MACA Nos. 613 of 2015 & 142 of 2016: Mini w/o Kunjachan v Shriram General Insurance Company Ltd. (and Najeeb S/o Abdul Majeed)

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN WEDNESDAY, THE 29[TH] DAY OF MARCH 2023 / 8TH CHAITHRA, 1945 MACA NO. 613 OF 2015** **AGAINST THE ORDER/JUDGMENT OPMV 818/2009 OF ADDITIONAL DISTRICT COURT & MOTOR ACCIDENT CLAIMS TRIBUNAL, NORTH PARAVUR** ## **APPELLANT/3RD RESPONDENT:** SHRIRAM GENERAL INSURANCE COMPANY LTD., E-8, EPIP, RHCO INDUSTRIAL AREA, SITAPUR, JAIPUR NOW REPRESENTED BY ITS LEGAL OFFICER, KOCHI. BY ADVS. SRI.MATHEWS JACOB (SR.) SRI.P.JACOB MATHEW ## **RESPONDENT/PETITIONER:** MINI W/O.KUNJACHAN, THAIKKOOTTATHIL ARACKAL HOUSE, NEAR VADEL CHURCH, NAYARAMBALAM P.O., 683320. BY ADVS. SRI.UNNI. K.K. (EZHUMATTOOR) VIJAY SANKAR V.H. MUHAMMED ALJUQ A.(K/251/2021) NIDHEESH T.P(K/1242/2020) THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 29.03.2023, ALONG WITH MACA.142/2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.A.C.A.Nos.613 of 2015 & 142 of 2016 : 2 : ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN WEDNESDAY, THE 29[TH] DAY OF MARCH 2023 / 8TH CHAITHRA, 1945** **MACA NO. 142 OF 2016** **AGAINST THE ORDER/JUDGMENT OPMV 818/2009 OF ADDITIONAL DISTRICT COURT & MOTOR ACCIDENT CLAIMS TRIBUNAL, NORTH PARAVUR** ## **APPELLANT/PETITIONER:** MINI W/O. KUNJACHAN, THAIKOOTTATHIL, ARACKAL HOUSE, NEAR VEDEL CHURCH, NAYARAMBALAM VILLAGE. BY ADVS. SRI.UNNI. K.K. (EZHUMATTOOR) VIJAY SANKAR V.H. MUHAMMED ALJUQ A.(K/251/2021) NIDHEESH T.P(K/1242/2020) ## **RESPONDENTS/RESPONDENTS NO.2 AND 3:** 1 NAJEEB S/O. ABDUL MAJEED, H.NO. 12/861, KOIKKAL HOUSE, KAMBIVELIKAKKAM, PADAMUGAL P.O, ERNAKULAM 682 021. 2 SHRIRAM GENERAL INSURANCE COMPANY LTD., 8, RIICO, INDUSTRIA;L AREA, SITHAPURA, RAJASTAN - 302022 BY ADVS. SRI.P.JACOB MATHEW SRI.MATHEWS JACOB SR. THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 29.03.2023, ALONG WITH MACA.613/2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.A.C.A.Nos.613 of 2015 & 142 of 2016 : 3 : ## **DEVAN RAMACHANDRAN, J. ========================= M.A.C.A.Nos. 613 of 2015 & 142 of 2016 ========================== Dated this the 29[th] day of March, 2023** ## **JUDGMENT** These two appeals have been heard together since, one among them has been filed by the claimant against the Final Award in O.P(MV)No.818 of 2009 of the Motor Accidents Claims Tribunal, North Paravur (‘Tribunal’ for short); while, the other has been filed by the Insurance Company, which insured the offending vehicle involved in the road accident. 2. Constitutively, Smt.Mini - the appellant in MACA No.142 of 2016 (who will hereinafter be referred by name for ease), was thrown out of a bus in which she was travelling, when its driver suddenly took it forward in a rash and negligent manner; consequent to which, she sustained very serious injuries. She had to be hospitalized and treated as an inpatient for 15 days and had to then endure follow-up treatment for a longer period. She thus filed O.P(MV)No.818 of 2009 before the Tribunal, seeking compensation of an amount of Rs.23,15,000/- limited to Rs.10,00,000/-; but which has been allowed only to a sum of Rs.9,59,700/-. She has, therefore, filed MACA No.142 of 2016 assailing the compensation as being exiguous. 3. While so, the Insurance Company, which insured the M.A.C.A.Nos.613 of 2015 & 142 of 2016 : 4 : offending vehicle, approached this Court earlier, through MACA No.613 of 2015, asserting that the compensation awarded by the Tribunal under various heads is extremely high, particularly “Pain and Sufferings”, “Loss of Amenities” and “Disfiguration”. They assert that learned Tribunal ought to have granted compensation on a much lesser scale, taking note of the fiscal standards of the year 2009, when the accident occurred. 