OMMEN SAMUEL KADAVIL v. GINEESH, HARSHAVARDHANAN and NATIONAL INSURANCE CO. LTD.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN THURSDAY, THE 8TH DAY OF JUNE 2017/18TH JYAISHTA, 1939 MACA.No. 1374 of 2012 () ------------------------AGAINST THE AWARD IN OPMV 168/2002 of THE COURT OF MOTOR ACCIDENT CLAIMS TRIBUNAL (THE COURT OF ADDL. DISTRICT AND SESSIONS JUDGE II), MAVELIKKARA DATED 23-02-2012 APPELLANT/PETITIONER: ------------------------------------ OMMEN SAMUEL KADAVIL, THAZHAKKARA P.O., MAVELIKARA BY ADVS.SRI.T.K.KOSHY SMT.ANNIE MATHEW (KAYAMKULAM) SMT.V.V.RISANI RESPONDENTS/RESPONDENTS 1 TO 3: ---------------------------------------------------------- 1. GINEESH, S/O.SUDHAKARAN, MULAMOOTTIL HOUSE, ILIPPAKULAM VALIKUNNAM, PIN - 690503 2. HARSHAVARDHANAN, KOTTOLIL HOUSE, ILIPPAKULAM, PALICKAL, PIN - 690503 3. THE MANAGER NATIONAL INSURANCE CO.LTD., KAYAMKULAM, PIN - 690502 R3 BY SRI.M.A.GEORGE R3 BY ADV. SRI.A.A.MOHAMMED NAZIR THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 08-06-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: jg-25/8 ## **C.T. RAVIKUMAR & ANIL K. NARENDRAN, JJ. -------------------------------------------------M.A.C.A.No.1374 of 2012** **-------------------------------------------------DATED THIS THE 8[th] DAY OF JUNE, 2017** ## **JUDGMENT** ## **ANIL K. NARENDRAN, J.** This appeal arises out of the award passed by the Motor Accident Claims Tribunal, Mavelikara dated 23.2.2002 in O.P.(MV)No.168/2002, a claim petition filed under Section 166 of the Motor Vehicles Act, 1988 claiming compensation on account of the injuries sustained by the appellant/claimant in a motor accident, which occurred on 12.9.2000 at Mavelikara-Thattarampalam road. While the appellant/claimant was about to start his motor cycle, another motor cycle bearing registration No.KL-4/A-6391 ridden and owned by the 1[st] and 2[nd] respondents respectively and insured with the 3[rd] respondent knocked him down and he sustained injuries. Alleging that the accident occurred due to the rash and negligent riding of the motor cycle by the 1[st] respondent rider, claim petition was filed before the Tribunal claiming a total compensation of ₹1,40,000/- under different heads. During the pendency of the claim petition, the total compensation claimed was amended to 3,00,000/-,₹ vide the order of the Tribunal in I.A.No.507/2006. 2. Before the Tribunal, Exts.A1 to A19 were marked on the side of the appellant/claimant. He was examined as PW1 and the Doctor, who M.A.C.A.No.1374/2012 -2- issued Ext.A15 disability certificate, was examined as PW2. The respondents have not chosen to adduce any oral or documentary evidence. 3. After considering the materials and evidence on record, the Tribunal arrived at a conclusion that the accident occurred due to the rash and negligent riding of the motor cycle by the 1[st] respondent rider. Since the said vehicle was covered by a valid insurance policy, the 3[rd] respondent insurer was held liable to indemnify the 2[nd] respondent owner. Under different heads, the Tribunal awarded a total compensation of 89,300/- and directed the 3₹ rd respondent insurer to deposit the said amount before the Tribunal, together with interest at the rate of 7.5% per annum from the date of petition till realisation, with a cost of 1,000/-.₹ 4. Dissatisfied with the quantum of compensation awarded by the Tribunal under different heads, the appellant/claimant is before this Court in this appeal. 5. We heard arguments of the learned counsel for the appellant/claimant and also the learned counsel for the 3[rd] respondent insurer. 6. The sole issue that arises for consideration in this appeal is as to whether the appellant/claimant is entitled for enhancement of the M.A.C.A.No.1374/2012 -3- compensation awarded by the Tribunal under different heads. 7. The accident is of the year 2000 and at the time of accident the appellant was aged 40 years. As per the particulars given in the claim petition, at the time of accident he was earning a monthly income of 12,000/- as Development Officer (Grade-I) in New India₹ Assurance Company Ltd. at Kayamkulam. The nature of injuries given in the claim petition reads thus; “1. Lacerated wound (Rt) knee 4x1 bone deep. 2. Abrasion (Rt) elbow. X-ray (Rt) knee comminuted fracture patella.” 