High Court of KeralaSingle Judge2018-11-05Appeals disposed of; enhanced compensation of R...

MACA No. 3648 of 2017 & MACA No. 114 of 2018, Jayachandran v. Pyarijan W/o Abdul Salim, Raju T.K. and ICICI Lombard General Insurance Co. Ltd.

Case / Petition Number:MACA.No. 3648 of 2017; MACA.No. 114 of 2018

Neutral Citation:/null

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: A. M. Babu
Judgment Date: 2018-11-05
Court Decision / Holding: The appeals are disposed of as under: The claimant is awarded Rs 5,00,000/- (five lakhs only) as enhanced compensation. The enhanced compensation shall carry interest at the rate of 9% per annum from the date of filing of the application before the tribunal to the date of deposit before it. But interest on Rs 5,00,000/- (five lakhs only), that is, compensation for future expenses, shall be reckoned only from the date of the award of the tribunal. The insurer shall deposit before the tribunal the enhanced compensation together with interest within a period of two months from the date of receipt of a copy of this judgment.
Final Disposition: Appeals disposed of; enhanced compensation of Rs 5,00,000 awarded with 9% interest; payment to be deposited within two months; future expenses interest from tribunal award date.

Parties to the Case

Appellants / Petitioners

Jayachandran
ICICI Lombard General Insurance Co. Ltd.

Respondents

Pyarijan W/o Abdul Salim
Raju T.K. S/O Kochappan
ICICI Lombard General Insurance Co. Ltd.

Legal Representation & Advocates

Counsels for Petitioners

• Sri P.V. Chandra Mohan
• Sri Lathesh Sebastian

Counsels for Respondents

• Sri R. Ajith Kumar
• Sri P.V. Chandramohan

Case Synopsis & Summary

This is a Motor Accident Claims Appeal decided by the Kerala High Court, concurrently hearing MACA 3648/2017 (claimant Jayachandran) and MACA 114/2018 (insurer ICICI Lombard), arising from a 3.11.2009 bus accident in Thrissur district where the claimant, a passenger, suffered severe injuries including amputation of the left leg. The Motor Accidents Claims Tribunal had fixed the claimant’s notional income at Rs 5,000 per month and added 30% as future prospects; the Tribunal also assessed 100% disability on the basis of Ext A11. The High Court re-evaluated several components: it set the notional income at Rs 9,000 per month (finding Rs 5,000 too low in 2009), and held there should be no addition for future prospects. It recalculated permanent disability as Rs 14,50,000 (9000 x 12 x 15 x 90%) and noted that the Tribunal’s Rs 11,70,000 was short by Rs 2,88,000. The Court awarded Rs 3,00,000 more for future treatment due to artificial limb replacement, Rs 1,00,000 for disfigurement, and Rs 1,80,000 for loss of amenities (Rs 1,50,000 was enhanced by Rs 30,000) plus Rs 12,000 more for nourishment. It deducted Rs 30,000 from the loss of earnings claim and held that future expenses interest should be computed from the tribunal award date. The overall enhancement was fixed at Rs 5,00,000, with 9% interest from the date of filing to payment, and deposit within two months. The judgment reflects reliance on precedents for artificial limb costs and future treatment.

Provisions of Law Cited

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Legal Doctrines & Maxims

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Submissions & Arguments

Contentions of Appellants / Petitioners

Claimant-applicant argued that the tribunal’s notional income was understated and that future prospects should be considered. The petitioner contended that income in 2009 for a skilled/semiskilled worker would be higher than Rs 5,000 per month and that disability benefits and future medical costs, including artificial limb replacement, ought to be increased. The medical evidence supporting 100% disability was questioned since Ext A11 was not an expert’s evidence examined in court. The claimant pressed for higher compensation on heads such as permanent disability, artificial limb costs, disfigurement, loss of amenities, and nourishment; he urged that the tribunal erred in allowing only Rs 11,70,000 and in reducing future expenses.

Contentions of Respondents

Respondents contended that the tribunal fixed a moderate income and the addition of future prospects should not exceed 25%. They argued that disability should be assessed conservatively and that interest on future expenses should not be paid from the award date. They also urged that bystander expenses be disallowed where disability is 90% or more. The insurer argued for a stricter interpretation of future prospects and challenged the tribunal’s findings on disability and the scale of compensation for future treatment. The insurer pressed that the loss of earnings head could not be maintained given the high disability and sought deductions where appropriate.

