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2025 Supreme(Online)(KER) 11651
HIGH COURT OF KERALA
C. PRATHEEP KUMAR, J
THE MANAGER ICICI LOMBARD GENERAL INSURANCE CO. LTD. – Appellant
Versus
SALEENA – Respondent
MACA 624/2017
ADV SRI.LATHEESH SEBASTIAN, ADV SRI.T.R.HARIKUMAR
Compensation for injuries must be assessed fairly, considering the nature of injuries, loss of earning capacity, and related expenses, even if the claimant later dies.
Headnote:(A) Motor Vehicles Act, 1988 - Sections 166 and 168 - Claim for compensation arising from a motor vehicle accident - The Tribunal awarded compensation of Rs.23,05,800/- for injuries sustained, later modified to Rs.21,93,746/- following the appeal - The case was treated as one of injury, not death, despite the claimant's later demise - Assessment of notional income at Rs.10,000/- per month upheld, with future prospects added and injuries leading to amputation considered - The court emphasized the need for just compensation reflective of the injuries sustained. (Paras 6, 12, 14, 20, 21)
(B) Compensation - Assessment of compensation must account for the nature of injuries, loss of earning capacity, and related expenses - The court affirmed the Tribunal's discretion in determining compensation amounts while modifying certain heads based on the case's classification as an injury claim. (Paras 17, 21)
Facts of the case:
The original petition was filed by Shaji, who sustained severe injuries from a motor vehicle accident on 11.09.2011, leading to his eventual death on 09.12.2013. The Tribunal initially awarded Rs.23,05,800/- in compensation, which was contested by the insurance company based on the classification of the claim.
Findings of Court:
The court ruled that the claim should be considered as one for injury, leading to a recalculation of compensation to Rs.21,93,746/- after modifying various heads of claim.
Issues: The primary issues included the classification of the claim as injury versus death and the appropriate assessment of compensation based on the injuries sustained.
Ratio Decidendi: The court determined that the claim must be treated as one for injury, emphasizing the need for a fair assessment of compensation reflective of the claimant's injuries and circumstances.
Result: Appeal allowed in part, with modified compensation awarded.
JUDGMENT
The 3rd respondent in O.P.(M.V.) No.1132/ 2012 on the file of the Motor Accident Claims Tribunal, Pathanamthitta, is the appellant herein. (For the purpose of convenience, the parties are hereafter referred to as per their rank before the Tribunal). The above O.P was originally filed by one Shaji, who sustained injuries in a motor vehicle accident that occurred on 11.09.2011. Subsequently, he died on 09.12.2013 and his legal heirs were impleaded as additional petitioners 2 to 6.
2. According to the petitioner, on 11.09.2011 at about 10.30 am, while he was riding his motorcycle along the MC road, a Maruthi Car bearing Registration No.KL-04-V-1748 driven by the 2nd respondent in a rash and negligent manner, hit on the motor cycle and as a result of which, he fell down and sustained injuries.
3. The 1st respondent is the owner and the 3rd respondent is the insurer of the offending vehicle.
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 the oral testimony of Pw1 and documentary evidence Exts.A1 to A22 were marked on the side of the petitioners. No evidence was marked for the respondents.
6. After evaluating the evidence on record, the Tribunal awarded a total compensation of Rs.23,05,746/-, rouned to Rs.23,05,800/-.
7. Challenging the quantum of compensation awarded by the Tribunal, the 3rd respondent preferred this appeal.
8. Heard Sri.Latheesh Sebastian, the learned Counsel appearing for the insurance company and Sri.T.R.Harikumar, the learned Standing Counsel for the petitioner.
9. In the accident the petitioner sustained the following injuries :-
(1) abrasion of left knee, right leg and left leg
(2) lacerated wound over the ankle of right foot and over left leg
(3) pain and swelling over the right leg and left knee
(4) fracture of the proximal part of left tibia
(5) fracture of distal part of right tibia.
10. As per Ext.A16 disability certificate issued by the District Medical Board, Alappuzha, the permanent physical disability of the petitioner was assessed as 70% and the same was accepted as such by the Tribunal. The Tribunal noted that even before the accident, the petitioner was a diabetic patient with non healing ulcer on his right leg. However, in the accident, he sustained a fracture, and consequently, his right leg was to be amputated. It was thereafter, he succumbed to the injuries on 09.12.2013.
11. However, the Original Petition was not amended and it was continued as a case of injury. Even then the Tribunal assessed the compensation as if it were a death case. The 3rd respondent filed this appeal mainly challenging the award on the ground that even though it was a case of injury, the Tribunal treated it as a case of death.
12. Since the injured himself filed the claim petition, I hold that this case is to be treated as a case of injury and not as a case of death. In the above circumstance, this claim petition will proceed as if it is an injury case.
13. According to the petitioner, he was a businessman getting a sum of Rs.10,000/- per month. The learned counsel for the 3rd respondent would argue that in this case, there is no evidence to show that the petitioner was getting Rs.10,000/- per month. However, in this case the wife of the petitioner was examined as PW1, and she deposed before the Court that her husband was a businessman getting a monthly income of Rs.10,000/-. It was on the basis of the above evidence that the Tribunal fixed his notional income at Rs.10,000/-. I do not find any grounds to interfere with the above finding of the Tribunal fixing the notional income of the deceased at Rs.10,000/-.
14. On the date of accident, the petitioner was aged 48 years. Therefore, 25% of the of the monthly income is to be added towards future prospects, as held in the decision inNational Insurance Co.Ltd v Pranay Sethi [ (2017) 16 SCC 680 ] and the multiplier to
