MACA Nos. 3850/2019, 4163/2019 and 4029/2019 (Resmy Sally Kosy; Divya Johnson; Tiji Thomas) v. Divisional Manager, National Insurance Co. Ltd.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN WEDNESDAY, THE 22[ND] DAY OF MARCH 2023 / 1ST CHAITHRA, 1945** **MACA NO. 3850 OF 2019** **AGAINST THE AWARD IN OPMV 426/2014 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,TRIVANDRUM** ## **APPELLANT/PETITIONER:** RESMY SALLY KOSHY @ RESMY, AGED 32 YEARS D/O.BILLY MOL THOMAS, THYKADAVIL, TC 2/2438, PATTOM P.O., THIRUVANANTHAPURAM- 695004. BY ADVS. R.T.PRADEEP M.BINDUDAS K.C.HARISH ## **RESPONDENT/3RD RESPONDENT:** THE DIVISIONAL MANAGER, NATIONAL INSURANCE CO.LTD., ST.JOSEPH'S PRESS BUILDING, VAZHUTHACAUD P.O., THIRUVANANTHAPURAM- 695014. BY ADVS. SRI.MATHEWS JACOB (SR.) SRI.P.JACOB MATHEW THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 22.03.2023, ALONG WITH MACA.4163/2019 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: MACA No.3850/2019 & con.cases 2 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN WEDNESDAY, THE 22[ND] DAY OF MARCH 2023 / 1ST CHAITHRA,** **1945** ## **MACA NO. 4163 OF 2019** **AGAINST THE AWARD IN OPMV 430/2014 OF MOTOR ACCIDENT** ## **CLAIMS TRIBUNAL, TRIVANDRUM** ## **APPELLANT/PETITIONER:** TIJI THOMAS, AGED 36 YEARS W/O. SABU OMMEN, TC 10/1428 (2) CRA 83E, SREYAS, CHENCHERY, NALANCHIRA P.O. THIRUVANANTHAPURAM 695 015. BY ADVS. R.T.PRADEEP SMT.M.BINDUDAS SRI.K.C.HARISH J.ROBINSON ## **RESPONDENT/3RD RESPONDENT:** THE DIVISIONAL MANAGER NATIONAL INSURANCE CO.LTD., ST. JOSEPHS PRESS BUILDING, VAZHUTHACAUD P.O. THIRUVANANTHAPURAM 695 014. THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 22.03.2023, ALONG WITH MACA.3850/2019 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: MACA No.3850/2019 & con.cases 3 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** **WEDNESDAY, THE 22[ND] DAY OF MARCH 2023 / 1ST CHAITHRA, 1945** ## **MACA NO. 4029 OF 2019** **AGAINST THE AWARD IN OPMV 429/2014 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,TRIVANDRUM** ## **APPELLANT/PETITIONER:** DIVYA JOHSON, AGED 32 YEARS D/O. JAYA, TC 4/239(1) JAYA BHAVAN, KOWDIAR P.O. KURAVANKONAM, THIRUVANANTHAPURAM 695 003. BY ADVS. R.T.PRADEEP SMT.M.BINDUDAS SRI.K.C.HARISH J.ROBINSON ## **RESPONDENT/3RD RESPONDENT:** THE DIVISIONAL MANAGER NATIONAL INSURANCE CO.LTD., ST. JOSEPHS PRESS BUILDING, VAZHUTHACAUD P.O. THIRUVANANTHAPURAM 695 014. THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 22.03.2023, ALONG WITH MACA.3850/2019 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: MACA No.3850/2019 & con.cases 4 ## **JUDGMENT** ## **[MACA Nos.3850/2019, 4163/2019, 4029/2019]** The afore three appeals are being disposed of together since they emanate out of the same accident and call into the common Award of the Motor Accidents Claims Tribunal, Thiruvananthapuram (the 'Tribunal' for short). 2. The appellants are all Assistant Professors in a college affiliated to the Kerala University, namely St.John's College, Anchal; and they were travelling as passengers in a car on 20.08.2013, from Anchal to Thiruvananthapuram when, on its way, it was collided with the offending vehicle, driven in a rash and negligent manner. Each of them suffered very serious injuries and had to undergo hospitalisation and treatment for prolonged periods; thus constraining them to file Original Petitions seeking compensation for the same. 3. The appellant in MACA No.3850/2019 – Smt.Resmy Sally Koshy @ Resmy, filed OP(MV)NO.426/2014, seeking compensation of an amount of Rs.22,25,000/- limited to Rs.15,00,000/-; but which has been allowed to a mere Rs.1,55,300/-. MACA No.3850/2019 & con.cases 5 4. As far as the appellant in MACA No.4029/2019 – Smt.Divya Johnson is concerned, she filed OP(MV)No.429/2014 before the same Tribunal, seeking compensation of an amount of Rs.19,45,000/- limited to Rs.15,00,000/-; but which has been allowed only to a sum of Rs.3,89,550/-. 5. Finally, the appellant in MACA No.4163/2019 – Sri.Tiji Thomas, filed OP(MV)No.430/2014, seeking compensation of an amount of Rs.37,85,000/- limited to Rs.30,00,000/-; but which has only been allowed to a sum of Rs.12,33,000/-. 