many machines for the purpose of cleaning works. Similarly, Ext.A71 series catalog, card and letter pad of M/s. Cleanup Techno Clensers were also relied on. Exhibit A72 is a lease deed, which shows that a house was taken on lease on monthly rent of Rs.1250/- at Elamkunnapuzha for carrying out the activities. Ext.A73 series are the quotations sent by Pradeep Kumar to various companies for availing the contract for cleaning work using modern technologies. Ext.A73 series would show that the said Pradeep Kumar was a partner of M/s.Cleanup Techno Cleansers. Ext.A76 was a letter issued by the Municipal Councilor MACA Nos.3400/2014, 3180/2014 & 1101/2015 12 requesting to hand over machines to Gopalakrishnan, the brother of the deceased Pradeep Kumar.

7.2 However, the Tribunal did not rely upon any of those documents mainly on the ground that, in most of the said documents the name mentioned was that of one Gopalakrishnan who claimed to be the brother of Pradeep Krumar. It was in the absence of any such documents the Tribunal fixed the monthly income of the deceased as Rs.5000/-.

7.3 However considering the fact that, the accident occurred in the year 2007 the monthly income of Rs.5000/- appears to be very low. In Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Co. Ltd.[2011 (13) SCC 236] the Honourable Supreme Court was pleased to take the monthly income of an ordinary employee, even without any evidence, as Rs.4,500/- in the year 2004. Therefore, the monthly income for the year 2007 could be reasonably fixed as Rs.6000/-, for an ordinary employee without any special skills. However in this case, from the documents referred to above, an MACA Nos.3400/2014, 3180/2014 & 1101/2015 13 impression can be safely gathered as to his involvement in the said business of carrying out the cleaning work in the various establishments using modern technologies and machinery. The record would show that the deceased was having a Diploma, to be engaged as a Fitter and Plumber. When all the aforesaid aspects are taken into consideration along with the documents which were relied on by the appellants as referred to above, I am of the view that, a slightly higher monthly income than usually taken in respect of the ordinary employees can be accepted. In the facts and circumstances of this case, the said amount is fixed as Rs.7500/-. Since the deceased was aged only 36 years at the time of accident, 40% of the monthly income should be added towards the future prospectus and as the deceased left behind four dependents, deduction towards personal expenses should be 1/4th. When re-assessing the compensation with the above-revised criteria, the compensation for loss of dependency would come to Rs.14,17,500/- [(7500+40%)x12x15x3/4]. The amount already awarded by the Tribunal under this head is Rs.8,77,500/- and thus, the MACA Nos.3400/2014, 3180/2014 & 1101/2015 14 additional compensation comes to Rs.5,40,000/-.

7.4 The Tribunal awarded a compensation of Rs.50,000/- towards loss of consortium and a further sum of Rs.75,000/- towards loss of love and affection to the appellants. In the light of Magma General Insurance Co.Ltd. v. Nanu Ram alias Churu Ram [(2018) 18 SCC 130], all the appellants being the wife, children, mother of the deceased were entitled to get compensation for loss of consortium at the rate of Rs.40000/- each thereby total amount comes to, Rs.1,60,000/-. However, in the light of United India Insurance Co Ltd V. Satinder Kaur @ Satwinder Kaur and other [ 2020 (3) KHC 760], wherein it was held that, when the compensation is awarded for loss of consortium, no separate compensation is to be granted for loss of love and affection, the amount awarded for loss of love and affection has to be adjusted against the amount fixed by this Court towards loss of consortium. Thus, the additional compensation under the head of loss of consortium would come to Rs.35,000/- [(75000+50000)-160000].

7.5 The Tribunal did not award any compensation towards MACA Nos.3400/2014, 3180/2014 & 1101/2015 15 loss of estate. Therefore, in the light of National Insurance Company Ltd. v. Pranay Sethi [(2017) 16 SCC 680], an amount of Rs.15,000/-awarded under this head.

7.6 At this juncture, the learned Counsels for the Insurers point out that Tribunal awarded Rs.25,000/- towards funeral expenses whereas the actual amount payable is only Rs.15,000/- in the light of Pranay Sethi (Supra). Accordingly, the said amount is directed to be deducted. Thus, the total additional compensation is determined as Rs.5,80,000/- (Rs.5,40,000 +35000+15000-10000).

8. MACA No. 3400/2014 which arises from OP(MV) 1469/2008:

8.1 This is a claim petition submitted by the Driver of the Tavera Van involved in the accident seeking compensation for the injuries sustained by him. He was aged 24 years at the time of the accident. He was working as a Driver with a monthly income of Rs.7500/-. it was contended that due to the accident, he sustained very serious injuries and it resulted in physical disablement. The Tribunal awarded a total MACA Nos.3400/2014, 3180/2014 & 1101/2015 compensation of Rs.7,28,580/- 16

8.2 The specific contention put forward by the learned Counsel for the appellant is that the amounts awarded by the Tribunal under various heads are inadequate, whereas the learned counsels appearing for the insurers would contend that a reasonable award was passed and no interference is required.

