Anish P.S. v. Ramachandran and Cholamandalam MS General Insurance Co. Ltd.

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MRS. JUSTICE MARY JOSEPH`** ``` FRIDAY, THE 25[TH] DAY OF NOVEMBER 2022 / 4TH AGRAHAYANA, 1944 ``` ## **`MACA NO. 1950 OF 2014`** ``` AGAINST THE AWARD DATED 16.08.2012 IN O.P(M.V) NO.763/2010 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, KOTTAYAM ``` ## **`APPELLANT/PETITIONER:`** ``` ANISH P.S PUTHENPARAMBIL, CHINGAVANAM P.O., KOTTAYAM. BY ADVS.SRI.P.KURUVILLA JACOB SRI.K.B.DAYAL ``` ## **`RESPONDENTS/RESPONDENTS:`** ``` 1RAMACHANDRAN, THAYYIL HOUSE, KALLUPURACKAL, VELOOR WEST P.O.-686017. 2THE CHOLAMANDALAM M.S. GENERAL INSURANCE CO. LTD. KOTTAYAM-686002. ``` ``` R2 BY ADVS.SRI.P.JACOB MATHEW SRI.MATHEWS JACOB SR. ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 25.11.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` M.A.C.A.No.1950 of 2014 ``` ``` 2 ``` ## **JUDGMENT** ## **Dated this the 25[th] day of November, 2022** This appeal is filed challenging an award passed by Motor Accidents Claims Tribunal, Kottayam (for short ‘the Tribunal’) on 16.08.2012 in O.P(M.V) No.763/2010. The appellant is the petitioner before the Tribunal. For the sake of convenience, the parties to this appeal will hereinafter be referred to as the petitioner and respondents 1 and 2 in accordance with their status in the Original Petition. 2. The petitioner had sustained injuries in a motor accident occurred at 2 pm on 26.02.2010. He was riding a Motorcycle through the Pannimattom-Chingavanam Road from North to South and when reached at Nattakom an Ape autorickshaw bearing Registration No.KL 5/X 9158 knocked him down and thereby he sustained serious injuries. The accident was occurred due to the rash and negligent driving of the Ape autorickshaw by it’s driver. The petitioner was taken to Matha Hospital, Thellakam and after undergoing ``` M.A.C.A.No.1950 of 2014 ``` ``` 3 ``` treatment there for sometime, he was shifted to Medical Trust Hospital, Kochi. Alleging that the accident was occurred due to rash and negligent driving by the driver of the Ape autorickshaw and claiming a total sum of Rs.15,00,000/- as compensation, the above original petition was filed before the Tribunal. 3. The driver cum owner and insurer of the Ape autorickshaw were arrayed as respondents 1 and 2 in the Original petition seeking compensation. The 1[st] respondent entered appearance but did not file any written statement and therefore declared ex parte. The 2[nd] respondent filed written statement contending mainly that the amount claimed as compensation is excessive. The negligence on the part of the 1[st] respondent, age, occupation and monthly income of the petitioner were also disputed. The vehicle was admittedly insured with the 2[nd] respondent at the relevant time of the motor accident. 4. Before the Tribunal, the petitioner examined himself as PW1 and the Doctor who had issued him a certificate assessing his disability, as PW2. Exts.A1 to A18 ``` M.A.C.A.No.1950 of 2014 ``` ``` 4 ``` and Ext.X1 were also marked. Respondents did not adduce any evidence. On appreciation of the above evidence, the 1[st] respondent who has driving the Ape autorickshaw at the relevant time was found by the Tribunal responsible for the motor accident by his rash and negligent driving. The Tribunal has also found entitlement for the petitioner to get compensation from the respondents and fixed Rs.8,81,896/as the compensation payable. The 2[nd] respondent was directed to deposit the aforesaid sum with interest at the rate of 7.5% per annum from the date of filing of the Original Petition till the date of realisation alongwith proportionate costs. 5. It is contended by Sri.P.Kuruvilla Jacob, the learned counsel for the petitioner that the petitioner had examined himself as PW1 and had also produced the licence issued by the Secretary of Aymanam Grama Panchayath, certificates, two in numbers issued from Kerala Vyapara Vyavasaya Samithi, Kottayam and income certificate issued by Village Officer, Nattakom to establish his income at the relevant time of accident. According to him the Tribunal ``` M.A.C.A.No.1950 of 2014 ``` ``` 5 ``` discarded the evidence adduced as above and opted to fix Rs.8,000/- as the monthly income of the petitioner on a notional basis. According to the learned counsel, the Tribunal is highly unjustified in not placing reliance on the documents marked in evidence as Exts.A7 to A10 to establish his monthly income. The learned counsel has also contended that the award of compensation on various other heads also falls on the lower side. According to him, the compensation awarded under the heads pain and suffering and loss of amenities and enjoyments in life are also disproportionate to the injuries sustained by the petitioner and the difficulties suffered by him on account of those. According to him, the compensation for permanent disability was assessed by the Tribunal based on the monthly income fixed notionally as Rs.4,000/- and thereby the petitioner suffers. According to the learned counsel the assessment of compensation for permanent disability was based on the percentage of disability certified by the Medical Board in Ext.X1. 