Jinesh v. Oriental Insurance Co. Ltd. (MACA Nos. 1389/2014 & 2586/2014)

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN FRIDAY, THE 31[ST] DAY OF MARCH 2023 / 10TH CHAITHRA, 1945 MACA NO. 1389 OF 2014 ``` ``` AGAINST THE JUDGMENT IN OPMV 1354/2004 OF ADDITIONAL DISTRICT COURT & MOTOR ACCIDENT CLAIMS TRIBUNAL ,PATHANAMTHITTA / I ADDL. M.A.C.T. ``` ## **`APPELLANT/3RD RESPONDENT IN THE OP:`** ``` THE ORIENTAL INSURANCE CO LTD REP. BY ITS AUTHORISED SIGNATORY, THE ORIENTAL INSURANCE CO. LTD., ERNAKULAM NORTH, KOCHI 18. BY ADV SRI.A.R.GEORGE ``` ## **`RESPONDENT/CLAIMANT IN THE OP:`** ``` JINESH S/O.JAYADEVAN, JAYABHAVANAM, BHOOTHAMKARA, ELAMANOOR PO. - 691 524. BY ADVS. KALEESWARAM RAJ THULASI K. RAJ(K/000814/2015) ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 31.03.2023, ALONG WITH MACA.2586/2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` **MACA NOS. 1389 & 2586 OF 2014** ..2.. ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN FRIDAY, THE 31[ST] DAY OF MARCH 2023 / 10TH CHAITHRA, 1945 MACA NO. 2586 OF 2014 ``` ``` AGAINST THE JUDGMENT IN OPMV 1354/2004 OF ADDITIONAL DISTRICT COURT & MOTOR ACCIDENT CLAIMS TRIBUNAL ,PATHANAMTHITTA / I ADDL. M.A.C.T. ``` ## **`APPELLANT/PETITIONER IN OP:`** ``` JINESH AGED 29 YEARS S/O.JAYADEVAN, JAYABHAVANAM, BHOOTHAMKARA, ELAMANNOOR P.O. BY ADVS. KALEESWARAM RAJ THULASI K. RAJ(K/000814/2015) ``` ## **`RESPONDENTS/RESPONDENTS IN OP:`** ``` 1MURUGAN S/O.PADMANABHAN ACHARY, ALUMMOOTTIL VEEDU, KARIMBALUR, PATHANAPURAM - 689 695. ``` - `2 JACOB PHILIP VADAKADAM VADAKKEDATHU VEEDU, ODANAVATTOM P.O., KOTTARAKKARA - 691 512.` ``` 3THE BRANCH MANAGER ORIENTAL INSURANCE CO. LTD., KOTTARAKKARA - 691 531. ``` ``` BY ADV SRI.A.R.GEORGE ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 31.03.2023, ALONG WITH MACA.1389/2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` **MACA NOS. 1389 & 2586 OF 2014** ..3.. ## **`JUDGMENT`** ## **`[MACA Nos.1389/2014,2586/2014]`** These two appeals have been heard together because they emanate from the same accident and Final Award of the Motor Accidents Claims Tribunal, Pathanamthitta, in OP(MV) No. 1354 of 2004. 2. The above OP was filed by Sri.Jinesh, who is the appellant in MACA No. 2586 of 2014, since he was grievously injured in a road accident on 27.04.2004 - when the motor cycle ridden by him was hit by the offending Mini Lorry, driven in a rash and negligent manner. He suffered very grievous injuries, which finally led to one of his legs being amputated; and he thereupon filed the afore Original Petition before the learned Tribunal, seeking compensation of Rs.1,39,10,000/-, limited to 99,00,000/-; but which has been awarded only to a sum of Rs. 28,00,044/- 3. Sri.Jinesh, therefore, has filed his appeal impugning the Award of the learned Tribunal as being exiguous; while, MACA No 1389 of 2014 has been filed by the Oriental Insurance Company Ltd. - which insured the offending vehicle - on the ground that the compensation awarded by the learned Tribunal under three heads, namely “Pain and Suffering”, “Loss **MACA NOS. 1389 & 2586 OF 2014** **==> picture [20 x 9] intentionally omitted <==** of Amenities” and “Future Cost and Repair of Artificial Limbs” is excessive. 4. Sri.A.R.George, learned Standing Counsel for the Insurance Company, argued that, as is evident from the impugned Award, even though large sums of Rs.2,00,000/- and Rs.5,00,000/- have been awarded under the heads “Pain and Suffering” and “Loss of Amenities” respectively, a further amount of Rs.6,00,000/- has been granted towards “cost of Artificial Limbs”, even though same had not been asked for. He further argued that, when it is admitted that Sri.Jinesh was only a student at the time of the accident, there was no question of awarding him any compensation for “future loss of earnings” or for reduction of his income earning capacity; and therefore, that the afore sums are deserving of being scaled down substantially. He thus prayed that MACA No.1389 of 2014 be allowed. 5. Per contra Smt.Thulasi K. Raj, learned counsel appearing for Sri.Jinesh - appellant in MACA No.2586 of 2014, argued extensively, relying upon the medical evidence on record, to show me that the injuries sustained by her client were so serious, that he was hospitalised for 90 days and had to endure the horrific aftermath of amputation of his right leg. **MACA NOS. 1389 & 2586 OF 2014** ..5.. She submitted that her client has been thus forced to use “hydraulic type knee”, along with a prosthetic limb, which has to be maintained carefully and to be replaced from time to time, for which, the future cost of treatment awarded by the Tribunal - even though not asked for - was fully justified. She further argued that the pain and agony suffered by her client cannot be measured in pecunary terms and therefore, that what has been awarded by the Tribunal is, in fact, inadequate, contrary to what has been asserted by Sri.A.R George as afore. 