M/S.CHOLAMANDALAM MS GENERALINSURANCE COMPANY LIMITED v Arun Prasad

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MRS. JUSTICE MARY JOSEPH FRIDAY, THE 16[TH] DAY OF FEBRUARY 2024 / 27TH MAGHA, 1945 MACA NO. 1113 OF 2022 ``` ``` AGAINST AWARD DATED 06.11.2021 IN O.P(M.V) NO.1396/2016 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, THIRUVANANTHAPURAM ``` ## **`APPELLANT/3RD RESPONDENT:`** ``` M/S.CHOLAMANDALAM MS GENERALINSURANCE COMPANY LIMITED, DARE HOUSE, 2ND FLOOR, NSC BOSE ROAD, CHNNAI P.O, NOW REPRESENTED BY DEPURTY MANAGER-CLAIMS, ACEL ESTATE, IYYTTIL JUNCTION, CHITOOR ROAD, KOCHI – 682 011 BY ADVS.SRI.P.JACOB MATHEW SRI.MATHEWS JACOB (SR.) ``` ## **`RESPONDENT/PETITIONER:`** ``` ARUN PRASAD, AGED 25, S/O.RAJENDRA PRASAD, ARUN NIVAS, KANNANCODE, VENJARANMOODU.P.O, THIRUVANANTHAPURAM, NOW RESIDING AT 'SARIGA' KARACKADU LANE, PONNUMANGALOM, NEMOM.P.O, THIRUVANANTHAPURAM – 695 020 BY ADVS. SRI.RAFEEK V K SRI.NAGARAJ NARAYANAN(K/700/1994) SRI.SAIJO HASSAN(K/349/2001) SRI.BENOJ C AUGUSTIN(K/189/2004.) ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR HEARING ON 16.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` M.A.C.A.No.1113 of 2022 ``` ``` 2 ``` ## **JUDGMENT** ## **Dated this the 16[th] day of February, 2024** The appeal on hand is originated from an award passed by Motor Accident Claims Tribunal, Thiruvananthapuram (for short ‘the Tribunal’) on 06.11.2021 in O.P.(M.V) No.1396/2016. The appellant is the 3[rd] respondent before the Tribunal who was the insurer of a container lorry bearing Registration No.AP-05-TC7917 which was allegedly involved in the motor accident. 2. For the sake of convenience, the parties to this appeal will hereinafter be referred to as the petitioner and the 3[rd] respondent in accordance with their status in the Original Petition. 3. The petitioner was aged 20 years and he met with a motor accident on 07.03.2016 at about 9.20 a.m. when the scooter bearing Registration No.KL-21E-7130 ridden by him through a public road was dashed by a ``` M.A.C.A.No.1113 of 2022 ``` ``` 3 ``` container lorry bearing Registration No.AP-05-TC-7917 at Karakkamandapam junction. The motor accident was alleged as occurred due to the rash and negligent driving by its driver who was arrayed as the 2[nd] respondent in the Original Petition. Petitioner sustained serious injuries and was rushed to PRS Hospital Pvt.Ltd, Thiruvananthapuram. Treatment was continued there upto 13.03.2016 and during that period he underwent several surgical procedures. He was shifted to Specialists Hospital, Ernakulam on 19.04.2016 and he underwent several procedures there also. He continued physiotherapy after getting discharged from the hospital. He was pursuing Bachelor’s Course in Business Administration through distant education from university of Pondicherry. He also claimed to be a teacher conducting tuition classes and earning a sum of ₹15,000/- monthly therefrom. The motor accident was allegedly occurred due to the rash and negligent driving of the container lorry by the 2[nd] ``` M.A.C.A.No.1113 of 2022 ``` ``` 4 ``` respondent. The registered owner of the Lorry and it’s insurer were arrayed as respondents 1 and 3 in the Original Petition. The respondents were alleged as jointly and severally liable to pay the compensation. 4. Notice was served on all the respondents from the Tribunal. 1[st] and 2[nd] respondents did not turn up to contest the Original Petition and accordingly were declared as _ex parte_ . 3[rd] respondent filed written statement admitting insurance coverage for the container lorry bearing Registration No.AP-05-TC-7917 as on date of the motor accident. It was contended that the claims regarding the age, occupation, monthly income, nature of injuries and the treatment procedures undergone by the petitioner are to be proved by him. The negligence alleged against the 2[nd] respondent was denied and sought to be attributed to the petitioner. Claim Petition was sought to be dismissed. ``` M.A.C.A.No.1113 of 2022 ``` ``` 5 ``` 5. Before the Tribunal Exts.A1 to A28 and X1 were marked by the petitioner in evidence. Respondent No.3 did not adduce any evidence. Based on the above evidence, the Tribunal found that the motor accident in question was occurred due to the rash and negligent driving of the container lorry bearing Registration No.AP-05-TC-7917 by it’s driver who was arrayed as the 1[st] respondent. The Tribunal also found that the petitioner in view of the serious injuries sustained in the motor accident is entitled to get compensation and arrived at a sum of ₹31,29,312/as payable. Interest at the rate of 8% per