42% was the disability assessed by the Medical Board and certified in Ext.X1. The petitioner got his permanent disability assessed ``` M.A.C.A.No.1950 of 2014 ``` ``` 6 ``` through a Medical Board associated with Govt.General Hospital, Kottayam and the certificate produced alongwith the appeal on hand as Annexure A1. 80% was assessed as the permanent disability of the petitioner on 25.09.2018. There was endorsement in Annexure A1 that it was issued as per the recommendation of the Gazette of India No.5/2018 of the Ministry of Social Justice Department dated 04/01/2018. Handicap on account of the above knee amputation of right lower limb was cited as the reason for assessment of 80% as his permanent disability. The learned counsel has also produced the recommendation of the Government of India to rest his contention that the permanent disability of 80% assessed by the Medical Board vide Annexure A1 is proper. 6. The learned counsel has also contended that due to above knee amputation of the right leg of the petitioner, he was provided with above knee prosthesis immediately after the treatment. According to him 12 years have already been elapsed since providing the above knee prosthesis. He has produced a quotation obtained from Endolite India Limited, Naraina Industrial Area, Phase-I, New Delhi which ``` M.A.C.A.No.1950 of 2014 ``` ``` 7 ``` shows that a prosthesis of the description ‘STD AK System with ENS400 knee joint, Multi flex foot and carbon fiber socket’ costs Rs.2,00,918/-, which is appended to the appeal on hand as Annexure A2. The learned counsel has also obtained a certificate from the Doctor who has certified that the prosthesis once provided with, needs to be changed in every three years on any damages being caused to it. According to the learned counsel since 12 years have already been passed after the motor accident, the prosthesis which was given to the petitioner undoubtedly require a change. The learned counsel canvassed that the amount shown in the quotation produced with the appeal on hand as Annexure A2 needs to be granted to him as cost for change of prosthesis. 7. The learned counsel for the 2[nd] respondent has contended that Annexure A2 is only a quotation obtained from a private company and an excess sum of Rs.2,00,918/being shown therein, it cannot be relied on while awarding compensation on that count. According to him, even in the certificate issued by the Doctor, change of prosthesis is stated as needed only when the prosthesis in use is ``` M.A.C.A.No.1950 of 2014 ``` ``` 8 ``` damaged. According to the learned counsel, there is no evidence to show that the prosthesis already given is damaged in any manner and therefore the argument of the learned counsel for the petitioner for getting an additional compensation on the basis of Annexure A2 quotation is only to be discarded. It is also contended by the learned counsel that in Ext.X1, issued by Govt.Medical College Hospital, Kottayam, the permanent disability of the petitioner was assessed as 42% in the year 2011. According to the learned counsel, the reason for assessment is also mentioned in Ext.X1 as above knee amputation of the right lower limb and post traumatic stiffness and swelling of left wrist. According to the learned counsel, the very same reason being stated in Annexure A1 produced now, grant of additional compensation for permanent disability on it’s basis is not warranted. 8. According to the learned counsel, eventhough documents to establish the business and monthly income of the petitioner were produced and marked in evidence as Exts.A7 to A10, the Tribunal discarded those on a finding arrived at that the documents are not relevant and reliable ``` M.A.C.A.No.1950 of 2014 ``` ``` 9 ``` ones. According to the learned counsel, Ext.A7 is the licence issued by the Secretary of Aymanam Grama Panchayath and Exts.A8 and A9 are certificates issued from Kerala Vyapara Vyavasaya Samithi, Kottayam and Ext.A10 is a certificate issued by Village Officer, Nattakom assessing his income. The income was assessed by the Village Officer, Nattakom in Ext.A10 as Rs.1,08,333/-. According to the learned counsel, the Village Officer, Nattakom issued a certificate certifying the income without any authority and basis and therefore the Tribunal is perfectly justified in discarding it. According to the learned counsel, the monthly income was fixed by the Tribunal as Rs.8,000/- on notional basis and it being a reasonable sum is only to be maintained. 