Mohankumar S v. National Insurance Company Ltd. (MACA No. 3226 of 2014)

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE T.R.RAVI** **WEDNESDAY, THE 15[TH] DAY OF DECEMBER 2021/24TH AGRAHAYANA, 1943** **MACA NO. 3226 OF 2014** **AGAINST THE AWARD IN OPMV 202/2012 OF MOTOR ACCIDENT CLAIMS** **TRIBUNAL, KALPETTA** ## **APPELLANT/PETITIONER:** MOHANKUMAR.S AGED 21 YEARS S/O.SUBRAMANINAN.A, POOTHAKOLLY ESTATE, MEPPADI POST, VYTHIRI TLAUK, WAYANAD DISTRICT. BY ADV SMT.CELINE JOSEPH ## **RESPONDENT/RESPONDENT No.3:** NATIONAL INSURANCE COMPANY LTD. DIVISIONAL OFFICE-I, P.B.NO.207, PARCO TOWERS, P.M.TAJ ROAD, KOZHIKODE-673 001. BY ADV SRI.P.K.MANOJKUMAR SMT.DEEPA GEORGE THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 14.9.2021, THE COURT ON 15.12.2021 DELIVERED THE FOLLOWING: M.A.C.A.No.3226 of 2014 2 ## **T.R. RAVI, J.** **--------------------------------------------** M.A.C.A.No.3226 of 2014 -------------------------------------------Dated this the 15[th] day of December, 2021 ## **JUDGMENT** On 28.3.2011, the autorickshaw in which the appellant was travelling capsized due to the rash and negligent manner of the driver and the appellant sustained severe injuries. He was taken to the Taluk Headquarters Hospital, Vythiri and after giving first aid, he was referred to the Medical College Hospital, Kozhikode. After treatment for a few days, he was shifted to Fathima Matha Mission Hospital, Kalpetta. The Tribunal noted that the appellant was hospitalised for 72 days. The injuries that were noted are fracture on pelvic and clavicle bone. The Medical Board in Exhibit C1 certificate assessed 30% disability. It is stated in the certificate that the appellant had difficulty in squatting, sitting cross-legged and had recurrent attack of urinary tract infection. According to the appellant, he was aged 20 years at the time of the accident and was working as a coolie earning Rs.6,000/per month. In the claim petition filed by the appellant, the Tribunal awarded a total compensation of Rs.3,40,593/-. The appeal has been filed claiming enhanced compensation. 2. Heard the counsel for the appellant and the respondents. 3. The first contention raised by the counsel for the appellant M.A.C.A.No.3226 of 2014 3 is that the Tribunal went wrong in fixing the notional monthly income of the appellant as Rs.3,500/-. Going by the dictum in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Co.Ltd.** , reported in **[AIR 2011 SC 2951]** , a coolie in 2011 would have been earning Rs.8,000/- per month. The appellant had claimed only Rs.6,000/- in the claim petition. The appellant has produced as additional documents Annexures A1 to A5 to show that he had incurred additional expenses towards future treatment. On the basis of the above documents it is submitted that the appellant was undergoing continuous treatment till 2015. The medical evidence in the case would show that the appellant had undergone four surgical procedures. It is hence submitted that the Tribunal ought to have awarded additional amounts towards future treatment on the basis of the evidence on record. Another contention raised is that the appellant was hospitalised for 90 days and and hence the amounts awarded towards extranourishment and bystanders expenses needs to be modified. 4. Reliance is placed on the decision of the Hon'ble Supreme Court in **Erudhaya Priya v. State Express Transport Corporation Ltd. [2020 (4) KLT 730 (SC)]** to submit that 50% of the income should be added to its future prospects. The Hon'ble Supreme Court was considering a case in which the disability was 31.1%. Considering M.A.C.A.No.3226 of 2014 4 the age of the appellant at the time of the accident, it is hence submitted that the same yardstick should be followed. The counsel also relies on the decision in **Afnees (unconscious) rep. Through mother v. Oriental Insurance Co.Ltd. and others** reported in **[2017 3 KHC 819]** to submit that in case of total or partial disablement, the term compensation would include not only the expenses incurred for immediate treatment, but also the amounts likely to be incurred for future medical treatment, care necessary for a particular injury or disability caused by an accident. It is hence submitted that additional amounts should be granted towards future treatment. Another contention that is taken is that the amounts awarded towards pain and sufferings should be enhanced, having due regard to the 90 days of hospitalisation, the 4 surgical procedures and the future treatment that is required. 5. The counsel for the Insurance Company submitted that the appellant is not entitled to future prospects since the disability is not severe in nature. The counsel does not dispute granting of compensation on the basis of the monthly income of Rs.6,000/- as claimed in the claim petition. Having heard the counsel on either side I am of the opinion that the amount awarded by the Tribunal needs to be enhanced. 