Dr. Joseph Freeman Motha v. The Branch Manager, National Insurance Co. Ltd.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K. BABU** **MONDAY, THE 21[ST] DAY OF JUNE 2021 / 31ST JYAISHTA, 1943 MACA NO. 1471 OF 2015** **AGAINST THE JUDGMENT IN OPMV 1052/2009 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,PERUMBAVOOR, ERNAKULAM** ## **APPELLANT:** DR. JOSEPH FREEMAN MOTHA AGED 53 YEARS S/O.LESLIE MOTHA, HOUSE NO.9/VII (OLD NO.VII/350), MULAMKUZHI, MALAYATTOOR P.O., MALAYATTOOR VILLAGE. BY ADVS. SRI.REJI GEORGE SMT.ANUPAMA JOHNY ## **RESPONDENT:** THE BRANCH MANAGER NATIONAL INSURANCE CO.LTD., DIVISIONAL OFFICE, ANGUVILAS BUILDINGS, NORTH CAR STREET, NAGERCOIL, PIN - 629 001. BY ADV SRI.LAL GEORGE THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 21.06.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.A.C.A No.1471 of 2015 2 ## **K.BABU, J.** **========================= M.A.C.A No.1471 of 2015** **==========================** Dated this the 21[st] day of June, 2021 ## **JUDGMENT** This appeal, filed under Section 173 of the Motor Vehicles Act, 1988, arises from the award dated 29.11.2014 in O.P(MV) No.1052/2009 of the Motor Accidents Claims Tribunal, Perumbavoor (for short 'the Tribunal'). The petitioner in the Tribunal is the appellant herein and 3[rd] respondent therein is the respondent herein. 2. The parties will be referred to as per their status in the Original Petition. 3. On 7.4.2009 at 12.45 pm. the car bearing registration No.KL-02/5094 driven by the 1[st] respondent in a rash and negligent manner hit the motor cycle ridden by the petitioner. The incident happened on the Mulamkuzhi-Ellithode Public road. The accident occurred solely due to the rashness and negligence on the part of the 1[st] respondent. The 2[nd] respondent is the owner of the vehicle and the 3[rd] M.A.C.A No.1471 of 2015 3 respondent is the insurer. 4. The insurance coverage in respect of the offending vehicle is admitted by the 3[rd] respondent. The negligence alleged against respondent No.1 is not under challenge. 5. The evidence in this case consists of the oral evidence of the petitioner as PW1 and Exts.A1 to A20 series marked on the side of the petitioner, Ext.B1, copy of the insurance policy and Ext.X1, disability certificate issued from the Medical Board, Ernakulam. The Tribunal, after appreciating the rival contentions and on the basis of the materials placed before it, awarded a sum of Rs.6,07,008/- under various heads. 6. The learned counsel for the petitioner submitted that the compensation assessed by the Tribunal is not just and reasonable. She further submitted that the monthly income taken by the Tribunal is very low in view of the fact that the petitioner is a doctor by profession. She also submitted that the amount granted, under the head 'loss of amenities' and 'pain and suffering' is also very low. 7. The learned counsel for the respondent/insurance company submitted that the amount awarded by the court below is M.A.C.A No.1471 of 2015 4 just and reasonable. ## 8. The petitioner is a doctor by profession. In the incident he ## sustained the following injuries: 1. Deep abrasion over left knee. 2. Multiple lacerated wound over left lower thigh 2 cm x 3 cm. 3. Lacerated wound over left leg 4 cm x 1 cm. 4. Lacerated wound over left leg 3 cm x 1 cm. 5. Lacerated wound over left ankle 6 cm x 4 cm. 6. Deformity of left thigh and left ankle. 7. Fracture of both bones of the left leg. 8. Fracture of medial malleolus of the left ankle. 9. Post dislocation left hip 10. Fracture of head of left femur 11. Fracture of left acetabulam. 9. Ext.A7 case summary and discharge card, issued from Little Flower Hospital and Research Centre, Angamally, shows the details of the treatment undergone by the petitioner as narrated below: “Closed reduction LT HIP/WD, closed il nail LT Tibia, Cannulated screw fixation LT medial malleolus/skeletal traction both limb done on 7.4.09 WD + Vaccum suction dressing done on 30.4.09 WD + Secondary SSG done on 15.5.09 Antibiotic Anlagesic Elevation of limb Physiotherapy” 10. Ext.A9 discharge summary shows that the petitioner was subjected to bone grafting on 10.4.2010. Ext.A8 discharge summary M.A.C.A No.1471 of 2015 5 shows that on 26.2.2010 he was subjected to debridement, Nail Removal and Bifocal llizarov. Ext.A10 shows that on 27.11.2010 Ring Fix Removal was done on the petitioner. 