New India Assurance Co. Ltd. v. Fepin P. Paul and Sajeer B.K. and United India Insurance Co. Ltd.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE T.R.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH** **WEDNESDAY, THE 2ND DAY OF SEPTEMBER 2015/11TH BHADRA, 1937** **MACA.No. 345 of 2012 ()** **-----------------------AGAINST THE AWARD IN OPMV 1535/2007 of M.A.C.T., ERNAKULAM DATED 17-08-2011** **-----------------------------------------------------** ## **APPELLANT(S)/APPELLANT/2ND RESPONDENT IN OPMV :** **--------------------------------------------------------------------------------------** **THE NEW INDIA ASSURANCE CO.LTD S.M. SHOPPING COMPLEX, ALUVA ROAD, ANGAMALY 72 REPRESENTED BY THE DULY CONSTITUTED ATTORNEY (M.G.RAMACHANDRAN NAIR), REGIONAL OFFICE KANDAMKULATHY TOWERS, M.G.ROAD, KOCHI 682011** ## **BY ADV. SRI.M.JACOB MURICKAN** ## **RESPONDENT(S)/PETITIOENR :** **------------------------------------------------** ## **1. FEPIN.P.PAUL** **S/O. P.A. PAULSON, PARAMMEL HOUSE, ST.JAMES ROAD CHERANELLOOR P.O. ERNAKULAM PIN 682034** ## **2. SAJEER B.K. S/O. KABEER,** - **BEERAMPARAMBIL VEETTIL, NEAR SOCIETYPPADY BUS STOP EDPPALLY, PIN 682024** **3. THE UNITED INDIA INSURANCE CO.LTD., VETTUKATTIL BUILDINGS, M.G.ROAD, ERNAKULAM 682016** **R1 BY ADV. SRI.K.J.MANU RAJ ADV. SRI.K.JANARDHANAN R2 BY ADV. SRI.JACOB MURIKAN R3 BY ADV. SRI.MATHEWS JACOB (SR.) R3 BY ADV. SRI.P.JACOB MATHEW R BY SRI.JOHN JOSEPH VETTIKAD** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 02-09-2015, ALONG WITH MACA.NO.613/2012 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **VS** ## **T.R.RAMACHANDRAN NAIR, & K.P.JYOTHINDRANATH, JJ.** **--------------------------------------------------M.A.C.A.Nos.345 & 613 of 2012** **---------------------------------------------------** Dated this the 2[nd] day of September, 2015 ## **JUDGMENT** ## T.R.Ramachandran Nair, J. These appeals have been filed by the respective appellants, aggrieved by the award passed by the Motor Accidents Claims Tribunal, Ernakulam in O.P(MV). No.1535/2007. 2. In M.A.C.A.No.345/2012 the appellant is the Insurance Company and in M.A.C.A.No.613/2012 the appellant is the claimant who is seeking further enhancement of the amount awarded by the Tribunal. 3. The claimant who is the appellant in M.A.C.A.No.613/2012 was riding a motor cycle on 06.05.2007 and it was hit by the offending vehicle namely an autorickshaw bearing Reg.No.KL/7-AY.4036 at about 10.30 a.m. near St.James Road, Cheranelloor. He was a _M.A.C.A.Nos.345 & 613 of 2012 2_ student in B.Tech Engineering(6[th] Semester) at Cochin University of Science and Technology and was aged 20 years as on that date. 4. The certificates Exts.A2, A10 and A14 have recorded the following details. The claimant had sustained severe head injury, “Left fronto temporoparietal acute subdural haematoma and temporoparietal contusion, fracture nasalbone, fracture posterior and lateral wall off orbit (L) C pneumo orbit and blood in nasal cavity. Traumatic let optic neuroplasy ® hemiparacis power grade IV.NCCT head (06.05.2007), An intra parenchaymal hematoma (4.7 x 2.8 cm) is noted involved left insular cortex and left parietal region. Mass effect in from of midline shift of 1.4 cm to right with subfalcine herniation and effacement of occipital and temporal horn of left lateral ventricle noted. A thin sudural hemorrhage noted along left fronto parietal region; subarchnoid hemorrhage noted along sulci in same region” and he was admitted in Amritha Institute of Medical Science, Ernakulam for treatment. The Tribunal has granted a total amount of Rs.13,36,342/- as compensation under different heads. _M.A.C.A.Nos.345 & 613 of 2012 3_ 5. In the appeal filed by the claimant, further enhancement is sought for under various heads. In the appeal filed by the insurance company, objections have been raised with regard to the award passed for loss of earnings at Rs.50,000/-, loss of attendance of class at Rs.25,000/-, fee for scribe who attended the examination on behalf of the appellant at Rs.36,000/- and it is also submitted by the learned counsel for the insurance company Sri.Jacob Murikan that the Tribunal has went wrong in granting Rs.50,000/- for loss of marriage prospectus, when Rs.50,000/- was already granted for disfiguration. 6. As far as the claimant's appeal is concerned, the learned counsel mainly submitted that the Tribunal has fixed only an amount of Rs.5,000/-, as notional income, without considering the potential of the appellant as a B.Tech student. It is also submitted by relying upon the judgment of the Apex Court in _**Oriental Insurance Company v. B.Ramulamma & Another**_ in CC.No.9896/2010 and connected SLP.No.10010/2010, that fixing Rs.12,000/- as probable salary of a B.Tech graduate _M.A.C.A.Nos.345 & 613 of 2012 4_ was upheld, where the accident occurred in the year 1995. It is submitted that even though herein the claimant was in the 6[th] semester, but he had good prospects being a bright student. Therefore, the learned counsel submits that further enhancement of amount is eligible on that score. It is also submitted that the compensation granted under other heads also require proper enhancement. 