High Court of KeralaDivision Bench2015-02-12The appeal is allowed; the compensation is enha...

LOMY S/O VARGHESE v. JOSEKUTTY FRANCIS, PURUSHOTHAMAN, NATIONAL INSURANCE CO. LTD. MACA No.1118 of 2010

Case / Petition Number:MACA.No.1118 of 2010

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: T. R. Ramachandran Nair
P. V. ASHA
Judgment Date: 2015-02-12
Court Decision / Holding: The appeal is allowed. The award is enhanced to Rs. 8,16,800/-, with the breakdown adjusted as per the court’s modification. Interest on the enhanced amount is fixed at 9% per annum from the date of petition (as per Supe Dei case). The Insurance Company is directed to deposit the enhanced award within three months, after accounting for any court fee deficit, which the Tribunal may recover from the deposit. The parties shall bear their own costs. The judgment directs withdrawal of the enhanced amount by the appellant.
Final Disposition: The appeal is allowed; the compensation is enhanced to Rs. 8,16,800 with directions for deposit within three months; costs to be borne by the parties; enhanced interest as stated.

Parties to the Case

Appellants / Petitioners

Lomy S/o Varghese

Respondents

Josekutty Francis
Purushothaman
National Insurance Co. Ltd.

Legal Representation & Advocates

Counsels for Petitioners

• Sri. T.K. Koshy
• Sri. P. Gireesh Kumar
• SMT. V. V. Risani

Counsels for Respondents

• Sri M.D. Sasikumaran
• Sri K.S. Hariharaputhran
• Sri George Mathew
• Sri Dipu James
• SMT. Sarah Salvvy

Case Synopsis & Summary

The appellant, Lomy, injured in a motor vehicle accident on 11 March 2005, sustained severe injuries (Pipkin’s Type IV fracture-dislocation of the right hip) requiring extensive treatment, including reconstruction and osteosynthesis, with long hospitalisation and a permanent disability. The Motor Accidents Claims Tribunal at Muvattupuzha awarded Rs. 3,43,400 as compensation, which the appellant challenged as inadequately compensatory under several heads: loss of earnings, pain and suffering, loss of amenities, transportation, future medical expenses, bystander expenses, and disability. Medical records (Exts A6–A11) prove the gravity of injuries and treatment; disability certificate Ext.A11 records 30% disability with permanent effect, while the appellant argues his functional disability is about 50% given ongoing pain, limited mobility, and long-term care needs. The petition considered an income of Rs. 4,500 monthly (driver as occupation) and argued that the Tribunal adopted a lower figure of Rs. 2,500. The insurer contends the Tribunal’s award is proper and unsupported for enhancement. The appeal was finally heard on 12-02-2015, with both judges concurring to enhance compensation, address future costs, and direct deposit of enhanced amount within three months, reflecting the grievous nature of the injuries and sustained impairment.

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellant contends that the compensation awarded by the Tribunal under various heads is wholly inadequate. He asserts that the income of Rs. 4,500 per month prevailing for drivers at the relevant time should be taken into account (instead of the Tribunal’s Rs. 2,500). He argues for higher awards for pain and suffering, loss of amenities and loss of earning for a longer period due to ongoing treatment, disability, and impairment. Given the grievous injuries (Pipkin’s Type IV fracture-dislocation with potential AVN and prolonged recovery), and a disability certificate showing substantial functional loss, the appellant seeks a total enhanced sum (with a higher disability percentage applied) and inclusion of future medical expenses and bystander costs, supported by precedents such as Minu Rout and others for higher income norms and compensation norms.

Contentions of Respondents

The respondents contend the Tribunal’s award was proper and adequately reflects the evidence. They challenge the extent of enhancement claimed, defend the adopted income and the medical prognosis, and stress that the trial court’s approach already factored the injury’s seriousness. They oppose excessive bystander expenses and argue that the maintenance of a higher multiplier or indefinite future costs should be cautiously approached, urging adherence to the Tribunal’s reasons and established benchmarks.

Cited Precedents (2)

