National Insurance Company Ltd. v. Renu @ Ponnan (MACA Nos. 1522/2018 & 1234/2019)

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN WEDNESDAY, THE 22[ND] DAY OF FEBRUARY 2023 / 3RD PHALGUNA, 1944 MACA NO. 1522 OF 2018 ``` ``` AGAINST THE AWARD DATED 18.8.2017 IN OPMV 463/2014 OF THE ADDITIONAL MOTOR ACCIDENTS CLAIMS TRIBUNAL, NORTH PARAVUR ``` ## **`APPELLANT:`** ``` NATIONAL INSURANCE CO. LTD. NORTH PARAVUR, REP. BY THE MANAGER, KOCHI REGIONAL OFFICE, M.G ROAD, ERNAKULAM, COCHIN - 682 036. ``` ``` BY ADV SRI.E.M.JOSEPH ``` ## **`RESPONDENT:`** ``` RENU @ PONNAN, AGE 48, S/O. THANKAPPAN, KOLPURATH HOUSE, AYYAMPILLY KARA,KUZHUPPILLY, ERNAKULAM DIST, PIN - 682 501. ``` ``` BY ADV SRI.A.N.SANTHOSH ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 22.02.2023, ALONG WITH MACA.1234/2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` MACA 1522/18 & 1234/19 2 ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN WEDNESDAY, THE 22[ND] DAY OF FEBRUARY 2023 / 3RD PHALGUNA, 1944 MACA NO. 1234 OF 2019 ``` ``` AGAINST THE AWARD DATED 18.8.2017 IN OPMV 463/2014 OF THE ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL, NORTH PARAVUR ``` ## **`APPELLANT:`** ``` RENU @ PONNAN, AGED 49 YEARS S/O.THANKAPPAN, KOLPURATH HOUSE, AYYAMPILLY KARA, KUZHUPILLY VILLAGE. ``` ``` BY ADV A.N.SANTHOSH ``` ## **`RESPONDENTS:`** ``` NATIONAL INSURANCE COMPANY LTD FIRST FLOOR, MUNICIPAL SHOPPING COMPLEX, MAIN ROAD, N.PARAVUR-683513. ``` ``` BY ADV SRI.E.M.JOSEPH ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 22.02.2023, ALONG WITH MACA.1522/2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` MACA 1522/18 & 1234/19 3 ## **`JUDGMENT`** ``` [MACA Nos.1522/2018, 1234/2019] ``` I am considering these Appeals together since the challenge in them against the same Award of the Tribunal, namely the Motor Accidents Claims Tribunal, North Paravur (hereinafter referred to as ‘the Tribunal’ for short). 2. The appellant in MACA 1234/2019 was grievously injured in a road accident on 27.02.2014, while the motor cycle ridden by him was hit against a bus driven by respondents 1 and 2 in a rash and negligent manner. The bus was insured by the respondent – National Insurance Company and the claimant thereupon filed OP(MV) No.463/2014, seeking a compensation of Rs.20,00,000/-, but which has been awarded by the Tribunal only to the extent of Rs.15,08,347/-. The appellant impugns this Award of the Tribunal on the ground that it is exiguous. 3. While so, the National Insurance Company Ltd. has filed MACA 1522/2018, alleging that the compensation awarded by the Tribunal is excessive; and thus praying that same be reduced. MACA 1522/18 & 1234/19 4 4. I have heard Sri.E.M.Joseph – learned Standing Counsel appearing for the Insurance Company and Sri.A.N.Santhosh – learned counsel for the appellant in MACA 1234/2019. 5. Sri.E.M.Joseph argued that the compensation awarded by the Tribunal is excessive because, it has incorrectly added future prospects of 30% to the notional income of the claimant and then enhanced the percentile of disability to nearly more than double of what has been found by the competent Medical Board in Ext.X1 – Certificate. He argued that if both these are rectified, then the compensation awarded would be much lower, than what has been now offered. 6. In response and in defence of his client’s plea, Sri.A.N.Santhosh – learned counsel for the appellant/claimant, however, submitted that the Tribunal has erred in adopting the notional income of his client as a mere Rs.7,000/-, when he had claimed Rs.20,000/-, because he was working as a ‘Pump Operator’. He argued that, therefore, when his client suffered grievous injuries, particularly to the leg, the prospects of working as a ‘Pump Operator’ was completely extinguished and MACA 1522/18 & 1234/19 5 consequently, that the Tribunal has acted correctly in awarding 30% future prospects and increasing the percentile of functional disability to 55%, though in Ext.X1, the whole body disability has been certified to be only 22.01%. 7. Sri.A.N.Santhosh then argued that, going by the nature of injuries sustained by his client and its aftermath, especially the treatment that he had to endure, the compensation for ‘Pain and Suffering’ is inadequate; while nothing was given under the head ‘Compensation for Disfiguration’, though the Tribunal has found correctly in its order that ‘there was an ugly deformity of the appellant’s right leg even visually’ (sic). He thus prayed that the compensation awarded by the Tribunal be enhanced, granting his client just and sufficient one under the afore two heads also. 8. I have considered the above recorded rival contentions on the touchstone of the evidence produced 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. 9. Upfront, I must say, that the notional income adopted MACA 1522/18 & 1234/19 6 by the learned Tribunal cannot find my favour because, even in the case of a person whose income is unascertainable in the year 2014, the Honourable Supreme Court, in Ramchandrappa v. Manager, Royal Sundaram Alliance Insurance Company Ltd. [(2011) 13 SCC 236], has postulated that an average figure of Rs.9,500/ought to be adopted. Of course, the claimant has asked for Rs.20,000/- as his income, but in the absence of any corroborating evidence to prove Ext.A13 – Salary Certificate produced by him, I cannot find the Tribunal to have acted wrongly, in not accepting the entries therein, which is to the effect that he was earning Rs.700/- per day as a ‘Pump Operator’. 10. However, the fact remains that the avocation of the claimant as a ‘Pump Operator’ has been mentioned in Ext.A13, and to that extent, I am certain that I can find favour with it – since the same remains undisputed. This is important because, going by Rajani v. Oriental Insurance Company Ltd. [2022 (5) KLT Online 1012 (SC)], this Court can take a robust view in the case of a person who was engaged in a technical avocation. I, therefore, propose that the notional income of the claimant be taken as MACA 1522/18 & 1234/19 7 Rs.10,000/-, which is not much more than what is postulated by Ramachandrappa (supra). 