K.G. Radhakrishnan v. Sreenivasan and The New India Assurance Company Ltd.

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** # **`THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN MONDAY, THE 10[TH] DAY OF APRIL 2023 / 20TH CHAITHRA, 1945`** ## **`MACA NO. 583 OF 2013`** ``` AGAINST THE AWARD DATED 18.08.2007 IN OP(MV) NO.53/2003 OF THE MOTOR ACCIDENT CLAIMS TRIBUNAL, WAYANAD ``` ## **`APPELLANT:`** ``` K.G.RADHAKRISHNAN, AGED 41 YEARS S/O.M.P.RADHAMMA, CHEEKALLUR PUTHIYAVEEDU, POST KANIYAMPATTA, KANIYAMPATTA VILLAGE, VYTHIRI TALUK, WAYANAD DISTRICT (MENTALLY DISABLE REPRESENTED BY GUARDIAN AND MOTHER M.P.RADHAMMA) ``` ``` BY ADVS. SRI.M.P.ASHOK KUMAR SRI.P.C.GOPINATH SRI.S.NANDAGOPAL ``` ## **`RESPONDENTS:`** ``` 1SREENIVASAN, S/O.RAMAN KUTTY NAIR, SREE NILAYAM, KANIYAMPATTA, PIN-673121 (OWNER CUM DRIVER OF AUTORIKSHAW KL 12A 375A) ``` ``` 2THE NEW INDIA ASSURANCE COMPANY LTD. NGT BUILDINGS, KALPETTA, KALPATTA NORTH, WAYANAD DISTRICT, PIN-673121, REPRESENTED BY ITS MANAGER (INSURER OF AUTORIKSHWA NO.KL 12/3759) ``` ``` BY ADV SRI.RENIL ANTO KANDAMKULATHY ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 10.04.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` MACA 583/13 2 ## **`JUDGMENT`** This is a very hard case of a now 80 year old lady, having to have approached this Court through this Appeal, seeking enhancement of compensation for the injuries sustained by her son in a road accident, which occurred on 08.04.2002. 2. The afore accident occurred when Late Radhakrishnan – the son of the appellant – was hit by the offending autorikshaw, while he was walking along the road; thus sustaining very grievous injuries. He was treated for a long period of time, having suffered head injury, as also complete loss of vision; which constrained him to file OP(MV) No.53/2003 before the Motor Accidents Claims Tribunal, Kalpetta, Wayanad (hereinafter referred to as ‘the Tribunal’ for short), seeking compensation for an amount of Rs.3,50,000/-, but which has been allowed only to a sum of Rs.35,950/-. 3. Before I move forward, I must record that Late Radhakrishnan was slightly retarded in his cogitational faculties and the Original Petition was filed by him, represented by the MACA 583/13 3 mother, who is the present appellant. She, thereafter, came on record, consequent to his unfortunate death on 06.05.2018, and is now prosecuting this Appeal. 4. Smt.Bindu Sreedhar – learned counsel appearing for the appellant, vehemently argued that the primary error caused by the Tribunal in awarding an exiguous sum is because, it has adopted the notional income of late Radhakrishnan to be a mere Rs.2,100/-, when there is evidence to establish that he was earning Rs.3,000/- at the time of the accident. She then pointed out that the learned Tribunal has awarded very meagre amounts under various other heads, in spite of the fact that the medical evidence would luculently show that he was 100% disabled, consequent to the accident. She concluded her submissions saying that the learned Tribunal has also committed mistake in having disregarded Ext.A17-Disability Certificate, which records the permanent disability of late Radhakrishnan to be 100%, solely on the ground that it is not an original document. She thus prayed that this Appeal be allowed and the compensation awarded by the Tribunal substantially enhanced, particularly because the appellant MACA 583/13 4 is in the winter years of her life, without any support. 5. Sri.Reni Anto Kandamkulathy – learned Standing Counsel for the Insurance Company, on the other hand, submitted that the learned Tribunal could not have done anything more than to have adopted the notional income of late Radhakrishnan, because there was no evidence to prove either his avocation or income; while Ext.A17 Medical Certificate is not an original one. He argued that since the said Disability Certificate is only a photocopy, the learned Tribunal could not have relied upon it. He thus prayed that this Appeal be dismissed. 6. I have considered the afore rival contentions, on the touchstone of the evidence on record, which I have analyzed very carefully. 7. I will first deal with the question of reckoning of the income of late Radhakrishnan. 8. The Claim Petition avers that late Radhakrishnan was a ‘Coolie’, earning Rs.3,000/- per month. In my view, there was no requirement for the learned Tribunal to have gone into any further enquiry because, in Ramchandrappa v. Manager, Royal Sundaram MACA 583/13 5 Alliance Insurance Company Ltd. [(2011) 13 SCC 236], the Honourable Supreme Court has postulated that, even in the case of a person whose income is otherwise unascertainable, or who is working as a ‘Coolie’, in the year 2002 – when the accident occurred, the minimum figure to be reckoned as notional income is Rs.3,500/-. Since the claim was lower, said figure ought to have been taken. 9. The conceded medical evidence on record show that late Radhakrishnan had been hospitalised, in various spells, for nearly 50 days. The learned Tribunal has, however, granted only an amount of Rs.700/- towards ‘Transport’ and Rs.1,000/- under ‘Extra Nourishment’; but denying any amounts towards ‘Hospital Attender Charges’. Similarly, it has awarded a mere Rs.1,200/towards ‘Loss of Earnings’; Rs.6,000/- towards ‘Loss of Earning Power’ and Rs.10,000/- each for ‘Loss of Eye Sight’ and ‘Pain and Suffering’ respectively. 10. The medical documents, particularly Ext.A3-Wound Certificate, establish that late Radhakrishnan had suffered injuries in the area of both eyebrows, with abrasion over elbow and knees. MACA 583/13 6 He appears to have developed neurological issues and was referred to the Medical College Hospital, Calicut, to have then undergone certain surgical procedures. Ext.A10 Discharge Summary – though a photocopy, but which had been admitted without objection – records that late Radhakrishnan had progressive loss of vision, altered sensorium and seizures even three months after the accident; and that he had to endure medical procedures like ‘right temporoparietal burr hole, left temporoparietal burr hole of eradication of bilateral subdual haematoma’ (sic). 