6. Smt.Thulasi K.Raj then went on to the main line of submission that learned Tribunal has completely erred in not having been awarded any amounts to her client under the head “disability” when, admittedly, Ext.A14 - Medical Certificate has been issued by validly constituted Medical Board attached to the Medical College, Hospital, Thiruvananthapuram certifying his degree of permanent disability to be 80%. She thus prayed that, MACA No.2586 of 2014 be allowed and MACA No.1389 of 2014, filed by the Insurance Company, be dismissed. 7. I have examined the afore rival contentions of the parties and have tested them on the worth of the evidence on record – copies of which have been made available to this **MACA NOS. 1389 & 2586 OF 2014** **==> picture [20 x 9] intentionally omitted <==** Court by the learned counsel for the parties across the Bar, with the express consent that they can be acted upon, without dispute. 8. I will first deal with the submissions of Sri.A.R George, before moving on to those impelled by Smt. Thulasi K.Raj. 9. As seen above, the Insurance Company maintains that the compensation awarded by the learned Tribunal to Sri.Jinesh under the heads “Pain and Sufferings” and “Loss of Amenities” is excessive; while, that granted under the head “Future Cost and Repair of the Artificial Limb” is impermissible. 10. I am afraid that this Court cannot find favour with these submissions because, when one examines the medical evidence on record, particularly the Ext.A7 - Wound Certificate, the appellant had sustained big lacerated wound on his thigh, through which, the fractured end of the femur was seen projecting out. In addition, he suffered several other injuries namely: _lacerated wound on right knee medial aspect – muscle deep; femur – lower 1/3 comminuted type III fracture both intercondyle communicator; tibia closed fracture right middle 1/3 and c ulna fracture right forearm and both bones –_ **MACA NOS. 1389 & 2586 OF 2014** ..7.. _forearm, along with type 3c open fracture of the right tibia and femur (floating knee) with closed fracture both bones right forearm, open book injury of the pelvis_ (sic). He was an inpatient for 90 days – which is admitted – and to treat the afore said injuries, he had to endure amputation of his distal phalanx of the right little finger, vascular grafting and fasciotomy with external fixator stabilization; and finally to the trauma of having his right leg amputated above knee. The external fixator was removed thereafter and stump closure done, along with several processes of wound debridement, which also required a secondary stump closure, along with “ _ORIF both bones forearm right side and I & D of the stump abscess_ ”(sic). 11. It is, therefore, needless to expatiate, that the wounds and the injuries suffered by Sri.Jinesh was extremely serious and it is on record - which is also without dispute - that he was unable to continue his studies nearly for a year thereafter, on account of the treatment and the convalescence that he was forced. These aspects have been fully taken into account by the Medical Board, in assessing his medical disability to be 80% and viewed from that perspective, the afore contentions of the Insurance Company can never appeal **MACA NOS. 1389 & 2586 OF 2014** **==> picture [20 x 9] intentionally omitted <==** to me, at least as far as ‘Pain and Sufferings’ and ‘Loss of Amenities’ are concerned. 12. As far as the compensation awarded by the learned Tribunal under the head ‘Future cost and repair of artificial limbs’ is concerned, this has been done based on the evidence on record, particularly Ext.A20 - Fitment Certificate and Ext.A27 - series of bills from a Company by name “Ottobock Health Care India for Artificial leg.” These are also supported by Ext.A28 bills from the said company, which also render it manifest that Sri.Jinesh willl require replacement of his hydraulic type knee joint, as well as his artificial limb in a few years time. Of course, the Tribunal has fixed the amount of Rs.6,00,000/- on a rough estimate, taking note of the cost which Sri.Jinesh had to defray for his artificial limb and its maintenance and repair. The accident happened in the year 2004 and the medical expenses, proven through the bills, establish that he had spent about Rs.2,94,614/- towards the cost of prosthetic and its maintenance and unkeep. Taking the fiscal standards of that year into account and increasing it by substantive increments for the future, I am of the firm view that the compensation for ‘Future Treatment’, including **MACA NOS. 1389 & 2586 OF 2014** **==> picture [20 x 9] intentionally omitted <==** ‘Maintenance of Artificial Limb’, will require to be scaled down to Rs.4,00,000/-, from Rs.6,00,000/- 13. I am guided to this view also because, the additional documents produced by Sri.Jinesh in MACA No.2586/2014, along with I.A.No.1/2019, also shows that the expenses which he will have to suffer for replacing his limbs would be the afore figure. 