BY AD vs SRI.MATHEWS JACOB (SR.)

Accident Claims Tribunal, Perumbavoor is the appellant herein. (For the purpose of convenience, the parties are hereafter referred to as per their rank before the Tribunal).

2. The petitioner filed the above O.P. under Section 166 of the Motor Vehicles Act, 1988, claiming compensation for the injuries sustained in a motor vehicle accident that occurred on 28.12.2013. According to the petitioner, on

28.12.2013 at about 8.45 p.m. while he was riding a motor cycle through Kalady – Perumbavoor MC Road, a mini Lorry bearing Reg.No.KL-14/ H-2811 driven by the 2nd respondent in a rash and negligent manner knocked him down. As a result of the accident, the petitioner sustained serious injuries.

3. The 1st respondent is the owner, the 2nd respondent is the driver and 3rd respondent is the insurer of the offending vehicle. According to the petitioner, the accident occurred due to the negligence of the driver of the offending vehicle. The quantum of compensation claimed in the O.P. is Rs.27,62,000/- limited to Rs.25,00,000/-. MACA NO. 2624 OF 2018 3

4. The insurance company filed a written statement, admitting the accident as well as policy, but disputing the negligence on the part of the driver of the offending vehicle.

5. The evidence in the case consists of documentary evidence Exts.A1 to A11 and C1. No evidence was adduced by the respondents.

6. After evaluating the evidence on record, the Tribunal found negligence on the part of the driver of the offending vehicle, awarded a total compensation of Rs.10,54,621/- and directed the insurer to pay the same.

7. Aggrieved by the quantum of compensation awarded by the Tribunal, the petitioner preferred this appeal.

8. Now the point that arises for consideration is the following: Whether the quantum of compensation awarded by the Tribunal is just and reasonable?

9. Heard Sri.Elson Simon, the learned Counsel appearing for the appellant, and Sri.P.Jacob Mathew, the learned Standing Counsel for the 3rd respondent.

10. The Point: In this case the accident as well as valid insurance policy of the offending vehicle are admitted. One of the contentions raised by the learned counsel for the petitioner is regarding the income of the petitioner as fixed by the Tribunal. According to him, the petitioner was working as Assistant Sub Inspector in Kerala Police earning Rs. 35,000/- per month, but the Tribunal fixed his monthly income at Rs.6,000/-. MACA NO. 2624 OF 2018 4

11. The learned counsel for the petitioner relied up Ext.A9 to show that because of the injuries sustained in the accident, the petitioner had to take leave for a period of 430 days. From Ext.A9, it can be seen that the loss due to leave for the period from 29.12.2013 to 03.03.2015 was Rs.2,03,921/-. No other documents were produced to prove the actual salary of the petitioner. Since as per Ext.A9, his loss due to leave from 29.12.2013 to 03.03.2015 was Rs.2,03,921/, his average monthly salary during the said period will be Rs.14,230/- ( 2,03,921 / 14.33 months).

12. The learned counsel for the petitioner relied upon the decision of the Hon’ble Supreme Court in Hari Om vs. National Insurance Co.Ltd [2023 KHC OnLine 2944] , and argued that in the case of a police constable aged 32, who sustained 45% permanent disability drawing a salary of Rs.18,941/-, the Hon’ble Supreme Court has awarded a sum of Rs.18,18,336/- on the head loss of disability and as such the tribunal was not justified in fixing the notional income of the petitioner at Rs.6,000/-. On the other hand, the learned counsel for the Insurer would argue that in this case the petitioner continued to be in service in police department and as such, there was no loss of income and as such, the notional income fixed by the tribunal is reasonable.

13. Relying upon the decision of the Hon’ble Supreme Court in New India Assurance Co.Ltd vs, Satheesh Chandra Sarma and other [ 2022 ACJ 1211], the learned counsel for the insurer would argue that in the case of a victim suffering MACA NO. 2624 OF 2018 5 from 75% disability, towards loss of disability, only a consolidated sum of Rs. 3 lakh was awarded by the apex court.

14. In the decision in Dinesh Singh vs. Bajaj Alliance Insurance Co.Ltd [2014 (9) SCC 241], in the case of an Engineer suffering from 60% disability claiming a monthly salary of Rs.17,200/-, the notational income was fixed at Rs.12,840/-. In the decision in Akhilesh Chandran vs. Sabu Varghese and others [Manu/KE/3976/2024], a Single Bench of this Court has fixed the notional income of an employee working in a co-operative Bank suffering from 14% disability and drawing a salary of Rs.27,954/- at Rs.15,000/-. Another Single Bench in Deepa Cyrus vs. The Divisional Manager, Oriental Insurance Co. Ltd [Manu/KE/4197/2024], in the case of a Bank employee suffering from 80% disability and drawing a salary of Rs.50,047/-, the notional income was fixed at Rs.25,000/- and a future prospects of 30% was also added.