4. I have heard Sri.P.Jacob Mathew – learned counsel appearing for the appellant in MACA No.613 of 2015 and Sri.Muhammed Aljuq A. – learned counsel appearing for the appellant in MACA No.142 of 2016. 5. Sri.Muhammed Aljuq vehemently argued that the compensation awarded by the Tribunal is wholly inadequate because Smt.Mini had specifically averred that she was a professional Beautician and Tailor, earning Rs.10,000/- per month; but that the Tribunal, in spite of this, adopted her notional income to be a mere Rs.5,000/- per month, thus causing the compensation awarded to her to be much lower than what is eligible. He then argued that, going by the medical evidence on record, particularly the Wound Certificate and Treatment Records, the injuries sustained by his client were so severe that it has left her with permanent disfigurement and hence that the compensation awarded by the Tribunal under the heads “Pain and Sufferings”, M.A.C.A.Nos.613 of 2015 & 142 of 2016 : 5 : “Loss of Amenities” and “Disfiguration” ought to have been much higher than what has been now granted. He concluded asserting that the compensation awarded by the Tribunal under the heads “Bystander Expenses” and “Extra Nourishment” is also too low, because only Rs.3,000/- and Rs.15,000/- has been awarded, though it is on record that she was hospitalized for 15 days and thereafter under treatment for a long period of time. 6. In response, Sri.P.Jacob Mathew - learned Standing Counsel appearing for the Insurance Company, argued that the learned Tribunal could not have awarded sums as high as Rs.1,00,000/under the head “Disfiguration”, after having granted similar figure under the head “Loss of Amenities”. He then submitted that the compensation awarded under the head “Pain and Sufferings” is also very high, adverting to the injuries sustained by Smt.Mini in the accident. He thus prayed that MACA No.613 of 2015 be allowed. 7. I have considered the afore rival submissions and have also gone through the evidence on record – copies of which have been handed over across the Bar by the learned counsel for the parties, with the express consent that it can be acted upon by this Court without dispute. 8. I will first deal with the question of income/notional income adopted in favour of Smt.Mini. 9. Even though she asserted that she was working as a M.A.C.A.Nos.613 of 2015 & 142 of 2016 : 6 : professional Beautician and Tailor, earning Rs.10,000/- per month, she was not able to prove it, except through Exts.A10, A11 and A12 Certificates. These certificates establish that she had completed “Beautician” and a “Beauty Parlour Management” course. However, though Ext.A12 mentions her salary to be Rs.15,000/- per month, it has not been established through corroborating inputs, particularly when it has been issued by a private entity. Obviously, the learned Tribunal could have only proceeded to fix her notional income. 10. However, while doing so, the Tribunal ought to have been guided by the postulations in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Ltd. [(2011)** **13 SCC 236],** wherein, the income of even a ‘coolie’, or a person with unascertainable income, in the year 2009 – when the accident occurred – is standardized to be Rs.7,000/- per month. In **Rajani v.** ## **Oriental Insurance Company Ltd. [2022 (5) KLT online 1012]** the Hon’ble Supreme Court has further gone to say that, in the case of a person who is engaged in technical avocation, a more robust view has to be taken. Exts.A10 and A11 clearly establish that Smt.Mini was a qualified Beautician, with a certificate of competence in Beauty Parlour Management also. Obviously, this Court will be justified in adopting her notional income to be Rs.8,000/- per month, which is only Rs.1,000/- more than what has M.A.C.A.Nos.613 of 2015 & 142 of 2016 : 7 : been authorized in **Ramachandrappa (Supra),** in the case of a ‘coolie’. 