Case Name	Citation	Treatment	Explanation
Minu Rout and another v. Satya Pradyumma Mohapatra and others	(2013) 10 SCC 695	Positive	Cited to justify higher income estimation for the appellant—supporting use of a higher monthly income (Rs. 4,500) for calculating loss of earnings.
Supe Dei (Smt.) v. National Insurance Co. Ltd. and Anr.	(2009) 4 SCC 513	Positive	Cited to justify interest at 9% from the date of petition for enhanced compensation.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE T.R.RAMACHANDRAN NAIR & THE HONOURABLE SMT. JUSTICE P.V.ASHA** **THURSDAY, THE 12TH DAY OF FEBRUARY 2015/23RD MAGHA, 1936** **MACA.No. 1118 of 2010 ( ) --------------------------** **AGAINST THE AWARD IN OPMV 872/2005 ON THE FILE OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, MUVATTUPUZHA DATED 11-02-2010** **APPELLANT/PETITIONER:** **-------------------------** **LOMY,S/O.VARGHESE,THALIYATTIL HOUSE, PANDARANCITY, VADATTUPARA PO, KUTTAMPUZHA KOTHAMANGALAM.** **BY ADVS.SRI.T.K.KOSHY SRI.P.GIREESH KUMAR SMT.V.V.RISANI** **RESPONDENT(S)/RESPONDENTS 1 TO 3: ---------------------------------** **1. JOSEKUTTY FRANCIS,OLICKAL HOUSE, MUTTOM PO, THODUPUZHA.PIN-690511** **2. PURUSHOTHAMAN,S/O.AYYARU, VADAKKEKKARA HOUSE, CHITTOOR, MANAKKADU THODUPUZHA.PIN-685584** **3. NATIONAL INSURANCE CO.LTD.,THODUPUZHA. PIN- 685584** **R,R1,2 BY ADV. SRI.M.D.SASIKUMARAN R,R1,2 BY ADV. SRI.K.S.HARIHARAPUTHRAN R,R1,2 BY ADV. SRI.GEORGE MATHEW R,R1,2 BY ADV. SRI.DIPU JAMES R,R3 BY ADV. SMT.SARAH SALVY** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 12-02-2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **AL/-** ## **T.R.RAMACHANDRAN NAIR & P.V.ASHA, JJ.,** **- - - - - - - - - - - - - - - - - - - - - - - - - - - -** M.A.C.A. No.1118 of 2010 **- - - - - - - - - - - - - - - - - - - - - - - - - - - - -** Dated this the 12[th] day of February 2015 ## **JUDGMENT** ## **Asha, J.,** The appellant is the injured in a motor vehicle accident which occurred on 11.3.2005, when a Maruthi omni van bearing Registration No. PY-IM -615 hit the motor cycle on which, the appellant was riding as a pillion rider. He sustained serious injuries and was taken to the hospital immediately. He sustained fracture on neck of femur right and head of femur, fracture acetabulam right and posterior, dislocation of right hip. 2. The Tribunal has explained the injuries sustained as well as the treatment undergone by him in paragraph 13 of the award, which we reproduce below. _“ Then as regards the injury sustained by the petitioner, he has produced and proved Ext.A6 wound certificate from MBMM Hospital, Kothamangalam which proved the injury of contusion over right hip and X-ray showed fracture neck of femur right side and fracture floor of acetabulam right side as alleged by the petitioner. The history in Ext.A6 wound_ M.A.C.A. No.1118 of 2010 :2: _certificate is the injury sustained in an RTA. As per Ext.A6 the petitioner was referred to a higher centre. The other documents produced by the petitioner is another wound certificate from Specialists Hospital, Ernakulam. Ext.A7 proved the injuries of fracture dislocation of right hip and X- ray showed fracture neck of femur and acetabulam with dislocation right and hospitalisation from 11.3.05 to 6.4.05 for 26 days. Ext.A8 is the discharge summary issued from Specialists Hospital, Ernakulam which proved the pipkin's Type IV fracture dislocation(R) hip and X-ray pelvis showed fracture neck femur with fracture acetabulam with posterior dislocation right hip. 3D reconstruction CT Scan showed fracture posterior wall of acetabulam, fracture neck of femur, fracture head of femur with posterior dislocation of hip and treatment given was BK skin traction. As it was a case of Pipkin's Type IV dislocation, with high chance of AVN of femoral head and early OA, it was decided to do a reconstruction of acetabulam and osteosynthesis of fracture neck of femur after discussing the prognosis with the patient and relatives. Ext.A9 is another discharge summary from Specialists Hospital, Ernakulam which showed the Pipkin's Type IV fracture dislocation right leg and treatment given showed pelvic supportive osteotomy with illizarov ring fixator done on 14.6.05 and hospitalisation from 10.6.05 to 8.7.05 for 28 days. Ext.A10 is another discharge summary for the treatment from 22.3.06 to 28.3.06 for 6 days and the same proved the ring removal done. No abnormal mobility found PWB walking with crutches was started. Ext.X1 is the treatment records from MBMM Hospital,_ M.A.C.A. No.1118 of 2010 :3: _Kothamangalam.”_ 3. Thus appellant was on in-patient treatment for a period of 60 days. Even after undergoing all those treatments explained in the award, he was able to walk with the help of crutches only. The disability certificate Ext.A11 issued to him shows the disabilities found as on 13.3.2008 as follows: _“ limping right side, shortening by 1 inch._ _Right hip: flexion is possible by 90°. All other movements reduced by 50% of normal._ _wasting of right thigh muscles by 3 cm._ _X-ray taken on 13.3.08 shows fracture acetabulam united with screws in situ. Absent head of femur with migration of trochanter upwards.”