MACA Nos. 4210/2017 & 1615/2019, National Insurance Company Limited v. Rino Thomas

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN THURSDAY, THE 9[TH] DAY OF FEBRUARY 2023 / 20TH MAGHA, 1944 ``` ``` MACA NO. 4210 OF 2017 ``` ``` AGAINST THE AWARD DATED 05.04.2017 IN OP(MV) NO.1513/2008 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, ALAPPUZHA ``` ## **`APPELLANT:`** ``` NATIONAL INSURANCE COMPANY LIMITED DIVISIONAL OFFICE, STATUE JUNCTION, TRIPUNITHURA, PIN-682301, REPRESENTED BY ITS REGIONAL MANAGER, KOCHI REGIONAL OFFICE, OMANA BUILDING, M.G.ROAD, ERNAKULAM, KOCHI-682035. ``` ``` BY ADV SRI.P.G.GANAPPAN ``` ## **`RESPONDENTS:`** ``` 1RINO THOMAS, S/O.THOMAS CHACKO, VAZHAVELIL HOUSE,STADIUM WARD, ALAPPUZHA, PIN-688001. ``` ``` 2MOHANA RAGHAVAN, S/O.JANARDHANAN NAIR, PRASANNA NIVAS, ANJUMURTHY, P.O.MANGALAM, PALAKKAD, PIN-679301. ``` - `3 REMADEVI M.G., PRINCIPAL, KAVIYATTU COLLEGE OF EDUCATION, PIRAPPANCODE P.O., THIRUVANANTHAPURAM, PIN-695607. [DELETED]` ``` [THE 3RD RESPONDENT IS DELETED FROM THE PARTY ARRAY AT THE RISK OF THE APPELLANT AS PER ORDER DATED 09/03/2018 IN IA.NO.747/2018 IN MACA.4210/2017]. ``` ``` BY ADVS. SRI.A.T.ANILKUMAR SMT.V.SHYLAJA ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 09.02.2023, ALONG WITH MACA.1615/2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` MACA 4210/17 & 1615/19 2 ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN THURSDAY, THE 9[TH] DAY OF FEBRUARY 2023 / 20TH MAGHA, 1944 MACA NO. 1615 OF 2019 ``` ``` AGAINST THE AWARD DATED 05.04.2017 IN OP(MV) NO.1513/2008 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, ALAPPUZHA ``` ## **`APPELLANT:`** ``` RINO THOMAS, AGED 30 YEARS, S/O.THOMAS CHACKO, VAZHAVELIL HOUSE, STADIUM WARD, ALAPPUZHA - 688 001. ``` ``` BY ADVS. A.T.ANILKUMAR SMT.V.SHYLAJA ``` ## **`RESPONDENTS:`** ``` 1THE NATIONAL INSURANCE CO.LTD., DIVISIONAL OFFICE, STATUE JUNCTION, THRIPUNITHURA, REPRESENTED BY THE REGIONAL MANAGER, KOCHI REGIONAL OFFICE, OMANA BUILDING, REGIONAL OFFICE, KANDAMKULATHY TOWERS, M.G.ROAD, KOCHI - 682 035. ``` ``` 2MOHANA RAGHAVAN,S/O.JANARDHANAN NAIR, PRASANNA NIVAS, ANJUMURTHY, P.O.MANGALAM, PALAKKAD, PIN- 679 301. ``` - `3 REMADEVI M.G., PRINCIPAL, KAVIYATTU COLLEGE OF EDUCATION, PIRAPPANCODE P.O., THIRUVANANTHAPURAM, PIN - 695 607.` ``` BY ADV SRI.P.G.GANAPPAN ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 09.02.2023, ALONG WITH MACA.4210/2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` MACA 4210/17 & 1615/19 3 ## **`JUDGMENT`** These Appeals have been heard together since they culminate from an Original Petition filed by the appellant in MACA No.1615/2019 before the Motor Accidents Claims Tribunal, Alappuzha (hereinafter referred to as ‘the Tribunal’ for short). 2. The claimant/appellant in MACA No.1615/2019 - Sri.Rino Thomas, was involved in an accident while he was 19 years of age and pursuing his Graduation Course in Bachelor of Commerce and suffered very grievous injuries; thus constraining him to approach the Tribunal seeking compensation to an extent of Rs.46,65,000/-, limited to Rs.46,00,000/-, but has been awarded only to the extent of Rs.10,79,750/-. 3. While Sri.Rino Thomas impugns the Award of the Tribunal as being too exiguous; in MACA No.1615/2019, the Insurance Company - which admittedly issued the policy in favour of the offending vehicle - has filed MACA No.4210/2017, assailing it on the ground that the compensation awarded is in excess. MACA 4210/17 & 1615/19 4 4. I have heard Sri.P.G.Ganappan - learned counsel for the appellant – Insurance Company in MACA No.4210/2017; and Smt.V.Shylaja – learned counsel for the claimant/appellant in MACA No.1615/2019. 5. I proceed to dispose of these Appeals on the basis of the evidence on record – copies of which have been handed over across the Bar by the learned counsel for the parties on the express consent that it can be acted upon by this Court without dispute. 