8. Immediately after the accident, the appellant was taken to P.M. Hospital, Mavelikara. After first-aid he was taken to St. Gregorios Hospital, Parumala, where he underwent surgery on right patella. Open reduction and K-wire fixation was done on 12.9.2000 and he was discharged on 23.9.2000 on cylinder cast, which was removed on 25.10.2000. 9. Ext.A5 wound certificate issued by the Duty Medical Officer, P.M. Hospital, Mavelikara would show that, the appellant sustained lacerated wound on right knee 4x1 cm. bone deep. He complained of pain on right leg and back. X-ray showed fracture of patella and he was referred to an Orthopedic Surgeon. Ext.A8 discharge card would show that, he was admitted at St. Gregorios M.A.C.A.No.1374/2012 -4- Hospital, Parumala on 12.9.2000 and discharged on 22.9.2000. 10. As evident from Ext.A6 treatment certificate dated 14.12.2000 issued from St. Gregorios Hospital, Parumala the appellant was admitted there with compound fracture on right patella, for which debridement and fixation of bone were done on the same day under spinal anesthesia. He recovered well and was discharged on 22.9.2000, on cylinder cast, which was removed on 25.10.2000. Check X-ray showed union of fracture and he was advised physiotherapy. He was reviewed periodically. Ext.A6 would show that, as on 12.12.2000, he has no complaints and recovered almost completely, who may need removal of implants after a total period of 8 months. Ext.A6 treatment certificate would also show that, the appellant is a diabetic patient on treatment. 11. The claim petition was filed before the Tribunal on 14.1.2002, claiming a total compensation of ₹1,40,000/-. On 24.2.2006, the appellant filed I.A.No.507/2006 for amending the amount of compensation claimed from 1,40,000/- to 3,00,000/-;₹ ₹ compensation for loss of earning for a period of 3 months from ₹25,000/- to 60,000/-; compensation for permanent disability from₹ ₹50,000/- to ₹1,50,000/-; and the total amount claimed under different heads from 1,78,000/- to 3,13,000/-. The said application₹ ₹ M.A.C.A.No.1374/2012 -5- was allowed and the claim petition was amended accordingly. Though the claim petition was filed on 14.1.2002, the supporting documents were produced before the Tribunal only on 26.9.2011. 12. Relying on Exts.A10 to A13 documents, the learned counsel for the appellant would contend that, the Tribunal went wrong in not assessing the compensation payable under different heads, taking into account the treatment the appellant had undergone from December, 2004 onwards for facial palsy, since it was developed as a direct consequence of the injuries sustained by him in the motor accident occurred on 12.9.2000. Per contra, the learned counsel for the 3[rd] respondent insurer would contend that, in the accident occurred on 12.9.2000 the appellant sustained only fracture of patella, and going by the medical records he has shown symptoms of facial palsy only in December, 2004, which has no connection whatsoever with the injuries sustained by him in the motor accident. 13. Ext.A12 discharge summary issued from Acura Speciality Hospital at Bangalore would show that the appellant had undergone in-patient treatment for a period of 2 days from 22.12.2004 to 24.12.2004, for uncontrolled diabetes and right acute otitis media. As evident from Ext.A12, the appellant was admitted on 22.12.2004 complaining of right ear ache, decreased hearing, giddiness since a M.A.C.A.No.1374/2012 -6- week. Right ear was dewaxed and on examination tympanic membrane appeared red and bulging. There was no facial weakness or mastoid tenderness/swelling. Nose/throat was found normal, cranial nerves intact, no nystagmus/cerebellar signs. Examination revealed acute otitis media. 14. Ext.A13 discharge summary issued from Century Hospital at Chengannur would show that the appellant had undergone inpatient treatment for a period of 6 days from 26.12.2004 to 1.2.2005, for right bell's palsy, right otitis media, diabetes mellitus Type 2 and hypertension. As evident from Ext.A13, he was admitted on 26.12.2004 complaining of right facial palsy since morning, right acute otitis media, which was treated at Bangalore, and uncontrolled diabetes mellitus. In Ext.A13 it has been stated that the appellant is a known diabetic since 10 years on insulin. On examination of CNS (Central Nervous System) he was found to be conscious, oriented, suffering right side facial palsy. 