High Court of KeralaSingle Judge2018-11-28Disposed of; appeals disposed with enhanced com...

MACA No. 839 of 2011 and MACA No. 964 of 2011 (Shamma Aboobacker & others v. The New India Assurance Co. Ltd. & Gopakumar)

Case / Petition Number:MACA No. 839 of 2011; MACA No. 964 of 2011

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: K. Vinod Chandran
Judgment Date: 2018-11-28
Court Decision / Holding: The High Court allowed the appeals and enhanced various heads of compensation. It retained the monthly income, applied 20% future prospects due to 50% disability, and increased amounts across transport, nourishment, bystander expenses, pain and suffering, and permanent disability, resulting in a revised total award of Rs. 3,270,801. The appeals were disposed of, with costs to be borne by the parties.
Final Disposition: Disposed of; appeals disposed with enhanced compensation and costs apportioned between the parties.

Parties to the Case

Appellants / Petitioners

The New India Assurance Co. Ltd.
Dr. Shamma Aboobacker
A. Shahul Hameed

Respondents

Dr. Shamma Aboobacker
A. Shahul Hameed
Gopakumar

Legal Representation & Advocates

Counsels for Petitioners

• Sri Thomas Antony
• Sri M. Jacob Murickan
• Sri Pirappancode V.S. Sudhir
• Sri T.K. Ananda Krishnan

Counsels for Respondents

• Sri Thomas Antony

Case Synopsis & Summary

On 11 June 2007, at about 12:30 am, Dr. Shamma Aboobacker, a doctor, sustained serious injuries when the car in which she was travelling, driven by her husband, was struck by a lorry (KL-01/A-4453) on the Ernakulam–Aluva public road. The lorry’s driver was found negligent, and the vehicle was insured. The Motor Accident Claims Tribunal, Kozhikode, awarded compensation to the injured. The appeal was filed by both the insurer and the claimant, challenging and seeking enhancement of the award, particularly on the heads of compensation, medical expenses, transport to hospital, and loss of future prospects; the insurer urged a multiplier of 17 instead of 18, and questioned several medical bills and the claimant’s income. The claimant sought higher compensation on account of extensive injuries, ongoing disability, and the impact on her personal life, including divorce and reduced earning capacity. The High Court examined Ext. A2 to A15 (injury certificates and treatment records), the 50% disability certificate, and hospitalisations totalling 34 days. Relying on Pranay Sethi, the court held that 20% could be added for future prospects in disability, and it adjusted other heads, including transport, nourishment, bystander expenses, and pain and suffering. The Court increased the total award, ordered payment within two months by NEFT, and disposed of the appeals with costs to be borne by the parties. The disability left her almost incapacitated, affecting her family life.

Legal Doctrines & Maxims

Future prospects in disability cases – 20% addition (as per Pranay Sethi).
National Insurance Co. Ltd. v. Pranay Sethi, 2017(4) KLT 662 SC - binding precedent.

Submissions & Arguments

Contentions of Appellants / Petitioners

The applicants contended for enhancement of the compensation awarded by the Tribunal, highlighting the extent of injuries, long hospitalisation, and the near-total incapacitation, arguing that the Tribunal's awards for transport, nourishment, medical expenses, and pain and suffering were inadequate. They challenged the Tribunal's use of a multiplier of 18 and the application of medical bills; they urged that the income be assessed considering the claimant's background and future prospects, and called for higher awards on loss of amenities and permanent disability.

Contentions of Respondents

The respondents argued for a restrained enhancement, pointing to discrepancies in the Tribunal's calculation (notably the multiplier and medical expenses) and contending that the Tribunal's assessment of future prospects should align with standard scales. They framed the need to adjust medical expenditure and to maintain a measured increase in compensation, arguing against excessive uplift.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
National Insurance Company Ltd. v. Pranay Sethi	2017(4) KLT 662 SC	Positive	The court cites it as binding precedent to apply future prospects enhancement in disability cases.

