K.P. Surendran v. The National Insurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE N.NAGARESH** **TUESDAY, THE 30TH DAY OF JUNE 2020/9TH ASHADHA, 1942** **MACA.No.1843 OF 2014** **AGAINST THE AWARD DATED 17-05-2010 IN OP(MV) 2035/2005** **OF MOTOR ACCIDENT CLAIMS TRIBUNAL,KOZHIKODE** ## **APPELLANT/PETITIONER:** **K.P.SURENDRAN,AGED 34 YEARS, S/O.CHATHU,RESIDING AT KUNHIPARAMBATH HOUSE, CHELAKKAD POST, KOZHIKODE.** **BY ADVS. SRI.AVM.SALAHUDIN SMT.EMIL STANLEY** ## **RESPONDENT/RESPONDENT:** **THE NATIONAL INSURANCE CO.LTD., DIVISIONAL OFFICE, NOOR COMPLEX, MAVOOR ROAD, KOZHIKODE - 673 001.** **BY ADV. SRI.A.A.MOHAMMED NAZIR BY ADV. SRI.M.A.GEORGE** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 30.06.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA No.1843/2014 : 2 : **J U D G M E N T** ~ ~ ~ ~ ~ ~ ~ ~ ~ _**Dated this the 30[th] day of June, 2020**_ The petitioner in OP(MV) No.2035/2005 of the Principal Motor Accidents Claims Tribunal, Kozhikode has filed this appeal invoking Section 173 of the Motor Vehicles Act, 1988 aggrieved by the Award dated 17.05.2010. 2. The appellant as petitioner, stated before the Tribunal that on 21.01.2005, while he was riding motorcycle KL-18A-3732, a bus hit him causing serious injuries. The appellant was taken to Medical College Hospital, Kozhikode and had to remain there as an in-patient for 127 days. The accident was due to the negligence of the Driver of the bus. The appellant was 25 years of age and was a Contractor by profession having a monthly income of ₹7,000/-. Due to the MACA No.1843/2014 : 3 : accident, he was disabled by 66%. In the OP(MV), the appellant claimed total compensation of ₹4,10,000/-. 3. The respondent-insurer defended the OP(MV) filing written statement. The insurance was admitted. The respondent, however, disputed the negligence on the part of the Driver of the bus and contended that the accident was solely due to the rash and negligent riding of the motorcycle by the appellant himself. 4. The appellant produced Exts.A1 to A19 documents. A Medical Board report was marked as Court Ext.C1. One Dr. Kumaran Chettiar was examined as RW1 by the respondent. 5. On appreciation of evidence, the Tribunal found that the accident was due to negligence of the bus driver as alleged by the appellant. The Tribunal took note of the injuries and treatments undergone by the appellant. The Tribunal found that there is no evidence to show the avocation, qualification or income of the appellant. Therefore, the Tribunal took ₹2,000/- as monthly income of MACA No.1843/2014 : 4 : the appellant and adopted 18 as multiplier. The Tribunal, invoking Section 168 of the Motor Vehicles Act, 1988, granted ₹3,15,579/- as compensation under the following heads:- |**Sl.**<br>**No.**|**Heads of claim**|**Amount**<br>**claimed**|**Amount**<br>**allowed**|**Details**| |---|---|---|---|---| |1|Transport to hospital|10,000|3,500|| |2|Extra Nourishment|10,000|2,500|| |3|Loss of earning|10,000|8,000|2000 x 4 months| |4|Bystanders expenses|Nil|7,300|100 x 73 days| |5|Treatment expenses|1,00,000|63,279|99,608 – 36,329| |6|Pain and sufferings|30,000|15,000|| |7|Permanent disability|2,50,000|2,16,000|2000 x 12 x 18 x 50/100| ||**Total**||**3,15,579**|| The Tribunal also awarded interest at the rate of 7% from 02.09.2005. The respondent-insurer was directed to deposit the compensation amount. It is aggrieved by the compensation amount awarded that the appellant-petitioner in OP(MV) is in appeal, under Section 173 of the Act, 1988. 6. The learned counsel for the appellant argued that the appellant was a Contractor aged 27 years and had an average monthly income of ₹7,000/- in the year 2005. the MACA No.1843/2014 : 5 : Tribunal, however, wrongly assessed his notional income as ₹2,000/-. This has substantially affected the amount of compensation. The counsel further argued that Medical Board has assessed his disability at 66%, but the Tribunal arbitrarily fixed disability at 50%. The functional disability of the appellant was also liable to be fixed as 66%. The counsel further pointed out that as is evident from Exts.A15 to A18, the appellant was hospitalised for a total period of 183 days. The Tribunal, however, fixed the period as 74 only. The Tribunal also did not grant compensation taking into account future prospects of the appellant, ignoring the judgment of the Apex Court in _**Syed Sadiq and others v. Divisional Manager, United India Insurance Co. Ltd.** [(2014) 2 SCC 735]_ . Though there was disfiguration of the body of the appellant, the Tribunal did not award any amount either for disfiguration or towards loss of amenities. 7. The counsel further pointed out that the appellant is entitled to bystander expenses for a period of 183 days. Taking into account the long period of treatment, the MACA No.1843/2014 : 6 : Tribunal ought to have granted loss of earnings at least for a period of one year. The Tribunal also ought to have given some compensation under the head pain and suffering. The total compensation amount awarded by the Tribunal is therefore liable to be enhanced substantially, contended the learned counsel for the appellant. 