Cited Precedents (2)

Case Name	Citation	Treatment	Explanation
Robin Babu v. Kunjappan	2015 (4) KHC 91	Positive	Court relied on this decision to recognize that artificial limbs may need replacement and to award higher compensation for future treatment.
Dinesh Singh v. Bajaj Alliance General Insurance Co. Ltd	(2014) 9 SCC 241	Positive	Apex Court’s decision on compensation for artificial limbs/future expenses; used by this court to justify enhancement for future treatment.

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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 A.M.BABU** **MONDAY ,THE 05TH DAY OF NOVEMBER 2018 / 14TH KARTHIKA, 1940** ## **MACA.No. 3648 of 2017** **OPMV 1655/2010 of MACT,THRISSUR DATED 25-04-2017** ## **APPELLANT/PETITIONER:** **JAYACHANDRAN** **AGED 47 YEARS, S/O. GOPALAN,VATTAPPILLY HOUSE, P.O., KOZHUKKULLY,MOORKKANIKKARA, THRISSUR DISTRICT.** **BY ADV. SRI.P.V.CHANDRA MOHAN** ## **RESPONDENTS/RESPONDENTS** - **1 PYARIJAN W/O. ABDUL SALIM, 6/121, PUTHIYAVEETTIL HOUSE, KURANCHERY P.O., MINALOOR, THRISSUR DIST.680581.** - **2 RAJU T. K. S/O. KOCHAPPAN, THERUKKATTIL HOUSE, CHIRAKKAL, KURUMPILAVU VIA, THRISSR. 680581.** - **3 ICICI LOMBARD GENERAL INSURANCE CO. LTD. NO.28/293/6, 2ND FLOOR, R. V. TRADE CENTRE, PATTURAIKKAL, THRISSUR-680022** **BY SRI.R.AJITH KUMAR (128/84)** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 05.11.2018, ALONG WITH MACA.114/2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACAs 3648/17 & 114/18** 2 **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A.M.BABU** **MONDAY ,THE 05TH DAY OF NOVEMBER 2018 / 14TH KARTHIKA, 1940** ## **MACA.No. 114 of 2018** **OPMV 1655/2010 of MACT,THRISSUR DATED 25-04-2017** ## **APPELLANT/3RD RESPONDENT:** **ICICI LOMBARD GENERAL INSURANCE CO. LTD 2ND FLOOR, R.V.TRADE CENTRE, PATTURAIKKAL, THRISSUR 680 022, THROUGH THE LEGAL MANAGER, KANNANKERY ESTATE, 3RD FLOOR, SHANMUGHAM ROAD, MARINE DRIVE, KOCHI 682 031.** **BY ADV. SRI.LATHEESH SEBASTIAN** ## **RESPONDENTS/PETITIONER & RESPONDENTS 1 AND 2** - **1 JAYACHANDRAN** **AGED 48 YEARS, S/O. GOPALAN, VATTAPALLY HOUSE, KUZHUKKULLY, MOORKKANIKKARA, THRISSUR DISTRICT 680 711.** **2 PYARIJAN W/O. ABDUL SALIM, 6/121, PUTHIYAVEETTIL HOUSE,KURANCHERRY PO, MINALOOR, THRISSUR DISTRICT 680 581.** **3 RAJU T.K S/O. KOCHAPPAN, THERUKKATTIL HOUSE, CHIRAKKAL, KURUMPILAVU VIA, THRISSUR 680 564.** **BY ADV. SRI.P.V.CHANDRA MOHAN** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 05.11.2018, ALONG WITH MACA.3648/2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACAs 3648/17 & 114/18** 3 ## **JUDGMENT** - 1.Both the claimant and the insurer have come in appeal. M.A.C.A.3648/2017 is the appeal of the claimant. The insurer's appeal is M.A.C.A.114/2018. The parties are referred to as claimant and insurer. - 2.It was on 3.11.2009 the accident. The claimant was a passenger in a stage carriage. It was driven in a rash and negligent manner by its driver. The claimant was thrown out of the bus and it ran over his left leg. He sustained serious injuries. His left leg had to be amputated. The above are facts either admitted or proved. - 3.Heard Sri.P.V.Chandramohan, the learned counsel for the claimant and Sri.Latheesh Sebastian, the learned counsel for the insurer. **MACAs 3648/17 & 114/18** 4 4.The claimant claimed himself to be a building construction worker cum contractor. The tribunal had taken a notional income considering the claimant to be a construction worker. The notional income taken by the tribunal was Rs 5000/per month. It was indeed on the lower side. The accident was in 2009. Even an unskilled casual labourer could earn much more than Rs 5000/- per month in 2009. The contention of the learned counsel for the claimant that the notional income fixed by the tribunal was on the lower side is only to be accepted. The learned counsel for the insurer contended that the tribunal was wrong in adding 30% of the notional income to it as future prospects. According to the learned counsel, it should not have been more than 25%. I find it appropriate to fix the notional income at Rs 9000/- per month