K.R. Renjith v. Unnikrishnan Nair and Roji Varghese and The New India Assurance Company Limited

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON & THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN TUESDAY, THE 15TH DAY OF MARCH 2016/25TH PHALGUNA, 1937 MACA.No. 116 of 2007 ( ) ------------------------- AGAINST THE AWARD IN OPMV 1556/2003 of M.A.C.T., KOTTAYAM DATED 27-01-2006 APPELLANT/PETITIONER: ------------------------------------- K.R.RENJITH, RESIDINT AT RAJESH BHAVAN, (KODITHOTTATHIL), PUTHUPPALLY P.O. BY ADVS.SRI.T.C.SURESH MENON SRI.SREEKANTH.K.R SRI.JIBU P THOMAS SRI.SUNIL J.CHAKKALACKAL ## RESPONDENTS/RESPONDENTS: --------------------------------------------- 1. UNNIKRISHNAN NAIR, S/O GOPAKAKRISHNA PILLAI, RESIDING AT KALLUVARAMPUL KIZHAKKETHIL HOUSE THITTAMEL, CHENGANNOOR P.O. 2. ROJI K.VARGHESE, S/O.VARGHESE, RESIDING AT KALARIKUNNEL VEEDU, II WARD CHAMPAKULAM P.O., ALAPPUZHA. 3. THE NEW INDIA ASSURANCE COMPANY LIMITED, CHENGANNOOR P.O. R3 BY ADV. SRI.VPK.PANICKER THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 15-03-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **APPENDIX IN MACA.116/07** ## **APPELLANT'S ANNEXURE:** ANNEXURE -A: TRUE COPY OF MEDICAL BILLS DT.27.12.06. ## **RESPONDENTS' ANNEXURE: NIL** TRUE COPY P.S.TO JUDGE dsn ## **P.R.RAMACHANDRA MENON & ANIL K.NARENDRAN, JJ.** **-------------------------------------------------M.A.C.A.No.116 OF 2007** **-------------------------------------------------DATED THIS THE 15[th] DAY OF MARCH, 2016** ## **JUDGMENT** ## **ANIL K.NARENDRAN, J** . The appellant is the claimant in OP(MV)No.1556/20038 on the file of the Motor Accident Claims Tribunal, Kottayam, an application under Section 166 of the Motor Vehicles Act, 1988. The appeal is for enhancement of the compensation awarded by the Tribunal in respect of injuries sustained to the appellant, pursuant to a road traffic accident occurred on 21.3.2002, while the appellant was travelling as a pillion rider in a motor cycle bearing Registration No.KL-5/J-5587. When the motor cycle reached Pulimkunnu near Koyikkal Bridge, an autorickshaw bearing Registration No.KL4/4730 owned, driven and insured by respondents 1 to 3 came from the opposite side and hit against the motor cycle causing serious injuries to the appellant, which led to the claim petition filed by him before the Tribunal, seeking to compensate the loss. 2. Before the Tribunal respondents 1 and 2 remained ex parte. The 3rd respondent filed a written statement admitting the M.A.C.A.No.116/07 -2- insurance coverage of the autorickshaw. The nature of contention raised by the respondent Insurance Company was mainly on quantum/negligence. They also denied the age, occupation and monthly income of the appellant. 3. The evidence adduced before the Tribunal consists Exts.A1 to A23 produced and marked on the side of the appellant and oral testimony of PW1. The respondents have not chosen to adduce any oral or documentary evidence. 4. Based on the relevant materials on record, the Tribunal arrived at a finding that the accident occurred due to the negligence on the part of the driver of the autorickshaw. 5. Referring to serious consequences resulted because of the injury sustained, a total sum of 5,00,000/- was claimed by₹ the appellant. Awarding amounts under different heads, total compensation was fixed as 3,01,150/-, which was directed to be₹ satisfied with interest @6% per annum from the date of petition. The liability was mulcted upon the shoulders of the 3rd respondent Insurance Company. 6. Inadequacy of the compensation awarded by the Tribunal is the subject matter of challenge in this appeal. M.A.C.A.No.116/07 -3- 7. Heard the learned counsel for the appellant and also the learned counsel appearing for the 3rd respondent Insurance Company. 