14. Now, coming to the arguments of Smt.Thulasi K. Raj, there is great force in her contention that the learned Tribunal has erred in not granting any amount under the head ‘Disability’ to Sri.Jinesh. This is because, as seen above, he has suffered greatly and had to endure amputation of his right leg, as also his finger; thus being certified to be 50 % disabled. When the disability has been reckoned so, obviously, future prospects also would required to be added to the income to be adopted in favour of the appellant, as per _**National Insurance Company Ltd. v. Pranay Sethi**_ [2017 (4) KLT 662 (SC)]. 15. That finally brings me to the question as to what should be the notional income to be adopted in favour of Sri.Jinesh. 16. The pleadings and evidence on record show that, Sri.Jinesh was a student at the time of the accident. It is also **MACA NOS. 1389 & 2586 OF 2014** ..10.. now conceded by both sides that he has eventually battled his odds; and his fortitude and strength have made him a medical doctor. However, he had to endure merely a year of depressive hospitalisation and treatment and the aftermath of the same can never be understated. I have no doubt, therefore, that the notional income to be adopted in his favour must be guided by the well settled principles of law, including the judgment of the Hon'ble Supreme Court in _**Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Ltd.**_ [(2011) 13 SCC 236]. In this case, even for a person who is a ‘Coolie’, or one with unascertainable income, in the year 2004 - the notional income to be adopted was declared to be Rs.4,500/- per month. Since Sri.Jinesh can never be construed to be a ‘Coolie’ and because it is admitted that he was a student, whose dreams would have lead him to greater heights - had not been for the accident, I am of the opinion that, his notional income must be adopted to be Rs.5,000/- per month. Add to this, will be the eligible future prospects of 40%, as per **Pranay Sethi** (supra); and consequently, the compensation under the head ‘Loss of Disability’ will have to be reckoned on such terms, taking the multiplier of ‘18’, as per _**Sarla Verma v. Delhi Transport Corporation**_ [2010 (2) KLT 802]. When I **MACA NOS. 1389 & 2586 OF 2014** **==> picture [26 x 9] intentionally omitted <==** grant such compensation, obviously, the amounts allowed by the Tribunal under the head ‘Loss of Expectancy of Life’ will have to be deleted, even though it has not been specifically assailed by the insurance company. 17. The notional income being so reckoned, the further question is what is the percentile of whole body disability that will have to be reckoned in favour of Sri.Jinesh. In this regard, A14 - Disability Certificate, issued by a Medical Board, certifies his locomotor disability to be 80%. This is, obviously, because he has lost one of his legs. However, when one has to then assess his whole body disability, the said percentile will have to be scaled down, taking note of its impact on his life as a whole. In an analogous provision in the Employees Compensation Act, the amputation of a limb would have to be treated as 50% whole body disability. I propose to adopt such in this case also; and to thus to fix the whole body disability as being 50%. In the above circumstances, these appeals are partly allowed and ordered as under: (a) An amount of Rs.7,56,000/- is awarded under the head ‘Loss of Permanent Disability’, reckoning the notional income of the appellant to be Rs.5,000/-, with 40% future **MACA NOS. 1389 & 2586 OF 2014** **==> picture [26 x 9] intentionally omitted <==** prospects added and his percentile of whole body disability reckoned as 50%, being guided by the A14 - Disability Certificate on record. (b) The compensation under the head ‘Future Cost and Repair of Artificial Limbs’ is reduced to Rs.4,00,000/-, from Rs.6,00,000/- awarded by the Tribunal. (c) The compensation under the head ‘Loss of Expectancy of Life’ granted by the Tribunal to a sum of Rs.1,00,000/- is deleted. In all other heads, the compensation awarded by the Tribunal will remain unaltered. Consequently, the appellant will be entitled to recover the compensation as modified by this Court, from the Insurance Company, except on the amount granted by this Court under the head ‘Future Treatment’, along with interest at the rate of 8% per annum from the date of claim until it is realised. The appellant will also be entitled to proportionate costs as awarded by the Tribunal on the enhanced amounts. As regards the amount granted by this Court under the head ‘Future Treatment’, interest on it will run at the rate of 8% per annum from the date of this judgment, until it is realised. **MACA NOS. 1389 & 2586 OF 2014** **==> picture [26 x 9] intentionally omitted <==** 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** SAS/ACR