Molly v. P.J. Bejoy, N. Balakrishnan Nair & The Oriental Insurance Company Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN & THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** **WEDNESDAY, THE 10TH DAY OF FEBRUARY 2016/21ST MAGHA, 1937** **MACA.No.1654 of 2009 ( )** **-------------------------AGAINST THE AWARD IN OPMV 2871/2002 of M.A.C.T., ERNAKULAM, DATED 03-05-2008** **APPELLANT(S): -------------** **MOLLY, AGED 46 YEARS, W/O.SRI.ANTONY, KARUKAPARAMBU HOUSE, JANATHA ROAD, VYTTILA P.O., PUNITHURA VILLAGE, KANAYANNUR TALUK, ERNAKULAM DISTRICT.** **BY ADVS.SRI.ANIL S.RAJ SMT.K.N.RAJANI** **RESPONDENT(S):** **-------------** **1. P.J. BEJOY, S/O.P.J.JOHNY, PALAKKAPPILLY HOUSE, PERUMANOOR, COCHIN-682 015.** **2. N.BALAKRISHNAN NAIR, GREENLAND TRAVELS, THEVARA ROAD, PERUMANOOR P.O., COCHIN-682 015.** **3. THE ORIENTAL INSURANCE COMPANY LTD., COCHIN- 682 011.** **R3 BY ADV. SRI.MATHEWS JACOB (SR.)** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 10-02-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ss ## **P.N.RAVINDRAN & K.RAMAKRISHNAN, JJ.** ------------------------------------------------------- ## **M.A.C.A. No.1654 of 2009** -------------------------------------------------------------Dated this the 10[th] day of February, 2016 ## **JUDGMENT** ## **P.N.RAVINDRAN, J** The appellant is the claimant in O.P.(MV)No.2871 of 2002 on the file of the Motor Accidents Claims Tribunal, Ernakulam. She had in the said claim petition prayed for the award of a total sum of ₹13,00,000/- as compensation under various heads for the injuries sustained by her in a motor accident that took place on 22.08.2002. She had in the claim petition averred that, while she along with her husband and children and other near relations were travelling in a motor vehicle bearing registration No.KL-7Y/9800, owned by the first respondent, driven by the second respondent and insured by the third respondent, it fell into a ditch 60 feet below the road and in that accident she and other passengers sustained serious injuries. She contended that the accident took place on account of the negligence of the second respondent. She had in the claim petition further _**M.A.C.A. No.1654 of 2009**_ 2 contended that in that accident, she sustained serious injuries which resulted in the amputation of her right leg below the knee and that as a result of the injuries she had also lost her employment. 2. Though respondents 1 and 2 were served, they did not enter appearance or file a written statement and were set exparte. The third respondent, the insurer of the motor vehicle involved in the accident entered appearance and filed a written statement dated 09.03.2003, wherein the main contentions raised were that, (i) the accident was not on account of the negligence of the second respondent, but an inevitable accident and (ii) the compensation claimed is exorbitant and excessive. Before the tribunal, the claimant examined herself as PW1 and produced and marked Exts.A1 to A12. No evidence, oral or documentary was adduced on the side of the respondents. The tribunal considered the rival contentions and held that the accident took place on account of the rash and negligent driving of the motor vehicle by the second respondent. In coming to the said conclusion, the tribunal placed reliance on the police records consisting of Ext.A1 first information report and Ext.A2 charge-sheet as also the settlement awards in O.P.(MV)Nos.2704, 2705 and 2876 of 2002, evidenced by Exts.A43, A44 and A45 whereby the claim petitions filed by three other passengers were settled out of court on _**M.A.C.A. No.1654 of 2009**_ 3 payment of the sum of 4,000/-, 80,000/- and 45,000/- respectively₹ ₹ ₹ as compensation. The tribunal thereafter proceeded to consider the quantum of compensation to be awarded to the claimant and awarded the sum of 5,27,150/- which was rounded off to 5,27,000/- under₹ ₹ various heads as follows: |**_Sl.No._**|**_Head_**|**_Amount_**<br>**_awarded_**| |---|---|---| |_1_|_Transportation, extra nourishment &_<br>_damages to clothings_|₹_7200_| |_2_|_Hospital expenses_|₹_5100_| |_3_|_Attendant's expenses_|₹_850_| |_4_|_Medical expenses_|₹_2,85,000_| |_5_|_Loss of earnings_|₹_24000_| |_6_|_Pain and suffering_|₹_30000_| |_7_|_For discomforts & diminution in pleasures_<br>_in life_|₹_15000_| |_8_|_Occupational disability_|₹_1,50,000_| |_9_|_future medical expenses_|₹_10000_| ||**_Total_**|**₹** **_5,27,150_**| 3. The tribunal directed the third respondent, the insurer of the motor vehicle involved in the accident, to deposit the said amount together with interest at the rate of 7.5% per annum from the date of petition till the date of award and at the rate of 8% per annum thereafter till realisation along with proportionate costs. The claimant has, dissatisfied with the quantum of compensation awarded by the tribunal, filed this appeal. _**M.A.C.A. No.1654 of 2009**_ 4 4. We heard Smt.Rajani K.N, learned counsel appearing for the appellant and Sri.Mathews Jacob, learned Senior Advocate appearing for the third respondent. Though the first respondent, the owner of the motor vehicle involved in the accident has been served, he has not entered appearance. The third respondent, the insurer of the motor vehicle does