without adding any amount towards future prospects. A skilled worker was able to earn that much in 2009. **MACAs 3648/17 & 114/18** 5 5.Ext A10 is the disability certificate pertaining to the claimant. It was issued by the district medical board. The percentage of disability assessed was 90%. The tribunal had taken 100% disability. In order to do so the tribunal relied on Ext A11 certificate issued by the assistant professor of orthopedics attached to the government medical college, Thrissur. What Ext A11 contains is the opinion of the doctor who issued it. He was not examined. In these circumstances, I accept the argument of the learned counsel for the insurer that the tribunal should not have taken disability over 90%. 6.Now the compensation for permanent disability is to be reworked. The entitlement of the claimant comes to Rs 14,50,000/- (9000 x 12 x 15 x 90%). The tribunal awarded Rs 11,70,000/-. The claimant is entitled to Rs 2,88,000/- more as compensation for permanent disability. **MACAs 3648/17 & 114/18** 6 7.Admittedly the left leg of the claimant was amputated. The amputation was from the level of the hip joint. Necessarily an artificial limb is necessary for the claimant for his convenience. The tribunal awarded Rs 2,00,000/-. The argument of the learned counsel for the claimant that the amount was on the lower side cannot be brushed aside. The learned counsel relied on the decision of this court in Robin Babu v. Kunjappan (2015 (4) KHC 91) and also the decision of the apex court in Dinesh Singh v. Bajaj Alliance General Insurance Co.Ltd [(2014) 9 SCC 241] . In both the cases the compensation has been enhanced considering the fact that artificial limb may have to be replaced periodically. Therefore I find it appropriate to award Rs 3,00,000/- more towards future treatment which will take in the price of artificial limb. I accept the argument of the learned counsel for the insurer that interest on future expenses shall not be awarded from any date before the award of the tribunal. **MACAs 3648/17 & 114/18** 7 - 8.Ext A14 is the photograph of the claimant. It shows disfiguration at the site of amputation. But no compensation was awarded by the tribunal. The claimant is entitled to compensation for disfiguration. I find it appropriate to award Rs 1,00,000/- under the said head. - 9.The amount awarded as compensation for loss of amenities was also slightly on the lower side. The amount awarded was Rs 1,50,000/-. It should be enhanced by Rs 30,000/-. Similarly the amount awarded under the head 'extra nourishment' is also low. I find it appropriate to award Rs 12,000/- more under that head considering the length of hospitalization. - 10.The learned counsel for the insurer submits that in cases where disability is taken at 90% or more, there is no justification in awarding any amount towards loss of earnings. I accept the **MACAs 3648/17 & 114/18** 8 argument and find that the amount of Rs 30,000/- awarded under the said head should be deducted. - 11.Yet another submission of the learned counsel for the insurer was that since compensation was awarded for future treatment, it was not correct to award any amount as bystander's expenses in future. The argument is well founded and accepted. - 12.In view of what have been stated above, the claimant is entitled to an enhancement in compensation to the tune of Rs 5,00,000/-. - 13.The appeals are disposed of as under : The claimant is awarded Rs 5,00,000/- (five lakhs only) as enhanced compensation. The enhanced compensation shall carry interest at the rate of 9% per annum from the date of filing of the application before the tribunal to the date of deposit before it. But interest on Rs 5,00,000/- (five lakhs **MACAs 3648/17 & 114/18** 9 only), that is, compensation for future expenses, shall be reckoned only from the date of the award of the tribunal. The insurer shall deposit before the tribunal the enhanced compensation together with interest within a period of two months from the date of receipt of a copy of this judgment. ## A.M.BABU Judge Mrcs/7.11. /True copy/ P.S.To Judge