Jagadamma v. ICICI Lombard General Insurance Company Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN MONDAY, THE 13[TH] DAY OF FEBRUARY 2023 / 24TH MAGHA, 1944 MACA NO. 2798 OF 2017** **AGAINST THE ORDER/JUDGMENT OPMV 552/2015 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, TALIPARAMBA** ## **APPELLANT/PETITIONER:** JAGADAMMA AGED 38 YEARS, W/O. SOMAN, KOILERY HOUSE, LAKSHAMVEEDU COLONY, VELLAD POST, KANNUR DISTRICT BY ADV SMT.M.R.JAYALATHA ## **RESPONDENT/3RD RESPONDENT:** ICICI LOMBARD GENERAL INSURANCE COMPANY LTD., U67200MH2000 PLCI 29408 ICICI LOMBARD HOUSE, 414, VEER SAVARKAR MARG, NEAR SIDDHI VINAYAKA TEMPLE, PRABHADEVI, MUMBAI 400025 (POLICY NO. 3001/M1-02664361/00/000) BY ADV SRI.LATHEESH SEBASTIAN THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 13.02.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.A.C.A.No.2798 of 2017 : 2 : ## **DEVAN RAMACHANDRAN, J.** **========================= M.A.C.A.No. 2798 of 2017 ========================== Dated this the 13[th] day of February, 2023** ## **JUDGMENT** The victim of a road accident, which occurred on 24.04.2015, due to rash and negligent driving of the offending vehicle, has filed this appeal impugning the Award of the Motor Accidents Claims Tribunal, Taliparamba (the 'Tribunal' for short), in OP(MV) No.552/2015 filed by her, on the ground that the amounts granted by it are inadequate. 2. Smt.M.R.Jayalatha – learned counsel for the appellant, submitted that, even though her client had sought compensation of Rs.15,00,000/-, the Tribunal awarded; only Rs.8,47,700/-, and that this is primarily because, it erred in reckoning her notional income and disability. She submitted that, even going by **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Ltd. [(2011) 13 SCC 236],** the notional income to be adopted by the Tribunal, in the case of a person with unascertainable income in the year 2015, was Rs.10,000/-; while it has only reckoned Rs.6,000/- for such purposes. She added that the Tribunal has accepted 20% as the permanent disability of her M.A.C.A.No.2798 of 2017 : 3 : client, however, recording that it is doing so because her permanent disability could not have been assessed at the time of disposal of the Original Petition since she was under treatment. She pointed out that her client has now produced the Disability Certificate from a validly constituted medical board, along with IA No.1/2023; and thus prayed that, either this Court accept the said certificate, or remand the matter to the Tribunal for assessment of disability, leading to enhancement of compensation. She concluded her submissions, saying that even under the head “bystanders expenses”, the Tribunal has completely erred in having granted only Rs.38,100/-, namely at the rate of Rs.300/- per day for 127 days of hospitalisation, while the actual amount expended by her client was much more; and further, that the period to be reckoned for the purpose of “Loss of Earnings” ought to have been at least one year because the appellant had been hospitalised for 127 days within the said period. 3. Sri.Latheesh Sebastian – learned Standing Counsel for the respondent, on the other hand, submitted that the calculations arrived at by the Tribunal are without error because the appellant had not proved her income, or permanent disability. He added that the request made by her for enhancing the period for reckoning “Loss of Earnings” and for increased “Bystanders Expenses” is M.A.C.A.No.2798 of 2017 : 4 : conjectural, but without any evidence. 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. It may be true that the appellant has not been able to prove her income through cogent and reliable means. However, as per **Ramachandrappa (supra),** the Hon'ble Supreme Court has postulated that the notional income of a person, which cannot be otherwise ascertained in the year 2015, must be reckoned as Rs.10,000/-. Further, the medical evidence on record, particularly Ext.A4 series – Discharge Summary and Ext.A3 – Medical Certificate, shows that petitioner was hospitalised for 127 days. Though there cannot be an inflexible rule in this regard, in the year 2015, it can be safely assumed that the appellant must have incurred at least Rs.500/- per day for a bystander. This is more so because the bystander was with her throughout in the hospital, since she was unable even to feed herself, or do anything without assistance. For the same reason, the period for loss of earnings also ought to be reckoned for a minimum of at least 10 months. 6. Further, again taking note of the fact that the appellant was M.A.C.A.No.2798 of 2017 : 5 : hospitalised for 127 days and that the fracture of the tibia and other injuries were very grave – as uncontroverted from the medical evidence on record – I am of the view that appellant is also entitled to an enhancement under the head “amenities” to the extent of Rs.1,00,000/-. 6. That said, however, as regards the disability, since the original Disability Certificate has not been produced before this Court, it cannot be acted upon under the provisions of order XLI of the Code of Civil Procedure (CPC); and am, therefore, of the view that, for assessing the disability and the consequent enhancement of compensation, if any, the matter will require to be remanded to the Tribunal. In fact, this is not opposed by the respondent either. Resultantly, - (a) The compensation under the head “loss of earnings” is enhanced to Rs.1,00,000/-, treating the notional income of the appellant to be Rs.10,000/- per month for a period of 10 months. - (b) The compensation under the head “bystanders expenses” is enhanced to Rs.63,500/-, reckoning the expenses for each day to be Rs.500/- for 127 days. - (c) The compensation for “continuing or permanent disability” is enhanced to Rs.3,60,000/- instead of M.A.C.A.No.2798 of 2017 : 6 : Rs.2,16,000/-, accepting, for the time being, the percentage of disability to be the same as taken by the Tribunal, namely, 20%, but reckoning the notional income to be Rs.10,000/-, as said above. (d) The compensation under the head “amenities” is revised as being Rs.1,00,000/-, instead of Rs.40,000/presently granted. (e) The Original Petition is remanded to the learned Tribunal solely for reassessing the disability of the petitioner and for further enhancement of the compensation, as may be entitled, for “continuing or permanent disability”; for which purpose, both sides shall be given necessary opportunities to lead additional evidence and to be heard. Needless to say, if the Tribunal is to find that the permanent disability of the petitioner is to be enhanced, then, it is also at liberty to consider the claim of the petitioner for future prospects, which shall be done in terms of law and based on all the binding precedents that cover the field. A fresh Award in this regard shall be issued by the learned Tribunal within a period of eight months from the date of receipt of a copy of this M.A.C.A.No.2798 of 2017 : 7 : judgment. The parties shall appear before the Tribunal at 11 a.m. on 14.03.2023. (f) Under all other heads which are untouched by the afore directions, the findings of the Tribunal shall remain unaltered. This appeal is thus disposed of; however, additionally granting liberty to the appellant to move the Tribunal for future expenses, if it is able to be proved through cogent evidence; for which purpose, both sides again are granted liberty to lead additional evidence. **Sd/DEVAN RAMACHANDRAN JUDGE** anm M.A.C.A.No.2798 of 2017 : 8 : ## **APPENDIX OF MACA 2798/2017** PETITIONER ANNEXURES Annexure A1 A TRUE COPY OF THE CERTIFICATE FOR DIFFERENTLY ABLED ISSUED BY GOVERNMENT OF KERALA, DEPARTMENT OF HEALTH SERVICES DATED 9.6.2022