8. The amounts awarded by the Tribunal under different heads as given in paragraph 11 of the Award are as follows : |Pain and suffering|:|₹|30,000/-| |---|---|---|---| |Loss due to non attendance of college:||₹|15,000/-| |Damage to clothing|:|₹|500/-| |Transportation expenses|:|₹|9,850/-| |Medical expenses|:|<br>₹|1,18,800/-| |Bystander's expenses|:|<br>₹|10,000/-| |Extra nourishment|:|<br>₹|5,000/-| |Disability|:|<br>₹|72,000/-| |Loss of amenities|:|₹|25,000/-| |Disfiguration|:|₹|15,000/-| ||||-----------| |Total|:|<br>₹|3,01,150/-| ||||=======| 9. At the time of accident the appellant was aged 19 years and he was an Engineering student undergoing B.Tech. in Mechanical Engineering at Cochin University College of Kuttanad. For the purpose of calculating the disability compensation, the Tribunal fixed a notional amount of 2,500/- towards his future₹ earning capacity. However, considering the fact that the accident is of the year 2002 and that, at the time of accident the appellant was undergoing B.Tech. course, we deem it appropriate to re-fix his future earning capacity as 5,000/- for the purpose of₹ M.A.C.A.No.116/07 -4- ## calculating disability compensation. 10. As we have already noticed, at the time of accident, the appellant was aged 19 years. In view of the law laid down by the Apex Court in **Sarala Verma v. Delhi Transport Corporation [2010 (2) KLT 802 (SC)]** , the appropriate multiplier applicable is '18'. 11. The nature of injuries sustained by the appellant and the treatment he had undergone as given in Para.10 of the Award are as follows: “It is proved by medical records that in the accident the petitioner sustained compound comminuted fracture of both bones of right leg middle 3[rd] , lacerated wound 1.5 cmx1cm right leg middle 3[rd] . Ext.A9 is a medical certificate issued from Anugraha Orthopaedic & Trauma Hospital certifying that the petitioner was admitted in Anugraha Hospital on 21.3.2002 with compound comminuted fracture of both bones right leg middle 3[rd] following an alleged RTA at Pulimkunnu. He was initially treated at Medical College Hospital, Alappuzha with temporary POP cast. He was brought to the hospital for surgical correction of the fracture. He was operated on 3.4.2002 and had open reduction and internal fixation of the tibial fracture by C.C.P. and screws with bone grafting was done and the patient was discharged on 16.4.2002 with POP cast. The patient was readmitted on 16.5.2002 and POP was removed and physiotherapy treatment done and discharged on 1.6.2002. He was again readmitted on 22.6.2002 for physiotherapy and gait M.A.C.A.No.116/07 -5- training and discharged on 24.6.2002. The patient was readmited on 18.7.2002 with a re-fracture and implant failure. Patient was operated on 22.7.2002 whereby removal of the broken implant, with open reduction and internal fixation with D.C.P. and screws with bone grafting done. The same was also a major surgery. AK POP slab was applied on 3.8.2002 and discharged on 3.8.2002. POP was re-applied on 31.10.2002 and it was removed o 25.11.2002. Ext.A10 is a discharge summary issued from Amritha Institute of Medical Sciences and Research Centre which shows that the petitioner was admitted in the Amritha Hospital on 9.3.2005 for implant removal with complaint of discharging sinuses in the middle third and upper third portion of his leg since 6 months. Two sinuses with serosanguineous discharge present in the middle third leg on the medial side. Two sinuses on the middle third left lateral side serosanguineous discharge, one sinus at the ankle level anteriorly discharging serosanguineous fluid. Patient on 10.3.2005 underwent implant removal 14 hole diamic compression place was removed along with debridement and local curettage and he was discharged on 16.3.2005. Ext.A11 is another certificate issued from Amritha Institute of Medical Sciences which would indicate that the petitioner was admitted in the Amritha Hospital on 9.3.2005 with infected implant right tibia and underwent removal on 10.3.2005 and subsequently discharged on 16.3.2005. He has been advised regular follow up in the Ortho Department. Ext.A23 is another discharge summary issued from Amritha Institute of Medical Sciences and Research Centre which indicate that the petitioner was again admitted in the hospital on 14.12.2005 with the complaints of discharge from wound right leg since 2½ years. Known case of united fracture right leg, implant removal done here at AMS in March, 2005 for which he underwent sequestrectomy and saucerisation of right tibia on 15.12.2005 M.A.C.A.No.116/07 -6- and he was discharged on 29.12.2005.” 