National Insurance Company Ltd. v. S. Aneesh (MACA Nos. 2397/2022 & 1330/2022)

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** # **`THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN THURSDAY, THE 30[TH] DAY OF MARCH 2023 / 9TH CHAITHRA, 1945`** ## **`MACA NO. 2397 OF 2022`** # **`AGAINST THE AWARD DATED 10.01.2022 IN OP(MV) NO.530/2016 OF THE MOTOR ACCIDENT CLAIMS TRIBUNAL, THIRUVANANTHAPURAM`** ## **`APPELLANT:`** ``` NATIONAL INSURANCE COMPANY LTD DIVISIONALOFFICE, ST.JOSEPH PRESS BUILDING, VAZHUTHACAUD, THIRUVANANTHAPURAM, PIN-695010, REPRESENTED BY ITS ASSISTANT MANAGER, NATIONAL INSURANCE COMPANY, REGIONAL OFFICE, OMANA TOWERS, M.G.ROAD, ERNAKULAM, COCHIN, PIN – 682016 ``` ``` BY ADVS. LAL GEORGE SEBASTIAN VARGHESE(K/141/2000) N.S.NAJEEB ``` ## **`RESPONDENT:`** ``` S.ANEESH, AGED 40 YEARS, S/O.SASIDHARAN.G, ANEESH MANDIRAM, CHEMBAKARAMANALLOOR, ANCHAL.P.O., KOLLAM, PIN-691306, NOW RESIDING AT KOTTARATHIL, VARA-730, TAGORE LANE, VATTIYOORKKAVU.P.O., THIRUVANANTHAPURAM, PIN-695013. ``` ``` BY ADV R.T.PRADEEP ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 30.03.2023, ALONG WITH MACA.1330/2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` MACA 2397 & 1330/22 2 ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN THURSDAY, THE 30[TH] DAY OF MARCH 2023 / 9TH CHAITHRA, 1945 MACA NO. 1330 OF 2022 ``` ``` AGAINST THE AWARD DATED 10.01.2022 IN OP(MV) NO.530/2016 OF THE MOTOR ACCIDENT CLAIMS TRIBUNAL, THIRUVANANTHAPURAM APPELLANT: ``` ``` S. ANEESH, AGED 39 YEARS, SON OF SASIDHARAN G, ANEESH MANDIRAM, CHEMBAKARAMANALLOOR, ANCHAL P O, KOLLAM, PIN 691306, NOW RESIDING AT KOTTARATHIL, VARA 730, TAGORE LANE, VATTIYOORKAVU P O, THIRUVANANTHAPURAM, NOW RESIDING AT ASWATHY, TC 93/601, KGRA490 MADHUMUKKU, PETTA P.O., THIRUVANANTHAPURAM, PIN – 695024. ``` ``` BY ADVS. R.T.PRADEEP M.BINDUDAS K.C.HARISH ``` ## **`RESPONDENT:`** ``` NATIONAL INSURANCE COMPANY LTD., DIVISIONAL OFFICE, ST. JOSEPH PRESS BUILDING, VAZHUTHACAUD, THIRUVANANTHAPURAM, REPRESENTED BY ITS DIVISIONAL MANAGER, PIN – 695010 ``` ``` BY ADVS. LALGEORGE GEORGE N.S.NAJEEB ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 30.03.2023, ALONG WITH MACA.2397/2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` MACA 2397 & 1330/22 3 ## **`JUDGMENT`** ## **`[MACA Nos.2397/2022, 1330/2022]`** These matters have been heard together today, at the request of both sides and based on their consent that it can be disposed of at the stage of the admission itself, as far as one among them is concerned, since the other had already been admitted. 2. Among the afore two appeals, MACA No.2397/2022 has been filed by the National Insurance Company Ltd., assailing the Award of the Motor Accidents Claims Tribunal, Thiruvananthapuram in OP(MV)No.530/2016, to the sole extent to which it has granted Rs.19,14,600/- as compensation for ‘Loss of Amenities’ to Sri.S.Aneesh - who had been injured in a road accident on 19.05.2015, on account of the offending car - insured by them - having hit him, while standing on a road. They contend that, after the learned Tribunal had awarded just and fair compensation under every other head, the grant of an amount, as large as Rs.19,14,600/-, under the head ‘Loss of Amenities’ was impermissible. 3. While so, even after the afore appeal had been filed, MACA 2397 & 1330/22 4 Sri.S.Aneesh filed MACA No.1330/2022, impugning the same Award of the Tribunal, asserting that the compensation ordered under the head ‘Permanent Disability’ is exiguous; thus praying that it be enhanced to the amount sought for by him, namely Rs.2 Crores. 4. I have heard Sri.N.S.Najeeb, learned Standing Counsel appearing for the appellant in MACA No.2397/2022 and Sri.K.C.Harish – learned counsel appearing for the appellant in MACA No.1330/2022. 5. I have considered the afore rival submissions on the touchstone of the evidence and documents on record – copies of which have been handed over across the Bar by the learned counsel for the parties with the express consent that they can be acted upon by this Court without dispute. 