N.K. Jose v. Joby K. Joseph, Sheela and The New India Insurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN** **WEDNESDAY, THE 5[TH] DAY OF JANUARY 2022 / 15TH POUSHA, 1943** ## **MACA NO. 758 OF 2015** **AGAINST THE ORDER/JUDGMENT IN OPMV 831/2008 OF MOTOR ACCIDENT** ## **CLAIMS TRIBUNAL, PERUMBAVOOR** ## **APPELLANT/PETITIONER:** **N.K JOSE AGED 46 YEARS, S/O. KURIAKOSE, NELLIMATTATHIL HOUSE, NELLADU, MAZHUVANNOOR VILLAGE.** **BY ADVS. SRI. T.N. ARUNKUMAR SRI. VIPIN NARAYAN** ## **RESPONDENTS/RESPONDENTS:** |**1**|**JOBY K. JOSEPH**| |---|---| ||**S/O. JOSEPH, KANDATHIL HOUSE,**| ||**RAYAMANGALAM VILLAGE,**| ||**KATTAPANNA VILLAGE – 683 645.**| |**2**|**SHEELA**| ||**W/O. RAMANNA, VEDACHIRA HOUSE,**| ||**KUNNUACKAL P. O.,**| ||**VALAKAM – 683 661.**| |**3**|**THE NEW INDIA INSURANCE CO.LTD.**| ||**MADAPARAMBIL CHAMBERS,**| ||**M.C. ROAD, MUVATTUPUZHA – 686 661.**| ||**SRI.JOY JOSEPH (MANAYATHU)**| **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 05.01.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **M.A.C.A No.758 OF 2015** **2** ## **JUDGMENT** This appeal is preferred by the petitioner in O.P(M.V) No.831 of 2008 on the file of the Motor Accidents Claims Tribunal, Perumbavoor. The status of the parties are referred to as it appears in the claim petition. 2. On 15.01.2008, while the petitioner was travelling in an autorickshaw bearing Registration No. KL-40/6438, it collided with another autorickshaw bearing Registration No. KL-17/E -4427 driven by the 1[st] respondent and the petitioner sustained injuries. The petitioner preferred the claim petition claiming an amount of Rs.8,00,000/- as compensation for the injuries sustained in the accident. The respondents 1, 2 and 3 are the driver, owner and insurer respectively of the autorickshaw bearing Registration No. KL-17/E -4427 and respondents 4 to 6 are the driver, the owner **M.A.C.A No.758 OF 2015** **3** and the insurer respectively of the autorickshaw in which the petitioner was a passenger. The respondents 1, 2, 4 and 5 remained ex parte before the Tribunal. 3. The 3[rd] respondent, Insurance Company filed a written statement admitting that the autorickshaw bearing Registration No. KL-17/E -4427 was insured with them at the time of accident, but contended that the accident happened due to the negligence of the driver of autorickshaw, in which the petitioner was a passenger. The 3[rd ] respondent also contended that the amount claimed as compensation is excessive and exorbitant. 4. The Tribunal found that, the accident happened due to the negligence of the 1[st] respondent, the driver of the autorickshaw bearing Registration No. KL-17/E-4427 and awarded an amount of Rs.1,31,751/- as total compensation with 8% interest per annum from the date of petition till realisation. The 3[rd] respondent insurance company was directed to **M.A.C.A No.758 OF 2015** **4** satisfy the award. 5. This appeal is filed by the petitioner contending mainly that, the amount of compensation awarded under the heads pain and suffering, extra nourishment, future treatment, and loss of earning power is not adequate in view of the nature of the injuries sustained by him. Referring to Ext. A6 wound certificate, Ext. A7 discharge summary, Ext. A8 treatment certificate and Exts. A9 and A10 medical certificates, the Tribunal at Paragraph No.20 of the award narrates the nature of injuries sustained by the petitioner in the accident and the same is extracted below:- _“20. The petitioner had sustained bifrontal contusion, left temporal contusion, fracture radial styloid left and hyponatrimia. CT of head and X-ray were also taken. He had undergone bifrontal craniotomy and right temporal craniectomy and evacuation of contusion on 17.1.2008. Hyponatrimia was corrected with 3% saline and his condition gradually improved.”