11. It is seen from the above referred documents that the petitioner had undergone treatment as inpatient for 76 days. Ext.X1 disability certificate, issued by the Medical Board, shows that the whole body permanent physical disability of the petitioner as per the McBride scale is 40%. 12. The Tribunal passed the impugned award granting compensation under different heads, as extracted below: |1.|Loss of earnings|-|Rs. 47,946/-| |---|---|---|---| |2.|Extra nourishment|-|Rs. 2,500/-| |4.|Transport to hospital|-|Rs. 4,000/-| |5.|Damage to cloths etc.|-|Rs. 1,000/-| |6.|Medical expenses|-|Rs.2,23,162/-| |7.|Bystander expenses|-|Rs. 19,000/-| |8.|Pain and suffering|-|Rs. 70,000/-| |9.|Loss of amenities etc.|-|Rs. 45,000/-| |10.|Disability|-|Rs.1,94,400/-| ||||___________| ||||Rs.6,07,008/-| ||||============| 13. The Tribunal recorded the finding that even after the disability suffered by him, he continued to remain in the Kerala Health M.A.C.A No.1471 of 2015 6 Services as Medical Officer and hence his disability had not affected his earning capacity. He superannuated at the age of 56 years and the Tribunal has taken the monthly income of the petitioner as Rs.4,500/-. The Tribunal held that the petitioner is entitled to Rs.1,94,400/- as compensation towards loss of earning capacity arising from permanent disability. 14. The learned counsel for the petitioner vehemently challenged the assessment of the monthly income of the petitioner by the Tribunal at Rs.4,500/-. The learned counsel for the petitioner contended that the Tribunal should have assessed the monthly income of the petitioner atleast at Rs.12,000/-. 15. In **Syed Sadiq and Others v. Divisional Manager, United India Ins. Co. (2014 KHC 4027)** while considering the claim of a vegetable vendor, who met with an accident on 14.8.2008 assessed the monthly income at Rs.6,500/-. The petitioner is a doctor by profession, who was employed as a Medical Officer in the Kerala Health Service. The accident in this case occurred on 7.4.2009. Having regard to the fact that the petitioner is a doctor by profession, I am of the view that it is just and reasonable to assess the monthly M.A.C.A No.1471 of 2015 7 income of the petitioner after retirement at Rs.10,000/-. 16. The petitioner retired from Government service in the year 2016 at the age of 56. The multiplier applicable to the age group of 5660 as held in **Sarla Verma v. DTC (2009(6) SCC 121)** is 9. Hence the compensation towards loss of earning entitled to the petitioner arising from permanent disability can be assessed as follows : 10,000 x 12 x 9 x 40 /100 = Rs.4,32,000/- 17. Towards loss of amenities, the Tribunal granted Rs.45,000/- which according to the learned counsel for the appellant/petitioner is too meagre. Having regard to the extent of disability suffered by the petitioner and all other attending circumstances, I feel that the petitioner is entitled to loss of amenities at Rs.75,000/-. The Tribunal awarded Rs.70,000/- towards pain and suffering. Considering the nature of injuries suffered by the petitioner and the period of in-patient treatment undergone by him, I feel that the petitioner is entitled to Rs.90,000/- towards pain and suffering. Further, the learned counsel for the petitioner submitted that the petitioner requires future treatment for which a reasonable amount is to be awarded. In view of the percentage of disability suffered by the M.A.C.A No.1471 of 2015 8 petitioner, I feel that he is entitled to get Rs.30,000/- towards future treatment. 18. The petitioner is entitled to enhanced compensation as follows : Compensation towards loss of earning arising from permanent disability (Rs.4,32,000-1,94,400) : Rs.2,37,600/Loss of amenities (Rs.75,000-45,000) : Rs. 30,000/Pain and suffering (Rs.90,000-70,000) : Rs. 20,000/Future treatment : Rs. 30,000/Rs. 20,000/Rs. 30,000/–------------Rs.3,17,600/========= In the result, the appeal is partly allowed. Petitioner is entitled to Rs.3,17,600/- as enhanced compensation with interest at the rate of 8% per annum from the date of petition. The award of the Tribunal shall stand modified as above. The third respondent company shall deposit the amount within three months from the date of receipt of a copy of this judgment. **Sd/K.BABU JUDGE** ## **ab/amk**