15. Ext.A10 discharge card issued from Pushpagiri Medical College Hospital, Tiruvalla would show that the appellant had undergone in-patient treatment for a period of 11 days from 6.1.2005 to 17.1.2005, for facial palsy, hypertension, etc. Ext.A11 discharge summary issued from Christian Medical College, Velloor would show M.A.C.A.No.1374/2012 -7- that he had undergone in-patient treatment for a period of 5 days from 20.1.2005 to 25.1.2005, for necrotizing otitis externa right ear with LMN type facial palsy and Type II diabetes mellitus. The patient's history in Ext.A11 discharge summary reads thus; “45 years old known diabetic presented with severe itching, ear ache, purulent discharge in the right ear since 1 month. He also presented with left side deviation of mouth and inability to close the right eye since 20 days. He was treated elsewhere with antibiotics and referred here. He did not have nasal, throat or symptoms of HT.” 16. Therefore, as evident from Ext.A13 discharge summary dated 1.1.2005, the appellant is a known diabetic since 1995 on insulin. Exts.A12 and A13 discharge summaries would show that he is suffering from 'Type 2 diabetes mellitus', which results from insulin resistance, with inadequate insulin secretion to sustain normal metabolism; 'acute otitis media', which results in the presence of fluid in the middle ear accompanied by signs and symptoms of local or systemic infection; 'bell's palsy', which involves unilateral facial paralysis of sudden onset, of both the upper and lower halves of the face. [Taber's Cyclopedic Medical Dictionary; 21[st] Edition; Page Nos.630; 1662 & 254] As evident from Ext.A11 discharge summary, he is suffering from 'necrotizing otitis externa right ear with LMN (Lower Motor Neuron) facial palsy'. 'Necrotizing otitis externa', involves M.A.C.A.No.1374/2012 -8- infection of the base of the skull that originates in the external auditory canal, which is usually caused by infection with the bacterium pseudomonas aeruginosa, which occurs most often in diabetic and other immunocompromised patients. [Taber's Cyclopedic Medical Dictionary; 21[st] Edition; Page No.1663] 17. As we have already noticed, the injuries sustained by the appellant, as mentioned in the claim petition filed before the Tribunal, are only lacerated wound (Rt) knee 4x1 bone deep and abrasion (Rt) elbow. X-ray showed (Rt) knee comminuted fracture of patella. Immediately after the accident, he was taken to P.M. Hospital, Mavelikara. As per Ext.A5 wound certificate issued from that hospital, he sustained lacerated wound on right knee 4x1 cm. bone deep and he complained of pain on right leg and back. X-ray showed fracture of patella and he was referred to an Orthopedic Surgeon. Accordingly, he was taken to St. Gregorios Hospital, Parumala. As evident from Ext.A6 treatment certificate, the appellant was admitted in that hospital with compound fracture on right patella, for which debridement and fixation of bone were done. Ext.A2 is the final report filed by the Police in Crime No.343/2000 of Mavelikara Police Station, registered on 14.9.2000, in connection with the motor accident occurred on 12.9.2000. The fact that the appellant sustained only a wound on right M.A.C.A.No.1374/2012 -9- knee with fracture of patella finds mention in Ext.P2 final report as well. 18. On 26.9.2011, the appellant filed affidavit in lieu of examination-in-chief, wherein he made a statement for the first time that, in the fall his head hit the ground causing excruciating pain. In the said affidavit he has attempted to make out a case that, the real cause of 'necrotizing otitis externa right ear with LMN facial palsy', referred to in Ext.A11 discharge summary, is the injury caused in the accident while his head hit the ground. Though, the appellant as PW1 deposed that he suffered facial palsy immediately after the accident, the fact that he had shown symptoms of facial palsy only on 26.12.2004 is evident from Ext.A13 discharge summary issued from Century Hospital at Chengannur, wherein it has been stated that, he was admitted on 26.12.2004 complaining of right facial palsy since morning, right acute otitis media, which was