9. This Court has noticed that Annexure A7 is licence issued by Secretary of Aymanam Grama Panchayath. The claim of the petitioner was that he was running a shop of footwear. Ext.A7 establishes the fact that the petitioner was running a footwear shop at the relevant time of accident. But the monthly income was certified by the Village Officer, Nattakom based on his own statement and upon the ``` M.A.C.A.No.1950 of 2014 ``` ``` 10 ``` information gathered from the local people in the enquiry held. The monthly income was certified as Rs.1,08,333/-, but not based on any cogent materials. Therefore Ext.A10 issued by the Village Officer cannot be relied on for fixation of the monthly income of the petitioner. The Tribunal has fixed Rs.8,000/- as the monthly income notionally in the above scenario and it being reasonable is maintained. 10. Exts.A4 and A5 are medical documents marked in evidence to establish the injuries sustained by the petitioner and treatment availed for the injuries. It is found from Ext.A4, an accident register cum wound certificate issued from Medical Trust Hospital, Ernakulam that the petitioner had sustained crush injury on the right lower thigh and knee extending to upper thigh with bone muscles badly damaged and neuro vascular bundle, badly contaminated with pain and tenderness of right wrist. In the X-ray taken of the wrist as well as the knee, fracture of radius and ulna and knee dislocation were detected. The fracture was found shattered with multiple fragments and anterior bone loss. Accordingly above knee amputation was done. Ext.A5 discharge summary ``` M.A.C.A.No.1950 of 2014 ``` ``` 11 ``` issued from the very same hospital shows that the petitioner had also sustained fracture of lateral femoral condyle. He was treated at the hospital from 26.02.2010 till 01.04.2010 and the procedures provided were wound debridement, external fixator application, K wire fixation, fasciotomy for Type III C open fracture of right tibia and femur. Right leg revascularistion was also done with a vein graft under general anesthesia. The right leg was amputated above knee. Wound debridement was repeated severally. Suturing and re-suturing were also done. Below elbow cast was also applied for fracture of right wrist. At the time of discharge, the wound was found clean and dressed up. He was advised to continue medication, cleaning and dressing on alternate days at a local hospital and to attend the hospital for review after three weeks. 11. On consideration of the above aspects, this Court finds that the compensation awarded under the heads transportation expenses, extra nourishment and bystander expenses are inadequate. The Tribunal has awarded Rs.16,000/- under the head transportation expenses and this ``` M.A.C.A.No.1950 of 2014 ``` ``` 12 ``` Court finds it reasonable to enhance it to Rs.20,000/- so that the petitioner will get Rs.4,000/- in addition. Under the head bystander expenses, the Tribunal has awarded only Rs.6,800/- and this Court is inclined to enhance it to Rs.20,000/-, so that the petitioner will get Rs.13,200/- as additional compensation. Under the head extra nourishment the Tribunal has awarded Rs.3,000/- and this Court is inclined to enhance it to Rs.10,000/- so that Rs.7,000/- is payable as additional compensation. Under the head damages to clothing Rs.500/- alone being awarded by the Tribunal, this Court is inclined to modify it to Rs.1,000/- so that the petitioner will get Rs.500/- as additional compensation. Under the head pain and suffering the Tribunal has awarded only Rs.50,000/and this Court is inclined to enhance it to Rs.1,00,000/- so that the petitioner will get Rs.50,000/- additionally. Under the head loss of amenities and enjoyments in life Rs.30,000/being the sum stands awarded by the Tribunal, this Court is inclined to modify it to Rs.50,000/-, so that the petitioner will get Rs.20,000/- additionally. ``` M.A.C.A.No.1950 of 2014 ``` ``` 13 ``` 12. The Tribunal had assessed the compensation for disability based on a certificate which was available in evidence at the relevant time of consideration as Ext.X1. Lateron Annexure A1 was produced by the petitioner in the appeal on hand which was a certificate assessing the permanent disability of the petitioner in the year 2018 as 80% based on a Gazette No.05/18 issued by the Government of India on 04/01/2018. The same incorporate guidelines for evaluation of Permanent Physical Impairment of Congenital deficiencies of the extremities. It is provided therein that for Trans Femoral (Above knee) upto lower 1/3 of thigh, 80% is the permanent impairment. In Annexure A1 also 80% is the disability certified by the Medical Board associated with Govt. General Hospital, Kottayam. The assessment was in the year 2018. 