Dali Thankachan v. C. Shoukathali, Unnikrishnan and National Insurance Co. Ltd.

## `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ## `THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN` ``` WEDNESDAY, THE 22[ND] DAY OF FEBRUARY 2023 / 3RD PHALGUNA, 1944 ``` ## `MACA NO. 1937 OF 2011` ``` AGAINST THE AWARD IN OPMV 2896/2004 OF MOTOR ACCIDENT CLAIMS TRIBUNAL & SPECIAL COURT FOR E.C. ACT CASES, THRISSUR ``` ## `APPELLANT/PETITIONER:` ``` DALI THANKACHAN W/O.THANKACHAN,KIZHAKKEDATH HOUSE,MANDACHIRA,, P.O KANNARA,, THRISSUR DISTRICT BY ADV SRI.P.V.CHANDRA MOHAN ``` ## `RESPONDENTS/RESPONDENTS:` ``` 1C.K.SHOUKATHALI S/O.KUNJU MOHAMMED,, CHIRAPARAMBIL HOUSE,P.O.KIZHIPPILLIKKARA,, THRISSUR DISTRICT 680 001 2UNNIKRISHNAN S/O.PAPPU, CHERKKARA HOUSE,CHAZHOOR,, THRISSUR DISTRICT 680 001 3NATIONAL INSURANCE CO.LTD AMBIKA ARCADE,M.G. ROAD, THRISSUR 680 001 BY ADVS. K.A.SREEJITH M.K.RAGHUNATHAN ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 22.02.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA NO. 1937 OF 2011 ``` ``` 2 ``` ## `JUDGMENT` ``` The appellant suffered a road accident on 10.11.2003, when she fell down inside a stage carriage while she was travelling in it, on account of the rash and negligent driving. She sustained fracture of fourth lumbar vertebra, disc ``` ``` prolapse, cerebral concussion etc. and had to be ``` ``` treated for a long period of time; thus filing OP(MV)No.2896/2004 before the Motor Accidents ``` ``` Claims Tribunal, Thrissur (“Tribunal” for short), seeking compensation of Rs.1,55,000/-, but which ``` ``` was allowed only to a sum of Rs.78,360/-. She thus assails the Award of the Tribunal. ``` ``` 2.Sri.P.V.Chandra Mohan – learned counsel for the appellant, pointed out that the main reason why the compensation for permanent ``` ``` MACA NO. 1937 OF 2011 ``` ``` 3 ``` ``` disability is so inadequate is because, the Tribunal incorrectly reckoned the notional income of the appellant to be Rs.2,500/-; while, even going byRamachandrappa v.Manager, Royal Sundaram Alliance Insurance Company Limited ``` ``` [(2011) 13 SCC 236], the Hon’ble Supreme Court has postulated that, in the case of a person with unascertainable income in the year 2004, it should be a minimum of Rs.4,500/-. He argued that, therefore, going by the said reasoning, his client is entitled to be reckoned with a notional income of at least Rs.4,000/- in the year 2003. He, however, conceded that the multiplier adopted by the Tribunal as per Sarla Verma v. Delhi Transport Corporation[2010(2) KLT 802 (SC)] was wrong and that it should have been ‘16’ instead of ‘17’. He then pointed out ``` ``` MACA NO. 1937 OF 2011 ``` **==> picture [8 x 9] intentionally omitted <==** ``` to the medical evidence on record, to argue ``` ``` that the amount granted by the Tribunal under the head “Pain and Suffering” is very low, ``` ``` particularly because the out-patient tickets ``` ``` produced by her would show that she had to take ``` ``` medical assistance for several months, if not ``` ``` for years. ``` `3` . `In response, Smt.Deepa George – learned` ``` counsel appearing for the Insurance Company, argued that the compensation awarded by the ``` ``` Tribunal is not in error and therefore, prayed ``` ``` that this appeal be dismissed. ``` ``` 4.I have considered the afore submissions ``` ``` on the touchstone of the evidence on record, which I have examined very carefully. ``` ``` 5.Upfront, I must say that there can be no ``` ``` doubt that the notional income adopted by the ``` ``` MACA NO. 1937 OF 2011 ``` ``` 5 ``` ``` Tribunal in favour of the appellant is in error ``` ``` because, as rightly argued by Sri.P.V.Chandra Mohan, Ramachandrappa(supra) mandates that it ``` ``` should be a minimum of Rs.4,000/-. They adopted ``` ``` the multiplier of ‘16’ and to that extent the Tribunal is in error again. ``` ``` 6.Coming to the percentile of disability ``` ``` of the appellant, the Disability Certificate, namely Ext.A9, shows that it has assessed it to ``` ``` be 20%, due to headache and backache, as a “post ``` ``` traumatic sequale”. ``` ``` 7.However, the certificate is not issued ``` ``` by the Medical Board, but by a doctor; and ``` ``` consequently,theTribunalreducedthe ``` ``` percentile of disability to 8%, taking it to be the whole body disability. ``` ``` 8.I am afraid that I cannot find favour ``` ``` MACA NO. 1937 OF 2011 ``` ``` 6 ``` ``` with this fully because, even though the ``` ``` Tribunal was armed with the power to have ``` ``` reassessed the disability, without being confined by Ext.A9 certificate, it should have done so taking note of the totality of the ``` ``` injuries sustained by the appellant and the treatment suffered by her. ``` ``` 9.The medical records, particularly Ext.A5 ``` - `-accident-cum-Wound Certificate; Ext.A6 –` ``` Discharge Summary and Ext.A8 – Series of Medical ``` ``` Bills, establish that the appellant had ``` ``` undergone inpatient treatment for “fracture of ``` ``` lumbar vertebra and disc prolapse of L4 and ``` ``` L5”. She had to be treated by medication, ``` ``` lumposacral brace and continued bed rest. The ``` ``` appellant further asserts that she suffers from ``` ``` headache and backache consequent to the ``` ``` injuries, and that this is a continuing feature, ``` ``` MACA NO. 1937 OF 2011 ``` ``` 7 ``` ``` thus incapacitating her from leading a normal life. ``` ``` 10.The sum total of the afore, certainly persuades me to adopt the disability percentile on a higher level, which I propose to be 14. Consequently, the compensation under the head ``` ``` “Disability” would stand revised to Rs.99,840/- ``` ``` taking the notional income of the appellant to be Rs.4,000/-, the multiplier adopted to be 16 and the disability percentile to be 14. ``` ``` 11. In addition, this Court certainly feels ``` ``` that an amount of Rs.25,000/- would be apposite, ``` ``` to fairly compensate for “Pain and Suffering” ``` ``` endured by the appellant. I am aware that this ``` ``` is more than what has been asked for, but going ``` ``` by the trauma suffered, this is the least that ``` ``` can be offered to her. ``` ``` Resultantly, this appeal is partly allowed ``` ``` MACA NO. 1937 OF 2011 ``` ``` 8 ``` ``` in the following manner: ``` ``` a)The compensation under the head ``` ``` “Disability” is enhanced to Rs.99,840/-. ``` ``` b) The compensation under the head “Pain and ``` ``` Suffering” is enhanced to Rs.25,000/-, from Rs.18,000/-now awarded. ``` ``` In all other aspects, the award of the ``` ``` Tribunal will remain unaltered. ``` ``` Consequently, the appellants would be ``` ``` entitled to recover the compensation, as enhanced by this Court, from the respondent – ``` ``` Insurance Company, along with interest at the rate of 8% from the date of filing of the claim until it is realised. ``` ``` Needless to say, all other findings of the Tribunal, including the liberty granted by it to ``` ``` the Insurance Company to pay and recover from the 1[st] respondent is let intact and unaltered. ``` ``` MACA NO. 1937 OF 2011 ``` ``` 9 ``` ``` The appellant will also be entitled to proportionate costs on the enhanced amounts as ordered by the Tribunal. ``` ``` Sd/- ``` ## `DEVAN RAMACHANDRAN` ``` JUDGE ``` SAS