treated at Bangalore, and uncontrolled diabetes mellitus. Ext.A12 discharge summary issued from Acura Speciality Hospital at Bangalore would show that, the appellant had undergone in-patient treatment there for 2 days from 22.12.2004 to 24.12.2004, for uncontrolled diabetes and right acute otitis media, and on examination there was no facial weakness. PW2 Doctor, who was member of the Medical Board which has assessed the M.A.C.A.No.1374/2012 -10- permanent disability of the appellant, has deposed that the fracture shown in Ext.P15 disability certificate is not the cause for facial palsy. PW2 has also deposed during chief examination that the whole body disability pertaining to that injury can only be 8%. 19. Relying on Ext.A17 Private Patient Card issued from Christian Medical College, Vellore the appellant would contend that he had undergone treatment for facial palsy from the year 2002 onwards. However, as evident from Ext.A13 discharge summary issued from Century Hospital at Chengannur he had shown symptoms of facial palsy only on 26.12.2004, and as evident from Ext.A12 discharge summary issued from Acura Speciality Hospital at Bangalore, where he had undergone in-patient treatment from 22.12.2004 to 24.12.2004, he was having no facial weakness. During the pendency of the claim petition, the appellant filed I.A.No.507/2006 seeking for an order to amend the claim petition, in order to claim a total compensation of ₹3,00,000/- under different heads, as against the original claim of ₹1,40,000/-. The said interlocutory application was supported by an affidavit sworn to by the appellant dated 24.2.2006, wherein he has stated that the application for amendment is necessitated since there occurred some mistake in the amount claimed under the head loss of earning and compensation for disability. The said application was M.A.C.A.No.1374/2012 -11- allowed and the claim petition was amended accordingly. In the affidavit accompanying to the said interlocutory application, the appellant has not disclosed anything about the further treatment alleged to have undergone during 2004 and 2005 for the injuries sustained in the accident occurred in the year 2000. Further, he has not even amended the original claim of 15,000/- under the head₹ medical and incidental expenses. 20. In **Nagappa v. Gurudayal Singh [(2003) 2 SCC 274]** the Apex Court held that, the Motor Vehicles Act does not provide for passing of further award after the final award is passed. Therefore, in a case where injury to a victim requires periodical medical expenses, fresh award cannot be passed or previous award cannot be reviewed when the medical expenses are incurred after finalisation of the compensation proceedings. Hence, only alternative is that at the time of passing of final award, the Tribunal/Court should consider such eventuality and fix compensation accordingly. Therefore, no one can suggest that it is improper to take into account expenditure genuinely and reasonably required to be incurred for future medical expenses. 21. In **Kiran v. Sajjan Singh [(2015) 1 SCC 539]** the Apex Court held that, the compensation awarded by the Tribunal should be reasonably sufficient to equip the victims to return to their normal life M.A.C.A.No.1374/2012 -12- to the maximum possible extent. 22. Therefore, a victim in a motor accident, who sustained injuries caused by the tort feasor, has to be adequately compensated towards medical expenses, including expenses towards future treatment (in a case where the injuries sustained require periodical medical expenses), reasonably sufficient to equip him to return to his normal life to the maximum possible extent. However, in order to succeed, the claimant has to prove that such medical expenses are incurred or necessitated for reasons attributable to the injuries sustained in the motor accident, as reflected from the wound certificate or discharge summary or any other medical records relating to the said accident. 