6. As the afore narrative shows, there are only two issues in controversy between the parties in these appeals. While the Insurance Company assails the compensation awarded by the Tribunal under the head ‘Loss of Amenities’ as being excessive; Sri.S.Aneesh - the claimant, impugns the Award on the ground MACA 2397 & 1330/22 5 that the compensation for ‘Permanent Disability’ is exiguous. 7. I notice that the learned Tribunal has awarded compensation under the head ‘Permanent Disability’ taking the monthly income of the claimant - who is admittedly working as a Professor in a College – as being Rs.48,350/-, based on the documents proving it; and then, adopting half of it as his notional income, reckoning that he would retire when attains the age of 56 in the year 2037. The Tribunal then proceeded to adopt the multiplier of ‘9’, on the presumption that the claimant would not lose any salary or benefits during the time when he is in service, because it is a permanent employment. 8. However, it must be borne in mind that the amount of Rs.48,350/-, reckoned as the income of the claimant by the Tribunal is, as on the date of accident, or when the trial was proceeded with. He was only 34 years in age at the time of the accident and his year of birth has been certified to be 1981 - which is without contest. Obviously, by the time he retires in the year 2037, his salary would be much more than what has been reckoned by the Tribunal. True, it has added 50% as future MACA 2397 & 1330/22 6 prospects to such notional income; but am of the firm view that this would also be insufficient because, the fiscal standards of the year 2037 would be far far different from what we see even today - much less than what it was in the year 2015 – when the accident happened. 9. Therefore, when one has to reckon the notional income to be taken in such cases, certainly, every relevant and germane fact, including prospects of the claimant, his educational qualifications, the competence to work after the age of 56 and the capacity to earn beyond that period, will have to be kept in mind. As I have already said above, it is uncontested that the claimant is a Professor and who was mere 34 years at the time of the accident. The learned Tribunal has found, on evaluation of his physical condition - when he appeared before it for Trial - that he had suffered gravely, that he was unable to walk without the help of others and that his left hand has been paralysed. However, he being a Professor, this would not impede him from working beyond the age of 56, when he will normally retire from the present job; and taking into account all the afore factors, I am of MACA 2397 & 1330/22 7 the firm view that his notional income will have to be adopted as being at least Rs.37,500/- per month, which is the least that he will expect to earn after the retirement, and then to add it up with 50% future prospects as per National Insurance Company Ltd. v. Pranay Sethi [2017 (4) KLT 662 (SC)] , because, he is in permanent employment in a College affiliated to the University of Kerala. 10. Coming to the question of compensation for ‘Loss of Amenities’, the medical evidence on record graphically show the grave nature of the injuries sustained by the claimant; and in fact, this has been recorded by the learned Tribunal in great detail in paragraphs 16, 17, 18 and 19 of the impugned award, which for the purpose of avoiding repetition, is extracted ut infra: “16. In Ext.A8 discharge summary, it is recorded that the patient was earlier treated by us for head injury (craniotomy) and fracture of C2 and he was on regular follow up with us on an out patient basis and he now present with drowsiness and increased sleepiness for few days and there was history of fever chills and rigor for 01 day. On examination, he had a tense pseudomeningocele and his brain CT scan showed ventriculomegaly periventricular luencies and he was evaluated and found to have hyponatremia and urinary infection. In consultation with internal medicine doctors, the urinary tract infection treated as per culture reports and he also complained of neck pain for which a CT MACA 2397 & 1330/22 8 scan of cervical spine was done which showed healing of prior fractures and he under went left VP shunt and right frontal cranioplasty under GA on 24/10/2015. 