P. D. Sadhanandan v. K. J. Joseph, Unnikrishnan Pillai, S. Suresh Kumar and National Insurance Company Ltd.

# `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ``` THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN WEDNESDAY, THE 22[ND] DAY OF FEBRUARY 2023 / 3RD PHALGUNA, 1944 ``` ## `MACA NO. 958 OF 2012` ``` [AGAINST THE AWARD DATED 26.04.2011 IN OP(MV)NO.3675/2004 ON THE FILE OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, THRISSUR] ``` ## `APPELLANT/PETITIONER:` ``` 1P.D.SADHANANDAN, AGED 53 YEARS, S/O.DIVAKARAN, NIKARTHIL HOUSE, CMC-20, P.O. CHERTHALA, ALAPPUZHA DISRICT. BY ADV SRI.M.B.PRAJITH ``` ## `RESPONDENTS/RESPONDENTS:` |`1`|`K.J.JOSEPH, S/O JOHN,`| |---|---| ||`KOCHUPARAMBIL HOUSE, P.O.KADAKKARAPALLY,`| ||`CHERTHALA, ALAPPUZHA DISTRICT – 688 529.`| |`2`|`UNNIKRISHNAN PILLAI, SREEPADAMAM,`| ||`PERUNPUZHA, P.O.KUNDRA, KOLLAM DISTRICT-691 002.`| |`3`|`S.SURESH KUMAR, S/O.SADHANANDAN,`| ||`NIKARTHIL HOUSE, CMC-20, P.O.CHERTHALA,`| ||`ALAPPUZHA DISTRICT – 688 524.`| |`4`|`NATIONAL INSURANCE COMPANY LTD.,`| ||`DIVISIONAL OFFICE, NO.10, FLAT NO.101-106,`| ||`N-1, BMC HOUSE, CANNAUGHT PLACE, NEW DELHI – 110 001.`| ``` BY ADV SRI.S.K.AJAY KUMAR ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 22.02.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA NO. 958 OF 2012 ``` ``` -2- ``` ## `JUDGMENT` ``` The appellant assails the Award of the Motor ``` ``` Accidents Claims Tribunal, Thrissur, in OP(MV)No.3675/2004 filed by him, seeking ``` ``` compensation of an amount of Rs.2,50,000/- ``` ``` limited to Rs.2,00,000/-, against the injuries sustained by him in a road accident on 03.10.2004 caused on account of the rash and ``` ``` negligent driving of the offending vehicle. ``` ``` 2.The appellant says that even though he ``` ``` suffered very grievous injuries, including fracture of humerus, leading to surgical ``` ``` procedure of “open reduction and internal ``` ``` fixation” being done, the Tribunal has awarded ``` ``` only Rs.59,938/- as compensation, which, he ``` ``` asserts is exiguous. ``` ``` 3.Sri.M.B.Prajith – learned counsel for ``` ``` the appellant, explained that the reason why the ``` ``` MACA NO. 958 OF 2012 ``` ``` -3- ``` ``` Tribunal has granted such inadequate amount is because it has reckoned the notional income of his client to be Rs.2,500/-, while the judgment of the Hon’ble Supreme Court in Ramachandrappa ``` ## `v. Manager, Royal Sundaram Alliance Insurance` ``` Company Ltd. [(2011) 13 SCC 236] authorizes the ``` ``` standardized figure of Rs.4,500/-, even in the ``` ``` case of a person with unascertainable income in the year 2004. ``` ``` 4.Sri.M.B.Prajith pointed out that, even ``` ``` though Ext.A10 - Disability Certificate issued ``` ``` by the Assistant Surgeon of District Hospital, ``` ``` Thrissur, certified his client’s disability to ``` ``` be 16%, the Tribunal, without any cogent reason, ``` ``` had reduced it to 3%. He concluded his ``` ``` submissions saying that, on account of the injuries suffered by his client, he had undergone untold trauma and stress; and ``` ``` therefore, that denial of compensation under the ``` ``` MACA NO. 958 OF 2012 ``` **==> picture [22 x 8] intentionally omitted <==** ``` head “Loss of Amenities”, particularly because he has suffered shortening of his right hand by half inch; and the grant of a mere Rs.12,000/- under the head “Pain and Suffering” is illegal and unlawful. He thus prayed that this Appeal be allowed to the extent impugned. ``` ``` 5.In response, Sri.S.K.Ajay Kumar – ``` ``` learned Standing Counsel for the the respondent ``` ``` - Insurance Company, argued