23. In the instant case, as evident from the documents on record and also the oral testimony of PWs.1 and 2, the appellant suffered facial palsy in December, 2004 not on account of any injuries sustained in the motor accident which occurred in the year 2000. As such, he is not entitled for any compensation for the treatment he had undergone from December, 2004 onwards for facial palsy, since such medical expenses necessitated not for reasons attributable to the injuries sustained in the motor accident of the year 2000. It was after considering the materials on record that the Tribunal arrived at a M.A.C.A.No.1374/2012 -13- conclusion that the appellant was having uncontrolled diabetes, which led to facial palsy and as such, he is not entitled for any compensation for such treatment. The said finding of the Tribunal is perfectly legal and proper, which warrants no interference in this appeal. 24. Now we shall deal with the question whether the quantum of compensation awarded by the Tribunal under different heads requires any enhancement in this appeal. The compensation awarded by the Tribunal under different heads reads thus; |Sl.<br>No.|Head of claim|Amount claimed<br>(in rupees)|Amount awarded<br>(in rupees)| |---|---|---|---| |1|Loss of earnings|60000|Not allowed| |2|Medical and miscellaneous<br>expenses|15000|7000| |3|Bystander's expenses||1100| |4|Transportation charges|1500|2000| |5|Extra nourishment|2500|5000| |6|Damage to clothing, etc.|4000|Not allowed| |7|Pain and sufferings|25000|20000| |8|Disability income|150000|43200| |9|Loss/reduction in earning<br>capacity|25000|--| |10|Loss of amenities and<br>convenience, etc.|30000|10000| |11|Any other heads (review<br>statement)||1000| |12|Total|313000 (Limited<br>to 3,00,000)|89300| 25. The accident is of the year 2000. As per the particulars given in the claim petition, at the time of accident the appellant was M.A.C.A.No.1374/2012 -14- earning a monthly income of 12,000/- as Development Officer₹ (Grade-I) in New India Assurance Company Ltd. The fact that the disability that has arisen out of the injuries sustained in the accident will have no adverse effect on his earning capacity, till attaining the age of superannuation, has virtually been admitted by the appellant, during cross examination, by deposing that he is presently receiving a monthly salary of ₹40,000/-. Therefore, the entitlement of the appellant for disability compensation has to be assessed taking a notional monthly income after superannuation and applying the multiplier of '9' applicable to persons within the age group of 56 to 60 years. While assessing compensation under this head, the percentage of disability can be taken as 8%, as rightly applied by the Tribunal, taking note of the oral testimony of PW2 Doctor. Towards disability compensation, the Tribunal awarded a sum of 43,200/-, taking a₹ notional monthly income of 3,000/-, applying the multiplier of '15'₹ applicable to persons within the age group of 36 to 40 years and the percentage of disability as 8%. Considering the fact that, at the time of accident, the appellant was working as Development Officer (Grade-I) in New India Assurance Company Ltd., earning a monthly income of ₹12,000/-, we deem it appropriate to take 6,000/- as his notional₹ monthly income after superannuation. Applying the multiplier of '9' and M.A.C.A.No.1374/2012 -15- the percentage of disability as 8%, the compensation payable under the head disability is reworked as 51,840/- (6,000x12x9x8/100). The₹ Tribunal has awarded a sum of 43,200/- under this head. In the₹ result, the appellant will be entitled for an additional compensation of **₹8,640/-** under this head. 26. The appellant claimed a sum of 60,000/- under the head₹ loss of earning. However, the Tribunal awarded no compensation under this head, stating that he had received salary for the period of leave. Ext.A16 leave certificate would show that the appellant was on sick leave at half-pay for 61 days from 12.9.2000 to 11.11.2000; earned leave for 48 days from 12.11.2000 to 29.12.2000; and sick leave at half-pay for 57 days from 14.8.2005 to 9.10.2005. The appellant has not chosen to prove Ext.A16 leave certificate by examining the Sr. Branch Manager concerned. Admittedly, the appellant had undergone in-patient treatment only for a period of 11 days. Further, the third spell of leave was availed for treatment in connection with facial palsy, which has no connection whatsoever with the injuries sustained in the accident. Considering the nature of injuries sustained and the treatment the appellant had undergone, as borne out from medical