6. The contention of the appellant that the monthly income M.A.C.A.No.3226 of 2014 5 ought to have been taken as Rs.6,000/- is very reasonable. Going by the decisions in **Pappu Deo Yadav v. Naresh Kumar and others** reported in **[2020 KHC 6547], Syed Sadiq and others v. Divisional Manager, United India Insurance Co.Ltd.,** reported in **[(2014) 2 SCC 735]** and **Erudhaya Priya (supra)** , the income has to be enhanced by 50% towards future prospects. The compensation towards loss of earnings and permanent disability has to be reworked on the above basis. It is in evidence that the appellant suffered clavicle and pelvic fracture and pubic bone dislocation causing urethral damage. Ext.C1 Diability certificate shows that the appellant had fracture superior and inferior pubic ramus right, pubic diastesis, fracture clavicle left and urethral injury. It further says that urethral stricture is present and the appellant requires frequent dilation of urethral stricture. It also says that the fracture of the pubic ramus is mal-united. Annexure A3 discharge summary issued from the Department of Urology and Renal Transplant Surgery, Government Medical College, Calicut, produced in the appeal, shows the appellant was admitted in the Hospital on 28.4.2014, subjected to surgical procedure on 30.4.2014 and discharged on 5.5.2014. Annexure A4 discharge record issued from the above Hospital in November,2014 shows that the appellant was again admitted on 13.11.2014 and discharged on 17.11.2014. Annexure A5, again issued from the M.A.C.A.No.3226 of 2014 6 Hospital in October, 2015, shows that the appellant was admitted on 19.10.2015 and discharged on 26.10.2015. Along with the other evidence, it can thus be seen that the appellant was hospitalised for a total period of 90 days. The compensation towards bystanders expenses and extra nourishment has to be modified accordingly. Having regard to the nature of the injury and disability and the long hospitalisation spread over 4 years, I am of the opinion that that claim of the appellant for additional amounts towards compensation for pain and suffering has to be allowed. 7. The appellant is entitled to Rs.36,000/- towards loss of earnings for six months. After deducting the sum of Rs.21,000/awarded by the Tribunal, the appellant is entitled to an additional compensation of **Rs.15,000/-** under the above head. The appellant is entitled to bystanders expenses and extra nourishment at the rate of Rs.250/- per day for ninety days. A sum of **Rs.11700/-** (2250010800) is payable under the head bystanders expenses after deducting the amount awarded by the Tribunal and a sum of **Rs.22,500/-** is payable under the head extra nourishment. An additional amount of **Rs.31,164/-** is awarded towards additional medical expenses as evidenced by Annexure A1. A sum of **Rs.50,000/-** is awarded towards future treatment, which will be required as seen from subsequent hospitalisations. The appellant is entitled to Rs.75,000/- towards pain M.A.C.A.No.3226 of 2014 7 and sufferings and a like sum towards loss of amenities. An additional amount of **Rs.50,000/-** (75000-25000) is hence allowed towards pain and sufferings and a sum of **Rs.70,000/-** (75000-5000) is awarded towards loss of amenities. Towards permanent disability, the appellant is entitled to a sum of Rs.5,83,200/- (6000x150%x12x18x30%). After deducting the sum of Rs.2,26,800/- awarded by the Tribunal, an additional compensation of **Rs.3,56,400/-** under that head. In the result, the appeal is allowed. The appellant is awarded additional compensation of **Rs.6,06,764/- (Rupees Six Lakhs Six Thousand Seven Hundred and Sixty Four only)** with interest at the rate of 9% per annum from the date of filing of the claim petition (28.05.2012) till the date of realisation, with proportionate costs. The respondent insurer shall deposit the additional compensation granted in this appeal along with the interest and proportionate costs, before the Tribunal within two months from the date of receipt of a certified copy of this judgment, after deducting any amount to which the appellant is liable towards balance court fee and legal benefit fund. The disbursement of the compensation to the appellant shall be in accordance with law. Sd/- **T.R. RAVI JUDGE** dsn M.A.C.A.No.3226 of 2014 8 ## **APPENDIX** ## **APPELLANT'S ANNEXURES:** **ANNEXUE A1: TRUE COPIES OF THE MEDICAL BILLS SUBMITTED BY THE PETITIONER (47 BILLS) ANNEXURE A2: TRUE COPY OF OP TICKET SUBMITTED BY THE PETITIONER ANNEXUER A3: TRUE COPY OF THE DISCHARGE SUMMARY DT.28.4.2014 ISSUED FROM DEPARTMENT OF UROLOGY AND RENAL TRANSPLANT SURGERY, GOVERNMENT MEDICAL COLLEGE, CALICUT. ANNEUXRE A4: TRUE COPY OF CASE SUMMARY AND DISCHARGE RECORD DT.13.11.2014 ISSUED FROM DEPARTMENT OF UROLOGY AND RENAL TRANSPLANT SURGERY, GOVERNMENT MEDICAL COLLEGE, CALICUT. ANNEXURE A5: TRUE COPY OF CASE SUMMARY AND DISCHARGE RECORD DT.19.10.2015 ISSUED FROM DEPARTMENT OF UROLOGY AND RENAL TRANSPLANT SURGERY, GOVERNMENT MEDICAL COLLEGE, CALICUT.**