8.3. After carefully going through the materials on record, I find that in certain heads interference is required. The first head to be considered is the compensation for permanent disability and consequential loss of earning capacity. It is discernible from the Ext.C1 disability certificate issued by the Medical Board, he sustained disability to the extent of 47%. The monthly income taken by the Tribunal was Rs.4000/- which appears to be very low, considering the fact that the accident occurred in the year 2007. The fact that the appellant was a Driver by profession was established from the accident itself as it was revealed that he was driving the vehicle at the relevant time. Ext.A54 was the driving license evidencing his qualification. When the method of computation of monthly MACA Nos.3400/2014, 3180/2014 & 1101/2015 17 income evolved from the principles laid down by the Hon’ble Supreme Court in various cases referred to above, is considered for assessing the monthly income, it can be reasonably fixed as Rs.6000/- pertaining to the year 2007 even in the absence of any evidence for an ordinary employee without any special skills. However in this case, the records would clearly indicate that the appellant was a driver by profession and the same is skilled employment. Hence, a slightly higher monthly income than usually taken in respect of unskilled employment can be accepted. In this regard, it is also to be noted that the Ext.A55 certificate would indicate that he was a regular driver in a travel agency.

8.4 In such circumstances, I deem it appropriate to fix the monthly income as Rs.7000/-. Ext.A51 is the discharge summary issued from the Medical Trust Hospital where he availed treatment. The injuries and the details of the investigation conducted are as follows:- “Injuries: Multiple lacerations-Neck MACA Nos.3400/2014, 3180/2014 & 1101/2015 Lacerated wounds- Rt.pinna/Rt. side of face/Rt.arm 18 # mandible Multiple abrasions over face & extremities. Investigations: CT Brain : Rt. parietal/Lt. sylvian SAH #B/L ZM complex/#nasoethmoidal complex X-ray : C. Spine -NBI : : : : : D. Spine -NBI LS. Spine -NBI Chest-NBI Pelvis-NBI Rt. humerus- #middle 3rd of shaft Treatment: Treated conservatively with ventilatory support, AED's, antioedema measures, cerebroprotective measures antibiotics as per culture reports, & analgesics Tracheostomy done for better tracheobrachial toileting which was eventually strapped. Orthopedic/ Plastic surgery/ Physician's/ Dental/ Physiatrist's consultations given & advice followed”.

8.5. Ext.C1 is the disability certificate issued by the medical Board wherein 47% disability has been mentioned. In the said certificate, it has been mentioned that out of the disabilities, neurological disability alone comes to 45%. The disabilities which formed the Neurological disability are as follows :- “1) Right upper limb radial nerve palsy, claw hand, loss of digital dexterity, can hold objects with MACA Nos.3400/2014, 3180/2014 & 1101/2015 difficulty, activities like combing, buttoning difficulty, self care with difficulty - 23% 19 2) Right lower limb- patient can rise to a standing position, can walk with support in short shuffled gait, climbing heights with difficulty--------- 22%”

8.6 From the contents of the aforesaid documents, the impact of the injuries sustained by the appellant is clearly evident. This would certainly show that the appellant is not in a position to continue his avocation as a Driver as he is not fit for this employment. Therefore, it is a fit case in which future prospectus also taken into account. This is particularly because he is deprived of continuing the employment as a driver and consequent to injuries, he is likely to be engaged in other avocations which may be less remunerative than his profession as a Driver. Considering the fact that he was aged 24 years at the time of accident, an addition of 40% has to be made towards future prospectus. Thus, while reassessing the compensation with the above revised criteria, the compensation for disability and loss of earning capacity comes to Rs.9,94,896/- [(7000+40%)x12x18x47/100)]. The amount already awarded by the Tribunal under this head is MACA Nos.3400/2014, 3180/2014 & 1101/2015 20 Rs.4,06,080/- and thus, the additional compensation under the said head comes to Rs.5,88,816/-.

8.7. Consequent to revision of monthly income, the appellant would be entitled to an additional compensation for loss of earnings. The Tribunal awarded compensation under this head for a period of one year and the said period appears to be reasonable. Therefore, a further sum of Rs.36,000/- is awarded under this head.