_ 4. The whole body disability was assessed as 30%. It was permanent in nature. Before the tribunal, evidence was adduced by examining PW1 to PW3. i.e. including the doctor who issued the disability certificate Ext.A11. 5. The appellant was working as driver. Claim petition was filed seeking compensation to the tune of Rs. 6,50,000/-. The Tribunal awarded a sum of Rs. 3,43,400/-. This appeal is filed seeking enhancement in compensation. The learned counsel for the appellant submitted that the compensation awarded under various heads are thoroughly inadequate. It is also submitted that the income reckoned M.A.C.A. No.1118 of 2010 :4: in the case of the appellant is Rs. 2,500/- only. The learned counsel for the Insurance Company opposed the claim for enhancement. 6. The accident occurred in the year 2005 when the appellant was aged 34 years. The appellant was a driver. He is unable to undertake his avocation on account of the injuries. The deposition of PW3 as well as PW1 show that the injuries sustained by the appellant are grievous in nature and he was incapacitated to undertake any avocation. But the percentage of disabilities found is only 30%. Having regard to the nature of injuries sustained to him, his functional disability can be reckoned as 50%. The appellant had claimed that he was earning a monthly income of Rs. 4,500/-. the Tribunal has accepted only Rs. 2,500/- as the monthly income. In view of the wage structure prevailing in the State in the case of drivers at the relevant time and in the light of the judgment of the Apex Court in **Minu Rout and another V. Satya Pradyumma Mohapatra and others [(2013) (10) SCC 695],** we find that his monthly income can be reckoned at the rate of Rs. 4,500/- as claimed by the appellant. The Tribunal has awarded a sum of Rs. 10,000/- towards loss of earnings for a period of six months. Having regard to the fact that the appellant was under continuous treatment M.A.C.A. No.1118 of 2010 :5: for a period of one year, we award a sum of Rs. 54,000/- towards loss of earnings for a period of one year reckoning the income at Rs. 4,500/-. 7. In view of the grievous nature of the injuries sustained on his femur, acetabulam, dislocation caused to hips, innumerable processes of treatment undergone as explained above, the discomfort and inconvenience experienced by the appellant, we are of the view that a sum of Rs. 75,000/- has to be awarded under the head of pain and suffering. Similarly, it is also clear that the movements of appellant have been restricted, he is incapacitated to have the normal amenities and enjoyment in life for ever. Therefore, we award a sum of Rs. 75,000/- towards loss of amenities and loss of enjoyment of life and shortened expectancy of life. The Tribunal has awarded only a sum of Rs. 8,000/- towards bystander expenses. The inpatient treatment itself was for a period of 60 days. Thereafter also he was unable to move without the help of another for atleast for a period of one year. In the circumstances, we award a sum of Rs. 15,000/- towards bystander expenses. The Tribunal awarded Rs. 5,000/- towards future medical expenses. It is seen that the internal fixators are yet to be removed. In view of the fact that the appellant M.A.C.A. No.1118 of 2010 :6: requires further treatment as well as removal of internal fixators, we award a sum of Rs. 15,000/- under the head of future medical expenses. Reckoning the disability at the rate of 50%, the monthly income at the rate of Rs.4500/- and adopting the multiplier as 16, a sum of Rs. 4,32,000/- is admissible to the appellant under the head disability compensation. Accordingly we modify the award as follows: |**_Sl._** **_No._**|**_Heads_**|**_Amount_** **_awarded (in Rs.)_**|**_Amount modified(in_** **_Rs)_**| |---|---|---|---| |1|Pain and suffering|25000|75000| |2|Loss of amenity|15000|75000| |3|Loss of earning|10000|54000| |4|Transport to hospital|4000|4000| |5|Damage to clothes|500|500| |6|Extra nourishment|8000|8000| |7|Bystander's expenses|8000|15000| |8|Future medical expenses|5000|15000| |9|Towards medical bills|138300|138300| |10|Towards disability compensation (2500x12x27x16/100)|129600|432000 (4500x12x16x50/100)| ||Total|3,43,400|8,16,800/-| 8. Thus the appellant will be entitled to a total compensation of Rs. 8,16,800/-(Rupees Eight lakhs Sixteen Thousand Eight hundred only). The enhanced amount of compensation will carry interest at M.A.C.A. No.1118 of 2010 :7: the rate of 9% from the date of petition in the light of the decision of the Apex Court in **Supe Dei(Smt.) & Ors. v. National Insurance Co. Ltd. and Anr.** [(2009)4 SCC 513]. The Insurance Company is directed to deposit the award amount less the amount already deposited within a period of three months. The court fee in deficit, if any shall be recovered by the Tribunal from the deposit towards the enhanced award amount. The appellants are allowed to withdraw the award amount. The appeal is allowed accordingly. The parties shall bear their respective costs. ## **Sd/-** **T.R.RAMACHANDRAN NAIR (JUDGE)** AL/- True copy **Sd/P.V.ASHA (JUDGE)** P.A to Judge M.A.C.A. No.1118 of 2010 :8: