Celin v. P.J. Bejoy & Others (MACA Nos. 1556/2009, 1655/2009, 1676/2009)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN & THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** **WEDNESDAY, THE 10TH DAY OF FEBRUARY 2016/21ST MAGHA, 1937** **MACA.No. 1556 of 2009 ( ) --------------------------** **AGAINST THE AWARD IN OPMV 2874/2002 of M.A.C.T.,ERNAKULAM DATED 03-052008** **APPELLANT/PETITIONER: --------------------** **CELIN, AGED 52 YEARS, W/O. K.V.JOSEPH, KAITHAKKACHIRA HOUSE, NEAR HOTEL MITHULA ERAMALLOOR P.O., ERAMALLOOR VILLAGE, CHERTHALA TALUK ALAPPUZHA DISTRICT.** **BY ADVS.SRI.ANIL S.RAJ SMT.K.N.RAJANI SRI.RADHIKA RAJASEKHARAN P. SMT.ANILA PETER** **RESPONDENTS/RESPONDENTS: -----------------------** **1. P.J.BEJOY, S/O. P.J.JOHNY, PALAKKAPPILLY HOUSE, PERUMANOOR, COCHIN-682 015.** **2. N.BALAKRISHNAN NAIR, GREENLAND TRAVELS, THEVARA ROAD, PERUMANOOR P.O. COCHIN-682 015.** **3. THE ORIENTAL INSURANCE COMPANY LIMITED, COCHIN-682 011.** **R3 BY ADV. SRI.MATHEWS JACOB (SR.) R3 BY ADV. SRI.P.JACOB MATHEW** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 10-02-2016, ALONG WITH MACA. 1655/2009 AND MACA. 1676/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **P.N. RAVINDRAN & K. RAMAKRISHNAN, JJ.** .................................................. M.A.C.A.Nos. 1556, 1655 & 1676 of 2009 ....................................................... Dated this the 10[th] day of February, 2016. ## **O R D E R** ## **K. Ramakrishnan, J:** MACA.No.1556/2009 was filed by the claimant in OP(MV) No.2874/2002, MACA.No.1655/2009 was filed by the claimant in OP (MV)No. 2875/2002 and MACA.No.1676/2009 was filed by the claimant in OP(MV)No.2876/2002, all on the file of the Motor Accidents Claims Tribunal, Ernakulam. In all these cases, the claimants have filed the applications for compensation for the personal injuries sustained by them in a motor vehicle accident occurred on 22.8.2002. In all these cases, the appellants were travelling in a Qualis car with No.KL-7Y-9800 owned by the first respondent, driven by the second respondent and insured with the third respondent. When it reached the place of occurrence, it fell down into a ditch having depth of 60 feet and all of them sustained severe injuries. 2. In OP(MV)No.2874/2002, the claimant claimed that she was helping her husband in a provisional store and getting Rs.2,500/per month and she sustained severe injuries and claimed a total compensation of Rs.13 lakhs. The claimant in OP(MV)No.2876/2002 is conducting an agency business and getting an income of Rs.5,000/-.He also sustained injuries and claimed a total compensation of Rs. 5 lakhs. M.A.C.A.Nos. 1556, 1655 & 1676 of 2009 2 3. The claimant in OP(MV)No.2875/2002 was a student, aged 10 years and she sustained injuries and claimed a total compensation of Rs.2,50,000/-. 4. Respondents 1 and 2 remained absent. The third respondent appeared and filed counter admitting the insurance of the vehicle but denying the allegations of negligence. According to them, it was an inevitable accident. They further contended that the quantum of compensation claimed on various heads are high and they prayed for dismissal of the applications. After considering the evidence on record, the tribunal applied the principles of res ipsa loquitor and found that the accident occurred due to the negligence of the second respondent, the driver of the vehicle. 5. In OP(MV)No.2874/2002, the tribunal awarded a total compensation of Rs.6,02,000/- on various heads as follows: Transportation, extra nourishment & damage to clothings, hospital expenses, attendant expenses Rs.10,000/- Loss of earnings Rs.18,000/Medical expenses Rs.2,70,000/Pain and suffering Rs.35,000/, For discomfort, inconveniences & M.A.C.A.Nos. 1556, 1655 & 1676 of 2009 3 Venimision in Pleasures in life Rs.20,000/Occupational of disability Rs.2,34,000/-, Future treatment and attendant expenses Rs.15,000/-. ---------------------Rs.6,02,000/- ## 6. In OP(MV)No.2875/2002, the tribunal awarded a total compensation of Rs.74,605/- as follows: Transportation, extra nourishment & damage to clothings, hospital expenses, attendant expenses Rs. 5,000/-, Medical expenses Rs.44,605/Pain and sufferings Rs.15,000/Discomfort and inconvenience Rs.44,605/Rs.15,000/Rs.10,000/-. ---------------- Rs.74,605/======== 7. In OP(MV)No.2876/2002, the tribunal has awarded a total compensation of Rs.77,484/- as follows: Transportation, extra nourishment & damage to clothings Rs.2,500/Loss of earning Rs.9,000/Medical expenses Rs.33,984/-, Pain and sufferings Rs.20,000/Discomfiture and inconvenience Rs.12,000/- ------------Rs.77,484/======= M.A.C.A.Nos. 1556, 1655 & 1676 of 2009 4 and directed the third respondent insurance company to pay the amount with interest at 7.5% per annum from the date of petition till the date of award and thereafter 8% per annum till payment with proportionate costs. Dissatisfied with the quantum of compensation awarded, the above appeals have been preferred by the appellants/claimants in the respective cases. 8. Heard learned counsel for the appellants Smt. Rajani K.N representing Sri. Anil S.Raj, counsel for appellants and learned counsel Sri. Mathew Jacob for insurance company. 9. The counsel for the appellants in all these cases submitted that the tribunal has not properly considered the evidence and the disability suffered. In OP(MV)No.2874/2002, the tribunal had arbitrarily deducted 30% though the documents have been produced to prove the payment of medical expenses. The tribunal has not taken into consideration the future prospects while fixing compensation for loss of earning capacity. The amount awarded under the head pain and sufferings, loss of amenities in life, future medical expenses are also on the lower side. The counsel also submitted that all other heads the amount awarded is less and according to the learned counsel, the appellants are entitled to enhance compensation on all other heads. M.A.C.A.Nos. 1556, 1655 & 1676 of 2009 5 10. Learned senior counsel for the insurance company submitted that the tribunal had considered all the aspects in the right perspective and awarded just and fair compensation and no enhancement is required and further, in OP (MV)No.2874/02 having found that she is entitled to 100% disability, awarded compensation, the tribunal should not have awarded any compensation under the head loss of earnings during the period of treatment. ## - 11. MACA 1556/2009 OP (MV)No.2874/02 The petitioner is aged 45 years and according to her, she was helping her husband in a provision store and getting Rs.2,500/- per month. She had produced documents to prove that her husband is conducting a provision shop. But, the court below had come to the conclusion that, that cannot be relied on for the purpose of fixing the wages or monthly income and taken her monthly income at the rate of Rs.1,500/-. It may be mentioned here that in _**Lata Wadhwa & others v. State of Bihar & others**_ (2001(8) SCC 197) the Supreme Court has held that even for a house wife, the service will have to be reckoned and money value will have to be given for that purpose and held that at least Rs.3,000/- will be taken as their income. But, in this case, the petitioner herself has restricted her claim for Rs.2,500/- and in such circumstances, the tribunal was M.A.C.A.Nos. 1556, 1655 & 1676 of 2009 6 not justified in reducing the amount to Rs.1,500/- per month. So we are taking the monthly income of the petitioner as Rs.2,500/- per month. 12. The petitioner sustained fracture base of skull with air pockets inside the brain. Diffuse axonal injury multiple rib fractures right 3-6 with haemothorax, laceration 8x1 cm bone deep over the parietal scalp. She was treated as inpatient for 46 days at Kovai Medical Centre, Coimbatore and she had undergone two surgeries. Since she developed phenumonia, tracheostomy was done for beter tacheal toileting. She was discharged with the advice to continue physiotherapy to the lower limbs and to report for review after one month. This is evidenced from Ext.A22 discharge summary. It is also seen from Ext.A23 that she underwent physiotherapy under a retired Chief Physiotherapist of Medical College Hospital, Alappuzha for a period of one month. The tribunal had taken loss of earning for a period of one year and awarded Rs.18,000/- under that head. Since tribunal had taken 100% disability and awarded compensation under the head loss of earning capacity, we feel that the court below should not have awarded compensation under the head loss of earnings as rightly pointed out by the counsel for the insurance company and that amount has to be deducted from the total M.A.C.A.Nos. 1556, 1655 & 1676 of 2009 7 compensation to be awarded by this court. 13. The tribunal while awarding compensation under the head medical expenses, arbitrarily reduced 30% from the total amount of Rs.3,39,562.40 covered by Ext.A25 series, A26 series and A29 series on the ground that some of the bills were issued without prescription and one bill dated 7.10.2002 from the Kovai Medical Centre for Rs.3,15,291.56 which is a consolidated bill and awarded only Rs.2,70,000/- under that head. It will be seen from the bill dated 7.10.2002 that it was issued by the hospital showing the summary of the total expenses as Rs.3,15,291.56 and it was also mentioned that only a portion of the amount was paid and the balance will have to be collected and there was an attachment to that bill showing the payment of the balance amount as well. So under the circumstances, we do not find any reason to disallow the amount covered by that bill. So the petitioner is entitled to get the entire amount covered by that bill namely Rs.3,15,299.56 rounded to Rs.3,15,300/- and we award that amount under the head medical expenses in the place of Rs.2,70,000/- allowed by the court below. Thereby she will be entitled to get an additional amount of Rs.45,300/- under that head. 14. The petitioner was aged 45 years at the time of accident. Though as per Ext.A24 disability certificate neurological disability M.A.C.A.Nos. 1556, 1655 & 1676 of 2009 8 was assessed as 35%, on evaluation of the condition of the petitioner, who was present in court, described in para 20 of the award, the tribunal found that she is practically rendering herself invalid and her disability will have to be assessed as 100% for the purpose of assessing compensation under the head loss of earning capacity. Further, the court below had not taken into consideration the future prospects while assessing compensation under the that head as well. 15. In the decision reported in _**Syed Sadiq v. Divisional Manager, United India Ins. Co.**_ (AIR 2014 SC 1052), a Three Judges Bench of the Supreme Court has held that future prospects will have to be considered not only for the purpose of assessing compensation under the head loss of dependency, but even in the case of personal injury that will have to be taken into consideration. In _**Rajesh v. Rajbir Singh**_ [2013(3) KLT 89(SC)], another Three Judges Bench of the Supreme Court has held that in the case of persons who are below 50 years, 30% has to be added to the present income for consideration of future prospects. If that principle is applied, then the petitioner in this case will be entitled to get an amount of Rs.5,46,000 (2500x130%)=3250x12x14x100%) taking the multiplier as 14 as per _**Sarla Verma (Smt) and others v. Delhi Transport**_ M.A.C.A.Nos. 1556, 1655 & 1676 of 2009 9 _**Corporation and another**_ (2009 (6) SCC 121). The court below had awarded only Rs.2,34,000/- under that head and the petitioner will be entitled to an additional amount of Rs.3,12,000/- under that head and we award the same under that head. 16. Considering the nature of injury sustained, the period of treatment undergone and the disability suffered, the amount awarded under the head pain and sufferings and loss of amenities in life appears to be on the lower side and we award Rs.70,000/- under the head pain and sufferings instead of Rs.35,000/- and Rs.75,000/under the head loss of amenities in life instead of Rs.20,000/awarded by the tribunal under the respective heads. Thereby the petitioner will be entitled to an additional compensation of Rs.35,000/- more under the head pain and sufferings and Rs.55,000/more under the head loss of amenities in life. The tribunal has awarded only Rs.15,000/- under the head future treatment. Considering the nature of injuries sustained by the petitioner and the disability suffered, she will have to be under continuous medication through out her life. So considering this aspect, we award Rs. 50,000/- instead of Rs.15,000/- awarded by the tribunal under that head and she will be entitled to get an additional amount of Rs.35,000/- under that head. Considering the fact that the tribunal M.A.C.A.Nos. 1556, 1655 & 1676 of 2009 10 has awarded compensation taking 100% disability for assessing compensation for future disability, the tribunal was not justified in awarding Rs.18,000/- under the head loss of earnings as the disability for whole life has been assessed while awarding compensation under the head permanent disability and earning capacity. So that amount will have to be deducted from the amount awarded by the court below. So deducting the amount of Rs.18,000/- out of the additional compensation of Rs.4,82,300/- assessed by this court, the petitioner will be entitled to an additional compensation of Rs.4,64,300/-over and above the compensation awarded by the tribunal which the third respondent insurance company is liable to pay with 9% interest from the date of petition till the date of payment, less for the amount of Rs.35,000/- awarded under the head future medical expense. They are directed to pay the amount within three months. Out of the enhanced compensation awarded, the petitioner is permitted to withdraw 50% and the balance amount is directed to be deposited in a nationalized bank for a period of five years with liberty to withdraw quarterly interest accrued for meeting her medical expenses to be incurred. If the petitioner requires any amount out of the amount deposited, she is at liberty to move the tribunal and the tribunal is at liberty to consider the necessities and allow to withdraw M.A.C.A.Nos. 1556, 1655 & 1676 of 2009 11 the amount from the amount deposited. ## - 17.MACA1655/2009 