not dispute its liability to indemnify the insured, namely the first respondent and it has not filed an appeal challenging the finding on negligence or the quantum of compensation. Though the notice issued to the second respondent from this court was returned unserved with the endorsement ‘left’, when the appeal came up for hearing on 18.01.2011, a Division Bench of this court declared that it is not necessary to repeat notice to the second respondent, for the reason that the insurer does not dispute its liability to indemnify the insured. Smt.Rajani K.N., learned counsel appearing for the appellant submitted that the compensation awarded under the heads pain and suffering, loss of earnings, loss of amenities, expenses for future medical treatment and for permanent disability is meager and inadequate and that the tribunal lost sight of the fact that besides the injury to the right leg which resulted in its amputation below the knee, the claimant had also sustained injuries to the left leg, as a result of which even six years after the accident, she has numbness in the leg _**M.A.C.A. No.1654 of 2009**_ 5 and difficulty in walking. Learned counsel submitted that in such circumstances, the compensation awarded by the tribunal is liable to be suitably enhanced. Inviting our attention to the decision of the Apex Court in _**Syed Sadiq etc., v. Divisional Manager, United India Insurance Company**_ (AIR 2014 SC 1052), learned counsel contended that for the purpose of computing the compensation for permanent disability, this court has to take into account future prospects as well. 5. Per contra, learned senior counsel appearing for the third respondent insurer submitted that an increase in the monthly income to provide for future prospects can be taken into account only in claims for loss of dependency and not in personal injury claims and therefore, there is no reason or justification to take into account future prospects for the purpose of awarding compensation for permanent disability. Learned counsel submitted that the compensation awarded by the tribunal under various heads is just and fair and does not call for enhancement. 6. We have considered the submissions made at the Bar by learned counsel appearing on either side. We have also gone through the pleadings and the materials on record. The appellant had even in the claim petition averred that she was employed as an office assistant in M/s.Beta Traders and Agencies Pvt. Ltd., Cochin-17 and _**M.A.C.A. No.1654 of 2009**_ 6 that she was earning a monthly income of 2,500/-. She had further₹ averred that on account of the injuries and disability, she had lost her job. She had spoken to the case pleaded by her when she was examined as PW1. She had also produced Ext.A8, a certificate issued by her former employer to the effect that as on the date of the accident she was being paid a consolidated salary of 2,500/- per₹ mensem and has not gone for work after the accident. The tribunal however proceeded to fix the monthly income as 2,000/- and on that₹ basis awarded compensation for loss of earnings for a period of one year. In our opinion, as the authenticity and genuineness of Ext.A8 was not under challenge and nothing was brought out to discredit its authenticity and genuineness even though PW1 was cross examined at length, the tribunal erred in limiting the compensation awarded under the head loss of earnings only to 24,000/-. The tribunal ought to₹ have in our opinion awarded the sum of 30,000/- as compensation for₹ loss of earnings for a period of one year, taking the monthly income of the claimant as 2,500/-. We accordingly enhance the compensation₹ awarded by the tribunal under the head loss of earnings from ₹24,000/- to 30,000/-. ₹ 7. The impugned award discloses that the tribunal has awarded only a nominal amount of 15,000/- as compensation under₹ _**M.A.C.A. No.1654 of 2009**_ 7 the head loss of amenities. The medical evidence discloses that the right leg of the claimant was amputated below the knee a week after the accident. Ext.A8 disability certificate discloses that even as on 26.02.2008 when she was examined by the Medical Board constituted by the Superintendent, General Hospital, Ernakulam, she had difficulty in walking, numbness in the left leg and incontinence. Having regard to the aforesaid facts, we are of the opinion that on a modest estimate, a further sum of ₹35,000/- can be awarded to the appellant/claimant under the head loss of amenities. The claimant had undergone treatment as an inpatient during the period from 22.08.2002 to 30.09.2002 (39 days) as can be seen from Ext.A4 discharge certificate, thereafter during the period from 31.10.2002 to 03.11.2002 (4 days) as can be seen from Ext.A6 discharge certificate and still later during the period from 03.11.2003 to 12.11.2003 (9 days) as can be seen from Ext.A7 discharge certificate. She had thus undergone treatment as an inpatient in two different hospitals for a total period of 52 days. Having regard to the grievous injuries suffered by the claimant, the period of hospitalisation and the surgical procedures she was subjected to, including amputation, we are of the opinion that the sum of 30,000/- awarded under the head pain and₹ suffering is grossly inadequate. We accordingly enhance the same to 8 ## _**M.A.C.A. No.1654 of 2009**_ ₹50,000/-. 