Mohammed Kutty and Others v The Oriental Insurance Co. Limited

## `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ``` THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN ``` ``` THURSDAY, THE 23[RD] DAY OF MARCH 2023 / 2ND CHAITHRA, 1945 ``` ## `MACA NO. 299 OF 2013` ``` [AGAINST THE AWARD DATED 15.02.2012 IN OP(MV)NO.166/2009 ON THE FILE OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, OTTAPALAM] ``` ## `APPELLANT/PETITIONER:` - `1 MOHAMMED @ MOHAMMED KUTTY, AGED 63 YEARS, S/O.KUNHEEDU, CHERUMKUZHIYIL HOUSE, KARINGANAD POST, VILAYUR, OTTAPALAM TALUK, PALAKKAD DISTRICT.` - `*ADDL.APP.2 RAIHANATH, AGED 48 YEARS, D/O.MOHAMMED @ MOHAMMED KUTTY AND W/O.HUSSAIN P, PARALIYIL HOUSE, MUTHUTHALA POST, PATTAMBI TALUK, PALAKKAD DISTRICT, PIN – 679303.` - `*ADDL.APP.3 ASHRAF C.K, AGED 45 YEARS, S/O. MOHAMMED @ MOHAMMED KUTTY, CHERUMKUZHIYIL HOUSE, VILAYUR POST, PATTAMBI TALUK, PALAKKAD DISTRICT, PIN – 679 309.` - `*ADDL.APP.4 SAMEERA, AGED 36 YEARS, D/O.MOHAMMED @ MOHAMMED KUTTY AND W/O.ABDUL SHERIF, CHERENGATHODI HOUSE, MOORKKANAD, PUNNAKKAD, KOLATHUR POST, PERINTHALMANNA TALUK, MALAPPURAM DISTRICT, PIN – 679338.` - `*ADDL.APP.5 RAMLATH, AGED 34 YEARS, D/O.MOHAMMED @ MOHAMMED KUTTY, MUTTEKKATTIL HOUSE, VILATHUR, THIRUVEGAPURA POST, PATTAMBI TALUK, PALAKKAD DISTRICT, PIN – 679 304.` - `*ADDL. APPELLANTS 2 TO 5 ARE IMPLEADED AS PER ORDER DATED 23.03.2023 IN IA NO.1/2022.` ``` BY ADV SRI.R.SREEHARI ``` ## `RESPONDENTS/RESPONDENTS:` - `1 MOHAMMED NISSAR, AGED 23 YEARS, S/O.ABDUL NAZAR, VALIYATHODI HOUSE, PULAMANTHOLE POST, MALAPPURAM DISTRICT, PIN:679 323.` ``` 2SHAMEED, AGED 28 YEARS, *(DELETED) S/O.NAFEESA, NABEESA MANZIL, ``` ``` RAMANATTUKARA POST, CALICUT-673633. ``` ``` MACA NO. 299 OF 2013 ``` ``` -2- ``` ``` 3THE ORIENTAL INSURANCE CO. LIMITED, PRAMOD BUILDING, CHEROOTY ROAD, CALICUT-673001. ``` ``` (*RESPONDENT 2 IS DELETED FROM THE PARTY ARRAY AS PER ORDER DATED 17.10.2019 IN IA 1/2019 IN MACA 299/2013). ``` ``` BY ADVS.SRI.K.RAJESH SUKUMARAN DEEPA GEORGE SRI.P.V.JYOTHI PRASAD ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP ``` ``` FOR ADMISSION ON 23.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA NO. 299 OF 2013 ``` ``` -3- ``` ## `JUDGMENT` ``` The original appellant – Sri.Mohammed Kutty, was injured in a road accident on 18.07.2008, when the offending vehicle hit him, while walking on the road, causing serious injuries. ``` ``` He was hospitalised for a long period of time, ``` ``` requiringtreatmentthereafter;thus constraining him to file OP(MV) No.166/2009, before the Motor Accidents Claims Tribunal, Ottapalam (hereinafter referred to as ‘the ``` ``` Tribunal’ for short), seeking compensation of an ``` ``` amount of Rs.2 lakhs; but which has been allowed ``` ``` only to an extent of Rs.1,02,950/-. He, therefore, assails the compensation as being inadequate. ``` ``` 2.While this matter was pending, the original appellant died and his legal heirs have come on record as additional appellants, who are now prosecuting this Appeal. ``` ``` MACA NO. 299 OF 2013 ``` ``` -4- ``` ``` 3.Sri.R.Sreehari – learned counsel for the appellants, argued that, even though there is evidence on record to show that the original appellant was working as a ‘Coolie’ at the time of the accident, earning Rs.6,000/- per month, the learned Tribunal has adopted only a meagre amount of Rs.2,000/- as his notional income. He contended that the income to be taken was at least Rs.6,500/-, as is authorised by the Honourable Supreme Court in Ramchandrappa v. Manager, Royal Sundaram Alliance Insurance Company Ltd. [(2011) 13 SCC 236]. ``` ``` 4.Sri.R.Sreehari thereafter took me