Noorudheen P.M. v Jeja alias W/o alias; Alias s/o Abraham; Oriental Insurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE T.R.RAVI** **TUESDAY, THE 21[ST] DAY OF DECEMBER 2021/30TH AGRAHAYANA, 1943** **MACA NO. 1844 OF 2015** **AGAINST THE award IN OPMV 734/2010 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, PERUMBAVOOR** ## **APPELLANT/PETITIONER:** NOORUDHEEN P.M S/O.MAKKAR,PALLATHUPARA HOUSE,VENGOLA P.O, PERUMBAVOOR,ERNAKULAM DISTRICT REPRESENTED BY HIS BROTHER AND AUTHORISED AGENT NAJEEB, S/O. MAKKAR,PALLATHUPARA HOUSE, VENGOLA P.O, PERUMBAVOOR,ERNAKULAM DISTRICT (AS IN THE COURT BELOW) BY ADV SRI.K.K.MOHAMED RAVUF ## **RESPONDENTS/RESPONDENTS:** 1 JEEJA ALIAS W/O. ALIAS,5/117A,(16/46), MANIYARA HOUSE, ATHANI P.O, NEDUMBASSERY, ERNAKULAM DISTRICT 2 ALIAS S/O. ABRAHAM,5/117A,(16/46), MANIYARA HOUSE, ATHANI P.O, NEDUMBASSERY, ERNAKULAM DISTRICT 3 THE ORIENTAL INSURANCE CO.LTD RUKIYABAGH,2ND FLOOR,RAVIPURAM, M.G ROAD,ERNAKULAM 682 016 BY ADVS. SRI.GEORGE CHERIAN SR. SMT.LATHA SUSAN CHERIAN SMT.K.S.SANTHI (SC) THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 23.9.2021, THE COURT ON 21.12.2021 DELIVERED THE FOLLOWING: M.A.C.A. No.1844/2015 2 ## **T.R. RAVI, J.** ## **--------------------------------------------** M.A.C.A.No.1844 of 2015 -------------------------------------------Dated this the 21[st] day of December, 2021 ## **JUDGMENT** On 31.12.2009, the motorcycle in which the appellant was travelling was hit by a tempo traveller driven in a rash and negligent manner. The appellant was seriously injured. In the claim petition filed by the appellant, the Tribunal granted a compensation of Rs.12,79,169/-. The appeal has been preferred seeking enhancement of the compensation. 2. Heard Sri K.K.Mohamed Ravuf, learned counsel for the appellant and Smt.K.S.Santhi, learned counsel for the 3rd respondent Insurer. 3. The appellant claimed to be a student of B.Com., who was also earning Rs.8,500/- per month by working as a Supervisor. He was 20 years old at the time of the accident. The injuries suffered by the appellant are; Glassgow coma scale 3/15, bleeding from both ears, severe epistaxis, bleeding from oral cavities, Type III open fracture left tibia, Compound communited fracture fibula with bone loss, contusion right arm, maxillary wall fracture, mild brain contusion, intra ventricular bleed, diffuse axonal injury and M.A.C.A. No.1844/2015 3 multiple skull base fracture. Ext.X1 disability certificate issued by the Medical Board, Government Medical College Hospital, Kottayam assessed that the appellant had 90% whole body permanent disability. The counsel for the appellant submits that the Tribunal went wrong in not awarding any amount towards loss of earnings; in limiting the cost of transportation to Rs.4,000/- despite the fact that the appellant had to be taken to four hospitals; in limiting the amount awarded towards future treatment expenses to Rs.1 lakh as against the claim for Rs.1,50,000/-; in limiting the compensation for pain and sufferings to Rs.80,000/-, which according to the counsel should have been at least 2.5 lakhs; in limiting the amount towards loss of amenities at Rs.60,000/-; in limiting the compensation for disfigurement at Rs.25,000/-. The appellant also seeks enhancement of compensation for loss of marriage prospects. It is also submitted that the appellant is in a totally bed ridden state and the Tribunal went wrong in not granting any amount towards bystander expenses. There is also a claim that an additional sum of Rs.1,60,000/- has to be granted towards medical expenses. I.A.No.1/2018 has been filed producing the bills regarding the additional expenses incurred for medications. Reliance is placed on the decision in **Pappu Deo** M.A.C.A. No.1844/2015 4 **Yadav v. Naresh Kumar & Ors.** reported in **[AIR 2020 SC 4424]** to submit that the Tribunal ought to have taken into account a monthly income of Rs.10,000/- and allowed 50% additional towards future prospects, for the purpose of awarding compensation towards permanent disability. Reliance is placed on the judgment of the Hon'ble Supreme Court in **V. Mekala vs M. Malathi & Anr.