8. That takes us to the question whether the compensation awarded under the head disability is liable to be interfered with. The tribunal has awarded only the sum of 1,50,000/-₹ as compensation under that head. We have already held that no exception can be taken to the case set out by the appellant that she was earning a monthly income of 2,500/-. The claimant was aged 39₹ years on the date of the accident. The Medical Board which examined the claimant six years after the accident has estimated her whole body disability at 49%. The tribunal has held that the respondents have not been able to impeach Ext.A12 disability certificate. In such circumstances, we are of the opinion that the appellant/claimant is entitled to be awarded compensation for permanent disability taking ₹2,500/- as her monthly income, the multiplier as 15 following the decision of the Apex Court in _**Sarla Verma (Smt) and others v. Delhi Transport Corporation and another**_ (2009 (6) SCC 121) and the percentage of disability as 49. The Apex Court has in _**Syed Sadiq v. Divisional Manager, United India Ins. Co.**_ (AIR 2014 SC 1052) held that even in personal injury claims, an increment in the income towards future prospects can be reckoned for the purpose of awarding compensation for permanent disability. In that case, 50% increment in _**M.A.C.A. No.1654 of 2009**_ 9 the income for future prospects was applied in the case of a self employed claimant, aged 26 years. The claimant in the instant case was aged 39 years at the time of accident. In the light of the decision of the Apex Court in _**Syed Sadiq's case**_ (supra), we are of the opinion that the appellant/claimant is entitled to contend that an increment in the income towards future prospects should be taken into consideration for the purpose of awarding compensation under the head permanent disability. A Division Bench of this court, of which one of us (P.N. Ravindran, J) was a member has in M.A.C.A No.2072 of 2009, held after analysis of the case law on the point that an increment in the monthly income towards future prospects can be taken into account even in personal injury claims and that it is not limited to claims for loss of dependency. Having regard to the age of the claimant and the principles laid down by the Apex Court in _**Rajesh**_ _**v. Rajbir Singh**_ [2013(3) KLT 89(SC)], we are of the opinion that a 30% increase in the monthly income of the claimant towards future prospects can be taken into account while computing the compensation to be awarded under the head compensation for permanent disability. In other words, the monthly income of the claimant will have to be reckoned as 2500+₹ ₹750=₹3,250/- for the purpose of computing the compensation payable under the head _**M.A.C.A. No.1654 of 2009**_ 10 permanent disability. Computed on that basis, the compensation payable to the appellant/claimant under the head permanent disability will be 3250 x 12 x 15 x 49/100=₹ ₹2,86,650/-. The tribunal has awarded only ₹1,50,000/under that head. Consequently, the appellant/claimant will be entitled to a further sum of 1,36,650/- as₹ compensation for permanent disability. 9. The tribunal has in the impugned award, awarded the sum of 10,000/- towards expenses for future treatment. The₹ medical records disclose that the claimant had after the initial period of hospitalisation undergone treatment on two occasions from 31.10.2002 to 3.11.2002 and from 3.11.2003 to 12.11.2003. Examined as PW1, the claimant had deposed that she had undergone amputation on three occasions, thereby implying that the stump of the knee requires to be surgically corrected periodically. Having regard to the ever increasing cost of medical treatment, we are of the opinion that the sum of 10,000/- awarded towards expenses for future₹ medical treatment is grossly inadequate and on a modest estimate requires to be enhanced to 25,000/-. We accordingly award a further₹ sum of 15,000/- under that head. Though learned counsel for the₹ appellant contended that the compensation awarded under the other heads also merits enhancement, we find no reason or justification to _**M.A.C.A. No.1654 of 2009**_ 11 do so. We accordingly hold that the appellant/claimant will be entitled to an additional compensation of 2,12,650/- comprised of the₹ sum of 6,000/- awarded by us towards loss of earnings for a period of₹ one year, 20,000/- awarded under the head pain and suffering,₹ ₹35,000/- awarded under the head loss of amenities, 15,000/-₹ awarded towards future medical expenses and 1,36,650/- under the₹ head permanent disability. The third respondent insurer shall deposit the said sum of 2,12,650/- with interest at the rate of 9% per annum₹ from the date of institution of the claim petition till the date of payment, except in relation to the sum of 15,000/- awarded towards₹ future medical expenses, within three months from today. Upon such deposit being made, the amount deposited shall be released to the appellant/claimant. The parties shall suffer their respective costs in this court. ## _Sd/-_ **P.N.RAVINDRAN (JUDGE)** ## _Sd/-_ **(JUDGE)** ## **K.RAMAKRISHNAN** // True Copy// P.A. to Judge ss & cl