that the ``` ``` computations adopted by the Tribunal are without error and therefore, prayed this Appeal be dismissed. ``` ``` 6.I have considered the afore rival ``` ``` submissions of the parties, on the touchstone of ``` ``` evidence on record, which I have examined carefully. ``` ``` 7.I must say upfront that adoption of ``` ``` notional income of the appellant by the Tribunal is in error because, as rightly argued by ``` ``` MACA NO. 958 OF 2012 ``` ``` -5- ``` ``` Sri.M.B.Prajith,Ramachandrappa(supra) sanctions a minimum amount of Rs.4,500/- as the notional income even for a person with unascertainable income in the year 2004. No reasons have been given by the Tribunal as to why the said figure has not been adopted. Add to this, the medical evidence, including Exts.A5 - Wound Certificate, A6 - Discharge Summary and A7 series – Medical Bills, show that the appellant had fractured third part of surgical neck of right humerus, suffered lacerated wound on his left leg, with oedema and tenderness on his left ankle joint. It also records that he was treated by surgical “open reduction and internal fixation” and subjected to take medication and follow up treatment. ``` ``` 8.Taking note of the afore, I have no doubt that the disability of the appellant, assessed by the Tribunal is on the lower side, ``` ``` MACA NO. 958 OF 2012 ``` ``` -6- ``` ``` especially when Ext.A10 Certificate issued by a Surgeon certified that he suffers from “angulation to surgical neck region, shortening of right hand by half inch and inability to take weights with his right hand, restriction of shoulder movements, wasting of muscles of upper arm, difficulty to write, numbness on the right hand and shortening and wasting of muscles and mental strain.” (sic) By a fair estimate, I am of the view that, at least 10% disability would ``` ``` be deserving to be granted to the appellant. ``` ``` 9.Similarly and for the same reasons as afore, I have no doubt that the compensation awarded by the Tribunal under the head “Pain and ``` ``` Suffering” is low; while, its denial under the ``` ``` head “Loss of Amenities” is unfair. I propose to grant Rs.20,000/- each under these heads. ``` ``` Resultantly, this Appeal is partly allowed ``` ``` with the following directions: ``` ``` MACA NO. 958 OF 2012 ``` ``` -7- ``` - `(a) The compensation for “Disability” is` ``` enhanced to Rs.59,400/- (Rupees fifty nine thousand and four hundred only), adopting the notional income of the appellant to be Rs.4,500/- per month and his disability to be 10%. ``` ``` (b)For the above reasons and adopting the ``` ``` notional monthly income of the appellant to be Rs.4,500/-, compensation for “Loss of Earning” is enhanced to Rs.13,500/- (Rupees thirteen thousand and five hundred only), instead of Rs.7,500/- ``` ``` (c)The compensation under the head “Pain ``` ``` and Suffering” is revised to Rs.20,000/- (Rupees ``` ``` twenty thousand only), instead of Rs.12,000/- now granted. ``` ``` (d)In addition, an amount of Rs.20,000/- ``` ``` (Rupees twenty thousand only) is awarded to the appellant under the head “Loss of Amenities” ``` ``` MACA NO. 958 OF 2012 ``` **==> picture [22 x 9] intentionally omitted <==** ``` (e)In all other heads, the compensation ``` ``` awarded by the Tribunal will remain intact. ``` ``` Needless to say, theappellant will be at ``` ``` full liberty to recover the compensation, as enhanced 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 be entitled to proportionate costs on the enhanced amount as ordered by the Tribunal. ``` ``` Sd/- ``` ## `DEVAN RAMACHANDRAN` ``` JUDGE ``` ``` akv ```