6. Sri.P.G.Ganappan – learned Standing Counsel for the Insurance Company, submitted that his client’s case against the impugned Award is to the extent of it having adopted the percentile of disability in favour of the claimant as being 52.5%. He admitted that there is no other contention urged, but that if the percentile of disability had been properly assessed, the amount granted by the Tribunal would have been much lower. He explained his case, relying upon Ext.X1-Medical Board Certificate, to argue that the said Board had assessed the disability of the claimant on various heads and then to hold that he is suffering from 52% permanent disability, but without any rational basis. His submission was that, MACA 4210/17 & 1615/19 5 when the Medical Board found that the faculties and organs of the claimant suffered from various degrees of disability, the applicable formula ought to have been adopted by it, to arrive was the ‘Full Body Disability’, which has not been done, though an omnibus figure of 52.5% has been recorded therein. He thus prayed that the impugned Award to the extent questioned be set aside. 7. Smt.V.Shylaja – learned counsel for the claimant in MACA No.1615/2019, however, argued that the compensation awarded by the Tribunal is inadequate because it has incorrectly adopted her client’s notional income as being Rs.5,000/-, even though, in Ramchandrappa v. Manager, Royal Sundaram Alliance Insurance Company Ltd. [(2011) 13 SCC 236], the Honourable Supreme Court has postulated that, even in the case of a person with unascertainable income in the year 2008 – when the accident occurred – the figure to be adopted was Rs.6,500/-. She added that when 40% Future Prospects is added to this, the income ought to have been adopted by the Tribunal was Rs.9,100/-; and that, on such basis, the compensation for permanent disability ought to have been Rs.10,31,940/-, and not Rs.8,50,500/- as has been awarded. MACA 4210/17 & 1615/19 6 She then took me through the Medical Records in evidence to assert that the compensation under the head ‘Pain and Suffering’ ought not have been reduced by the Tribunal to Rs.30,000/-, instead of Rs.50,000/- claimed; and prayed that this enhancement be also granted. 8. When I analyse the afore rival submissions and go through the evidence on record, it is clear that the main controversy is as to the degree of disability of the claimant. 9. While the Insurance Company argues that the disability percentile in Ext.X1 ought not have been adopted by the Tribunal, Sri.P.G.Ganappan, their learned Standing Counsel unequivocally admits that the said document was marked without any objection or contest. He also conceded, to a pointed question from this Court, that no evidence was led by his client, including oral testimony, to impeach Ext.X1 in any manner whatsoever. Therefore, I fail to understand how the Insurance Company can now impel a case against Ext.X1; but since they have done so, I propose to answer it, lest they feel aggrieved on that count. 10. When one examines Ext.X1, it is evident – as has also MACA 4210/17 & 1615/19 7 been admitted – that it has been issued by the Medical Board of T.D.Medical College, Alappuzha. The competence of the Board is without challenge and therefore, the only issue that this Court has to consider is whether the disability percentile of 52.5% shown therein is acceptable. 11. As seen above, the argument of Sri.P.G.Ganappan is that, when different percentiles of disability are shown for different faculties and organs of the claimant, the formula postulated by the ‘National Institute for the Orthopedically Handicapped Scale’ ought to have been put into effect; in which event, the degree of disability would have been much lower. 