12. In Ext.A12 disability certificate, the percentage of permanent disability has been certified as 20%. However, the Tribunal reckoned only 15% disability for the purpose of calculating disability compensation. We notice that in the accident, the appellant sustained serious injuries, which resulted in various disabilities including shortening of right leg by 1.5 cm. Considering the nature of injuries and the disability noted in Ext.A12 disability certificate, which has been proved by examining the Doctor as PW1, we deem it appropriate to reckon the entire disability of 20% as certified in Ext.A12, for the purpose of calculating disability compensation. 13. On reworking the compensation, taking 5,000/- as₹ the multiplicand and '18' as the multiplier applicable to the age group of the appellant and the percentage of disability as 20%, the compensation payable under the head permanent disability is re-worked as 5000x12x18x20/100=2,16,000/-. The Tribunal awarded a sum of 72,000/- under this head. In the result, the₹ appellant will be entitled for an additional compensation of **₹1,44,000/-** . M.A.C.A.No.116/07 -7- 14. Towards pain and suffering, the Tribunal awarded a sum of 30,000/-. Considering the nature of injuries sustained₹ and the treatment the appellant had undergone, we find that the compensation awarded by the Tribunal under this head represents just and reasonable compensation, which requires no interference in this appeal. 15. Similarly, towards loss of studies, the Tribunal awarded a sum of 15,000/-. The pleadings and materials on₹ record would show that due to the injuries sustained in the accident and the treatment undergone, the appellant could not write the 4th and 5th semester examinations fully. Considering the aforesaid facts and circumstances, the Tribunal awarded a sum of ₹15,000/-, which requires no enhancement in this appeal. 16. Towards loss of amenities, the Tribunal awarded a sum of 25000 and a further sum of 15,000/- towards disfiguration.₹ ₹ The compensation awarded by the Tribunal under the above heads also represent just and reasonable compensation, which requires no enhancement in this appeal. 17. As we have already noticed, in the accident the appellant sustained serious injuries, which resulted in M.A.C.A.No.116/07 -8- disfiguration and also shortening of leg by 1.5 cm. Considering the totality of the facts and circumstances, we deem it appropriate to grant a sum of **₹10,000/-** towards loss of marriage prospects. 18. Along with I.A.No.189/09, the appellant produced medical bills for a total sum of 22,500/-. To the said application,₹ no counter affidavit is seen filed by the respondents. The learned counsel for the respondent insurer has also not raised any dispute as to the genuineness of the aforesaid bills. In such circumstances, we accept the same and the appellant will be entitled for an amount of **₹22,500/-** towards medical expenses. However, the said amount will carry interest only from the date of this judgment. 19. The compensation awarded by the Tribunal under other heads represent just and reasonable compensation, which requires no enhancement in this appeal. 20. In the result, the appellant will be entitled for an additional compensation of **₹1,76,500/-** , together with interest at the rate of 9% per annum from the date of petition till realisation for 1,54,000/-. However, for 22,500/-, awarded₹ ₹ M.A.C.A.No.116/07 -9- in this appeal towards medical expenses, the appellant will be entitled for interest at the rate of 9% per annum only from the date of this judgment. Since the policy is admitted, the respondent insurer shall deposit the entire amount before the Tribunal within one month from the date of receipt of a certified copy of this judgment. The appeal is disposed of as above. Sd/- **P.R.RAMACHANDRA MENON** , **JUDGE** Sd/- **ANIL K.NARENDRAN, JUDGE** dsn True copy P.S.to Judge