Bhaskaran Achary v. Venugopal and The Manager, Reliance General Insurance Company Limited

# `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ## `THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN` ``` MONDAY, THE 13[TH] DAY OF MARCH 2023 / 22ND PHALGUNA, 1944 ``` ## `MACA NO. 906 OF 2013` ``` AGAINST THE ORDER/JUDGMENTOPMV 1198/2009 OF MOTOR ACCIDENT CLAIMS ``` ``` TRIBUNAL ,KOLLAM ``` ## `APPELLANT/PETITIONER:` ``` BHASKARAN ACHARY S/O.PARAMESWARAN ACHARY, ILLIKKULATHU VEEDU,IVERKALA WEST SOUTH MURI, KUNNATHUR VILLAGE,KOLLAM DISTRICT. BY ADV SRI.ANCHAL C.VIJAYAN ``` ## `RESPONDENT/RESPONDENTS:` ``` 1VENUGOPAL MAYICKAL HOUSE, MANGARAM, PANDALAM P.O.,PATHANAMTHITTA DISTRICT, PIN - 689 501. 2THE MANAGER RELIANCE GENERAL INSURANCE COMPANY LIMITED,IST FLOOR, VARINJAM TOWERS, CHINNAKKADA,KOLLAM, PIN - 689 001. ``` ``` SMT.K.S.SANTHI-SC ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 13.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA NO. 906 OF 2013 ``` ``` 2 ``` ## `JUDGMENT` ``` The petitioner, who is stated to be a 'Farmer' and working as an 'Attender' in a Private institute, met with a road accident on 26.04.2009 - when the offending vehicle hit him, as he was waiting for the bus in a road junction. He sustained very serious injuries and was initially taken to a Private Hospital, but referred to the Medical College Hospital, Thiruvananthapuram. He had to endure long spells ``` ``` of treatment as inpatient and had to visit the hospital multiple times. He thus filed OP(MV) No. 1198/2009 before the Motor Accidents Claims Tribunal, Kollam ('Tribunal' for short) seeking compensation of an amount of Rs.2,00,000/-, but which has been allowed only to a sum of Rs.1,04,000/-. ``` ``` MACA NO. 906 OF 2013 ``` ``` 3 ``` ``` 2.Sri.Anchal C.Vijayan - learned counsel for the appellant, argued that the notional income adopted by the Tribunal is in error because, his client had only claimed Rs.5,000/-, but which has been reduced unfairly to Rs.4,000/- per month. He then pointed out that the medical evidence shows the graphic nature of the injuries and its aftermath on his client, but that even though Annexure-A11 – Disability Certificate records his Permanent Disability to be 12%, it has been unfairly reduced to 9%, without any cogent reason. He then pointed out that said certificate also certifies that his client had 100% disability for twelve weeks, with 50% disability for twelve more weeks; and therefore, that the period reckoned for his “Loss of Income” ought to have been minimum of one year, rather than four months, as has been ``` ``` MACA NO. 906 OF 2013 ``` ``` 4 ``` ``` done by the Tribunal. He concluded saying that ``` ``` the compensation awarded under the head 'Pain and Suffering' and 'Transport Expenses' is ``` ``` inadequate; while sums sought to have been allowed for 'Loss of Amenities' also. He thus prayed that this appeal be allowed. ``` `3. In response, Smt.K.S.Santhi – learned` ``` Standing Counsel for the Insurance Company, ``` ``` argued that the computations arrived at by the Tribunal are without error and thus prayed that this appeal be dismissed. ``` ``` 4.I have considered the afore submissions and have also gone through the evidence on ``` ``` record – copies of which have been handed over ``` ``` across the Bar by the learned counsel for the ``` ``` parties, with the express consent that it can be acted upon by this Court without dispute. ``` ``` 5.I first deal with the notional income ``` ``` MACA NO. 906 OF 2013 ``` ``` 5 ``` ``` adopted by the Tribunal in favour of the appellant. Without assigning any reason, the learned Tribunal has adopted Rs.4,000/- to be the said figure. In Ramachandrappa v. Manager, ``` ``` Royal Sundaram Alliance Insurance Company Ltd. ``` ``` [(2011) 13 SCC 236], the Honourable Supreme ``` ``` Court has postulated that even in the case of a ``` ``` person with unascertainable income, or who is a ``` ``` 'Coolie', in the year 2009 – when the accident ``` ``` occurred – the minimum amount to be reckoned is ``` ``` Rs.7,000/-. However, since the appellant has ``` ``` claimed only with Rs.5,000/- , I am certain that ``` ``` the Tribunal ought to have granted the same to him. ``` ``` 6.Now, turning to the question of ``` ``` percentile of disability, no doubt, Ext.A11 shows that appellant is certified to be suffering from 12% permanent disability. ``` ``` MACA NO. 906 OF 2013 ``` ``` 6 ``` ``` However, the learned Tribunal has refused to accept this certificate saying that this has not been issued by a Medical Board but only by a Doctor and that too without its order. However, it must be borne in mind that the condition of the appellant is discernible from other medical records also, particularly