annum was also ordered to be paid for the said amount from the date of filing of the Original Petition till the date of realisation. Aggrieved by the quantum of compensation stood awarded by the Tribunal for the reason that it is excessive, the 3[rd] respondent has approached this Court in the appeal on hand. ``` M.A.C.A.No.1113 of 2022 ``` ``` 6 ``` 6. The main argument advanced by the learned Senior Counsel was that ₹14,500/- was fixed notionally as the monthly income without any basis. Tribunal has fixed the monthly income as ₹14,500/- notionally. According to him, the petitioner was only a student of BBA course. In the Original Petition, he had raised a claim that he was also engaged in conducting tuition classes for students and getting ₹15,000/- monthly. It is pertinent to note that the petitioner failed to depose those aspects before the Tribunal. He did not even rely on any cogent materials to establish his claim that he was taking tuition classes for children and earning ₹15,000/- monthly. The appendix of the impugned award would reveal that documents were marked in evidence with a view to establish his status as a student at the relevant time. Copy of the pass book issued from an account maintained by him with Indian Bank is produced and marked in evidence as Ext.A24. True that the document would help ``` M.A.C.A.No.1113 of 2022 ``` ``` 7 ``` him to establish that he was maintaining an account in that bank. Statement of accounts with reference to the bank account was not produced by the petitioner. Therefore, there was nothing on record to establish the monthly income the petitioner was earning at the relevant time. Eventhen, the Tribunal took ₹14,500/- as the monthly income on a notional basis. The monthly income fixed being with reference to 2016, undoubtedly is an excess sum and this Court finds it appropriate to re-fix it. 7. The learned counsel pointed out further that ₹2,00,000/- each was awarded by the Tribunal as compensation towards pain and suffering and loss of amenities and enjoyments in life. According to him, the compensation stood awarded being excess, modification is required to reduce it. It was pointed out furthermore that without any basis, the Tribunal has allowed ₹1,50,000/- towards future treatment expenses. According to him, oral evidence to convince requirement ``` M.A.C.A.No.1113 of 2022 ``` ``` 8 ``` for future treatment is lacking in the case on hand and therefore, the Tribunal is not justified in awarding so. The learned counsel contended further that compensation stood awarded by the Tribunal under various other heads are also excessive and canvassed for modification of the impugned award as such, in interference. 8. It is found from the documentary evidence on record that the petitioner had undergone hospitalisation for four spells, that too in different hospitals. The discharge summaries issued from the hospitals were marked in evidence as Exts.A12 to A15. The treatment certificates issued were also marked in evidence as Exts.A16 and A17. It is disclosed from the above documents that the petitioner had sustained avulsion injury involving right forearm wrist and palm (40 x 16 cm) and another avulsion injury, 36 x 14 cm involving left forearm, elbow and distal arm. It is revealed further that the petitioner was primarily admitted at PRS Hospital ``` M.A.C.A.No.1113 of 2022 ``` ``` 9 ``` Pvt.Ltd, Thiruvananthapuram and was treated as inpatient from 07.03.2016 till 13.03.2016. The treatment procedures undergone by him there include wound debridement under general anesthesia and interlocking nailing for fracture of right humerus. Ext.A12 is the discharge summary issued in his favour from Specialists Hospital, Ernakulam where he had undergone treatment from 14.03.2016 till 19.04.2016. Wound debridement and skin grafting were done on 29.03.2016. Physiotherapy was also done. At the time of discharge, he was advised to continue passive left elbow movements. He was asked to review in the Plastic Surgery Department. Ext.A13 is another discharge summary for the period from 25.04.2016 till 21.05.2016. Brachial plexus palsy (left) with stiff elbow was diagnosed during the said period of treatment and he was subjected to manipulation under general anesthesia and physiotherapy for both hands. At the time of discharge, he was asked to continue ``` M.A.C.A.No.1113 of 2022 ``` ``` 10 ``` physiotherapy for right hand and left upper limb and was also advised to undergo reconstruction of ulnar nerve in (left) elbow. He was also asked to review in the Plastic Surgery Department. Ext.A14 is a discharge summary issued from