7. We have considered the rival submissions. Injuries as already noticed were very serious. Exts.A10 to A14 are the discharge summaries, and Exts.A15 is the C.T. scan report. The Tribunal has also perused Ext.A65, photographs of the claimant, in which, the scar of the surgery conducted on the middle portion of the skull covering left side for flap replacement using titanium mould, was visible. The claimant was examined as PW1 and he has stated that fixation of artificial skull has resulted in persistent irritation on the left side of the skull. During treatment period different surgeries were conducted including left frontotemperoparietal decompressive craniectomy, evacuation of acute SDH and _M.A.C.A.Nos.345 & 613 of 2012_ _5_ contusion, bone flap re-implantation, re exploration and removal of inflected bone flap, obliteration of sinus under GA etc. It required treatment spreading over more than 29 months. The total period of treatment as inpatient in Amritha Institute of Medical Science would come to 146 days. Due to the visual problems, he was treated in the Sreedhareeyam Ayurvedic eye hospital for a period of 28 days and thus the total inpatient period will come to 174 days. 8. The District Medical Board, Alappuzha has assessed the percentage of disability at 63 in the following manner and the same is evidenced by Ext.X1. |(a) Neurological disability|-|47%| |---|---|---| |(b) Right upper limb mono paresis -||25%| |(c) Mild speech disability|-|25%| |(d) Visual disability||| |(traumatic optic Neuropathy) -||30%| |(e) Dominant extremity|-|4%| 9. The Tribunal has also noted in paragraph 13 while the claimant was examined as PW1 that he was not in a position to speak as an ordinary man as the speech was slurred. _M.A.C.A.Nos.345 & 613 of 2012 6_ 10. The learned counsel also submitted that Exts.A42 to A59 are the mark lists of B.Tech degree examinations and to show the proficiency in sports, he has produced Exts.A69 to A73. It is submitted therefore that he was a person with good physique also. 11. According to the learned counsel for the appellant, even now, he is unable to get a good job, because of various factors including disfiguration and all these will have to be considered for assessing due compensation. 12. As far as the loss of partial earnings claimed by the appellant is concerned, we find from the award that the claim was for a period of 29 months, while he was under treatment. As rightly pointed out by the learned counsel for the insurance company, being a student unlike a case where an employee gets loss of earnings, here the claimant will not be entitled for the said amount as already Rs.25,000/- has been granted towards loss of student days. Therefore the amount of Rs.50,000/- granted towards loss of earnings cannot be supported and we delete the same. _M.A.C.A.Nos.345 & 613 of 2012 7_ 13. The further objection raised by the learned counsel for the insurance company Sri.Jacob Murikan is to the award of Rs.36,000/- towards fee for the scribe, who attended the examination, after it was permitted by the Controller of Examinations, Cochin University. The documents produced as Exts.A61 to A64 will show that he was granted permission to have the service of a scribe. The learned counsel for the insurance company submitted that there is no evidence to show that the scribe had attended the examinations and had received the money. The learned counsel for the claimant submitted that what was claimed towards fee for the scribe is at the rate of Rs.1,000/- per day and the examination was attended by him and hall tickets of the same have been produced as Exts.A25 to A40. The Tribunal has fixed an amount of Rs.500/- per day. Since the claimant had obtained permission for a scribe, there is nothing to disbelieve his claim and we have no reason to interfere with the amount granted towards fee for the scribe. 14. As far as the item of disfiguration is concerned, it is due to the cumulative effect of the injuries _M.A.C.A.Nos.345 & 613 of 2012 8_ to the skull, visual disability etc. It will also result in loss of prospectus of marriage. Even if both items are combined, it will come only at Rs.1,00,000/-, which we find as reasonable. 