** reported in **[(2014) 11 SCC 178]** in support of the above submission. Reference is also made to the judgment of a learned Single Judge of this Court in M.A.C.A. No.1728/2014. The contention of the counsel for the appellant on the above claims is fully justified going by the dictum laid down by the Hon'ble Supreme Court in the referred cases. It can be seen from paragraphs 22 and 23 of the award that the appellant was produced before the Tribunal, seated in a basket chair and that except for movement of the eyes, there appeared no other form of life in the appellant. The Tribunal has noted that the appellant was not even able to move any part of his body by himself and it was also noticed that, it was the state of the appellant even after 4 ½ years of the accident. So also the claim of the appellant towards bystander expenses is fully justified going by the dictum in **Kajal V. Jagdish Chand** reported in **[2020 (1) KLT 743]** . The M.A.C.A. No.1844/2015 5 bystander expenses should be calculated applying the multiplier method and I am of the opinion that since the accident took place in 2009, a sum of Rs.6,000/- should be fixed as the monthly expenses towards bystander expenses. The claim for additional cost towards transportation expenses is also justified having regard to the physical state of the appellant. I am of the opinion that a sum of Rs.15,000/- has to be awarded under that head. Since the appellant is virtually paralysed for life at the early age of 20 years, I am of the opinion that the amount granted towards future treatment is also to be enhanced to 1.5 lakhs. So also the amount granted by the Tribunal towards pain and sufferings and loss of amenities is also less and in my opinion it ought to have been Rs.1 lakh and 1.5 lakhs respectively. 4. The appellant has filed I.A.No.1/2018 producing the medical bills for an amount of Rs.1,60,757/-. The petition had been filed in 2018 and since there has been no objection to the said petition, I do not find any reason to deny the claim. 5. Since the notional income is fixed treating the appellant as a student, there will not be any justification in granting compensation towards loss of earnings. Moreover, the accident happened on 30.12.2009 and the claim petition was filed soon M.A.C.A. No.1844/2015 6 thereafter, which also does not justify grant of any amount towards loss of earnings. 6. The counsel for the Insurance Company submitted that a notional income of Rs.7,000/- should be fixed and 40% should be awarded towards future prospects. In the light of the Apex Court judgments regarding the notional income of students, the above submission is not justified. Even though it is pointed out that the bills produced to show future medical expenses did not have any seal, I do not think that the said contention is also justified in the light of the fact that no objection had been filed in the petition and the fact that it has been held in several judgments that the injured or the victim of an accident is not expected to keep each and every bill. 7. The appellant is hence entitled to an additional compensation of **Rs.11,000/-** (15000-4000) towards transportation expenses, **Rs.1,60,000/-** towards medical expenses, **Rs.50,000/-** towards future medical expenses, **Rs.20,000/-** (1,00,000-80,000) towards pain and suffering and **Rs.90,000/-** (1,50,000-60,000) towards loss of amenities. The appellant will be entitled to an additional compensation of **Rs.12,96,000/-** (6000x12x18) towards bystander expenses. M.A.C.A. No.1844/2015 7 Towards compensation for permanent disability the appellant will be entitled to a sum of Rs.29,16,000/-(10000x150%x 12x18x90%). After deducting the sum of Rs.5,00,000/- granted by the Tribunal, the appellant will be entitled to an additional compensation of **Rs.24,16,000/-** under the head compensation for permanent disability. The amount awarded under other heads are reasonable, which do not require any interference. In the result, the appeal is allowed and the appellant is awarded an enhanced compensation of **Rs.40,43,000/- (Rupees Forty Lakhs Forty Three Thousand only)** with interest at the rate of 9% per annum from the date of filing of the claim petition till the date of realisation, with proportionate costs. The 3rd respondent insurer shall deposit the additional compensation granted in this appeal along with the interest and proportionate costs, before the Tribunal within two months from the date of receipt of a certified copy of this judgment, after deducting any amount to which the appellant is liable towards balance court fee and legal benefit fund. The disbursement of the compensation to the appellant shall be in accordance with law. Sd/- **T.R. RAVI JUDGE** dsn M.A.C.A. No.1844/2015 8 ## APPENDIX APPELLANT'S ANNEXURE: ANNEXURE A1: MEDICAL BILLS (15 Nos.) OF THE APPELLANT