15. In the instant case, the petitioner was working as Assistant Sub Inspector and he has suffered very serious injuries, including 50% disability. The learned counsel has produced his present photographs, which shows that even now, his right leg from thigh onwards is still disfigured because of loss of tissue. Those photos show that there is merit in the argument that still the petitioner is suffering from the injuries sustained in the accident. In the above circumstances, considering facts that even the notional income of a coolie during the year 2013 will come to Rs.10,000/- as per the decision in Ramachandrappa, the notional income of the MACA NO. 2624 OF 2018 6 petitioner for the purpose of assessing loss of disability can be fixed at Rs.10,000/-.

16. In the accident the petitioner sustained the following injuries: • Soft tissue loss proximal thigh to middle 1/3rd leg with bone loss • Proximal 3rd tibia nerve loss • Degloving injury • Fracture tibia comminuted • Fracture 4th meta carpal right Lecerated wound right index finger

17. As per Exhibit C1 disability certificate the petitioner suffered 50% permanent physical disability. It was issued by Medical Board, Government Medical College Hospital, Ernakulam. The Tribunal, has accepted the permanent physical disability of the petitioner as such and hence, I do not find any grounds to disbelieve the same. Therefore, the permanent physical disability of the petitioner is accepted as 50%, as fixed by the Tribunal.

18. On the date of accident, the petitioner was aged 50 years. Therefore, 15% of the monthly income is to be added towards future prospects, as held in the decision in National Insurance Co. Ltd v. Pranay Sethi [(2017) 16 SCC 680] and the multiplier to be applied is 13, as held in Sarla Verma v. Delhi Transport Corporation, [(2009) 6 SCC 121]. In the above circumstances, the MACA NO. 2624 OF 2018 7 loss of disability will come to Rs.8,97,000/-.

19. Towards pain and sufferings, the Tribunal has awarded Rs.70,000/- and towards loss of amenities a sum of Rs.50,000/- was awarded. Towards extra nourishment, the tribunal has awarded only Rs.3,000/- and Rs.25,000/- was awarded towards dis-figuration. According to the learned counsel for the petitioner, the compensation awarded on those heads are on the lower side.

20. Considering the fact that in the accident, the petitioner has sustained very serious injuries and he was treated as in patient for 80 days and had undergone five surgeries including bone loss and even now he has not fully recovered from the injuries sustained in the accident, I hold that the compensation awarded on the heads pain and suffering, loss of amenities, ‘dis-figuration’ and 'extra nourishment' are on the lower side and they are enhanced to Rs.150000/-, Rs.150000/-, Rs.50,000/- and Rs.20,000/- respectively.

21. No change is required, in the amounts awarded on other heads, as the compensation awarded on those heads appears to be just and reasonable.

22. Therefore, the petitioner is entitled to get a total compensation of Rs.17,77,621/-, as modified and recalculated above and given in the table below, for easy reference: MACA NO. 2624 OF 2018 8 Head of Claim Amount awarded by Tribunal (in Rs.) Amount Awarded in Appeal (in Rs.) Sl. No. 1 2 3 Loss of earning Transport to hospital Extra nourishment 4 Medical expenses 5 6 7 Pain and suffering Loss of amenities etc Permanent disability 8 Attendance charge 9 Damage to cloths etc 10 Disfiguration Total Enhanced Rs.7,23,000/- 2,57,998 6,000 3,000 2,25,623 70,000 50,000 3,96,000 20,000 1,000 25,000 2,57,998 6,000 20,000 2,25,623 1,50,000 1,50,000 8,97,000 20,000 1,000 50,000 10,54,621/- 17,77,621/-

23. In the result, this Appeal is allowed in part, and Respondent No.3 is directed to deposit a total sum of Rs.17,77,621/- (Rupees Seventeen Lakhs Seventy Seven Thousand Six Hundred and Twenty One only), less the amount already deposited, if any, along with 8% interest per annum from the date of the petition till deposit/realisation, excluding interest for a period of 155 days, the period of delay in filing the appeal, with proportionate costs, within a period of two months from today.