records, he can be granted loss of earning for a period of three months. Out of the said period, a period of two M.A.C.A.No.1374/2012 -16- months is covered by sick leave at half-pay and the remaining period of one month is covered by the earned leave availed for 48 days. But for the accident, the appellant could have encased a portion of that earned leave at the time of retirement, subject to the maximum limit prescribed in the relevant rules governing his service conditions. Therefore, he has to be adequately compensated under the head loss of earning for a total period of three months, by awarding a sum of ₹12,000/-(12,000x1/2x2) for the period covered by sick leave at halfpay and a further sum of 6,000/- (12,000x1/2) for a period of one₹ month out of the earned leave availed for 48 days. In the result, the appellant will be entitled for a compensation of **₹18,000/-** under the head loss of earning. 27. Towards medical and miscellaneous expenses, Tribunal awarded a sum of 7,000/-. Ext.A14 series of medical bills produced₹ before the Tribunal are for a sum of 31,065/-. The 3₹ rd respondent insurer disputed the said claim, contending that those medical bills are in connection with the treatment undergone for facial palsy, and not for the injuries sustained in the motor accident occurred in the year 2000. During the cross-examination of PW1, it has come out that the medical bills produced before the Tribunal are those, which were not reimbursed by his employer, namely, New India Assurance Company. M.A.C.A.No.1374/2012 -17- As evident from Ext.A14 series, the medical bills for a total amount of ₹30,190/- are for the period from 8.11.2004 to 18.2.2009. Some of those bills are in relation to Ayurvedic treatment, which are not supported by corresponding treatment records. Ext.A7 voucher for ₹6,500/- from a rehabilitation centre at Mavelikara was also not proved by examining the person who has issued the same. Even in the absence of any supporting materials, the Tribunal awarded a sum of ₹7,000/- as compensation under the head medical and miscellaneous expenses, which warrants no enhancement in this appeal. 28. Towards damage to clothing no amount was awarded by the Tribunal. Considering the fact that the accident is of the year 2000, we deem it appropriate to grant a sum of **₹750/-** towards damage to clothing, which would represent just and reasonable compensation under that head. 29. Considering the nature of injuries sustained and the inpatient treatment, the appellant had undergone for a period of 11 days, the compensation of ₹2,000/awarded under the head transportation charges; 1,100/- awarded under the heard bystander₹ expenses, at the rate of 100/- per day for 11 days of inpatient₹ treatment; and 5,000/- awarded under the head extra nourishment,₹ represents just and reasonable compensation, which requires no M.A.C.A.No.1374/2012 -18- enhancement in this appeal. 30. Under the head pain and sufferings, the Tribunal awarded a sum of 20,000/-. Considering the nature of injuries sustained and the₹ treatment, the appellant had undergone, as borne out from medical records, the compensation awarded by the Tribunal under this head represents just and reasonable compensation, which warrants no enhancement in this appeal. 31. Under the head loss of amenities and inconveniences, the Tribunal awarded a sum of 10,000/-. Considering the nature of₹ injuries sustained by the appellant and the disability that has arisen therefrom, as borne out from the disability certificate, the compensation awarded by the Tribunal under this head also represents just and reasonable compensation, which requires no enhancement in this appeal. 32. In the result, the appellant/claimant will be entitled to get an additional compensation of **27,390/-₹** (8,640+18,000+750) in this appeal, which will carry interest at the rate of 8% per annum from the date of petition till realisation. Since the insurance coverage of the offending vehicle is not in dispute, the 3[rd] respondent insurer shall deposit the said amount before the Tribunal within a period of two months from the date of receipt of a certified copy of this judgment. M.A.C.A.No.1374/2012 -19- The appeal is disposed of as above. No order as to costs. **C.T. RAVIKUMAR, JUDGE** **ANIL K. NARENDRAN, JUDGE** dsn