12. I am afraid that I cannot find favour with this argument at all because, the Medical Board has certified the whole body disability of the claimant to be 52.5%, after taking into account the various disabilities that he suffers in other parts of the body. The injuries suffered by the claimant are certainly grave – which are uncontested – and the consequences and aftermath of the same is immeasurable, particularly because it appears to have affected his sexual capacity, leading to his marriage prospects and ability to MACA 4210/17 & 1615/19 8 father children, also under cloud. I do not, therefore, intend to, in any manner, vary the disability percentile mentioned in Ext.X1 particularly because, as seen above, it has been issued by a competent Medical Board and that too without any objection being raised. 13. Coming to the contention of the learned counsel for the claimant – Smt.V.Shylaja, I find favour with her, that the notional income which ought to have been adopted in her client’s favour is as per Ramachandrappa (supra), Rs.6,500/- per month. Adding 40% Future Prospects to this, as is permitted by the Honourable Supreme Court in National Insurance Company Ltd. v. Pranay Sethi [2017 (4) KLT 662], the income to be reckoned would stand enhanced to Rs.9,100/-; and on such basis, the compensation for permanent disability deserves to be revised to Rs.10,31,940/-. 14. That said, an examination of the medical evidence on record, namely, Exts.A3-Wound Certificate; A7-Discharge Card and A12 Treatment Certificate; read with Exts.A13, A14 and X1 Disability Certificates, make it indubitable that the claimant had suffered very grievous injuries, involving great trauma. I am, MACA 4210/17 & 1615/19 9 therefore, of the firm opinion that the Tribunal ought to have granted him what he had claimed for, under the head ‘Pain and Suffering’. 15. At this time, Smt.V.Shylaja intervened to say that even if her client had not asked for, the Tribunal ought to have granted some compensation towards ‘Loss of Amenities’, particularly because Ext.X1 shows that he is suffering from incontinence, as also erectile dysfunction. 16. I am persuaded to accept the afore submissions because, as I have already said above, even the marriage prospects of the claimant has been now impeded on account of the injuries suffered by him. I, therefore, propose to grant Rs.50,000/- under the same. In the afore circumstances, these Appeals are disposed of as under: **==> picture [38 x 57] intentionally omitted <==** a) MACA No.4210/2017 is dismissed. b) MACA No.1615/2019 is allowed, revising the compensation under the head ‘Permanent Disability’ to Rs.10,31,940/-, instead of Rs.8,50,500/-; further enhancing the compensation towards ‘Pain and Suffering’ to Rs.50,000/-, instead MACA 4210/17 & 1615/19 10 of Rs.30,000/- as granted by the Tribunal. In addition, the claimant will also be entitled to Rs.50,000/- towards Loss of Amenities/Loss of marriage prospects. c) In all other heads, the compensation awarded by the Tribunal will stand unaltered. d) The claimant will be entitled to recover the compensation, as enhanced by this Court, from the Insurance Company, along with interest at the rate of 9% per annum as awarded by the Tribunal, from the date of filing of claim until realisation. e) Needless to say, while computing the interest as afore, a period of 532 days, which is the delay caused by the appellant in filing MACA No.1615/2019, shall stand excluded. After I dictated this part of the judgment, Smt.V.Shylaja submitted that since her client is forced to take further treatment, including to undergo a major surgery, his right to approach this Court for additional compensation for ‘continuing treatment’, may be left open. Though no documents have been produced on record with MACA 4210/17 & 1615/19 11 respect to this, I am certainly of the view that if the need arises, the claimant will be at liberty to approach this Court, through an apposite application, which will then be considered as per law. ``` Sd/- ``` ``` RR ``` ``` DEVAN RAMACHANDRAN ``` ``` JUDGE ```