Specialists Hospital for the period from 13.06.2016 till 28.06.2016. The final diagnosis during that period was severe ulnar nerve injury on left arm. He was subjected to ulnar nerve exploration and reconstruction with four cable of sural nerve graft. He was also advised to review in the Plastic Surgery Department after one week of his discharge. Ext.A15 is another discharge summary issued from the very same hospital for the period from 01.07.2016 till 08.07.2016. During that period also, the petitioner had undergone physiotherapy. He was also asked to review in the Plastic Surgery Department after one week of his discharge. The discussion made hereinabove would convince this Court that the petitioner had sustained serious extensive crush ``` M.A.C.A.No.1113 of 2022 ``` ``` 11 ``` injuries on his both hands in the motor accident and had undergone several surgical procedures for correction of those. It is further revealed from the final discharge summaries that the petitioner was also advised to attend the Plastic Surgery Department in future. 9. There is every probability for the serious injuries sustained by the petitioner to leave lengthy scars on his both hands. He being a student aged 20 years would have to suffer mental agony and depression on account of that. These aspects are not liable to be ignored while interfering with the quantum of compensation stood awarded by the Tribunal. 10. However, ₹2,00,000/- stood awarded by the Tribunal as compensation towards pain and suffering appears to this Court little bit excessive and this Court is inclined to reduce ₹50,000/- therefrom. This Court is not inclined to interfere with ₹2,00,000/- stood awarded by the Tribunal as compensation towards loss of amenities ``` M.A.C.A.No.1113 of 2022 ``` ``` 12 ``` and enjoyments in life. Thus, ₹2,00,000/- stood awarded under that head is maintained. 11. True that the petitioner failed to establish the requirement of future treatment. But, in the nature of the injuries sustained by him it is found inevitable. Therefore, eventhough no materials are produced to establish the same, the advise from the hospital to the petitioner to attend the Plastic Surgery Department in future itself can be taken as a ground to award compensation under that head. In the above circumstances, ₹1,50,000/- stood awarded by the Tribunal towards future treatment expenses is maintained. 12. This Court has gone through the FIS that was lodged by the mother of the victim immediately after the motor accident. There, her claim was that her son was a BBA student of distant education. She had not raised a claim that her son was then engaged in taking tuition classes for children. It was only in the Original Petition ``` M.A.C.A.No.1113 of 2022 ``` ``` 13 ``` filed seeking compensation that the petitioner had raised a claim that he was getting ₹15,000/- from tuition classes conducted for children. Moreover, materials are also not forthcoming to establish that he infact was earning ₹15,000/- from taking tuition classes for children. Therefore, that can only be taken as the outcome of his afterthought. In the above circumstances, this Court is of the view that the Tribunal is not justified in fixing the monthly income as ₹14,500/-. 13. In view of the discussion made regarding the injuries sustained by the petitioner in the motor accident and the lengthy treatment undergone by him with various surgical procedures, this Court is declined to interfere with the quantum of compensation stood awarded by the Tribunal under other heads and those are maintained. 14. Ext.X1 is a certificate where the permanent disability suffered by the petitioner was certified by the Medical Board as 39.6%. It appears that the Tribunal had ``` M.A.C.A.No.1113 of 2022 ``` ``` 14 ``` taken 45% as the permanent disability of the petitioner without any basis. The reasoning of the Tribunal while adopting 45% as the permanent disability of the petitioner was the serious nature of the injuries sustained and the treatment procedures undergone by the petitioner. The Tribunal has also relied on **Raj Kumar vs. Ajay Kumar and another** [2011 ACJ (1) (SC)] while considering excess percentage of disability than that was certified by the Medical Board while calculating compensation. But the Tribunal is found to have misconceived the dictum. What has been held by the Apex Court in **Raj Kumar** supra was that the Tribunal cannot adopt a mechanical approach while assessing compensation towards loss of earning power rather it has to appreciate the oral evidence let in by the petitioner and also the medical evidence let in by the medical