_ **M.A.C.A No.758 OF 2015** **5** Craniotomy is the surgical removal of part of the bone from the skull to expose the brain. The bone flap is temporarily removed, then replaced after the brain surgery has been done. Craniectomy is a neuro surgical procedure that involves removing a portion of the skull in order to relieve pressure on the underlying brain. The petitioner had undergone bifrontal craniotomy and right temporal craniectomy. The petitioner was an inpatient in MOSC Medical College Hospital from 15.01.2008 to 03.03.2008 and Ext.A8 treatment certificate shows that he was on regular follow-ups which is to be continued throughout his life. He has to avoid strenuous work as it may precipitate seizure. 6. Going by the nature of injuries sustained by the petitioner, I find that, the amount awarded under the head pain and suffering is quite inadequate. The petitioner has claimed an amount of Rs.50,000/- under the head pain and suffering. Going through the nature **M.A.C.A No.758 OF 2015** **6** of injuries, I find that, Rs.50,000/- will be a just and reasonable compensation to be awarded under the head pain and suffering. Therefore, an additional amount of **Rs.15,000/-** is awarded as compensation under the head pain and suffering. 7. The contention of the petitioner is that, the amount awarded under the head loss of amenities in life is totally inadequate. Though the petitioner claimed an amount of Rs.40,000/- under the head loss of amenities in life, the Tribunal has awarded only Rs.25,000/-. Going through the nature of injuries sustained by the petitioner as extracted above, I find that he is entitled for an additional amount of **Rs.15,000/-** under the said head. 8. The petitioner submits that no amount has been awarded as compensation under the head future treatment though an amount of Rs.50,000/- was claimed under the said head. In Paragraph No.21 of the award, the Tribunal refers to Ext.A8 certificate **M.A.C.A No.758 OF 2015** **7** issued from the Hospital which states that the petitioner was on regular follow-ups which is to be continued throughout his life. In **Raj Kumar** _**v**_ **. Ajay Kumar and another** [(2011) 1 SCC 343], the Hon'ble Supreme Court has laid down the heads under which compensation is to be awarded in personal injury cases and held: - “6. The heads under which compensation is awarded in personal injury cases are the following: _Pecuniary damages (Special damages)_ (i) Expenses relating to treatment, hospitalisation, medicines, transportation, nourishing food, and miscellaneous expenditure. - (ii) Loss of earnings (and other gains) which the injured would have made had he not been injured, comprising: - (a) Loss of earning during the period of treatment; - (b) Loss of future earnings on account of permanent disability. (iii) Future medical expenses. **M.A.C.A No.758 OF 2015** **8** _Non-pecuniary damages (General damages)_ (iv) Damages for pain, suffering and trauma as a consequence of the injuries. (v) Loss of amenities (and/or loss of prospects of marriage). (vi) Loss of expectation of life (shortening of normal longevity). In routine personal injury cases, compensation will be awarded only under heads (i), (ii)(a) and (iv). It is only in serious cases of injury, where there is specific medical evidence corroborating the evidence of the claimant, that compensation will be granted under any of the heads (ii) (b), (iii), (v) and (vi) relating to loss of future earnings on account of permanent disability, future medical expenses, loss of amenities (and/or loss of prospects of marriage) and loss of expectation of life.” 9. Taking note of the nature of injuries and requirement of continued treatment, regular follow-up throughout his life as certified in Ext.A8, I am of the view that, the petitioner has to be awarded Rs.35,000/- under the head future treatment. **M.A.C.A No.758 OF 2015** **9** Accordingly, the petitioner is awarded an amount of **Rs.35,000/-** under the head future treatment. 10. Accordingly, the petitioner is entitled to an enhanced compensation of **Rs.65,000/-** with 8% interest per annum from the date of petition till realisation with proportionate costs. The 3[rd] respondent shall deposit the enhanced compensation awarded by this Court with interest and costs before the Tribunal, within a period of two months from the date of receipt of a copy of this judgment. The appeal is allowed as above. ## **Sd/-** **MURALI PURUSHOTHAMAN JUDGE** SPR