OP(MV)No.2875/02 The petitioner was a minor, aged 10 years, a school going child at the time of the accident. She sustained swelling, deformity of left thigh and x-ray showed fracture left shaft femur. She underwent treatment in Kovai Medical Centre as inpatient for 18 days and this was evidenced by Exts.A30 and A31 documents. It is also seen from Ext.A33 that she was admitted in Ernakulam Medical Centre for removal of implant and treated as inpatient for that purpose. Considering the nature of injury sustained, we feel that the amount awarded under the head pain and sufferings appears to be on the lower side and we are inclined to enhance the same to Rs.25,000/from Rs.15,000/- awarded by the tribunal. So the petitioner is entitled to get Rs.10,000/- more under the head pain and sufferings. The tribunal awarded only Rs.10,000/- for discomfort and inconvenience. Considering the fact that the petitioner is aged only 10 years and a school going girl and on account of the injury sustained, her movement has been restricted for some period and it would have affected her normal enjoyment as other children, we feel that the amount under that head can be enhanced to Rs.20,000/- from Rs.10,000/- and she will be entitled to get another Rs.10,000/- on M.A.C.A.Nos. 1556, 1655 & 1676 of 2009 12 that head. On all other heads, the amount awarded by the tribunal appears to be reasonable. So the petitioner in this case will be entitled to get an additional compensation of Rs.20,000/-, which the third respondent insurance company is liable to pay with 9% interest from the date of petition till payment. The insurance company is directed to deposit the said amount within three months. ## – 18. M.A.C.A.No.1676/2009 OP(MV)No.2876/2002 The petitioner in this case claims to be a self employed person earning Rs.5,000/- per annum. He has not produced any document to show his income. But considering the fact that he had produced certain documents to show that he was carrying on the establishment of service agency of whirlpool India Ltd evidenced by Exts.A40, A41 and A42, the amount of Rs.3000/- fixed by the tribunal appears to be on the lower side. Considering the circumstances, we feel that the monthly income of the petitioner can be fixed at Rs. 4,000/- per month. He sustained type-II cubic symphysis-diastasis and lacerated wound over frontal region and tear over the L.S region. ORIF was done with 5 hold reconstruction plate and cancellous screws. Drain was removed after 48 hours and he was advised strict non weight bearing for 8 weeks and to report for review for suture removal on 5.9.2002. He had undergone inpatient treatment for ten days in M.A.C.A.Nos. 1556, 1655 & 1676 of 2009 13 Kovai Medical Centre as evidenced by Exts.A35 and A36. So considering the circumstances, he could not have worked for atleast four months. But the tribunal has awarded only thee months loss of earnings. So we feel that he can be awarded loss of earning for a period of four months at the rate of Rs.4,000/- and he is entitled to get Rs.16,000/- instead of Rs.9,000/- awarded by the tribunal. So he will be entitled to get an additional compensation of Rs.7,000/under the head loss of earnings during the period of treatment. Considering the nature of injury sustained and also the period of treatment undergone and the nature of treatment given, we are fully satisfied that the amount awarded under the head pain and sufferings is also on the lower side and we enhance the same to Rs.30,000/from Rs.20,000/- awarded by the tribunal, thereby the claimant will be entitled to get an additional amount of Rs.10,000/- under that head. The court below has awarded only Rs.12,000/- under the head compensation for discomfort and inconvenience, which we feel is low and it can be enhanced to Rs.20,000/- from Rs.12,000/-, thereby he is entitled to get an additional compensation of Rs.8,000/under that head. In all other heads, the amount awarded is just and proper. So we are not inclined to interfere with the same. On all, the petitioner will be entitled to get an additional compensation of M.A.C.A.Nos. 1556, 1655 & 1676 of 2009 14 Rs.25,000/- over and above the compensation awarded, which the third respondent insurance company is liable to pay at 9% per annum from the date of petition till the date of payment. Three months time is granted to the insurance company to deposit the said amount. On deposit, the petitioner is entitled to withdraw the amount awarded. With the above modifications of the amount awarded by the Tribunal, these appeals are allowed in part and disposed of accordingly. **==> picture [28 x 12] intentionally omitted <==** **P.N. RAVINDRAN, JUDGE.** Sd/- **K. RAMAKRISHNAN, JUDGE.** cl /true copy/ P.S to Judge M.A.C.A.Nos. 1556, 1655 & 1676 of 2009 15