K.C. Titus v. P.A. Vinod, Mohammed, Shylan Antony, The National Insurance Co. Ltd. (two insurers) and others

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN`** ``` WEDNESDAY, THE 12[TH] DAY OF APRIL 2023 / 22ND CHAITHRA, 1945 ``` ## **`MACA NO. 2514 OF 2012`** ``` AGAINST THE AWARD DATED 25.11.2009 IN OP(MV) NO.1263/2005 OF THE MOTOR ACCIDENT CLAIMS TRIBUNAL, ERNAKULAM ``` ## **`APPELLANT:`** ``` K.C.TITUS, S/O CHIKKU, KALARICKAL HOUSE, OCHANTHURUTHU P.O., ELAMKUNNAPPUZHA VILLAGE, ERNAKULAM. ``` ``` BY ADV SRI.T.R.SUGUNAN ``` ## **`RESPONDENTS:`** - `1 P.A.VINOD, S/O ANTONY, PADATHUPARAMBIL HOUSE, ARATTUVAZHY KADAPPURAM BHAGOM, NJARAKKAL 688 681` - `2 MOHAMMED, S/O ABUBACKER, 10/299A, NARATHU HOUSE, KOOVAPPADY P.O., PERUMBAVOOR 683 544,` - `3 SHYLAN ANTONY, CHAMMANIKODATH HOUSE, PUTHIYA ROAD, THAMMANAM P.O., ERNAKULAM 682 033` - `4 THE NATIONAL INSURANCE CO.LTD., MYDHILI MANDIRAM, JANATHA JUNCTION, PALARIVATTOM, KOZHI-25.` - `5 THE NATIONAL INSURANCE CO.LTD, MUNICIPAL SHOPPING COMPLEX, MAIN ROAD, PARAVOOR 683 513.` ``` BY ADVS. SARAH SALVY SRI.AGI JOSEPH ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 12.04.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` MACA 2514/12 2 ## **`JUDGMENT`** The appellant was injured in a road accident on 24.12.2004, when the motorbike in which he was travelling pillion was hit by the offending car, driven in a rash and negligent manner. He sustained serious injuries and had to undergo treatment for a long period of time; constraining him to file OP(MV) No.1263/2005 before the Motor Accidents Claims Tribunal, Ernakulam (hereinafter referred to as ‘the Tribunal’ for short), seeking compensation of an amount of Rs.3,00,000/-, which was subsequently amended and enhanced to Rs.8,00,000/-; but which has been allowed only to a sum of Rs.2,63,750/-. He calls into question this, as being inadequate. 2. Sri.Sugunan T.R. – learned counsel for the appellant, argued that the compensation awarded by the learned Tribunal in favour of his client is low because his notional income adopted by it is woefully insufficient. He argued that his client was a Mason, earning Rs.6,000/- per month; and hence, that said figure ought to have been reckoned for the purpose of computing compensation for MACA 2514/12 3 disability. He then argued that, going by the medical evidence on record, the agony and pain suffered by his client is immeasurable and therefore, that the compensation awarded under the heads ‘Pain and Suffering’ and ‘Loss of Amenities’ is exiguous; while that awarded for ‘Permanent Disability’ and ‘Disfiguration’ is totally inadequate. He thus prayed that this Appeal be allowed. 3. – Smt.Sarah Selvy learned Standing Counsel for the Insurance Company, in refutation, submitted that since the accident happened in the year 2004, the computations adopted by the Tribunal in favour of the appellant is without error. She thus prayed that this Appeal be dismissed. 4. I have considered the afore rival contentions on the touchstone of the evidence on record, which I have analyzed very carefully. 5. There is no dispute between the parties as to the cause of accident, or other facts relating to it. The primary point of controversy between them is regarding the notional income and the percentile of permanent disability adopted by the Tribunal in favour of the appellant. MACA 2514/12 4 6. As I have said above, the appellant claims that he was a Mason earning Rs.6,000/- per month, but there is hardly any evidence on record to substantiate either of these. Obviously, the learned Tribunal could have only proceeded to reckon the notional income; but while doing so, it should have been guided by the postulations in Ramchandrappa v. Manager, Royal Sundaram Alliance Insurance Company Ltd. [(2011) 13 SCC 236], wherein, it has been held that, even in the case of a person whose income is otherwise unascertainable, or who is working as a ‘Coolie’, in the year 2004 – when the accident occurred – the minimum figure to be reckoned is Rs.4,500/-. Further, going by Rajani v. Oriental Insurance Company Ltd. [2022 (5) KLT Online 1012], a more robust view ought to have been taken in the case of a person who is engaged in technical avocation. There can be little doubt that Mason is a technical avocation; and, therefore, being guided by the sum total of the ratio in the afore two judgments, I propose to adopt the notional income of the appellant to be Rs.5,000/-, which is a mere Rs.500/- more than what has been authorised in Ramachandrappa (supra) for a ‘Coolie’. MACA 2514/12 5 7. The medical evidence on record, particularly Ext.A13, indicates that the appellant is certified to be suffering from whole body disability of 25%. The learned Tribunal, however, reduced it to 12% because said Certificate has been issued by a private Orthopedic Surgeon and not by a validly constituted Medical Board. 