Ajeesh Kumar v. Rajesh K. Sharma and Others

## `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ## `THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN` ``` WEDNESDAY, THE 15[TH] DAY OF MARCH 2023 / 24TH PHALGUNA, 1944 ``` ## `MACA NO. 466 OF 2010` ``` AGAINST THE AWARD IN OPMV 1150/2004 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ``` ``` , IRINJALAKUDA ``` ## `APPELLANT/PETITIONER:` ``` AJEESH KUMAR, S/O KAIMAPARAMBIL PRABHAKARAN, KAKKATHURUTHY DESOM,, EDATHIRINJI P.O., THRISSUR DISTRICT. BY ADVS. SRI.G.SREEKUMAR (CHELUR) SRI.K.RAVI PARIYARATH ``` ## `RESPONDENTS/RESPONDENTS:` ``` 1RAJESH K.SHARMA, 1/86 SHAJIRAN SOCIETY, RANESH NAGAR,, LAL BHAVAN, MUMBAI. 2SASIDHARAN, S/O.VELIYATH VELAYUDHAN CHELUR DESOM, KAKKATHURUTHY VILLAGE,, THRISSUR DISTRICT. 3THE MANAGER, NEW INDIA ASSURANCE COMPANY LTD., BRANCH OFFICE, MUMBAI. 4THAJUDEEN.A.K. ANAKKATTU HOUSE EDATHIRINJI P.O., THRISSUR DISTRICT. 5THE MANAGER, ORIENTAL INSURANCE COMPANY LTD., MANAPPAT BUILDING,, KODUNGALLUR. 6MR.SHAIKH FIROZ RAFEEQUIDEEN SECTOR 15/16, MUNICIPAL HOUSE,, NO.20/2, NOORANI MANZIL,, SRI.J.J.ROAD, MUMBAI. BY ADVS. JACOB MURIKAN SMT.A.SREEKALA DINESH MATHEW J.MURICKEN(K/641/1992) ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 15.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA NO. 466 OF 2010 ``` ``` 2 ``` ## `JUDGMENT` ``` While the appellant was riding his motor cycle on 25.05.2004, he met with a road accident - when ``` ``` the offending vehicle, driven in a rash and negligent manner, hit him. He suffered grievous injuries and had to be treated for a long period of time, including 34 days as inpatient; and thereupon, filed OP(MV)No.1150/2004 before the ``` ``` Motor Accidents Claims Tribunal, Irinjalakuda (“Tribunal” for short), which has been allowed to a sum of Rs.2,65,100/-. The appellant, however, impugns this Award as being inadequate. ``` ``` 2.Sri.P.Tharun – learned counsel appearing ``` ``` for the appellant, vehemently argued that the primary reason why the compensation in favour of his client has been fixed so low by the learned Tribunal is because, it adopted his notional income to be a mere Rs.2,000/- per month, while ``` ``` MACA NO. 466 OF 2010 ``` ``` 3 ``` ``` he had claimed Rs.4,000/-. He asserted that this amount ought to have been adopted by the learned Tribunal. ``` ``` 3.As his further submissions, Sri.P.Tharun submitted that, the learned Tribunal has erred egregiously in having reduced the percentile of his client’s permanent disability to 16.5%, when Ext.A17 - Disability Certificate unequivocally recorded that he was suffering from 33% whole body disability. He thus prayed that this appeal be allowed, enhancing the compensation under the head “Loss of Earnings”, “Permanent Disability”, “Pain and Suffering” and “Loss of Amenities of life”. ``` ``` 4.In response, Sri.Jacob Muriken - the learned Standing Counsel for the Insurance Company, submitted that the learned Tribunal has computed the compensation eligible to the ``` ``` MACA NO. 466 OF 2010 ``` ``` 4 ``` ``` appellant on cogent and reliable basis; and therefore, prayed that this appeal be dismissed. ``` ``` 5.I have examined the afore rival ``` ``` contentions of the parties and have tested them ``` ``` on the worth of the evidence on record – copies of which have been made available to this Court ``` ``` by the learned counsel for the parties across the Bar, with the express consent that they can be acted upon, without dispute. ``` ``` 6.I will first deal with the notional ``` ``` income adopted by the learned Tribunal in favour of the appellant. The appellant, as said above, claimed only Rs.4,000/- per month as his income and asserted that he was a driver by occupation. Going byRamachandrappa v. Manager, Royal ``` ``` Sundaram Alliance Insurance Company Limited. ``` ``` [(2011) 13 SCC 236], even in the case of a person with an unascertainable income, or who is working ``` ``` MACA NO. 466 OF 2010 ``` ``` 5 ``` ``` as