13. In order to ascertain the correct level of amputation of the right leg of the petitioner this Court has directed the learned counsel to produce the photographs. Accordingly, the photographs of the petitioner are produced and it is noticed therefrom that the right leg of the petitioner ``` M.A.C.A.No.1950 of 2014 ``` ``` 14 ``` stands amputated at a level above knee. Therefore, this Court finds justification in taking 80% disability assessed by the Medical Board associated with the Govt. General Hospital, Kottayam itself. For the reason, Annexure A1 produced alongwith the appeal on hand is marked in evidence in the Original Petition as Ext.X2. 14. It is noticed that the document produced to establish the monthly income being a certificate issued by the Village Officer is not liable to be accepted, being devoid of basis. 15. The Tribunal has fixed the monthly income notionally as Rs.8,000/-. It being a reasonable sum is maintained. Under the head loss of earning, the Tribunal has awarded Rs.80,000/- by taking 10 months as the period for which he was restrained from attending the job and earning income. This Court is inclined to take 15 months as the period and enhance the compensation payable to Rs.1,20,000/- so that the petitioner will get Rs.40,000/- as additional compensation. ``` 15 ``` ## **`M.A.C.A.No.1950 of 2014`** 16. The learned counsel for the petitioner has canvassed for addition of some amount to the monthly income in consideration of future prospects of the petitioner relying on the dictum laid down by the Madras High Court in **Gaurav Kumar v. Gestamp Sungwoo Hitech (Chennai)** **Pvt. Ltd. and Another** [2019 KHC 3257 (Madras High Court)]. According to him the Constitutional Bench ruling of the Apex Court in **National Insurance Company Ltd. vs. Pranay Sethi and Others** [2017 ACJ 2700] was relied on in that decision. According to the learned counsel, in the case cited above, the Madras High Court has taken 40% addition to the monthly income fixed towards future prospects of a victim whose case was considered by it. According to him, in the Constitutional Bench decision in **Pranay Sethi** (supra) also the Apex Court has considered 40% addition to the monthly income of the victim in consideration of future prospects. The learned counsel canvassed for fixation of 50% addition in consideration of future prospects in the case on hand. This Court is inclined to differentiate the case cited with the one on hand for the reason that the victim there was a ``` M.A.C.A.No.1950 of 2014 ``` ``` 16 ``` construction worker and in view of amputation of one of his leg, his future prospects with reference to the job is fully lost. 17. In the case on hand, the petitioner was running a footwear shop. Petitioner has not produced any materials to show that the licence issued to the shop was expired due to non renewal after the motor accident. Ext.A10 certificate was found issued by the Village Officer on 28.06.2010. It is relied on for the purpose of certification made therein by the Village Officer that the shop is run by the petitioner evenafter the accident. Therefore, the argument of the learned counsel that after the amputation of his right leg the petitioner had stopped running of the footwear shop is something unbelievable. Therefore it appears that the petitioner was running the shop evenafter occurrence of the motor accident and was earning income as he had been obtaining prior to the accident. Since one leg of the petitioner was amputated above knee level, the petitioner may not be able to attend the work at the shop in the manner as was done by him earlier. There may be restrictions on movement. But for the reason that the shop is still run by him, this Court is inclined ``` M.A.C.A.No.1950 of 2014 ``` ``` 17 ``` to take only 20% addition to the monthly income in consideration of loss of future prospects. 18. When 20% is added to Rs.8,000/- the notionally fixed monthly income, Rs.9,600/- is arrived at. It is found that the Tribunal has adopted 16 as the multiplier. It being correct is maintained. 80% disability assessed by the Medical Board as per Ext.X2 is taken for the purpose of computation of compensation for disability. 19. When compensation for disability is reassessed with Rs.9,600/- as the monthly income, 16 as the multiplier and 80% as the percentage of disability, Rs.14,74,560/(Rs.9,600/- x 12 x 16 x 80/100) is arrived at. Rs.3,45,600/-, the sum stands already awarded by the Tribunal under the head permanent disability when adjusted in the sum now arrived at, Rs.11,28,960/- will be payable as additional compensation. 