24. On depositing the aforesaid amount, the Tribunal shall disburse the entire amount to the petitioner, excluding court fee payable, if any, without delay, as per rules. Sd/- C. PRATHEEP KUMAR, JUDGE

Accident Claims Tribunal, Perumbavoor is the appellant herein. (For the purpose of convenience, the parties are hereafter referred to as per their rank before the Tribunal).

2. The petitioner filed the above O.P. under Section 166 of the Motor Vehicles Act, 1988, claiming compensation for the injuries sustained in a motor vehicle accident that occurred on 28.12.2013. According to the petitioner, on

28.12.2013 at about 8.45 p.m. while he was riding a motor cycle through Kalady – Perumbavoor MC Road, a mini Lorry bearing Reg.No.KL-14/ H-2811 driven by the 2nd respondent in a rash and negligent manner knocked him down. As a result of the accident, the petitioner sustained serious injuries.

3. The 1st respondent is the owner, the 2nd respondent is the driver and 3rd respondent is the insurer of the offending vehicle. According to the petitioner, the accident occurred due to the negligence of the driver of the offending vehicle. The quantum of compensation claimed in the O.P. is Rs.27,62,000/- limited to Rs.25,00,000/-. MACA NO. 2624 OF 2018 3

4. The insurance company filed a written statement, admitting the accident as well as policy, but disputing the negligence on the part of the driver of the offending vehicle.

5. The evidence in the case consists of documentary evidence Exts.A1 to A11 and C1. No evidence was adduced by the respondents.

6. After evaluating the evidence on record, the Tribunal found negligence on the part of the driver of the offending vehicle, awarded a total compensation of Rs.10,54,621/- and directed the insurer to pay the same.

7. Aggrieved by the quantum of compensation awarded by the Tribunal, the petitioner preferred this appeal.

8. Now the point that arises for consideration is the following: Whether the quantum of compensation awarded by the Tribunal is just and reasonable?

9. Heard Sri.Elson Simon, the learned Counsel appearing for the appellant, and Sri.P.Jacob Mathew, the learned Standing Counsel for the 3rd respondent.

10. The Point: In this case the accident as well as valid insurance policy of the offending vehicle are admitted. One of the contentions raised by the learned counsel for the petitioner is regarding the income of the petitioner as fixed by the Tribunal. According to him, the petitioner was working as Assistant Sub Inspector in Kerala Police earning Rs. 35,000/- per month, but the Tribunal fixed his monthly income at Rs.6,000/-. MACA NO. 2624 OF 2018 4

11. The learned counsel for the petitioner relied up Ext.A9 to show that because of the injuries sustained in the accident, the petitioner had to take leave for a period of 430 days. From Ext.A9, it can be seen that the loss due to leave for the period from 29.12.2013 to 03.03.2015 was Rs.2,03,921/-. No other documents were produced to prove the actual salary of the petitioner. Since as per Ext.A9, his loss due to leave from 29.12.2013 to 03.03.2015 was Rs.2,03,921/, his average monthly salary during the said period will be Rs.14,230/- ( 2,03,921 / 14.33 months).

12. The learned counsel for the petitioner relied upon the decision of the Hon’ble Supreme Court in Hari Om vs. National Insurance Co.Ltd [2023 KHC OnLine 2944] , and argued that in the case of a police constable aged 32, who sustained 45% permanent disability drawing a salary of Rs.18,941/-, the Hon’ble Supreme Court has awarded a sum of Rs.18,18,336/- on the head loss of disability and as such the tribunal was not justified in fixing the notional income of the petitioner at Rs.6,000/-. On the other hand, the learned counsel for the Insurer would argue that in this case the petitioner continued to be in service in police department and as such, there was no loss of income and as such, the notional income fixed by the tribunal is reasonable.

13. Relying upon the decision of the Hon’ble Supreme Court in New India Assurance Co.Ltd vs, Satheesh Chandra Sarma and other [ 2022 ACJ 1211], the learned counsel for the insurer would argue that in the case of a victim suffering MACA NO. 2624 OF 2018 5 from 75% disability, towards loss of disability, only a consolidated sum of Rs. 3 lakh was awarded by the apex court.

14. In the decision in Dinesh Singh vs. Bajaj Alliance Insurance Co.Ltd [2014 (9) SCC 241], in the case of an Engineer suffering from 60% disability claiming a monthly salary of Rs.17,200/-, the notational income was fixed at Rs.12,840/-. In the decision in Akhilesh Chandran vs. Sabu Varghese and others [Manu/KE/3976/2024], a Single Bench of this Court has fixed the notional income of an employee working in a co-operative Bank suffering from 14% disability and drawing a salary of Rs.27,954/- at Rs.15,000/-. Another Single Bench in Deepa Cyrus vs. The Divisional Manager, Oriental Insurance Co. Ltd [Manu/KE/4197/2024], in the case of a Bank employee suffering from 80% disability and drawing a salary of Rs.50,047/-, the notional income was fixed at Rs.25,000/- and a future prospects of 30% was also added.

