K. K. Purushothaman v. ICICI Lombard General Insurance Co. Ltd.

# `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ``` THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN WEDNESDAY, THE 8[TH] DAY OF FEBRUARY 2023 / 19TH MAGHA, 1944 ``` ## `MACA NO. 3124 OF 2015` ``` [AGAINST THE AWARD DATED 23.8.2014 PASSED IN OP(MV)NO.387/2008 ON THE FILE OF THE MOTOR ACCIDENT CLAIMS TRIBUNAL, ALAPPUZHA] ``` ## `APPELLANT/PETITIONER:` ``` K.K.PURUSHOTHAMAN, AGED 72 YEARS, S/O LATE KUNJI, VELIKKAKATHU HOSUE, AVALOOKUNNU P.O., EAST OF ASPINWAL JUNCTION, ARYAD PANCHAYATH, WARD-7, ALAPPUZHA DISTRICT. ``` ``` BY ADVS.SRI.A.T.ANILKUMAR SMT.V.SHYLAJA ``` ## `RESPONDENTS/RESPONDENTS:` ``` 1ANEESH, S/O SHIVADAS (SIVAN), MUTTATHU HOUSE-451 (PUTTATTY GIYSE), AMBANAKULANGARA, NORTH OF MUSLINE MOSQUE, MANNANCHERRY P.O., MANNANCHERRY GRAMA PANCHAYATH, WARD-6, MANNANCHERRY VILLAGE, ALAPPUZHA, PIN-688538. ``` ``` 2GENERAL MANAGER, ICICI LOMBARD, GENERAL INSURANCE CO. LTD. ICICI BANK TOWER, BANDRA KULA COMPLEX, BANDRA (EAST), MUMBAI-400 051. ``` ``` BY ADV SRI.R.AJITH KUMAR VARMA, SC ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 08.02.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA NO. 3124 OF 2015 ``` ``` -2- ``` ## `JUDGMENT` ``` The claimant, in OP(MV)No.387/2008 on the files of the Motor Accidents Claims Tribunal, Alappuzha (‘Tribunal’ for short), impugns its Award on the ground that the compensation awarded is exiguous. ``` ``` 2.Indisputably, the appellant was ``` ``` involved in an accident caused by the offending vehicle, which is insured by the 2[nd] ``` ``` respondent – ICICI Lombard General Insurance Company Limited (‘Insurance Company’, for ``` ``` short). He made a claim for compensation of Rs.3,13,000/-, limited to Rs.3,00,000/-; but which has been allowed by the Tribunal only to an extent of Rs.55,464/-. The Tribunal has ``` ``` also made the 1[st] respondent responsible for ``` ``` payment; thus granting the Insurance Company liberty to recover it from him, after payment ``` ``` MACA NO. 3124 OF 2015 ``` ``` -3- ``` ``` to the claimant. ``` ``` 3.Smt.V.Shylaja – learned counsel for the appellant, argued that the notional monthly income adopted by the Tribunal in favour of her client is extremely low; and that the compensation for “Pain and Suffering” ought to have been much more than ``` ``` what has been awarded. ``` ``` 4.Smt.V.Shylaja further argued that ``` ``` when Ext.A16 - Disability Certificate clearly demonstrates that the appellant was suffering from 12% permanent disability, the Tribunal has erred in disregarding it solely because the appellant did not have this disability when evaluated by a Medical Board. She submitted that when Ext.A16 - Disability Certificate was not challenged by the respondents, the Tribunal could not have ``` ``` MACA NO. 3124 OF 2015 ``` ``` -4- ``` ``` “brushed it aside”, as has been done in this ``` ``` case. ``` ``` 5.The learned counsel for the appellant ``` ``` concluded her submissions, saying that the compensation for “Loss of amenities” was also very frugally awarded by the Tribunal; and ``` ``` argued that her client is entitled to much ``` ``` more, going by the nature of injuries ``` ``` sustained by him. ``` ``` 6.Sri.R.Ajith Kumar Varma – learned ``` ``` Standing Counsel for the Insurance Company, conceded that the notional monthly income of the appellant could have been taken as ``` ``` Rs.6,000/- per month, in view of the binding ``` ``` precedents of the Hon’ble Supreme Court; but ``` ``` argued that no compensation for “Permanent Disability” is eligible to him when the same is not properly proved. He thus prayed that ``` ``` MACA NO. 3124 OF 2015 ``` ``` -5- ``` ``` this Appeal be dismissed, except to the extent