8. Learned Standing Counsel for the respondentinsurer forcefully opposed the arguments. The appellant did not adduce any evidence whatsoever on his avocation or income. The Tribunal therefore rightly fixed his notional income at ₹2,000/-. A Division Bench of this Court in the judgment in _**Ramakrishna Pillai K. and others v. New India Assurance Co. Ltd.** [2015 KHC 3703]_ has held that addition for future prospects can only be to the actual income of the deceased and that principle cannot be applied to a case where for the purpose of computing the loss of dependency, notional income is taken as the basis. 9. The counsel for the respondent-insurer further pointed out that the appellant has been misleading the MACA No.1843/2014 : 7 : Tribunal and produced fabricated bills and trip sheets. Even RW1, who issued the disability certificate, gave statements opposed to facts. Therefore, in the facts of the case, the appellant should be denuded of his right to any compensation. 10. The learned counsel for the respondent further argued that taking into account the consequences of injury on the body of the appellant, the functional disability should be fixed somewhere between 30% to 35%. The fixation of 50% disability by the Tribunal cannot be justified on any count. The Tribunal has not followed the judgment of the Apex Court in _**Raj Kumar v. Ajay Kumar and another** [(2011) 1 SCC 343]_ in the matter of assessment of functional disability based on Ext.C1 certificate. Therefore, if any change is warranted in the compensation amount, what is required is a downward revision, argued the learned Standing Counsel for the respondent. 11. I have heard the learned counsel for the appellant and the learned Standing Counsel for the respondent. MACA No.1843/2014 : 8 : 12. Regarding the income of the appellant, it is to be noted that the appellant has not produced any documentary evidence nor did he adduce any oral evidence. However, he being an able-bodied person, his notional income should be fixed as per the guidelines provided by the Hon'ble Apex Court in _**Ramachandrappa v. The Manager, Royal Sundaram Alliance Insurance Co. Ltd.** [(2011) 13 SCC 236]_ . The accident being of the year 2005, the notional income of the appellant is liable to be fixed as ₹5,000/-. 13. As regards granting of addition towards future prospects, in _**National Insurance Co. Ltd. v. Pranay Sethi and others** [(2017) 16 SCC 680]_ , the Apex Court held that for self-employed persons below 40 years of age, there shall be an addition of 40% in income towards future prospects. The judgment in _**Ramakrishna Pillai K.**_ ( _supra_ ) cited by the Standing Counsel for the respondent was delivered prior to _**Pranay Sethi** (supra)_ . Furthermore, that was a case where future notional income of a student was fixed. When a claimant is engaged in some avocation or when he is MACA No.1843/2014 : 9 : self-employed, addition has to be made towards future prospects when injury suffered results in substantial disability. Therefore, the monthly income of the appellant with addition of 40% future prospects, should be fixed as ₹7,000/- (₹5,000 x 140/100). 14. The learned counsel for the appellant, on the aspect of disability, argued that in spite of 66% disability assessed by Medical Board, the Tribunal fixed disability at 50% which is on a lower side. On the other hand, the learned Standing Counsel submitted that the Tribunal has not properly assessed functional disability which should have been fixed at a lower rate. The Tribunal has not followed the law laid down by the Apex Court in _**Raj Kumar v. Ajay Kumar and another** [(2011) 1 SCC 343]_ in assessing functional disability, it was argued. From Ext.C1, it emerges that the Medical Board certified permanent disability of the appellant as 66%. One of the Doctors, who issued the certificate, was examined as RW1. The Tribunal found that RW1 did not verify wound certificate and MACA No.1843/2014 : 10 : treatment records while giving evidence. However, the fact remains that the appellant suffered malunion of fracture of bones. The appellant had sustained fracture of femur and tibia of right leg. Thus, after verifying the evidence on record and scrutinising the testimony of RW1, the Tribunal came to the conclusion of 50% functional disability suffered by the appellant. The appellant was a Contractor and his avocation therefore necessarily included certain amount of travel also. The injury suffered by him would definitely affect his mobility substantially. In the circumstances, this Court is of the opinion that the functional disability of 50% assessed by the Tribunal requires no interference. 15. As regards the compensation granted by the Tribunal, it can be seen that the appellant spent ₹10,000/towards transportation expenses and the Tribunal awarded only ₹3,500/-. The Tribunal disbelieved Ext.A9 series of trip sheet for ₹37,352/- produced by the appellant for the reason that the trip sheets were having continuous numbers. However, from the discharge summaries and other MACA No.1843/2014 : 11 : documents produced by the appellant, it is evident that the appellant had to be hospitalised as inpatient during five different spells and also had to undergo physiotherapy for more than a month. Taking into account the afore facts, the Tribunal ought to have awarded ₹10,000/-, the amount claimed by the appellant in the OP(MV) towards transportation expenses. Therefore, the appellant will be entitled to an additional compensation of **₹6,500/-** (₹10,000 - ₹3,500 already awarded by the Tribunal) towards transportation expenses. 