15. In the instant case, the petitioner was working as Assistant Sub Inspector and he has suffered very serious injuries, including 50% disability. The learned counsel has produced his present photographs, which shows that even now, his right leg from thigh onwards is still disfigured because of loss of tissue. Those photos show that there is merit in the argument that still the petitioner is suffering from the injuries sustained in the accident. In the above circumstances, considering facts that even the notional income of a coolie during the year 2013 will come to Rs.10,000/- as per the decision in Ramachandrappa, the notional income of the MACA NO. 2624 OF 2018 6 petitioner for the purpose of assessing loss of disability can be fixed at Rs.10,000/-.

16. In the accident the petitioner sustained the following injuries: • Soft tissue loss proximal thigh to middle 1/3rd leg with bone loss • Proximal 3rd tibia nerve loss • Degloving injury • Fracture tibia comminuted • Fracture 4th meta carpal right Lecerated wound right index finger

17. As per Exhibit C1 disability certificate the petitioner suffered 50% permanent physical disability. It was issued by Medical Board, Government Medical College Hospital, Ernakulam. The Tribunal, has accepted the permanent physical disability of the petitioner as such and hence, I do not find any grounds to disbelieve the same. Therefore, the permanent physical disability of the petitioner is accepted as 50%, as fixed by the Tribunal.

18. On the date of accident, the petitioner was aged 50 years. Therefore, 15% of the monthly income is to be added towards future prospects, as held in the decision in National Insurance Co. Ltd v. Pranay Sethi [(2017) 16 SCC 680] and the multiplier to be applied is 13, as held in Sarla Verma v. Delhi Transport Corporation, [(2009) 6 SCC 121]. In the above circumstances, the MACA NO. 2624 OF 2018 7 loss of disability will come to Rs.8,97,000/-.

19. Towards pain and sufferings, the Tribunal has awarded Rs.70,000/- and towards loss of amenities a sum of Rs.50,000/- was awarded. Towards extra nourishment, the tribunal has awarded only Rs.3,000/- and Rs.25,000/- was awarded towards dis-figuration. According to the learned counsel for the petitioner, the compensation awarded on those heads are on the lower side.

20. Considering the fact that in the accident, the petitioner has sustained very serious injuries and he was treated as in patient for 80 days and had undergone five surgeries including bone loss and even now he has not fully recovered from the injuries sustained in the accident, I hold that the compensation awarded on the heads pain and suffering, loss of amenities, ‘dis-figuration’ and 'extra nourishment' are on the lower side and they are enhanced to Rs.150000/-, Rs.150000/-, Rs.50,000/- and Rs.20,000/- respectively.

21. No change is required, in the amounts awarded on other heads, as the compensation awarded on those heads appears to be just and reasonable.

22. Therefore, the petitioner is entitled to get a total compensation of Rs.17,77,621/-, as modified and recalculated above and given in the table below, for easy reference: MACA NO. 2624 OF 2018 8 Head of Claim Amount awarded by Tribunal (in Rs.) Amount Awarded in Appeal (in Rs.) Sl. No. 1 2 3 Loss of earning Transport to hospital Extra nourishment 4 Medical expenses 5 6 7 Pain and suffering Loss of amenities etc Permanent disability 8 Attendance charge 9 Damage to cloths etc 10 Disfiguration Total Enhanced Rs.7,23,000/- 2,57,998 6,000 3,000 2,25,623 70,000 50,000 3,96,000 20,000 1,000 25,000 2,57,998 6,000 20,000 2,25,623 1,50,000 1,50,000 8,97,000 20,000 1,000 50,000 10,54,621/- 17,77,621/-

23. In the result, this Appeal is allowed in part, and Respondent No.3 is directed to deposit a total sum of Rs.17,77,621/- (Rupees Seventeen Lakhs Seventy Seven Thousand Six Hundred and Twenty One only), less the amount already deposited, if any, along with 8% interest per annum from the date of the petition till deposit/realisation, excluding interest for a period of 155 days, the period of delay in filing the appeal, with proportionate costs, within a period of two months from today.

24. On depositing the aforesaid amount, the Tribunal shall disburse the entire amount to the petitioner, excluding court fee payable, if any, without delay, as per rules. Sd/- C. PRATHEEP KUMAR, JUDGE