11. The further question is whether future prospects ought to be added to the income of Smt.Mini. Normally, when permanent disability is certified to be 46% by a Medical Board, future prospects, as sanctioned by **National Insurance Company Ltd. v. Pranay Sethi [2017 (4) KLT 662],** would come into play. However, the argument of Sri.P.Jacob Mathew in this case is that the injuries sustained by Smt.Mini are all on her face and therefore, there would be no reduction of her future prospects in any manner whatsoever. I am afraid that I cannot find favour with this at all because, the medical evidence, particularly Ext.X1 – Disability Certificate, shows that she has an aggregate disability of 46% including “anosmia, ptotis, diplopia due to Rt.3rd nerve palsy, ENT handicap, orthopaedic disability” (sic). 12. The learned Tribunal has also found that Smt.Mini had lost sight of her right eye and has surgical scars on head, which has also been stated, when she testified as PW1, adding that she has restrained movements of the right hand. Obviously, when Smt.Mini has such disability, her capacity to work as a professional Beautician would certainly be impeded; and I have, hence, no doubt that she is entitled to future prospects. She was 36 years at the time of the accident; and as per **Pranay Sethi (Supra),** the M.A.C.A.Nos.613 of 2015 & 142 of 2016 : 8 : future prospects to be added is 40%. 13. Coming to the compensation awarded by the Tribunal under the head “Pain and Sufferings”, I have to evaluate it based on the injury sustained by Smt.Mini and the period that would have been taken for her treatment. Ext.A3 – Wound Certificate issued by the Medical Trust Hospital, Ernakulam, establishes that she sustained the following injuries: 1. Bleeding from the nose. 2. Contusion with oedema on the upper lip. 3. Abrasion on the extremities. 4. Right side nerve palsy. 5. Broken tooth left upper molar. 6. X-ray Fracture of mandible. 7. Fracture of right humerous. 14. It is thus obvious that she suffered severe injuries, including broken tooth, fracture of mandible, fracture of humerus and nerve palsy. These are not trivial and would have forced her to endure substantial extent of pain and agony, at least until such time as she was fully treated. I am, therefore, of the firm view that the compensation awarded by the Tribunal under the head “Pain and Sufferings” does not require to be interfered with. 15. Turning to the question of “Compensation for Disfiguration”, when the Tribunal itself has found that there was disfiguration and surgical scars on her face and head; and that she M.A.C.A.Nos.613 of 2015 & 142 of 2016 : 9 : has nerve palsy, which contributed to such on her face, I cannot find the compensation of Rs.1,00,000/- towards “Disfiguration”, to be in any manner excessive. This is because, Smt.Mini is a lady, who was in the prime of her youth of 36 years, at the time of the accident. 16. That said, I notice that the learned Tribunal has also awarded Rs.1,00,000/- under the head “Loss of Amenities, Discomforts & Inconvenience caused”. The argument of the Insurance Company is that this should have been subsumed into the sums awarded under “Compensation for Disfiguration”. I am afraid that I cannot find favour with this because, the compensation for “Disfiguration” is certainly different from compensation for “Loss of Amenities, Discomforts & Inconvenience caused” since, as I have already seen above, the medical certificates show that she did not merely have disfiguration on her face, but also various other debilitating disabilities – including Anosmia, ENT handicap, orthopaedic disability, as also loss of hearing and restrained movements of her right hand. These are not trivial; and am, therefore, of the certain view that grant of compensation under the head “Loss of Amenities, Discomforts & Inconvenience caused” cannot be found fault with; though