16. The appellant even as per the records produced before the Tribunal, was treated as an inpatient for 183 days. The appellant was in Medical College Hospital, Kozhikode from 21.05.2005 to 02.08.2005 (73 days), from 18.08.2005 to 14.09.2005 (28 days) and from 20.10.2005 to 15.11.2005 (26 days). The appellant was also an inpatient in Kozhikode District Co-operative Hospital Ltd. from 25.02.2008 to 03.03.2008 (7 days) and from 11.03.2008 to 29.04.2008 (49 days). The Tribunal ought to have granted MACA No.1843/2014 : 12 : compensation for extra nourishment for these days. Accordingly, the appellant will be entitled to a total compensation of ₹18,300/- towards extra nourishment, and after deducting ₹2,500/- already awarded by the Tribunal, the appellant will be entitled to an additional compensation of **₹15,800/-** under this head. 17. Similarly, the Tribunal has awarded only ₹8,000/for compensation towards loss of earnings. In view of the finding of this Court that the appellant's notional monthly income should be ₹5,000/- and that the appellant was under treatment from 21.05.2003 to 15.11.2005 during the first spell of treatment, the appellant should be held eligible for loss of earnings at least for a period of six months. Accordingly, it is declared that the appellant is entitled to compensation for loss of earnings to an amount of ₹30,000/-. Therefore, discounting ₹8,000/- already awarded by the Tribunal, the appellant shall be held entitled to **₹22,000/-** as additional compensation towards loss of earning. MACA No.1843/2014 : 13 : 18. In view of the finding that the appellant has been inpatient for 183 days in different hospitals, appropriate compensation towards bystander expenses is liable to be granted. It is therefore declared that the appellant is entitled to ₹27,450/- (183 days x ₹150) as compensation towards bystander expenses. Deducting an amount of ₹7,300/already awarded by the Tribunal, the appellant will be entitled to get additional compensation of **₹20,150/-** . The appellant had claimed medical treatment expenses amounting to ₹1 lakh and produced medical bills for ₹99,608/-. The Tribunal found that bills for ₹4,907/- are not in the name of the appellant and bills for ₹7,403/- are not bearing cash received seals. The Tribunal also found that bills for ₹24,020/- are invoices. Deducting ₹36,329/-, the Tribunal awarded ₹63,279/-. The Hon'ble Apex Court in the judgment in _**Kajal v. Jagdish Chand** [2020 (1) KLT 743 (SC)]_ has held that limiting medical expenses amounts only to the bills which have been paid in the name of the claimant only, would not be reasonable. Following the judgment of MACA No.1843/2014 : 14 : the Apex Court, this Court finds that the rejection of medical bills of ₹4,907/- and ₹7,402/- by the Tribunal, is unjustifiable. It is therefore declared that the appellant is entitled to treatment expenses of ₹75,588/- and after deducting ₹63,279/- already awarded by the Tribunal, the appellant will be entitled to additional compensation of **₹12,309/-** towards treatment expenses. 19. Though the learned counsel for the appellant submitted that ₹15,000/- awarded under the head pain and suffering is insufficient, going by the treatment history of the appellant, this Court finds that the said amount is just and reasonable. The appellant, however, will be entitled to an enhanced compensation towards disability. Treating ₹7,000/- as notional monthly income of the appellant, inclusive of future prospects, and treating 50% as the functional disability of the appellant, it is declared that the appellant is entitled to a total compensation of ₹7,56,000/(₹7,000 x 12 x 18 x 50/100). After adjusting ₹2,16,000/already awarded by the Tribunal, it is held that the appellant MACA No.1843/2014 : 15 : will be entitled to additional compensation of **₹5,40,000/-** towards compensation for disability. 20. Under the afore circumstances, it is declared that the appellant is entitled to a total additional compensation of **₹6,16,759/-** under the following heads:- |1|Additional compensation towards Transport|Additional compensation towards Transport|Additional compensation towards Transport||₹6,500/-| |---|---|---|---|---|---| |2|Additional|compensation|towards|Extra|₹15,800/-| ||nourishment||||| |3|Additional compensation towards Loss of earning||||₹22,000/-| |4|Additional|compensation|towards Bystander||₹20,150/-| ||expenses||||| |5|Additional|compensation|towards Treatment||₹12,309/-| ||expenses||||| |6|Additional compensation towards Disability||||₹5,40,000/-| |||**Total**|||**₹6,16,759/-**| ||||||**=========**| The respondent is directed to pay the additional compensation within one month with interest at the rate of 7% per annum from the date of the OP(MV). However, it is made clear that the appellant will not be entitled to get MACA No.1843/2014 : 16 : interest for a period of 1445 days, in view of the order in C.M. Application No.2/2014 dated 28.01.2016 of this Court. MACA is allowed in part. Sd/- **N. NAGARESH, JUDGE** aks/26/06/2020