6. The appellants impugn the Award of the Tribunal as being inadequate and grossly unjust. 7. Sri.R.T.Pradeep – learned counsel for the appellants in all these cases, argued that the primary mistake committed by the Tribunal is with respect to reckoning of the salary of the appellants and in denying compensation under the head “Permanent or Continued Disability”, being persuaded by the incorrect assumption that, since they were permanently employed, there would not have any loss of salary consequent to the accident. He argued that this is peremptorily wrong, particularly because their future MACA No.3850/2019 & con.cases 6 prospects have been severely affected on account of the aftermath of the injuries; further adding that the compensation awarded under various other heads is also exiguous. He thus prayed that these appeals be allowed. 8. In response, Sri.P.Jacob Mathew – learned Standing Counsel for the Insurance Company in all these cases, argued that the learned Tribunal has not committed any error in the computations adopted by it in arriving at the compensations in these cases because, the documents produced by the appellants to establish their salary have not been cogently proved; while, no compensation under the head “Permanent or Continued Disability” could have been granted to them as per the judgment of the Hon'ble Supreme Court in **New India Assurance Company v. Satish Chandra Sharma (manu/SC/0422/2022),** because they were all in permanent employment without any loss in salary, while undergoing treatment for the injuries sustained by them. He then argued that the compensation awarded by the Tribunal under various other heads is fair and just; and thus prayed that these appeals be dismissed. 9. I have evaluated the afore submissions on the touchstone of various materials and evidence on record – MACA No.3850/2019 & con.cases 7 copies of which have been handed over across the Bar by the learned counsel for the parties, with the express consent that they can be acted upon by this Court without dispute. 10. I will deal with each of the appeals independently. ## **(I) MACA No.3850/2019** 11. Smt.Resmi Chaly Koshy is the appellant and it arises out of the Award of the Tribunal in OP(MV)No.426/2014. She suffered serious injuries, and it has been certified, through Ext.A7 – Disability Certificate, that she is suffering from 22% permanent disability. However, the learned Tribunal has reduced the percentile of disability to 15%, holding that the afore certificate has not been issued by a Medical Board. Further, even though the appellant produced Ext.A5 – Salary Certificate, to establish that she was drawing Rs.40,300/- per month and Ext.A4 certificate to show that she had suffered loss of pay for 117 days, the learned Tribunal did not accept either of these, saying that they were not proved by examining the Principal of the College who issued the same. On such basis, the learned Tribunal adopted the notional income of the appellant to be Rs.13,000/- per month and then awarded Rs.52,000/- towards “Loss of Earnings”; but disallowing MACA No.3850/2019 & con.cases 8 compensation for “Permanent or Continuing Disability”. 12. The learned Tribunal has further confined the compensation towards “Extra Nourishment” and “Bystander Expenses” to a figure of Rs.3,000/- each, even though it is noticed that the appellant had to be hospitalised for 12 days. I am certain that this is too exiguous, and that the figures will require to be enhanced, by reckoning Rs.300/- and Rs.400/-, respectively, as expenses per day under these two heads. 