I propose to reduce it to Rs.75,000/-, taking note of the fact that disfiguration has already been compensated for a sum of Rs.1,00,000/-. M.A.C.A.Nos.613 of 2015 & 142 of 2016 : 10 : 17. The afore being said, the percentile of disability found by the Tribunal in favour of Smt.Mini also finds my favour, because it is based on Ext.X1 – Disability Certificate, issued by a Medical Board attached to the Government Medical College Hospital, Kottayam. The breakup of the disabilities has been mentioned therein; and as I have already seen above, it unequivocally says that her permanent disability can only be reckoned to be 46%. I do not see any reason to disturb this and hold that the learned Tribunal has accepted the said figure properly. 18. The final contention impelled by Smt.Mini, through her learned counsel, is that she is also entitled to compensation for “Future Medical Expenses” and she relies upon the documents produced before this Court along with IA No.2/2022. Though these documents did not show the amount of money that she had to spend for future treatment, it indicates that she has been forced to have repetitive followup treatment and consultations. I am, consequently, of the opinion that, even by a conservative estimate, an amount of Rs.30,000/- can be awarded towards “Future Medical Expenses”. However, said figure will carry interest only from the date of this judgment. In the afore circumstances, these appeals are ordered in the following manner: - (a) Compensation under the head “Permanent Disability” is enhanced to Rs.9,27,360/-, reckoning the M.A.C.A.Nos.613 of 2015 & 142 of 2016 : 11 : notional income of Smt.Mini to be Rs.8,000/- per month, with 40% future prospects added to it and the percentile of disability retained as 46%, as per Ext.X1. The multiplier used for this purpose is '15', and not '16' as incorrectly reckoned by the Tribunal, as per **Sarla Verma v. Delhi Transport Corporation [2010 (2) KLT 802].** (b) Axiomatically, the compensation under the head “Loss of Income” is enhanced to Rs.48,000/- from Rs.30,000/-, as awarded by the Tribunal, taking the notional income of Smt.Mini to be Rs.8,000/- per month and retaining the period for such purpose to be 6 months, as correctly adopted by the Tribunal. (c) The compensation under the head “Loss of Amenities, Discomforts & Inconvenience caused” is reduced to Rs.75,000/-, from Rs.1,00,000/- as awarded by the Tribunal. - (d) An amount of Rs.30,000/- is granted under the head “Future Medical Expenses”. - (e) In all other heads, the compensation awarded by the Tribunal will remain unaltered. Consequently, Smt.Mini will be at full liberty to recover the compensation, as enhanced by this Court, from the Insurance M.A.C.A.Nos.613 of 2015 & 142 of 2016 : 12 : Company, along with interest at the rate of 8% (except in the case of “Future Medical Expenses”), from the date of claim until it is recovered. She will also be entitled to proportionate costs, on the enhanced amount, as ordered by the Tribunal. As far as “Future Medical Expenses” is concerned, it shall carry interest at the rate of 8% from the date of this judgment, until it is paid or realised. Needless to say, while calculating interest on the amounts enhanced by this Court, a period of 364 days – being the delay in filing this Appeal – shall stand excluded. 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** MC/anm M.A.C.A.Nos.613 of 2015 & 142 of 2016 : 13 : ## **APPENDIX OF MACA 142/2016** PETITIONER ANNEXURES Annexure A1 TRUE COPY OF MRI BRAIN SCAN RESULT FROM LOURDES HOSPITAL DATED 01/10/2016 Annexure A2 TRUE COPY OF DISCHARGE SUMMARY DATED 26/10/2018 FROM LOURDES HOSPITAL Annexure A3 TRUE COPY OF MR CISTENOGRAPHY RESULT FROM LAKESHORE HOSPITAL DATED 25/10/2018 Annexure A4 TRUE COPY OF AUDIOLOGICAL ASSESSEMENT REPORT OF GOVT, MEDICAL COLLEGE KOTTAYAM DATED 19/12/2016