through the medical evidence to show that the injuries sustained by the original appellant were so severe, that it required 18 days of hospitalisation and a continuous follow-up treatment for several months thereafter. He tried to impress upon me the fact that the ``` ``` MACA NO. 299 OF 2013 ``` ``` -5- ``` ``` original appellant had suffered three fractures, ``` ``` which subjected him to a great amount of trauma ``` ``` and agony; and thus prayed that the compensation ``` ``` under the heads ‘Pain and Suffering’ and ‘Loss ``` ``` of Amenities’ be enhanced substantially. He ``` ``` finally prayed that the compensation awarded by ``` ``` the Tribunal under the heads ‘Bystander’s ``` ``` Expenses’ and ‘Extra Nourishment’ also be enhanced, because the amounts granted are exiguous. ``` ``` 5.Smt.Deepa George – learned Standing ``` ``` Counsel for the Insurance Company, on the other ``` ``` hand, submitted that, since the accident ``` ``` happened in the year 2008, the compensation ``` ``` awarded is without error, particularly because ``` ``` the fiscal standards of today could not have been adopted for that year. She thus prayed that this Appeal be dismissed. ``` ``` 6.I have considered the afore rival ``` ``` MACA NO. 299 OF 2013 ``` ``` -6- ``` ``` contentions on the touchstone of evidence on ``` ``` record, which I have analyzed carefully. ``` ``` 7.On the question of notional income of ``` ``` the original appellant, I find favour with the ``` ``` submissions of Sri.R.Sreehari because, in ``` ``` Ramachandrappa(supra), the minimum figure ``` ``` authorised for a person who is a ‘Coolie’, or ``` ``` with an unascertainable income in the year 2008 ``` ``` – when the accident happened – is Rs.6,500/-. ``` ``` Since an amount of only Rs.6,000/- had been ``` ``` claimed, that figure ought to have been reckoned ``` ``` by the Tribunal. The further argument of ``` ``` Sri.R.Sreehari that, notwithstanding this, ``` ``` Rs.6,500/- should be taken, cannot appeal to me ``` ``` since the original appellant himself asserted ``` ``` that he was only receiving a lesser amount. ``` ``` 8.The medical evidence on record, particularlyExt.A6-WoundCertificate, establishes that the original appellant suffered ``` ``` MACA NO. 299 OF 2013 ``` ``` -7- ``` ``` ‘fracture radius right, laceration left parietal region, 5x1 cm, left thigh 5x1 cm, lateral ``` ``` malleolus left abrasions left foot and fracture rib 7th left’ (sic). Further, Ext.A10-Discharge ``` ``` Summary proves that he was hospitalised for 10 ``` ``` or 11 days and it reports the diagnosis as ``` ``` ‘Galleazzi fracture dislocation (L) forearm, ``` ``` Type II fracture lateral malleolus (L) leg and ``` ``` fracture 7th rib, wound debridment done and ``` ``` suturing’ (sic). ``` ``` 9.It is based on the afore, that an ``` ``` Orthopedic Surgeon attached to the Medical ``` ``` College Hospital, Trissur, issued Ext.A9- ``` ``` Disability Certificate, certifying the original ``` ``` appellant’s whole body disability to be 10%. ``` ``` However, the learned Tribunal did not accept this percentile fully because it was not issued by a validly constituted Medical Board, and chose to reduce it to 6%. I notice that, for ``` ``` MACA NO. 299 OF 2013 ``` ``` -8- ``` ``` doing so, the learned Tribunal found that all ``` ``` fractures were well united and that the evidence ``` ``` of PW1 also fortified this. ``` ``` 10.However, merely because the fractures were united, it does not mean that the ``` ``` percentile of disability, as certified by the doctor, was in error; but, since the Certificate ``` ``` was issued only by a doctor and not by a