11. Of course, when I say this, it is also available on record that, in Ext.A1 – FIR, the averment of the claimant was that he was running a poultry shop. However, it is understood that it was a statement given when he was in a state of delirium, immediately after the accident; and hence, I cannot find Ext.A13 – Salary Certificate to be incapable of any credibility, at least with respect to his avocation. 12. That being said, no doubt that Ext.X1 – Disability Certificate shows the claimant’s whole body disability to be 22.01%. However, it also records indubitably that the claimant has suffered grave disability on his right leg and that he would be unable to work in the avocation in which he was engaged earlier. The claimant asserts that he cannot lift weight because of shortening of his right leg, which incapacitates him from climbing steps and even from walking; and therefore, that most of the traditional work would be now unavailable to him. 13. However, I cannot find any germane reason for the MACA 1522/18 & 1234/19 8 Tribunal to have reckoned the functional disability of the claimant to be 55%, when there is nothing to show that he has been incapacitated from working at all, or that he cannot earn a living consequent to the injury. But, before I conclude upon this, I must certainly go through the medical evidence available on record. 14. Ext.A4 is the Wound Certificate issued by the Hospital, after examining the claimant immediately after the accident. He was, thereafter, admitted to another hospital, which is evident from Ext.A5 – Discharge Certificate. This certificate records that the claimant suffered fracture of both bones of his right leg, leading to ‘wound debridement and IMIL nailing of right leg’ (sic). He also had to undergo plastic surgery, including ‘flap re-insetting of the right leg’. Ext.A6 is another Discharge Certificate, which shows that the claimant had to be hospitalised on account of ‘purulent discharge’; and subsequently, he was taken to another two hospitals for follow up treatment and such other medical actions. Thereafter, he had to be admitted to the Medical Trust Hospital on 22.10.2014, for ‘dynamization and fibulectomy’, which led to severe disfigurement of his right leg. In fact, Ext.X1 – MACA 1522/18 & 1234/19 9 Disability Certificate certifies all these and also says that there is an ‘ugly deformity’ of the right leg, along with numbness. It records that a portion of the damaged bone had to be removed and that the claimant must have gone through great trauma. 15. Taking the totality of all these and the fact that the claimant had been hospitalised for more than 50 days, I am certain that, as far as the functional disability and avocation are concerned, it certainly required to be reckoned as more than what was certified in Ext.X1, but not to the extent as adopted by the Tribunal. I, therefore, propose to revise it as being 30% and record that this is not opposed by both sides. 16. That being said, when a person suffers from 30% disability, surely, his future prospects would also have to be taken care of; and I, therefore, propose that it be reckoned as 10%, instead of 30%, as has been now adopted by the Tribunal. 17. Coming to the compensation under ‘Pain and Suffering’, I have no doubt that the amount of Rs.40,000/- awarded by the Tribunal is extremely inadequate and I propose it to be Rs.1,25,000/-. Similarly, when disfigurement has been admitted MACA 1522/18 & 1234/19 10 and remains proved by Ext.X1, I propose that the compensation under such head be awarded to the claimant to a sum of Rs.50,000/-. 18. Needless to say, when the notional income of the claimant is to be taken as Rs.10,000/- per month, the compensation under the head ‘Loss of Income for six months’ as awarded by the Tribunal will also have to be revised. 19. As regards the compensation for ‘Loss of Amenities and Convenience in Life’, I cannot find approval in the contention of the Insurance Company that it be reduced, because of the same reasons I have said above, especially the grievous nature of the injuries and the aftermath of the treatment, that must have put the claimant to great trauma and shock. Consequently, these Appeals are ordered in the following manner: a) The compensation under the head ‘Loss of Earning Power’ is revised to Rs.5,54,400/-, instead of Rs.8,40,840/- granted by the Tribunal, taking the notional income of the claimant to be Rs.10,000/- per month with 10% Future Prospects added and his MACA 1522/18 & 1234/19 11 functional disability being reckoned as 30%. b) Axiomatically, the compensation under the head ‘Loss of Income for six months’ is enhanced to Rs.60,000/-, from Rs.23,100/-. c) The compensation for ‘Pain and Suffering’ is enhanced to Rs.1,25,000/-, from Rs.40,000/- as granted by the Tribunal. d) An additional amount of Rs.50,000/- is awarded to the claimant under the head ‘Compensation for Disfiguration’. e) In all other heads, the findings of the Tribunal will remain unaltered. Needless to say, the claimant will be at liberty to recover the compensation, as modified by this Court, from the Insurance Company, along with interest at the rate 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. However, while computing the interest, a period of 454 days - being the delay caused by the claimant in filing the Appeal – shall stand deducted, but only qua those heads in which this Court MACA 1522/18 & 1234/19 12 has enhanced the compensation. ``` Sd/- ``` ``` RR ``` ``` DEVAN RAMACHANDRAN ``` ``` JUDGE ```