17. In Ext.A9 discharge summary, it is recorded that the patient was alright till 19/05/2015 when he allegedly met an accident while walking on the road side and he was hit from the back and sustained a fall and he was disoriented but was conscious following the accident and he was taken to the near by hospital where his documented GCS was 15 and he was awake but disoriented and agitated and imaging was done which showed contusion in both the frontal lobes and was decided to managed in the left upper and lower limbs, repeat CT brain showed midline shift and increasing cerebral edema. He underwent emergency decompression craniotomy and was electively intubated post surgery and he regained sensorium after weaning of the ventilation and relatives noticed weakness of left upper and lower limb, with mild cognitive decline in terms of recent memory and he was started on physiotherapy and discharged to continue the same and he was improving gradually. But on 12th October, relatives noticed sudden decline in sensorium and drowsiness and he was taken to the hospital where investigations showed hyponatremia and CT brain showed hydrocephalus and pseudomeningocele and he underwent Cranioplasty and VP shunt procedure on 24/10/2015. On 2nd postoperative day he developed focal seizures with secondary generalisation and weakness of left upper and lower limbs and he was managed with antiepileptics and he gradually improved in sensorium and weakness reduced with improvement in voluntary control after few days and currently he is dependent for all the activities of daily living and has some behaviour issues. It is further recorded that after two weeks from the date of admission, it was noticed that he was talking excessively and had lower anger threshold and irritability and within the next few days the anger episodes increased and he did not co-operate in therapy and there was verbal aggression and an emergency psychiatry consultation was obtained and he was diagnosed to be in a state of hypomania. Thereafter, he started becoming more drowsy and there was a decrease in his tempo of speech and he was not properly identifying relatives and the next day, the drowsiness had worsened and he was not at all co-operative and there was a stooped posturing of the neck and he needed more support for ambulation. Over the next one week, he still remained drowsy MACA 2397 & 1330/22 9 and the stooping of neck persisted and he also developed drooling of saliva and slurring of speech. In physiotherapy, he was given strengthening exercises and functional electrical stimulation was given to the key group of muscles in the left upper and lower limb and ambulation training was started in parallel bar and he progressed to quadripod and then a cane and at discharge, he was able to walk with a cane under supervision. In occupational therapy, he was given balance activities and he was taught transfers which he was able to do with verbal prompts and cognitive skills were worked at and there was an improvement in memory and attention and functional abilities were taught for which he needed minimal assistance and bilateral hand activities were taught and mirror therapy was given and he was encouraged to participate in his activities of daily living. 18. In Ext.A10 discharge summary, it is recorded that the patient has reported with abdominal pain and vomiting and percutanoeus cholecystomy done under LA on 05/09/2016. In Ext.A11 discharge summary, it is recorded that again developed abdominal pain and LAP Cholecystectomy done under GA on 03/11/2016. In Ext.A12 discharge summary, it is recorded that recently detected DM with Ketosis and organic mood disorder. 