a “Coolie”, in the year of 2004 – when the accident occurred – the minimum figure has been postulated to be Rs.4,500/-. When the appellant sought only Rs.4,000/-, there was no reason for the learned Tribunal to reduce it any further. ``` ``` 7.That being said, Ext.C1 - Disability ``` ``` Certificate, records the appellant’s permanent disability to be 33% and the learned Tribunal has reduced it to 16.5%. Assuming that the learned Tribunal is right, the question arises whether the appellant is entitled to be granted future prospects, particularly because he was a driver and the permanent disability has been found to his right leg, on account of its deformity and shortening. His prospects of being able to drive a car in a professional capacity being thus diminished and guided by the recent judgment of the Hon’ble Supreme Court in Satheesh E. v. The ``` ``` MACA NO. 466 OF 2010 ``` ``` 6 ``` ``` New India Assurance Company Ltd. and Others ``` ``` [(2022) SCC OnLine 1828], I am of the firm view that appellant is entitled to be granted future prospects at the rate of 40%, as authorised by National Insurance Company Ltd. v. Pranay Sethi ``` ``` [2017 (4) KLT 662], even if his permanent ``` ``` disability is reckoned to be only 16.5%, as done ``` ``` by the Tribunal. In fact, I propose to enhance ``` ``` the percentile of disability, for the reasons I ``` ``` will presently state, to be 25%; and am, ``` ``` therefore, certain that, going by various other ``` ``` judgments of the Hon‘ble Supreme Court, including Syed Sadiq and others v. Divisional Manager, United India Insurance Company Ltd. [(2014) 2 SCC ``` ``` 735] Vijaya Kumar Rastogi v. Uttar Pradesh State ``` ``` Roadways Transport Corporation [AIR 2018 SC 819] and Erudhaya – Priya v. State Express Transport Corporation Ltd.[2020 ACJ 2159], future ``` ``` MACA NO. 466 OF 2010 ``` ``` 7 ``` ``` prospects at the above said rate would become eligible to the appellant. ``` ``` 8.Coming to the question of the percentile disability, as rightly argued by Sri.P.Tharun, ``` ``` Ext.C1 is the certificate issued by a doctor of a ``` ``` Medical College Hospital, certifying that the ``` ``` appellant suffers from 33% whole body disability. Out of this, 12% has been shown to be for loss of range of movement and 11% for loss of stability. These are vital inputs because, as I have already seen above, the appellant is a driver and his competence to be engaged in such professional ``` ``` capacity would depend upon his physical fitness. ``` ``` Therefore, viewing it from any angle and even ``` ``` though Ext.C1 has not been issued by a Medical ``` ``` Board, but only by an individual doctor, its ``` ``` contents cannot be brushed aside and will have to ``` ``` be given due weight, particularly when the ``` ``` MACA NO. 466 OF 2010 ``` ``` 8 ``` ``` competence or credentials of the said doctor have not been impeached or controverted. Therefore, I propose to accept Ext.C1 substantially and to adopt the percentile of disability of the appellant to be 25%. I am certain that this will be apposite, taking note of the fact that Ext.C1 has not been issued by the Medical Board. ``` ``` 9.Coming to the compensation eligible to the appellant under the heads “Pain and Suffering” and “Loss of Amenities”, the Medical evidence on record, particularly Ext.A4 - Wound Certificate, show that she had suffered ``` ``` compound fracture of femur, compound fracture of right tibia, fracture of the right lateral medial conyle and fracture of the base of 5th metatarsal (sic). Ext.A5 Discharge Card establishes that he was initially hospitalised for a period of 28 days and further for a period ``` ``` MACA NO. 466 OF 2010 ``` ``` 9 ``` ``` of six days. The subsequent Discharge Card, namely Ext.A7, records that appellant had to undergo surgical procedure for knee mobilisation and that he had to be again admitted for spells of 2 and 3 days pursuant thereto. Finally, Ext.A10 Discharge Card