MANOJ ILLIKKAL v. SUHARA and THE ORIENTAL INSURANCE CO. LTD.

# `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ``` PRESENT ``` ``` THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN FRIDAY, THE 24[TH] DAY OF MARCH 2023 / 3RD CHAITHRA, 1945 ``` ## `MACA NO. 2527 OF 2014` ``` [AGAINST THE AWARD DATED 21.06.2011 IN OP(MV)NO.443/2008 ON THE FILE OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, KOZHIKODE] ``` ## `APPELLANT/PETITIONER:` ``` MANOJ ILLIKKAL, S/O. GANGADHARAN NAIR, AGED 32 YEARS, RESIDING AT ILLIKKAL HOUSE, (PO) PERUMANNA, KOZHIKODE DISTRICT. ``` ``` BY ADVS.SRI.V.S.CHANDRASEKHARAN SRI.M.V.DAS ``` ## `RESPONDENTS/RESPONDENTS:` ``` 1SUHARA, (AGE AND FATHER'S NAME NOT KNOWN), RESIDING AT 6/849, PADINHAREKANDI HOUSE, (PO) MAVOOR, KOZHIKODE DISTRICT. (OWNER OF TH BUS BEARING REGISTRATION NO. KL-11-Q-7204) 2THE ORIENTAL INSUTRANCE CO. LTD., DIVISIONAL OFFICE, SEEMA BUILDING, GH ROAD, KOZHIKODE DISTRICT. (INSURER OF THE BUS BEARING REGISTRATION NO.KL-11-Q- 7204) BY ADVS.SRI.P.V.JYOTHI PRASAD LATHA SUSAN CHERIAN THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 24.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA NO. 2527 OF 2014 ``` ``` -2- ``` ## `JUDGMENT` ``` This matter is of the year 2014 and has not been admitted. However, both sides are ad idem that it can be disposed of, after being formally admitted, based on the undisputed evidence on record, handed over by them across the Bar. I, therefore, admit this Appeal and proceed to dispose it of finally, with the consent of both sides. ``` ``` 2.The appellant was seriously injured in a ``` ``` road accident which occurred on 01.09.2007 - ``` ``` when the bus he was travelling in, collided with another one being driven in a rash and negligent manner. He had to undergo treatment for a long period of time, including as an inpatient for 17 days, for fracture in his skull and various other serious injuries; and therefore, filed OP(MV)No.443/2008 before the Motor Accidents Claims Tribunal, Kozhikode (‘Tribunal’, for ``` ``` MACA NO. 2527 OF 2014 ``` ``` -3- ``` ``` short), seeking a compensation of Rs.5,38,000/-, but which has been awarded only to a sum of Rs.3,43,410/-. He assails the award of the ``` ``` Tribunal as being inadequate. ``` ``` – 3.Sri.V.S.Chandrasekharanlearned ``` ``` counsel for the appellant, vehemently argued that, one of the main reasons why the compensation awarded by the Tribunal is low because, it has adopted the notional income of his client to be a mere Rs.3,000/- per month, when there is evidence to show that he was a businessman, earning Rs.8,000/- per month. He then submitted that the medical evidence shows the horrific nature of the accident and its aftermath on his client; and therefore, that the compensation awarded by the Tribunal under the heads “Pain and Suffering” and “Loss of Amenities” is exiguously low, as also that granted under the head “Extra Nourishment” and ``` ``` MACA NO. 2527 OF 2014 ``` **==> picture [22 x 8] intentionally omitted <==** ``` “Bystander Expenses”. He thus prayed that this ``` ``` Appeal be allowed. ``` ``` 4.In response, Smt.Latha Susan Cherian – ``` ``` learned Standing Counsel for the Insurance ``` ``` Company, submitted that the accident happened in the year 2007, when the fiscal standards were ``` ``` much different from what we see today. She ``` ``` contended that, therefore, the computations ``` ``` adopted by the learned Tribunal, in arriving at ``` ``` the compensation, are without error; and thus ``` ``` prayed that this Appeal be dismissed. ``` ``` 5.I have considered the afore rival ``` ``` submissions on the touchstone of 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. ``` ``` 6.I will first deal with the adequacy of the notional income adopted by the learned ``` ``` MACA NO. 2527 OF 2014 ``` **==> picture [22 x 8] intentionally omitted <==** ``` Tribunal in favour of the appellant. Even though ``` ``` he claims that he was a businessman earning Rs.8,000/- per month, no evidence has been led by him in support; and therefore, the learned Tribunal was right in fixing the notional ``` ``` income. However, while doing so, it ought to ``` ``` have been guided by the postulations in ``` ``` Ramachandrappa v. Manager, Royal Sundaram ``` ``` Alliance Insurance Company Ltd. [(2011) 13 SCC ``` ``` 236], wherein, even in the case of a person who is working as a ‘Coolie’, or one with an ``` ``` unascertainable income, in the year 2007 – when ``` ``` the accident occurred – the minimum notional income to be adopted is Rs.6,000/-. ``` ``` 7.The medical evidence on record, ``` ``` particularly Ext.C1 – Disability Certificate, ``` ``` shows that appellant has a disability of 36%, and Ext.A2 – Wound Certificate establishes that he suffered the following injuries: ``` ``` MACA NO. 2527 OF 2014 ``` **==> picture [22 x 9] intentionally omitted <==** ``` “Compound communited fracture of the right olecranon with radial head dislocation, crush injury with skin loss forearm, closed