13. That being said, coming back to the question of notional income of the appellant, as seen earlier, Ext.A5 – Salary Certificate has been declined to be accepted by the learned Tribunal merely because it has not been spoken to about by the Principal of the College. However, it is conceded that the College is affiliated to the Kerala University and that the appointments therein are made with the sanction of the Government and other competent Educational Authorities. Therefore, unless there was a compelling legal reason not to have accepted Ext.A5, I see no cause for the Tribunal to have disregarded it, especially when the Insurance Company does not have a case that it is a fraudulent document, or one which has been concocted for the purposes of this case. MACA No.3850/2019 & con.cases 9 14. Similarly, Ext.A4 is the certificate issued by the competent Authority of the college, showing that the appellant had to avail leave with loss of pay for 117 days. Again, there is absolutely no reason why this document has also been disregarded, particularly when it is issued by a responsible officer of a college affiliated to the Kerala University. I am, therefore, without doubt that these documents ought to have been accepted and that the compensation awarded adverting to the same. 15. That brings me to the question whether the compensation now claimed by the appellant for “Permanent or Continued Disability” can be awarded, reckoning the salary mentioned in Ext.A5 certificate – which I have already found to be worthy of acceptance. 16. Sri.P.Jacob Mathew relies upon **Satish Chandra Sharma (supra)** to argue that, when the appellant is engaged in permanent employment, no compensation for disability can be awarded. He showed me from the said judgment, that the respondent in that case had suffered 75% disability, but had not been granted any compensation under the head disability, since he had about four years of service till her retirement. However, when I examine this judgment, MACA No.3850/2019 & con.cases 10 it is evident that the ratio settled by the Hon'ble Supreme Court in it, is that the multiplier to be adopted could not have been reckoning the period in which the person continues to work in his permanent employment. This is discernible from paragraph 4 of the said judgment, which reads as under: “In view of the accepted position that the first Respondent had continued to work, we do not think the High Court was correct in awarding compensation of Rs.56,44,378/- (Rupees Fifty Six Lakhs Forty Four Thousand Three Hundred and Seventy Eight only) by applying the multiplier to the net salary payable to the first Respondent. The first Respondent has continued to earn the monthly salary he was earlier drawing, including increments, except some allowances given due to the nature of posting. The first Respondent, at the time of the injury, was 56 years old and had about four years of service till his retirement.” 17. Obviously, therefore, while computing disability, the notional income of the person will have to be adopted after his/her retirement, and the multiplier of '9' alone can be adopted, since it is admitted that he/she would retire at the age of 56, as per the extant Regulations applicable in Kerala to Collegiate Education. I do not think, therefore, that this Court will be now impeded from awarding reasonable compensation, adopting a notional figure towards the income. 18. That finally brings me to the question as to what MACA No.3850/2019 & con.cases 11 could be the notional income applicable to the appellant after her retirement. 19. Going by Ext.A5, the appellant is drawing a salary of about Rs.40,300/- at the time of the accident. Though there are judgments to the effect that 50% of the same can be reckoned as the notional income after retirement, I am of the view that it will be better justified to take Rs.15,000/- in such regard, because this is the figure which is adopted even in the case of students engaged in technical education like engineering or medicine, in cases relating to accidental deaths or injury. 20. The afore being so declared, the further issue is if the appellant is entitled to larger amounts under other heads, including “Pain and Suffering” and “Loss of Amenities”. In this regard, Exts.A2, A6 and A7 medical records would show that she suffered the following injuries: 1. Fracture shaft of right femur. 2. Fracture lower and radius right. 3. Fracture lower and radius left. 4. Lacerated wound right forearm. 