issued by the Medical College Hospital, Thrissur, establishes that he had to continue as inpatient for a further 20 days, followed by another five days in a private ``` ``` hospital, on account of chronic osteomyelitis and for undergoing limb reconstruction. The total ``` ``` period of hospitalisation endured by the appellant, therefore, is seventy five days. ``` ``` 10.One cannot view the afore, without being ``` ``` affected by the Trauma and pain that the ``` ``` appellant would have undergone, particularly on ``` ``` account of the continued surgical procedures ``` ``` which went on for several weeks, as is evident ``` ``` MACA NO. 466 OF 2010 ``` ``` 10 ``` ``` from the Discharge Summaries on record. I am, therefore, left without any doubt that the compensation for “Pain and Suffering”, as also for “Loss of Amenities”, will require to be substantially enhanced, which I propose to be Rs.60,000/- and Rs.40,000/- respectively. ``` ``` 11. That being said, there is great force in the submissions of Sri.P.Tharun, that the compensation awarded by the Tribunal for “Bystander's Expenses” is very exiguous. This is because, it has awarded the same at the rate of Rs.100/- per day for 75 days of hospitalization. I propose to double it, which I am certain would ``` ``` be the least that the appellant would have expended for such purpose. Similarly, in the case of extra nourishment also, the appellant is entitled to some amount because he had to be hospitalised for 75 days as said above. I propose ``` ``` MACA NO. 466 OF 2010 ``` ``` 11 ``` ``` an amount of Rs.10,000/- under that head taking a ``` ``` conservative figure of nearly Rs.135/- per day ``` ``` for such purpose. ``` ``` In the afore circumstances, this appeal is ``` ``` partly allowed in the following manner: ``` ``` a)Thecompensationfor“Permanent ``` ``` Disability” is enhanced to Rs.2,85,600/-, from Rs.67,300/- now awarded by the Tribunal, reckoning his notional income to be Rs.4,000/- per month, with 40% future prospects added to it ``` ``` and his percentile of disability reckoned as 25%. ``` ``` b)Axiomatically, the compensation for “Loss of Earnings” would stand revised to Rs.48,000/-, from Rs.24,000/-, reckoning the notional income of the appellant to be Rs.4,000/- per month for 12 months, as has been reckoned by the learned Tribunal correctly. ``` ``` MACA NO. 466 OF 2010 ``` ``` 12 ``` ``` c)The compensation for “Pain and Suffering” is enhanced to Rs.60,000/-, from Rs.30,000/-, now ``` ``` awarded by the Tribunal. ``` ``` d)The compensation for “Loss of Amenities ``` ``` of life” is enhanced to Rs.40,000/-, from ``` ``` Rs.20,000/-, now awarded by the Tribunal. ``` ``` e)The compensation under the head ``` ``` “Bystander's Expenses” is enhanced to Rs.15,000/- reckoning Rs.200/- per day expenses for 75 days of hospitalization. ``` **==> picture [407 x 13] intentionally omitted <==** ``` against “Extra Nourishment” for 75 days of hospitalization. ``` ``` In all other heads, the compensation awarded ``` ``` by the Tribunal and its findings will remain unaltered. ``` ``` Consequently, the appellant will be entitled ``` ``` MACA NO. 466 OF 2010 ``` ``` 13 ``` ``` to recover the compensation, as enhanced by this Court, from the respondent – Insurance Company, along with interest at the rate of 7% from the date of filing of the claim until it is realised. The appellant will also be entitled to proportionate costs on the enhanced amounts as ordered by the Tribunal. ``` ``` However, while calculating the interest on ``` ``` the enhanced amount as afore, the period of 208 days - being the delay caused by the appellants in filing this appeal - shall stand excluded. ``` ``` In view of the afore, the amount as fixed ``` ``` above shall be deposited by the Insurance Company before the learned Tribunal, within a period of two months from the date of receipt of a copy of this judgment. ``` ``` Sd/- ``` ``` SAS ``` ``` DEVAN RAMACHANDRAN JUDGE ```