15. Now we will come to the claims for further enhancement under different heads by the claimant. For by-standers expenses, the Tribunal granted Rs.25,000/and we grant it at the rate of Rs.200 for 174 days at Rs.35,000/-. As far as extra nourishment is also concerned, since the period of inpatient treatment was 174 days, we grant Rs.5,000/- more, making it at Rs.10,000/- as total. 16. The major item is regarding the compensation for permanent disability. We have gone through the decision of the Andra Pradesh High Court in _**B.Ramulamma and others v. Venkatesh Bus Union and another**_ reported in 2011 ACJ 1702. There, their Lordships have considered various principles while fixing the compensation as regards the case of a B.Tech student who died in an accident. He had actually graduated unlike the case herein where the claimant was in the 6[th] _M.A.C.A.Nos.345 & 613 of 2012 9_ semester. In Paragraph 50 the principles have been elaborately considered and we extract the relevant portion herein. _“As far as the students, who completed or are in final year or last semester of B.Tech., B.E., B.C.A., M.Tech., M.E. or M.B.A., M.C.A., etc. courses and who died in the motor accidents or sustained permanent disability, their salaries also can be fixed on the basis of the salary of their classmates when they entered into jobs. Some percentage, say, 10 percent per year can be deducted in respect of the students studying in III year or II year as the case may be.”_ 17. Finally in paragraph 52, it was held that the minimum income of a B.Tech graduate can be fixed as Rs.12,000/- per month. In that case the accident had occurred on 01.05.1995. The Apex Court in the appeal from the said case, after extracting paragraphs 48 to 50 of the judgment held that the enhancement granted by the Division Bench of the High Court is based on the sound reasons and do not call for any interference. Since the appellant was not a graduate but was only in the 6[th] semester, according to us, a reasonable amount can be assessed as monthly income at the rate of Rs.10,000/- per _M.A.C.A.Nos.345 & 613 of 2012 10_ month. Evidently he was a bright student going by the records produced. Therefore, he would have been selected in the campus selection and would have secured a good job also. The claimant was at the age group of 20 at the time of accident and therefore the multiplier applicable is 18 instead of 17 adopted by the Tribunal. Therefore, by fixing a monthly income at the rate of Rs.10,000/-, we re-fix the compensation in the following ## manner; |**_Head of Claim_**|**_Amount awarded in_**<br>**_Rupees_**| |---|---| |(a) Transportation expenses|Rs.2,000/-| |(b) Damage to clothing|Rs.500/-| |(c) Extra nourishment|Rs.10,000/-| |(d) Medical expenses|Rs.2,45,242/-| |(e)<br>Bystanders<br>expenses<br>(174x200=34800. Round off to<br>Rs.35,000/-)|Rs.35,000/-| |(f) Pain and suffering|Rs.80,000/-| |(g) Loss of attending class|Rs.25,000/-| |(h)<br>Dis<br>figuration<br>and<br>compensation for loss of<br>marriage prospects|Rs.1,00,000/-| |(i) Compensation for future<br>treatment|Rs.25,000/-| |(j) Compensation for permanent<br>disability<br>(10,000x12x18x63/100)|Rs.13,60,800/-| |(k) Fee for the scribe|Rs.36,000/-| |(l) Loss of amenities and<br>enjoyments in life|Rs.1,00,000/-| _M.A.C.A.Nos.345 & 613 of 2012_ _11_ |**_Head of Claim_**|**_Amount awarded in_**<br>**_Rupees_**| |---|---| |**_Total_**|Rs.20,19,542/-(Rupees<br>Twenty lakhs nineteen<br>thousand five hundred<br>and forty two only)| |**Rounded off to**|**Rs.20,19,500/-**(Rupees<br>Twenty lakhs nineteen<br>thousand<br>and<br>five<br>hundred only)| 18. Even though, it is contended by the learned counsel for the claimant that this Court should consider the difficulty of the appellant to obtain a job in the job market, since it is a case where the claimant is not completely incapacitated or to have an avocation of his own, being an engineering graduate who has obtained degree in civil engineering, we will not be justified in taking into account the loss of any of future prospects as all the components have been covered by taking the percentage of disability at 63. The total compensation is fixed at Rs.20,19,542/- which we round off to **Rs.20,19,500/** -(Rupees Twenty lakhs nineteen thousand and five hundred only). The Tribunal has already granted 9% interest from the date of filing of the petition, which we maintain. We hold that the appellant in M.A.C.A.No.345/2012 will satisfy the award and the _M.A.C.A.Nos.345 & 613 of 2012 12_ amount will be deposited along with interest less the amount already deposited within a period of three months and we permit the appellant/claimant in M.A.C.A.No.613/2012 to withdraw the amount once deposited. Therefore both the appeals are disposed of accordingly. Parties will suffer their costs in the appeal. Sd/- **T.R.RAMACHANDRAN NAIR, JUDGE** Sd/- **K.P.JYOTHINDRANATH, JUDGE** vs /TRUE COPY/ PA TO JUDGE