G. Sudhakaran v. Rajesh S/o Vijayakrishnan Nair and M/S. National Insurance Company Limited

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN THURSDAY, THE 9[TH] DAY OF MARCH 2023 / 18TH PHALGUNA, 1944 MACA NO. 2013 OF 2014** **AGAINST THE ORDER/JUDGMENT OPMV 251/2007 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, PUNALUR** ## **APPELLANT/PETITIONER:** G.SUDHAKARAN S/O.GOPALAN ACHARY, KALLUVILA VEEDU, CHERUVAKKAL P.O., AYOOR, KOTTARAKKARA, KOLLAM DISTRICT. BY ADV SRI.ANCHAL C.VIJAYAN ## **RESPONDENTS/RESPONDENTS:** 1 RAJESH S/O.VIJAYAKRISHNAN NAIR, HOUSE NO.4/340 (9/333), RAJESH VIHAR, PLACHIVILA, PALLIKKAL P.O., CHIRAYINKEEZHU, THIRUVANANTHAPURAM, PIN - 690563. 2 M/S. NATIONAL INSURANCE COMPANY LIMITED BRANCH II, K.K.BUILDING, ARISTO JUNCTION, THIRUVANANTHAPURAM, PIN - 695001. BY ADVS. SRI.S.SHAJI SRI.PMM.NAJEEB KHAN SRI.PMM.NAJEEB KHAN THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 09.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.A.C.A.No.2013 of 2014 : 2 : ## **DEVAN RAMACHANDRAN, J.** **========================= M.A.C.A.No. 2013 of 2014 ========================== Dated this the 9[th] day of March, 2023** ## **JUDGMENT** On 26.02.2007, while the appellant was riding pillion on a motor cycle, it was hit by the offending vehicle driven in a rash and negligent manner, and he sustained serious injuries. He had to endure hospitalisation and treatment; and thus filed OP(MV)No.251/2007 before the Motor Accidents Claims Tribunal, Punalur (the 'Tribunal' for short), seeking compensation of an amount of Rs.4,00,000/-, but which has been allowed only to a sum of Rs.1,13,915/-. He impugns the Award of the learned Tribunal as being exiguous. 2. Sri.Anchal C.Vijayan – learned counsel for the appellant, argued that the primary reason why the compensation awarded to his client is very low is because the learned Tribunal has adopted the notional income to be a mere Rs.3,000/- per month and has adopted the multiplier of '9', assuming that the income which he would obtain after his retirement would be such. He further submitted that the compensation for “Pain and Sufferings” and “Loss of Amenities and Inconvenience in the Future Life” is extremely low, going by the serious nature of the injuries suffered by his client; and that sufficient amounts ought to have been granted for “Extra Nourishment” and “Bystanders Expenses”, M.A.C.A.No.2013 of 2014 : 3 : taking note of the fact that he had hospitalised for nearly 21 days. He thus prayed that this appeal be allowed. 3. In response, Smt.Saira K., representing Sri.PMM Najeeb Khan – learned Standing Counsel for the Insurance Company, argued that the computations arrived at by the Tribunal are without error, particularly because the appellant was a Government Servant, who would have suffered no loss of income or financial disability on account of the injuries. She thus prayed that this appeal be dismissed. 4. I have evaluated the afore submissions on the touchstone of various materials and 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 they can be acted upon by this Court without dispute. 5. I notice from the impugned Award that the learned Tribunal has adopted the notional income of the appellant to be Rs.3,000/- on the premise that he would retire at the age of 56 and earn only that sum, thus adopting the multiplier of '9', which is applicable to a person of that age. In doing so, the learned Tribunal found that the appellant was a Government Servant, drawing a salary of Rs.6,352/- and thus appear to have been guided by the impression that after he retires, only half of it would be eligible to him. Even though this Court cannot find the conclusion of the Tribunal, that the appellant is entitled only to be reckoned M.A.C.A.No.2013 of 2014 : 4 : notional income after his age of retirement and to be granted the benefit of multiplier '9', the adoption of a figure of Rs.3,000/- defies logic. I say so because, after the appellant retires, his notional income will have to be reckoned on the basis of reliable and cogent evidence, and in the absence of the same, the Tribunal should have been governed by the postulations in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Ltd.** **[(2011) 13 SCC 236].