5. Diffuse swelling, tenderness + 6. Radial pulse (+) MACA No.3850/2019 & con.cases 12 7. Diffuse swelling, tenderness and deformity over middle 1/3 (+) right and left thighs. 21. These injuries are not trivial, and it is also on record that the appellant had to endure a long period of hospitalisation and treatment. The learned Tribunal, however, awarded only Rs.10,000/- under the head “Pain and Suffering”; while confining it to Rs.35,000/-, under the head “Loss of Amenities”. Though I do not propose to disturb the finding regarding the latter, I am certain that, in the former head, substantial increase has to be made, which I propose as being Rs.50,000/-. 22. Finally, as regards the percentile of disability suffered by the appellant is concerned, Ext.A7 certificate issued by a doctor assessed it to be 22%, but the learned Tribunal has reduced it to 15% for the reason that it was not issued by a Medical Board. I find favour with this and, therefore, confirm the said percentile. 23. In the afore perspective, this appeal is partly allowed in the following manner: (a) The compensation for “Loss of Earnings” is enhanced to Rs.1,60,000/-, reckoning the income of the appellant to be Rs.40,000/- per month, taking four months MACA No.3850/2019 & con.cases 13 as the period for treatment and for return to duty, relying upon Ext.A4, which records that, during this period, the appellant had suffered full loss of pay. (b) An amount of Rs.2,43,000/- is granted under the head “Permanent or Continued Disability”, reckoning the notional income of the appellant after retirement to be Rs.15,000/- per month, adopting the multiplier of '9', reckoning that she will admittedly retire at the age of 56 and the percentile of disability taken as '15', as correctly found by the Tribunal. (c) The compensation under the head “Bystanders Expenses” is enhanced to Rs.4,800/- from Rs.3,000/-, reckoning the per diem expenses for such purposes to be Rs.400/-, for 12 days of hospitalisation. (d) The compensation under the head “Extra Nourishment” is enhanced to Rs.3,600/-, from Rs.3,000/-, reckoning Rs.300/- per day as the expense for such purpose, for 12 days of hospitalisation. (e) The compensation under the head “Pain and Sufferings” is enhanced to Rs.50,000/-, from Rs.10,000/-, now awarded by the Tribunal. (f) In all other heads, the compensation awarded by MACA No.3850/2019 & con.cases 14 the Tribunal will remain unaltered. (g) Consequently, the appellant will be at full liberty to recover the compensation, as enhanced by this Court, from the Insurance Company, along with interest at the rate of 8% as awarded by the Tribunal, from the date of the claim until it is recovered. They will also be entitled to proportionate costs, on the enhanced amount, as ordered by the Tribunal. (h) In view of the afore, the amount as fixed above shall be deposited by the Insurance Company before the learned Tribunal, within a period of two months from the date of receipt of a copy of this judgment. ## **II. MACA No.4029/2019** 24. This appeal has been filed by Smt.Divya Johnson who is the petitioner in OP(MV) No.429/2014. 25. Upfront, all my observations in law indited above, with respect to MACA No.3850/2019, would apply in its full ambit in this case also; and I, therefore, do not intend to repeat it, unless absolutely necessary. 26. In this case, Smt.Divya Johnson is also stated to be working as an Assistant Professor in the St.Johns College, Anchal and she produced Ext.A11 salary certificate to MACA No.3850/2019 & con.cases 15 establish that she was enjoying a monthly earning of Rs.40,300/-, along with Ext.A10 certificate issued by the Principal of the College certifying that she had to be on loss of pay for 120 days, consequent to the injuries sustained by her in the accident. Obviously, therefore, there is not much difference between the facts involved in this case and those noticed by this Court in MACA No.3850/2019; and hence, the findings entered therein, would apply to this case in all its fours. 27. I say this because, the salary of the appellant, as well as the notional income to be adopted in her favour after retirement at the age of 56, would be identical as found in MACA No.3850/2019, without the requirement of any change. 