practitioner who would speak about the incapacity of the petitioner to pursue with any avocation in future. Tribunal has misconceived the dictum in the ``` M.A.C.A.No.1113 of 2022 ``` ``` 15 ``` manner that the Tribunal has to take higher percentage than that was certified by the Medical Board. Accordingly 45% was taken as basis for calculation of compensation for permanent disability. This Court has no hesitation to hold that the Tribunal went unjustified while calculating compensation by taking 45% as the permanent disability of the petitioner. When a Medical Board has certified the permanent disability of the petitioner as 39.6%, the Tribunal is bound to rely on it and to calculate compensation on that basis itself. 39.6% is the percentage of the disability certified by the Medical Board and this Court is of the view that the Tribunal would be justified only if compensation for disability is calculated on it’s basis. Therefore, 45% of permanent disability taken by the Tribunal as basis for calculation of compensation for disability is discarded and calculation is done afresh on the basis of 39.6% certified by the Medical Board. ``` M.A.C.A.No.1113 of 2022 ``` ``` 16 ``` 15. The petitioner was a BBA student at the relevant time when he met with the motor accident. Therefore, the Tribunal is unjustified in awarding ₹1,45,000/- as compensation towards loss of earning and the same is liable to be deducted. Though he was unemployed at the relevant time monthly income is required to be assessed notionally for arriving at compensation for permanent disability. In the backdrop of the monthly income fixed notionally by the Apex Court in **Ramachandrappa V.Manager, Royal Sundaram Alliance Insurance Company limited [ (2011) 13 SCC 236]** this Court is inclined to fix it on a proportionate basis as ₹10,500/-. 16. As already stated, the petitioner had sustained serious injuries in the motor accident and had undergone lengthy treatment. He had also undergone several surgical procedures. The disability suffered by him undoubtedly would result in incapacity for him to do any work as he wishes. The petitioner was aged only 20 years at the ``` M.A.C.A.No.1113 of 2022 ``` ``` 17 ``` relevant time of the motor accident. Therefore, as per the guidelines of the Constitution Bench of the Apex Court in **National Insurance Company Limited v. Pranay Sethi and others [2017 (4) KLT 662 (SC)]** 40% is liable to be added to the monthly income fixed notionally, in consideration of loss of future prospects. When 40% is added to ₹10,500/- in consideration of loss of future prospects ₹14,700/- [₹10,500/- + (₹10,500/- + 40% of ₹10,500/-)] is arrived at. 17. When compensation for permanent disability is assessed afresh with the modified factors and maintaining those adopted by the Tribunal, the amount payable would come to ₹12,57,379/- (₹14,700/- x 12 x 18 x 39.6/100). The Tribunal in its incorrect method of calculation has awarded ₹16,20,810/-. Therefore, ₹3,63,431/(₹16,20,810/- - ₹12,57,379/-) is liable to be deducted from the compensation stood awarded by the Tribunal towards disability. ₹1,45,000/- stood awarded as ``` M.A.C.A.No.1113 of 2022 ``` ``` 18 ``` compensation towards loss of earning is also liable to be deducted. ₹50,000/- in excess stood awarded by the Tribunal as compensation towards pain and suffering is also to be deducted. 18. In the above manner of assessment afresh, ₹5,58,431/- (₹50,000/- + ₹3,63,431/- + ₹1,45,000/-) is liable to be deducted from the total sum arrived at by the Tribunal. Thus the petitioner is entitled to get only ₹25,70,881/- (Rupees twenty five lakhs seventy thousand eight hundred and eighty one only) (₹31,29,312/- - ₹5,58,431/-) with interest at the rate of 8% per annum from the date of filing of the Original Petition till the date of realisation and proportionate costs. ₹1,50,000/- stood awarded by the Tribunal towards future treatment expenses will not carry interest. The modified compensation shall be paid by the 3[rd] respondent in favour of the petitioners within a period of two months from the date on which a certified copy of this judgment is ``` M.A.C.A.No.1113 of 2022 ``` ``` 19 ``` received. The disbursal of the amount shall be in accordance with the directions issued by this Court in Circular No.03/2019 dated 06.09.2019. 19. It is submitted by the learned Senior Counsel that 80% of the amount awarded by the Tribunal has already been deposited. The Tribunal on being convinced of the deposit submitted as made, shall adjust the same in the compensation payable. M.A.C.A stands allowed accordingly. Sd/- **MARY JOSEPH** **JUDGE** NAB