of revising the amount under the head “Loss of Earning”. ``` ``` 7.I have examined the documents 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 it can be acted upon by ``` ``` this Court without contest. ``` ``` 8.WhenIconsidertheafore ``` ``` submissions, it is without doubt that, going by the judgment of the Hon’ble Supreme Court in Ramachandrappa v. Manager, Royal Sundaram ``` ``` Alliance Insurance Company Ltd. [(2011) 13 ``` ``` SCC 236] , even in the case of a person whose ``` ``` income is unascertainable in the year 2007 – when the accident occurred – the standard to be adopted is Rs.6,000/- per month. ``` ## `MACA NO. 3124 OF 2015` ``` -6- 9.That said, it is on record that Ext.A16 - Disability Certificate has been issued by the doctor who treated the appellant. I have examined the said Certificate, which records that he is suffering from fifteen degree limitation in rotating his hand due to the injury of the shoulder and that the upper limb has difficulty in lifting weights. This Certificate also records that the appellant had undergone two major surgeries for mandible - which was fractured; as also loss of teeth; and hence that the percentage of disability is assessed to be 12%, as per the McBride Scale. ``` ``` 10.Pertinently, the Insurance Company ``` ``` does not have a case that the doctor who issued the Certificate has acted incorrectly ``` ## `MACA NO. 3124 OF 2015` ``` -7- ``` ``` or mala fide; but the Tribunal went on to say that the assessment by him on the McBride Scale cannot be accepted. I fail to understand why this was so held, though, perhaps, going by the injuries sustained by the appellant, the percentile of disability could have certainly been revised by the Tribunal, which I propose to be 10%. I do so because the Medical Documents on record indicate that the appellant suffered from fracture of mandible and that he lost multiple teeth, apart from the injury he had on the left forearm and fracture on the shoulder. Disability of 10% certainly becomes probable; and juxtaposed by the opinion of the Doctor - even though he was not examined – in Ext.A16, would justify this Court in accepting the disability to be 10%. ``` ## `MACA NO. 3124 OF 2015` ``` -8- ``` ``` Axiomatically, the appellant would become ``` ``` entitled to Rs.50,400/- under the head ``` ``` “Permanent Disability” taking the multiplier ``` ``` of seven as is permitted under Sarla Verma & ``` ``` Others v.Delhi Transport Corporation & ``` ``` Another [2010 (2) KLT 802]. ``` ``` 11.That being so declared, I am of the ``` ``` view that, taking note of the gravity of the injuries, the appellant, under the heads ``` ``` “Loss of Amenities” and “Pain and Suffering”, ``` ``` is entitled to Rs.15,000/- and 20,000/- ``` ``` respectively, rather than Rs.5,000/- and ``` ``` Rs.10,000/- as presently granted; and when his notional monthly income is taken as ``` ``` Rs.6,000/-, an enhancement under the head ``` ``` “Loss of Earning” for one month also becomes ``` ``` necessary. ``` ## `MACA NO. 3124 OF 2015` ``` -9- ``` ``` Resultantly, this Appeal is allowed, enhancing the total compensation to be Rs.1,28,864/- (Rupees one lakh twenty eight thousand eight hundred and sixty four only) instead of Rs.55,464/-, presently granted, which he will be entitled to recover from the Insurance Company, along with interest at the rate fixed by the Tribunal, from the date of filing of the claim petition until it is ``` ``` realized. ``` ``` In all other respects, the findings in Award will remain intact. ``` ``` It goes without saying that the liberty granted to the Insurance Company to recover the compensation from respondent No.1 is left unaltered. ``` ``` akv ``` ## `Sd/- DEVAN RAMACHANDRAN JUDGE`