28. Turning to the medical records, Ext.A8 A9 A13 to A15 Disability Certificate, Treatment Record, Discharge Summaries and Wound Certificate, would show that the appellant suffered from the following injuries: 1. Fracture mid shaft left femur. 2. Lacerated wound right forearm. 3. Fracture right radius. 4. Fracture base of first MC right MACA No.3850/2019 & con.cases 16 5. Ulnar collateral ligament tear left thumb MCO joint. 29. The severity of the afore injuries is very similar to that suffered by Smt.Resmi Saly Chacko – appellant in MACA No.3850/2019; and again, whatever this Court has said in her favour would apply in this case also. 30. As far as the disability of the appellant in this case is concerned, Ext.A8 certificate certifies it to be 20%, but it has been reduced by the learned Tribunal to be 13%, again, on the ground that it has not been issued by a Medical Board, but by an independent doctor. As said above, I find favour with this; and I, therefore, propose to confirm the percentile as taken by the Tribunal. 31. I, therefore, propose to allow this appeal more or less in the same manner as MACA No.3850/2019 has been allowed. 32. Resultantly, this appeal is allowed with the following directions: (a) The compensation under the head 'loss of earnings', for 120 days as certified through Ext.A10, is enhanced to Rs.1,60,000/-, reckoning the monthly salary of the appellant to be Rs.40,000/- per month, as per Ext.A11 salary certificate. MACA No.3850/2019 & con.cases 17 (b) An amount of Rs.2,10,600/- is awarded as 'compensation for disability' reckoning the notional income of the appellant to be Rs.15000/- per month after retirement at the age of 56, with multiplier of '9' being accepted and percentile of disability taken as 13%, as found by the learned Tribunal. (c) The compensation under the head 'extra nourishment' for 17 days of hospitalisation is enhanced to Rs.5,100/-, reckoning the per day expenses for such purpose to be Rs.300/-. (d) The compensation under the head 'bystanders expenses' is enhanced to Rs.6,800/-, reckoning the per day expenses for such to be Rs.400/-, for 17 days of hospitalisation. (e) The compensation under the head 'pain and suffering' is enhanced to Rs.50,000/-, from Rs.40,000/- now awarded by the Tribunal, taking into account the injuries sustained, adopting the same standards as this Court has taken in MACA No.3850/2019, since the injuries and treatment are comparable. (f) In all other respects, the Award of the Tribunal will stand intact. MACA No.3850/2019 & con.cases 18 (g) Consequently, the appellant will be at full liberty to recover the compensation, as enhanced by this Court, from the Insurance Company, along with interest at the rate of 8% as awarded by the Tribunal, from the date of claim until it is recovered. He will also be entitled to proportionate costs on the enhanced amount as ordered by the Tribunal. (h) In view of the afore, the amount as fixed above shall be deposited by the Insurance Company before the learned Tribunal, within a period of two months from the date of receipt of a copy of this judgment. ## III. **MACA No.4163/2019** 33. This appeal has been filed by Sri.Tiji Thomas, who also claims to be an Assistant Professor at St.John's College, Anchal. 34. As said above, most of the observations of this Court in MACA No.3850/2019 would apply to this case, except the quantum of salary, the percentile of disability and the nature of the injuries. Hence, unless otherwise specifically stated, the same shall be read into my holdings in this case also. 35. Smt.Tiji Thomas has proved her salary through Ext.A24, wherein, the amount shown is Rs.41,290/-; and MACA No.3850/2019 & con.cases 19 Ext.A25 certificate shows that she has suffered loss of pay of 120 days. Again, these have been disregarded by the Tribunal for the same reasons as in the other cases, namely that they were not proved by examining the Principals/Authorised officer of the College, who issued it. For the same reasons I have indited, while dealing with MACA No.3850/2019, these objections are repelled and the documents are accepted, since the salary of the appellant and the number of days of loss of pay availed by her are similar. I propose to adopt the same figures, as have been awarded in the earlier cases. 