11. It is taking note of the afore that the Assistant Surgeon of the District Hospital, Mananthavadi, has issued Ext.A7Certificate recording that late Radhakrishnan had seizure disorders and loss of vision, requiring follow-up treatment with the Medical College Hospital, Calicut. Ext.A13 is another Certificate issued by the Senior Consultant Physician of the District Hospital, Mananthavadi, certifying that, on 31.07.2002 – when he examined late Radhakrishnan, he had found that he has lost vision of both eyes and that he was suffering from seizures consequent to the accident. These two documents are originals and when one reads MACA 583/13 7 the same along with Ext.A17-Disability Certificate, the opinion of the doctors run in tandem. The only problem is that Ext.A17 is not the original, but only a photocopy, but which has been marked without objection. 12. That said, Ext.A17 certifies the permanent disability of late Radhakrishnan to be 100%, recording that it is due to ‘secondary optic atrophy and post traumatic epilepsy’ (sic). Though the Tribunal was right in holding that Ext.A17 is only a photocopy, there is absolutely nothing on record to discredit the compelling inference that late Radhakrishnan suffered complete loss of vision and was prone to epileptic seizures, consequent to the accident. Add to this, he was already retarded to some extent in his cogitative faculties; and am, therefore, of the view that, even by a rough estimate, his disability can certainly be taken to be 75%, since it would have been impossible for him to involve himself in any useful avocation due to his physical constraints, particularly the visual incapacity. 13. Though Sri.Reni Anto Kandamkulathy passionately argued that Ext.A17 be not looked into at all, I am of the view MACA 583/13 8 that, even if it is acceded to, taking note of all other evidence on record, my conclusion, that late Radhakrishnan had suffered at least 75% permanent disability, would stand on firm footing. 14. Further, the long period of hospitalisation endured by late Radhakrishnan and the aftermath of the injuries caused to him and his mother, can never be understated. Noting that late Radhakrishnan was hospitalised for nearly 50 days in different spells, I am certain that an amount of Rs.200/- and Rs.250/- per day respectively should be granted under the heads ‘Extra Nourishment’ and ‘Hospital Attender Charges’. Since it is on record that late Radhakrishnan could not work after the accident for a considerably long period of time, which is discernible from the fact that he had to endure hospitalisation in different spells thereafter, I am certain that he is entitled to be compensated for ‘Loss of Earnings’, at least for a period of six months. 15. The agony suffered by late Radhakrishnan and more so by his mother, can never be properly compensated in pecuniary terms, but am of the opinion that he was entitled to a sum of Rs.50,000/- under the head ‘Pain and Suffering’; and to a further MACA 583/13 9 sum of Rs.75,000/- under the head ‘Loss of Amenities’. 16. Coming to the question of disability, the stated income of late Radhakrishnan, namely Rs.3,000/-, ought to have been reckoned. Since the disability has been taken as 75%, he is certainly entitled to future prospects with 40% added to it, since he was only 35 years at the time of accident, as per Pranay Sethi (supra). The multiplier to be adopted for this purpose is ‘16’ as per Sarla Verma and Others v. Delhi Transport Corporation & Another [2010 (2) KLT 802]. In the afore circumstances, this Appeal is partly allowed with the following directions: a) An amount of Rs.6,04,800/- is awarded to the appellant under the head ‘Permanent Disability’, reckoning the notional income of late Radhakrishnan as Rs.3,000/- per month with 40% future prospects added to it; and the multiplier of ‘16’ applied. b) The compensation under the head ‘Pain and Suffering’ is enhanced to Rs.50,000/-, from Rs.10,000/- now awarded by the Tribunal. c) An additional amount of Rs.75,000/- is awarded under MACA 583/13 10 the head ‘Loss of Amenities’. d) The compensation under the head ‘Extra Nourishment’ is enhanced to Rs.10,000/-, reckoning the per day expense as being Rs.200/-, for an approximate 50 days of hospitalisation in different spells. e) An amount of Rs.12,500/- is awarded under the head ‘Hospital Attender Charges’, reckoning Rs.250/- per day for approximate 50 days of hospitalisation. f) The compensation under the head ‘Loss of Earnings’ is enhanced to Rs.18,000/-, reckoning the notional income of late Radhakrishnan as Rs.3,000/-, for a period of six months. g) Axiomatically, the compensation awarded by the Tribunal under the heads ‘Loss of Eye Sight’ to a sum of Rs.10,000/- and ‘Earning Power’ to a sum of Rs.6,000/- is deleted. Consequently, the appellant will be at liberty to recover the compensation, as enhanced by this Court, from the Insurance Company, along with interest at the rate of 7% per annum (modifying the rate of 6% awarded by the Tribunal, taking note of the prevailing fiscal standards in the years 2002 – when the MACA 583/13 11 accident occurred, and 2007 – when the final order was issued), from the date of claim, until it is recovered. She will also be entitled to proportionate costs on the enhanced amount, as ordered by the Tribunal. Needless to say, while calculating interest on the additional enhanced amounts, a period of 1931 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 ```