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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 K.VINOD CHANDRAN** **WEDNESDAY,THE 28TH DAY OF NOVEMBER 2018 / 28TH KARTHIKA, 1940** ## **MACA.No. 839 of 2011** **AGAINST THE AWARD IN OPMV 418/2009 of M.A.C.T.,KOZHIKODE** ## **DATED 14-03-2011** ## **APPELLANT/S:** |||**DR.SHAMMA ABOOBACKER**| |---|---|---| |||**D/O.ABOOBACKER, “CITADEL”, A.R.CAMP ROAD,**| |||**VELLIMADUKUNNU,, KOZHIKODE DISTRICT.**| |||**BY ADV. SRI.THOMAS ANTONY**| |**ENT/S**|**:**|| |**1**||**A.SHAHUL HAMMEED**| |||**S/O.ALIYARKUNHU, KOCHUVELIPALLY HOUSE,,**| |||**T.C.27/62, VANCHIYOOR,,**| |||**THIRUVANANTHAPURAM DISTRICT - 695 001**| |||**(R.C.OWNER OF LORRY KL-01-A-4453).**| |**2**||**GOPAKUMAR**| |||**S/O.KRISHNAN NAIR, R.C.28/553,,**| |||**ARAPPURA VEETTIL, VANCHIYOOR, TRIVANDRUM- 695 001**| |||**(DRIVER OF LORRY KL-01-A-4453).**| |**3**||**THE NEW INDIA ASSURANCE CO. LTD.**| |||**KOTTARATHIL BUILDING ANNEX,, PALAYAM,**| |||**TRIVANDRUM - 695 001**| |||**(INSURER OF LORRY KL-01-A-4453).**| |||**BY ADVS.**| |||**SRI.M.JACOB MURICKAN, SC**| |||**SRI.PIRAPPANCODE V.S.SUDHIR**| |||**SRI.T.K.ANANDA KRISHNAN**| ## **RESPONDENT/S:** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 28.11.2018, ALONG WITH MACA.964/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 **MACA 839/2011 ,MACA.964/2011** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE K.VINOD CHANDRAN** **WEDNESDAY,THE 28TH DAY OF NOVEMBER 2018 / 28TH KARTHIKA, 1940** **MACA.No. 964 of 2011** **AGAINST THE AWARD IN OPMV 418/2009 of M.A.C.T.,KOZHIKODE DATED 14-03-2011** ## **APPELLANT/S:** **THE NEW INDIA ASSURANCE CO.LTD. KOTTARATHIL BUILDING ANNEX, PALAYAM,TRIVADNRUM,, REPRESENTED BY THE DULY AUTHORISED SIGNATORY, (R.SUKUMARAN NAIR, MANAGER, REGIONAL OFFICE,, KANDAMKULATHY TOWERS, M.G.ROAD, KOCHIN 682 011** **BY ADV. SRI.M.JACOB MURICKAN** ## **RESPONDENT/S:** **1 DR.SHAMMA ABOOBACKER CITADAL, A.R.C. CMAP RAOD, VELLIMADUKUNNU,, CALICUT-673 001. 2 A.SHAHUL HAMMEED SO.ALIYARKUNHU KOCHUVELIPALLY HOUSE, T.C.27/621,, VANCHIYOOR, THIRUVANANTHAPURAM-695 001. 3 GOPAKUMAR SO.KRISHNAN NAIR RC.28/553, ARAPPURA VEETTIL,, VANCHIYOOR,TRIVANDRUM-695 035.** **BY ADV. SRI.THOMAS ANTONY** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 28.11.2018, ALONG WITH MACA NO.839/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 3 **MACA 839/2011 ,MACA.964/2011** ## **JUDGMENT** The appellant in M.A.C.A No.839 of 2011 is a doctor, who sustained very serious injuries in a motor vehicle accident, which took place on 11.06.2007 at about 12.30 a.m. The appellant was travelling in a car, driven by her husband, through the Ernakulam-Aluva public road. The car was hit by a lorry bearing Registration No. KL01/A-4453 driven by the 2[nd] respondent in a rash and negligent manner. Negligence was found on the lorry driver and the vehicle was also covered by a valid insurance policy. The appeals are filed both by the Insurance Company and the claimant. The claimant seeks enhancement in her appeal. 2. The Insurance Company points out two discrepancies in the award of the Tribunal. One the multiplier adopted is '18'. while the claimant who was of 26 years of age could validly claim for a multiplier of '17' only. The other contention of 4 **MACA 839/2011 ,MACA.964/2011** the Insurance Company is about the medical bill at Ext.A4 series. I have gone through Ext.A4 series and the bills, which comes to a total of Rs,1,61,922/-. Hence the proportionate reduction shall be made in the amount granted as medical bills, which shall be specified in the table hereafter. The Insurance Company also has a contention with respect to the income of the appellant, which shall be considered when the appeal of the injured is considered. 3. Ext.A2 is the wound certificate issued to the injured, which indicates the following injuries:- Multiple lacerated wounds on the forehead, (L) temporal region, (L) molar region, left and (r) arm, bilateral eye lid oedema more on (L) side, no vision on (L) eye, open inter condyle fracture type-I of (L) humerus, fracture both bones of (L) fore arm and fracture styloid process of (L) radius. C.T.Scan of the head shows multiple small 5 **MACA 839/2011 ,MACA.964/2011** hemorrhagic contusion in frontal region, brain oedema, fracture (L) temporal maxillary complex, naso ethenoidal complex, (L) orbital apex with compromise of optic canal, small temporal region. 