fracture of the right humerus, compound communited fracture radius ulna, side swipe injury right upper limb and abrasive injury forearm.” ``` ``` (sic) ``` ``` 8.It is also without contest that ``` ``` appellant was treated as an inpatient for about ``` ``` 17 days and that he had to undergo follow-up treatment for a long period of time. I am, therefore, of the firm view that, guided by the judgments of the Hon’ble Supreme Court in Syed Sadiq and Others v. Divisional Manager, United India Insurance Company Limited [(2014) 2 SCC 735], Vijay Kumar Rastogi v. Uttar Pradesh State ``` ``` Roadways Transport Corporation [AIR 2018 SC 819] ``` ``` andSatheesh E. v. The New India Assurance ``` ``` Company Ltd. and Others [(2022) SCC OnLine 1828], future prospects must be added to the ``` ``` MACA NO. 2527 OF 2014 ``` ``` -7- ``` ``` notional income of the appellant, which I reckon ``` ``` as 25%, taking note of the fact that he was 32 years old. ``` ``` 9.That being said, the learned Tribunal ``` ``` has granted compensation under the head “Extra ``` ``` Nourishment” and“Bystander Expenses”to a consolidated sum of Rs.1,500/- on the former head and at the rate of Rs.150/- per day, under the latter head. I am certain that both these require to be revised at the rate of Rs.150/- ``` ``` and Rs.250/- per day respectively, taking into account the financial standards of the year ``` ``` 2006, when the accident occurred. ``` ``` 10.As I have already seen above, the Wound ``` ``` Certificate graphically shows the nature of the injuries sustained by the appellant, and other medical evidence establish the aftermath it had on the appellant.The injuries are extremely serious, and the appellant must have certainly ``` ## `MACA NO. 2527 OF 2014` ``` -8- ``` ``` been put through a great amount of trauma and agony, at least during the time when the treatment lasted and until the fractures were united. I notice that the learned Tribunal has awarded only Rs.18,000/- and Rs.4,000/- under the heads “Pain and Suffering” and “Loss of Amenities”, respectively. I have no doubt that these are extremely exiguous and that they must be enhanced to the amounts that have been sought for, as far as “Pain and Suffering” is concerned and to Rs.20,000/-, as far as “Loss of ``` ``` Amenities” is concerned. ``` ``` In the afore circumstances, this Appeal is ``` ``` partly allowed in the following manner: ``` ``` (a)The compensation under the head ``` ``` “PermanentDisability”isenhancedto Rs.5,18,400/- (Rupees five lakhs eighteen ``` ``` thousand four hundred only), from Rs.2,07,360/-, reckoning the notional income of the appellant ``` ``` MACA NO. 2527 OF 2014 ``` ``` -9- ``` ``` to be Rs.6,000/- per month, with 25% future ``` ``` prospects added to it and accepting his ``` ``` percentile of “Disability” to be ‘36’ as per ``` ``` Ext.C1. The multiplier of ‘16’ is adopted for ``` ``` this purpose, as perSarla Verma & Others ``` ``` v.Delhi Transport Corporation & Another[2010 ``` ``` (2) KLT 802]. ``` - `(b) Axiomatically, the compensation under` ``` the head “Loss of Earnings” is enhanced to ``` ``` Rs.18,000/- (Rupees eighteen thousand only), from Rs.9,000/- awarded by the Tribunal, ``` ``` reckoning Rs.6,000/- as the notional income of ``` ``` the appellant, for three months. ``` - `(c) The compensation under the head “Extra` ``` Nourishment” is enhanced to Rs.2,550/- (Rupees ``` ``` two thousand five hundred and fifty only), from Rs.1,500/-, reckoning the per day expenses for such purpose to be Rs.150/-, for 17 days of ``` ``` hospitalization. ``` ``` MACA NO. 2527 OF 2014 ``` **==> picture [30 x 9] intentionally omitted <==** - `(d) The compensation under the head` ``` “Bystander Expenses” is enhanced to Rs.4,250/- ``` ``` (Rupees four thousand two hundred and fifty ``` ``` only), from Rs.2,550/- awarded by the Tribunal, reckoning Rs.250/- as the per diem expenses for such purpose, for 17 days of hospitalization. ``` - `(e) The compensation under the head “Pain` ``` and Suffering” is enhanced to Rs.30,000/- ``` ``` (Rupees thirty thousand only), from Rs.18,000/- as awarded by the Tribunal. ``` - `(f) The compensation under the head “Loss of` ``` Amenities” is enhanced to Rs.20,000/- (Rupees twenty thousand only), from Rs.4,000/- now awarded by the Tribunal. ``` - `(g) In all other heads, the compensation` ``` granted by the Tribunal will remain intact. ``` ``` Consequently, the appellant will be at full ``` ``` liberty to recover the compensation, as enhanced by this Court, from the Insurance Company, along ``` ## `MACA NO. 2527 OF 2014` ``` -11- ``` ``` with interest at the rate of 7%, 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. ``` ``` Needless to say, while calculating interest ``` ``` on the amount enhanced by this Court, a period ``` ``` of 1095 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 Tribunal, within a period of two months from the date of receipt of a copy this judgment. ``` ``` Sd/- ``` ## `DEVAN RAMACHANDRAN` ``` JUDGE ``` ``` akv ```