Medical Board, I am certain that the Tribunal did not err in reducing the percentile, but not to the ``` ``` extent of ‘6’. I, therefore, propose to adopt it ``` ``` as being 8%, which is the median between the two figures. ``` ``` 11.For the same reasons I have said above, ``` ``` particularly the gravity of injuries and the trauma suffered by the appellant, this Court is certain that the compensation under the heads “Loss of Amenities” and “Pain and Suffering” must be enhanced, at least to the extent sought ``` ``` MACA NO. 299 OF 2013 ``` ``` -9- ``` ``` for by the original appellant. ``` ``` 12.Coming to the compensation under the ``` ``` head “Extra Nourishment”, I notice that the learned Tribunal has awarded Rs.100/- per day, which, by the standards of 2008, cannot be seen to be low; however, as far as compensation under the head “Bystander Expenses” is concerned, taking note of the three fractures of the original appellant and the expertise that would be required for someone to take care of him during the period of treatment, I deem to ``` ``` enhance the per diem expenses to Rs.300/- from ``` ``` Rs.200/-, as has been awarded by the Tribunal. ``` ``` In the afore circumstances, this Appeal is ``` ``` partly allowed in the following manner: ``` ``` (a)The compensation under the head ``` ``` permanent disability is enhanced to Rs.28,800/- ``` ``` (Rupees twenty eight thousand eight hundred only), reckoning the notional income of the ``` ``` MACA NO. 299 OF 2013 ``` ``` -10- ``` ``` original appellant to be Rs.6,000/- and his percentile of disability to be ‘8’, with the multiplier of ‘5’ being adopted, as perSarla Verma & Others v.Delhi Transport Corporation & ``` ``` Another [2010 (2) KLT 802]. ``` ``` (b)Axiomatically, the compensation under ``` ``` the head "Loss of Earnings" will be increased to ``` ``` Rs.24,000/- (Rupees twenty four thousand only), based on the original appellant's notional income of Rs.6,000/- per month, but reckoning ``` ``` four months for such purpose - rather than ``` ``` three, as adopted by the Tribunal - taking into account the grievous injuries and the time it would have normally taken for the fractures to ``` ``` unite. ``` ``` (c)The compensation under the head “Loss of Amenities” is enhanced to Rs.20,000/- (Rupees twenty thousand only), from Rs.15,000/- awarded by the Tribunal. ``` ``` MACA NO. 299 OF 2013 ``` ``` -11- ``` ``` (d)The compensation under the head ``` ``` “Bystander Expenses” is enhanced to Rs.5,400/- (Rupees five thousand four hundred only), reckoning Rs.300/- as the per diem expenses for such, for 18 days of hospitalization. ``` ``` (e) In all other heads, the compensation ``` ``` granted by the Tribunal will remain intact. ``` ``` Consequently, the additional appellants will ``` ``` be at full liberty to recover the compensation, as modified by this Court, from the Insurance Company, along with interest at the rate of 7%, as awarded by the Tribunal, from the date of claim until it is recovered. They will also be ``` ``` entitled to proportionate costs on the enhanced ``` ``` amount as ordered by the Tribunal. ``` ``` Needless to say, since the original ``` ``` appellant died during the pendency of this Appeal, the compensation awarded and as modified by this Court shall be apportioned between the ``` ``` MACA NO. 299 OF 2013 ``` ``` -12- ``` ``` additional appellants in equal shares, since ``` ``` they are his wife and children. ``` ``` It goes without saying that, while ``` ``` calculating interest on the amount enhanced by ``` ``` this Court, a period of 222 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 ```