** In this judgment, the notional income of a person, whose income is otherwise unascertainable in the year 2007 – when the accident occurred – is to be taken at a minimum of Rs.6,000/-. I am certain that this is the figure that should have been adopted by the Tribunal in this case also. Since there is no challenge in the multiplier adopted, I do not think that this Court has to speak any further on that. 6. That being said, the medical evidence on record establish without doubt that the appellant had suffered the following injuries: _“compound fracture both bones of right leg, fracture both bones of left forearm, fracture of two teeth of the upper jaw, abrasions left shoulder and other injuries all over the body”_ (sic). Exts.A3, A7, A9, A11 – Discharge Summaries, read along with Ext.A4 to A6 – Treatment Records, would indicate the trauma that the appellant has to suffer for a long period of time. As I have already said above, he was treated as an inpatient for 21 days; and Ext.A13 – Disability Certificate issued by an orthopaedic specialist, M.A.C.A.No.2013 of 2014 : 5 : certifies his disability to be 17%. Though the learned Tribunal has not fully accepted Ext.A13 – because it has been issued only by a doctor and not a medical board – it records that the appellant suffered from the following disabilities: _“Healed scars over left forearm and right leg. The fracture of both bones of right leg has united with pain on movements of right knee due to post traumatic osteoarthritis. Crepitus present on movements of right knee. Limitation of terminal 10 degrees of flexion of right knee present. Partial ankylosis of right ankle with only 5 degrees of dorsiflexion possible from neutral position and plantar flexion limited by 10 degrees. Pain present over fibular resection site on right leg. Shortening of 1cm of right leg. Wasting of 1.5cm of right thigh muscles. Flexiondeformity of right fourth toe present. Difficulty in squatting. Difficulty in climbing stairs. Difficulty in standing for prolonged period. Oedema on right leg on walking and prolonged standing”_ (sic). 7. Therefore, even if the learned Tribunal was justified in adopting the percentile of permanent disability to be 14%, one cannot lose sight of the fact that the appellant has gone through extreme trauma and stress throughout the period of his treatment and even now, on account of the afore disabilities. 8. I am, therefore, of the firm view that the compensation granted by the Tribunal under the heads “Pain and Sufferings” and “Loss of Amenities and Inconvenience in the Future Life” is M.A.C.A.No.2013 of 2014 : 6 : extremely inadequate and exiguous, and I propose to enhance it to Rs.75,000/- and Rs.30,000/-, respectively. 9. That said, the compensation awarded by the Tribunal for “Extra Nourishment” and “Bystanders Expenses” is also low, because it has granted only Rs.75/- and Rs.100/- respectively, per day, under these heads. I am of the opinion that even in the year 2007 – when the accident occurred – the minimum cost required for having a bystander would be Rs.200/- along with Rs.150/- per day towards extra nourishment. 10. That said, reckoning the fact that the appellant has suffered 14% disability, as found by the Tribunal (though certified to be 17% in the medical certificate), I am of the view that 10% future prospects must be added to his notional income, guided by **National Insurance Company Ltd. v. Pranay Sethi [2017 (4) KLT 662 (SC)]** and the judgment of the Hon'ble Supreme Court in **Satheesh E. v. The New India Assurance Company Ltd. and others [(2022) SCC OnLine SC 1828]** In the afore circumstances, this appeal is partly allowed in the following manner: (a) The compensation under the head “Permanent Disability and Compensation for Loss of Earning Power” is revised to Rs.99,792/-, instead of Rs.45,360/-, reckoning the notional income of the appellant to be Rs.6,000/- per month, with 10% future prospects added M.A.C.A.No.2013 of 2014 : 7 : to it and the percentile of disability to be retained as 14%, as found by the learned Tribunal. - (b) The compensation under the head “Pain and Sufferings” is enhanced to Rs.75,000/-, from Rs.10,000/-, now awarded by the Tribunal. - (c) The compensation under the head “Loss of Amenities and Inconvenience in the Future Life” is enhanced to Rs.30,000/-, from Rs.5,000/-, now awarded by the Tribunal. - (d) The compensation under the head “Extra Nourishment” is enhanced to Rs.3,150/-, instead of Rs.1,575/-, awarded by the Tribunal, reckoning Rs.150/per day. - (e) The compensation under the head “Bystanders Expenses” is enhanced to Rs.4,200/-, instead of Rs.2,100/- as granted by the Tribunal, reckoning Rs.200/per day towards such expenses. - (f) In all other heads, the compensation awarded by the Tribunal will remain unaltered. Consequently, the appellant will be at full liberty to recover the compensation, as enhanced by this Court, from the Insurance Company, along with interest at the rate of 7.5% as awarded by the Tribunal, from the date of the claim until it is recovered. He will also be entitled to proportionate costs, on the enhanced amount, as M.A.C.A.No.2013 of 2014 : 8 : ordered by the Tribunal. However, while computing the interest eligible to the appellant as above, the period of 296 days – being the delay caused by him in filing the appeal – shall stand excluded. In view of the afore, the amount as fixed 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** anm