4. Exts.A3, A5, A6 and A14 are the discharge summaries. Exts.A3 and A6 show inpatient treatment for 4 days each. Ext.A5 shows inpatient treatment for 24 days (11.6.07 to 4.7.07). Ext.A14 shows 2 days admission. Hence there is a total inpatient treatment of 34 days. Ext.X3 shows treatment in one Sankara Nethralaya, but it does not refer to any inpatient treatment. Hence 34 days inpatient treatment has to be computed. 5. Ext.C1 is the disability certificate of the Medical Board, which indicates 50% disability. Considering the fact that the petitioner had been admitted 5 times as seen from the discharge summaries and had also made frequent trips to Sankara Nethralaya, there should be enhancement in the compensation granted for transport to 6 **MACA 839/2011 ,MACA.964/2011** hospital. The serious injuries require an adequate enhancement with respect to extra nourishment also. The treatment expenses as noticed above would be reduced by Rs.3,88,242/-. Bystander's expenses also have to be enhanced and so would compensation for pain and sufferings. It is specifically pointed out that due to the accident and injuries suffered, the petitioner is partially blind and is almost incapacitated, which has resulted in her divorce. 6. For computing the loss of future prospects income adopted by the Tribunal is Rs.20,000/-. The appellant had just completed her studies and was carrying on her house surgeoncy when the accident occurred. The petitioner produced a document showing the salary of an Assistant Surgeon in the entry cadre, in government service, which showed it to be Rs.26,230/-. The learned Tribunal after looking at the various aspects and also considering the fact that the petitioner has 7 **MACA 839/2011 ,MACA.964/2011** not yet completed the course, accepted a monthly income of Rs.20,000/-. This Court is of the opinion that there need be no interference caused to the monthly income as assessed by the Tribunal. However, going by the binding precedent of the Apex Court in _**National Insurance Company Ltd. v.**_ _**Pranay Sethi [2017(4) KLT 662 SC],**_ in a death case for a person who was not regularly employed, 40% could be added on for future prospects. In a disability case, the Court has also declared that suitable additions can be made, considering the disability. 7. In the present case, it is seen that the petitioner was assessed with disability of 50% and the Tribunal has accepted the same. In such circumstances, 20% shall be accepted for future prospects. The following enhancement is hence granted. Considering the fact that the appellant was totally incapacitated and had also been divorced, there shall be sufficient compensation 8 **MACA 839/2011 ,MACA.964/2011** granted for loss of amenities also. |Sl. No.|Head of Claim|Amount awarded by the Tribunal `|Total amount enhanced in appeal `| |---|---|---|---| |1|Transport to hospital|10000|20000| |2|Extra nourishment|3000|15000| |3|Damage to clothing and other articles|1000|1000| |4|Treatment expenses|1010043|621801| |5|Bystander's expenses|6000|15000| |6|Pain and suffering|25000|50000| |7|Loss of amenities|---|100000| |8|Permanent disability|2160000|2448000 [24000x12x17x50/100]| ||**TOTAL**|**3215043**|**3270801**| 8. The amounts awarded as above, after deducting what has already been paid, shall be paid within two months from the date of receipt of a certified copy of this judgment with interest 9 **MACA 839/2011 ,MACA.964/2011** from the date of application and costs, if any, as awarded by the Tribunal. The appellant shall produce a copy of a cancelled cheque of the bank account in her name with copy of AADHAR or acceptable identification before the Tribunal within one month, with copy to the Insurance Company. The Insurance Company shall credit the amount through NEFT mode to the said account, failing which, the applicant can approach the Tribunal. Both the appeals would stand disposed of. Parties are left to suffer their respective costs. ## **Sd/-** ## **K.VINOD CHANDRAN** **JUDGE** SB/30/11/2018