20. A prosthesis was availed by the petitioner immediately after the accident. Now a quotation is produced and it shows that Rs.2,00,918/- is the cost required for change of prosthesis. The Doctor has also certified that ``` M.A.C.A.No.1950 of 2014 ``` ``` 18 ``` prosthesis needs to be changed in every two/three years on any damage being caused to it. Evidence is totally lacking to show that the prosthesis in use by the petitioner is damaged in any manner and is unfit for use. But taking into account of the fact that more than 11 years have already been elapsed since start of it’s use first in point of time, a change seems to be appropriate and inevitable. The quotation furnished by the petitioner is not liable to be accepted, since the amount shown therein is exorbitant. Ext.A13 was the bill furnished by the petitioner before the Tribunal to establish the expenditure incurred while fixing it originally. It is revealed that only a sum of Rs.28,000/- has been expended in the year 2010. True that more than 11 years have elapsed after the said fixation but the amount found in the quotation produced by the petitioner is comparatively high when the expenditure already incurred in the year 2010 is considered. Rs.1,00,000/- appears to be a reasonable sum to be fixed for the fixation of a new prosthesis and this Court does so. 21. In the above manner of reassessment, the petitioner is entitled to get a sum of Rs.13,63,660/- as ``` M.A.C.A.No.1950 of 2014 ``` ``` 19 ``` additional compensation. After passing of the award by the Tribunal and during the pendency of the appeal on hand, the petitioner’s counsel and the insurer of the offending vehicle had once settled the issues among themselves and arrived at Rs.2,00,000/- as an additional compensation. Based on the terms of settlement, this Court had also passed a judgment awarding Rs.2,00,000/- as the additional compensation. But, the counsel for the petitioner had moved a petition as R.P.No.727/2018 before the same court which passed the judgment, seeking for it’s review for the reason that the terms of settlement was not signed by the appellant, but only by the counsel. Accordingly a specific contention was also taken before the court that the terms of settlement was entered into without the knowledge of the review petitioner/appellant. Signature being not affixed by the petitioner in the agreement incorporating the terms of settlement, this Court was pleased to allow the review of the judgment sought and to set aside the same. In the meanwhile, the insurer had already deposited the original sum awarded by the Tribunal as well as Rs.2,00,000/- stands ``` M.A.C.A.No.1950 of 2014 ``` ``` 20 ``` awarded as additional compensation by way of modification of the original award. 22. The learned counsel for the petitioner has submitted that he has not informed about the deposit of the amount claimed by the insurer. In the above circumstances, this Court is inclined to direct the 2[nd] respondent to deposit Rs.13,63,660/- (subject to verification) with interest at the rate of 7.5% per annum from the date of the Original Petition till the date of realisation within a period of two months from the date of receipt of a certified copy of this judgment. If Rs.2,00,000/- is already deposited as submitted by the learned counsel for the 2[nd] respondent, the same can be reduced from the amount found payable now as additional compensation and then the 2[nd] respondent shall deposit only Rs.11,63,660/- with interest fixed as above, within the time allowed. 23. It has been pointed out by the learned counsel for the 2[nd] respondent that the appeal was filed with a delay of 594 days and therefore the 2[nd] respondent is required to be exempted from paying interest for that period. This Court is ``` M.A.C.A.No.1950 of 2014 ``` ``` 21 ``` convinced of the delayed filing of the appeal and is inclined to exempt the 2[nd] respondent from liability to pay interest for the delay occurred. Accordingly direction is issued to the 2[nd] respondent to pay interest at the rate fixed for the sum arrived at as additional compensation for the period from the date of filing of the Original Petition till the date of deposit, excluding 594 days. Since the claim for compensation for change of prosthesis was made only before this Court, and Rs.1,00,000/- is awarded as costs for it, the 2[nd] respondent is also exonerated from paying interest for that sum. M.A.C.A stands allowed accordingly. **MARY JOSEPH JUDGE** NAB ``` M.A.C.A.No.1950 of 2014 ``` ``` 22 ``` The following paragraph is incorporated to the judgment dated 25.11.2022 in MACA No.1950/2014, as per order dated 03.03.2023 in I.A.No.01 of 2023 in MACA No.1950/2014: The Tribunal shall comply with directions in the Circular No.D1/62475/2016 dated 06.09.2019 of the High Court of Kerala at the time of disbursal of the compensation amount in favour of the petitioner. Petitioner shall furnish the details of his account maintained with his Banker and then the Tribunal shall direct deposit of a portion of the amount as it’s discretion, in the account of the petitioner and direction also be issued to the bank authorities to release the amount as directed by the Circular in his favour. Sd/- JOINT REGISTRAR