19. It is evident from the above medical records that the petitioner herein had sustained severe head injury and other bodily injuries and he was treated as in-patient for total 230 days and still continues his treatment. The major injuries sustained to him are severe head injury, Bifrontal haemorrhagic contusion and Type-III Anderson fracture Odontoid process of his spine. On going through the medical records, it can be seen that frontal contusions are often the result of sufficient inertial loading and acceleration combined with a sudden stop, i.e., head impact or abrupt change in the direction of the head's movement, which is often referred to as deceleration and type - III odontoid fracture is a fracture through the body of the C2 vertebrae and may involve a variable portion of the C1 and C2 facets and ventriculoperitoneal shunt (VP shunt) is a medical device that relieves pressure on the brain caused by fluid accumulation and it is a condition called hydrocephalus and this condition occurs when excess cerebrospinal fluid (CSF) collects in the brain's ventricles and Doctors surgically place VP shunts inside one of the brain's ventricles to divert fluid away from MACA 2397 & 1330/22 10 the brain and restore normal flow and absorption of CSF.” 11. The medical records also show – as is fully admitted - that the appellant was hospitalised for 221 days and that, as already seen above, the aftermath of the injuries still continue to haunt him, including by incapacitating from walking without assistance and in enduring paralysis to his left hand. He is also suffering a condition called hydrocephalus, which is caused by fluid accumulation; with surgical procedures having been done to drain it and which may require to be done, as and when it becomes necessary. 12. In fact, Ext.C1 - Disability Certificate issued by a competent Medical Board, takes into account all these factors, to certify his permanent disability to be 55%. Since the appellant is engaged in academic pursuits, this disability will not hinder it; but had he been in any avocation requiring physical activity, his functional disability could have been even justified to a higher percentile. 13. Even taking note of all the above, I have little doubt MACA 2397 & 1330/22 11 that the compensation awarded by the Tribunal under the head ‘Loss of Amenities’ is excessive, because sufficient compensation has been granted under the head ‘Permanent Disability’. It has been well established by several judgments of this Court, as also of the Honourable Supreme Court, that when the disability is adequately compensated, sums under the head ‘Loss of Amenities’ will have to be kept to the minimum apposite extent. In this case, I am certainly of the view that an amount of Rs.3,00,000/- would suffice. 14. Before I conclude, am cognizant of the fact that, in spite of the challenge of the Insurance Company being confined at the Bar to the afore, its learned Standing Counsel also raises a contention regarding the compensation awarded by the Tribunal towards ‘Pain and Suffering’ in favour of the claimant. The sum awarded is Rs.5,00,000/-; and at first blush, in any other case, it might look high. However, adverting to the fact that the appellant had to suffer 221 days of in-patient treatment and had to undergo several surgeries, including of his brain; and has to carry ‘stents’, ‘shunts’ and such other medical articles, in order to address his MACA 2397 & 1330/22 12 condition of hydrocephalus, I have no doubt that the compensation awarded under the said head is just and fair and does not require to be interdicted in any manner. In the afore circumstances, a) The compensation under the head ‘Permanent Disability’ is enhanced to Rs.25,61,625/-, reckoning the notional income of the claimant, after retirement at the age of 56 years, to be Rs.37,500/- per month; with 15% future prospects added to it and retaining his permanent disability to be 55%, as is undisputed and certified by Ext.C1. b) The compensation under the head ‘Loss of Amenities’ is reduced to Rs.3,00,000/-, from Rs.19,14,600/- as awarded by the Tribunal. c) In all other heads, the findings of the Tribunal will remain unaltered. Consequently, 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 of 8% as awarded by the Tribunal, from the date of claim until it is recovered. He will also MACA 2397 & 1330/22 13 be entitled to proportionate costs on the enhanced amount, as ordered by the Tribunal. In view of the afore, the amount as fixed above shall be deposited by the Insurance Company before the learned Tribunal, within a period of two months from the date of receipt of a copy of this judgment. ``` Sd/- ``` ## **ACR/RR** ``` DEVAN RAMACHANDRAN JUDGE ```