Ext.A5 – Wound Certificate and Ext.A6 – Discharge Summary. As the Tribunal has correctly found, the afore mentioned Wound Certificate records the injuries of the appellant to be “Comminuted fracture lower 1/3[rd] right tibia and Fracture lower 1/3[rd] fibula” (sic). Ext.A6 – Discharge Summary then shows the nature of the treatment that had to be endured by the appellant and records that both bones of his right leg had been fractured, with no distal neuro vascular deficits; and that it required open reduction and internal fixation ``` ``` MACA NO. 906 OF 2013 ``` ``` 7 ``` ``` of the said leg. The afore documents also record that the appellant had gone through treatment for a long period of time, as an inpatient for different spells. Ext.A11 unequivocally records that he had 100% disability for twelve weeks, and 50% disability for twelve more weeks. However, as I have already said above, the learned Tribunal did not accept this ``` ``` certificate, solely because it is not issued by a Medical Board. ``` ``` 7.This Court, however, is of the contrary ``` ``` view because, as is evident from the impugned Award itself, the learned Tribunal has accepted Ext.A11, but not to its full extent. The learned Tribunal has not found the contents of Ext.A11 to be suspicious or that the doctor who issued itwaswithoutsufficient competence, particularlybecause his professional ``` ``` MACA NO. 906 OF 2013 ``` ``` 8 ``` ``` credentials remain unimpeached. Going by the said certificate, there is a minimum 24 week disability for the appellant to earn his living; and I have no doubt that said period ought to have been kept in mind by the learned Tribunal, especially since there was no cogent reason to reduce it to a period of four months thereon. ``` ``` 8.As far as the injuries are concerned, the factum of fracture of the tibia and fibula of the appellant being admitted, he must have gone through great amount of trauma and stress, especially because the treatment went on for a long period of time, as is evident from Exts.A7, A9 and A10 OP Records, the last of which is dated 08.02.2012. ``` ``` 9.That being so concluded, as regards the percentile of permanent disability adopted by the Tribunal, I notice that it has gone by ``` ``` MACA NO. 906 OF 2013 ``` ``` 9 ``` ``` conjuncture in reckoning the same to be 9%. The injuries, juxtaposed by the long period of treatment, persuades me to consider it to be at least 10%, which, of course, is also by a rough estimate only. ``` ``` 10.Finally, as regards transportation ``` ``` expenses, though the appellant had produced Exts.A14 series of “Way Bills”, same were not accepted by the learned Tribunal because of the entities who issued it were not examined. Though I cannot find any error in the conclusion of the Tribunal in that regard, the fact remains that said “Way Bills”, at least, would show that appellant had gone to the hospital seven times; and it has granted Rs.7,000/- for expenses, reckoning Rs.1,000/- per visit. I propose to revise this to be Rs.1,500/- by a rough estimate. ``` ``` MACA NO. 906 OF 2013 ``` ``` 10 ``` ``` In the afore circumstances, this appeal is ``` ``` partly allowed in the following manner: ``` ``` a)Thecompensationforpermanent ``` ``` disability is enhanced to Rs.54,000/-, from Rs.38,880/-, now granted by the Tribunal, reckoning the notional income of the appellant to be Rs.5,000/- per annum, with his percentile ``` ``` of disability being reckoned as 10%. ``` ``` b)Axiomatically, the compensation under the head “Loss of Earnings” is enhanced to Rs.40,000/-, reckoning the monthly income of the appellant to be Rs.5,000/- and the period of disability to be eight months, again adverting tothemedicalrecords which show ``` ``` hospitalization and disability at least such ``` ``` period. ``` ``` c)The compensation under the head “pain and suffering” is enhanced to Rs.30,000/-, from ``` ``` MACA NO. 906 OF 2013 ``` ``` 11 ``` ``` Rs.20,000/- as granted by the Tribunal. ``` ``` d)The compensation under the head ``` ``` transportation expenses is enhanced to ``` ``` Rs.10,500/- instead of Rs.7,000/- as now awarded by the Tribunal. ``` ``` e)In all other heads, the compensation awarded by the Tribunal and its findings will remain unaltered. ``` ``` Consequently, the appellant will be entitled to recover the compensation, as enhanced by this ``` ``` Court, from the respondent – Insurance Company, ``` ``` along with interest at the rate of 7.5% 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. ``` **==> picture [404 x 13] intentionally omitted <==** ``` MACA NO. 906 OF 2013 ``` ``` 12 ``` ``` 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/- ``` ## `DEVAN RAMACHANDRAN` ``` JUDGE ``` ``` lsn/SAS ```