8. However, the other evidence on record, especially Ext.A8-Wound Certificate and Exts.A9 to A12-series of Discharge Summaries, establish that the appellant has suffered ‘comminuted fracture of tibia’, as also ‘fracture on the neck of fibula with multiple abrasions on various parts of body’ (sic). He had to endure various surgical procedures, including ‘wound debridement, transarticular external fixation, along with a gastrocnemius flap being applied’ (sic). He was readmitted to hospital several times thereafter for removal of external fixator, wound grafting of right tibia, as also for complaints of discharge of sinus from the said wound. Consequently, ‘wound debridement, curretage and saucerisation of right tibia’ (sic) was done under general anaesthesia, as also fixation of ‘gracilis flap on his right leg’ (sic). MACA 2514/12 6 9. The appellant has produced on record latest photographs of his leg, along with I.A.No.1/2023, and since it is not opposed, I am certain that this Court can rely upon the same. The area of injury is certainly full of scars and disfigurement and I see no reason to disbelieve his version, or the evidence on record. Obviously, the injuries sustained by the appellant cannot be seen to be trivial, which has left him with great disability, including disfigurement and scarring. 10. I am, therefore, of the firm view that the finding of the Tribunal – that the whole body disability of the appellant must be reduced to 12% - cannot find my favour, even when Ext.A13 Certificate, issued by a private Orthopedic Surgeon, cannot be taken to its full warrant. Adverting to the afore injuries and photographs on record, I have little doubt that the permanent disability of the appellant, as certified in Ext.A13, requires to be reduced only marginally, which I thus propose to be 20%. 11. Indisputably and as has been found by the learned Tribunal, the appellant was treated as an in-patient, in three or four spells, for a total of 82 days. The Tribunal has, however, MACA 2514/12 7 granted no amounts under the heads ‘Extra Nourishment’ or ‘Hospital Attendant Charges’; while it has granted only Rs.25,000/for ‘Pain and Suffering’ and Rs.15,000/- for ‘Loss of Amenities’. The amount granted for ‘Disfiguration’ is only Rs.10,000/-. I am certain that the compensation under all these heads will have to be enhanced, at least marginally. In the afore circumstances, this Appeal is partly allowed with the following directions: a) The compensation awarded by the Tribunal under the head ‘Permanent Disability’ is enhanced to Rs.1,68,000/-, from Rs.22,000/-; reckoning the notional income of the appellant to be Rs.5,000/- and the percentile of permanent disability to be 20. b) Axiomatically, the compensation granted under the head ‘Loss of Earnings’ is enhanced to Rs.25,000/-, from Rs.15,000/-, reckoning the notional income of the appellant to be Rs.5,000/- per month, for a period of five months, as correctly reckoned by the learned Tribunal. c) The compensation under the head ‘Pain and Suffering’ is enhanced to Rs.40,000/-, from Rs.25,000/- granted by the Tribunal. MACA 2514/12 8 d) The compensation under the head ‘Loss of Amenities’ is enhanced to Rs.30,000/-, from Rs.15,000/- awarded by the Tribunal. e) The compensation under the head ‘Disfiguration’ is enhanced to Rs.25,000/-, from Rs.10,000/- granted by the Tribunal. f) An additional amount of Rs.20,500/- is granted towards ‘Extra Nourishment’, reckoning Rs.250/- per day for 82 days of hospitalisation and an amount of Rs.28,700/- is granted towards ‘Hospital Attendant Charges’, reckoning Rs.350/- as the per day expenses for same. g) In all other heads, the findings of the Tribunal will remain unaltered. Consequently, the appellant will be at liberty to recover the full 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 claim until it is recovered. He will also be entitled to proportionate costs on the enhanced amount, as ordered by the Tribunal. Needless to say, while calculating the interest as afore, a MACA 2514/12 9 period of 961 days – being the delay in filing this 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/- ``` ``` RR ``` ``` DEVAN RAMACHANDRAN ``` ``` JUDGE ``` MACA 2514/12 10 ## **`APPENDIX OF MACA 2514/2012`** ``` PETITIONER ANNEXURES ``` ``` Annexure A1PHOTOGRAPH SHOWING THE PRESENT CONDITION OF RIGHT LEG ```