8.8. No amount is seen awarded by the Tribunal towards loss of amenities. it is to be noted that this is a case in which a young man aged 24 years had sustained serious injuries and disability to the extent of 47%, which prevented him from pursuing his employment as a Driver. The nature of disability would certainly deprive him of all worldly pleasures and enjoyment in life. Moreover he has to live with that disability for the remainder of his life and the said disability would certainly affect the quality of his life. In such circumstances, I deem it appropriate to grant an amount of Rs.50,000/- under the head of loss of amenities. MACA Nos.3400/2014, 3180/2014 & 1101/2015 21

8.9. The Tribunal awarded only Rs.2000 towards the extra nourishment, despite the fact that he had undergone in-patient treatment for a period of 44 days and even after the discharge he was undergoing treatment. Therefore a further sum of Rs.2000 is awarded. Thus, the total additional compensation is determined as Rs.6,76,860/- (5,88,860+36000+50000+2000)

9. 2160/2008: MACA 1101/2015 which arises from OP(MV)

9.1 The appellant in this case was the Cleaner of the Tipper Lorry involved in the accident. He was aged 18 years at the time of accident and he claimed an income of Rs.200/- per day. Consequent to the injuries, his left leg below knee was amputated and his disability was taken as 50% by the Tribunal considering the amputation of leg. For the purpose of assessing the compensation, the monthly income taken by the Tribunal was Rs.3000/-. After considering the relevant materials, I find that the monthly income of Rs.3000/- is grossly inadequate, considering the fact that the accident occurred in the year 2007. Of course, it is true that the appellant did not produce any documents to substantiate his MACA Nos.3400/2014, 3180/2014 & 1101/2015 22 avocation and the monthly income. However, when the method of computation of monthly income evolved from the principles laid down in Ramachandrappa(supra) is adopted. The monthly income for the year 2007 could be reasonably fixed as Rs.6000/-. Therefore, in the absence of any better evidence, the said amount is fixed as monthly income.

9.2 This is a case in which a young person, aged 18 years, sustained serious physical disability on account of amputation of one leg. Therefore this would certainly affect his capacity to earn severely, as the choices of employment available to him would be substantially reduced. Therefore this is a fit case where future prospectus should also be taken into account and in the light of Pranay sethi (Supra) an additional of 40% is to be made as he is aged below 40 years. Thus while reassessing the compensation with the above revised criteria, the amount of compensation for disability comes Rs.9,07,200/- [(6000+40%)x12x18x50/100]. The amount already awarded by the Tribunal is Rs.3,24,000/- and thus, the additional compensation comes to 5,83,200. MACA Nos.3400/2014, 3180/2014 & 1101/2015 23

9.3 Consequent to the revision of monthly income, the appellant would be entitled to an additional amount under the head of loss of earnings. The Tribunal has awarded compensation under this head for a period of one year and the said period is reasonable. Therefore, the further sum of Rs.36,000/- is awarded under the said head.

9.4 The tribunal did not award any compensation for loss of amenities even though an amount of Rs.1,00,000/- was demanded. Since the appellant sustained serious injuries and it resulted in disability in the form of amputation of one leg, he would be deprived of worldly pleasures and enjoyment in life. Moreover he has to live with that disability for the remainder of his life, which would be very long, considering the fact that he was just 18 years at the time of accident. Thus, considering all those aspects. I deem it appropriate to grant an amount of Rs.50,000/- under the said head. Thus the total additional compensation is determined as Rs.6,69,200/- (Rs.583200 +36000+50000) In the light of the aforesaid findings and observations MACA Nos.3400/2014, 3180/2014 & 1101/2015 24 all these appeals are disposed of with following directions:- 1 MACA No.3180/2014 in OP (MV) 884/2011 The Award passed in OP (MV) No.884/2011 by the Motor Accident Claims Tribunal, Ernakulam dated

05.05.2014 is hereby modified by granting an additional compensation of Rs.5,80,000/-(Rupees five lakhs eighty thousand only) which shall be recoverable from the 3rd & 6th respondents in the appeal equally, along with interest at the same rate as ordered by the Tribunal and proportionate costs. (2) MACA 3400/2014 in OP(MV) No.1469/2008 The award dated 05.05.2014 passed by the Motor Accident Claims Tribunal, Ernakulam in OP(MV) No.1469/2008 is hereby modified by granting an additional compensation of Rs.6,76,860/- (Rupees six lakhs seventy six thousand , eight hundred and sixty only) and the said amount shall be recoverable from the 3rd & 7th respondents in the appeal in equal proportions with interest at the rate as ordered by the MACA Nos.3400/2014, 3180/2014 & 1101/2015 Tribunal and proportionate cost. 25 (3) MA CA 1101/2015 in OP(MV) 2160/2008 The award dated 05.05.2014 in OP(MV) 2160/2008 passed by the Motor Accident Claims Tribunal, Ernakulam is modified by granting an additional compensation of Rs.6,69,200/-(Rupes six lakhs sixty nine thousand and two hundred only) and the said amount shall be deposited by the 3rd & 7th respondents in the appeal in equal proportion along with interest at the rate as ordered by the Tribunal and proportionate cost. Sd/- ZIYAD RAHMAN A.A. JUDGE S.M.K./pkk