36. The percentile of permanent disability found in favour of the appellant in this case is 28%, as is evident from Ext.A33 issued by a doctor. The learned Tribunal has reduced it to 20%, saying that it has not been issued by a Medical Board; and I, therefore, as I have done earlier, propose to accept this percentile. 37. However, there is an added issue in this case that, apart from the injuries sustained by the appellant, she also suffers from disfiguration of her face. Exts.A26 to A35 are the medical evidence produced by the appellant, which includes her Wound Certificate, Discharge Summary and MACA No.3850/2019 & con.cases 20 Treatment Records, which establish her injuries to be as under: 1. SAH both sylvian fissures and multiple haemorrhagic contusion both frontal region, temporal region, mid brain and parietal lobe. 2. Diffuse brain edema. 3. Fracture nasal bone and maxilla. 4. Comminuted fracture both bones left forearm. 5. Fracture right femur. 6. Left lung collapse and right upper zone collapse with pneumothorax. 38. The appellant certainly has sustained injuries on her face, but Ext.A33 does not show that she has suffered from any disfiguration of her face, as has been asserted by the learned counsel, Sri.R.T.Pradeep. However, the factum of the injury having been sustained on her face; coupled with the brain injury and other fractures, certainly impel me to award her higher compensation under the head 'pain and suffering', than what has been awarded by the Tribunal. 39. To reiterate, I propose to follow every other observation of this Court, including the notional income to be adopted in favour of the appellant after her retirement at MACA No.3850/2019 & con.cases 21 the age of 56, and the consequent multiplier of 9, in this case also, as in the earlier two cases, so as to avoid repetition; and wherever is stated and found in regard to them will be read in as to apply this case also. In the afore circumstances, this appeal is allowed in the following manner: (a) The compensation under the head 'loss of earnings' is enhanced to Rs.1,60,000/-, reckoning the monthly salary of the appellant to be Rs.40,000/- per month and treating the period for such purpose as being four months, relying upon Ext.A25, certificate which shows that the appellant had availed leave with full loss of pay for 120 days. (b) An amount of Rs.3,24,000/- is awarded as 'compensation for disability', reckoning the notional income of the appellant to be Rs.15,000/- per month after retirement at the age of 56, with multiplier of '9' being accepted and her percentile of disability taken as 20%, as found by the learned Tribunal. (c) The compensation under the head 'extra nourishment' is enhanced to Rs.9,000/-, from Rs.3,500/-, reckoning the per day expenses for such purpose to be Rs.300/- for 30 days of hospitalization. MACA No.3850/2019 & con.cases 22 (d) The compensation under the head 'bystanders expenses' is enhanced to Rs.12,000/-, reckoning the per day expenses for such to be Rs.400/-, for 30 days of hospitalization. (e) The compensation under the head 'pain and suffering' is enhanced to Rs.75,000/-, from Rs.50,000/- now awarded by the Tribunal. (f) In all other respects, the Award of the Tribunal will stand intact. (g) Consequently, the appellant will be at full liberty to recover the compensation, as enhanced by this Court, from the Insurance Company, along with interest at the rate of 8% as awarded by the Tribunal, from the date of claim until it is recovered. He will also be entitled to proportionate costs on the enhanced amount as ordered by the Tribunal. (h) In view of the afore, the amount as fixed above shall be deposited by the Insurance Company before the learned Tribunal, within a period of two months from the date of receipt of a copy of this judgment. ## **Sd/- DEVAN RAMACHANDRAN JUDGE** anm/stu