Paul K.P. v Ephraim and National Insurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN & THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** **MONDAY, THE 18TH DAY OF JULY 2016/27TH ASHADHA, 1938** **MACA.No. 138 of 2015** **----------------------** **OP(MV) 479/2012 OF 3RD ADDITIONAL MOTOR ACCIDENTS CLAIMS TRIBUNAL ERNAKULAM** **-------** ## **APPELLANT/PETITIONER:** **---------------------** **PAUL K.P,S/O PETER, KOMAROTHU HOUSE, ELAMAKKARA P.O, ERNAKULAM.** **BY ADVS.SRI.A.N.SANTHOSH SRI.MAJO K. JACOB SMT.LIJIN A.GEORGE** ## **RESPONDENT(S)/RESPONDENTS:** **--------------------------** **1. EPHRAIM,S/O DEVASSY, CHAKKALAKAL HOUSE, POYYA P.O, THRISSUR 680733** **2. NATIONAL INSURANCE COMPANY LTD, BRANCH OFFICE, AJAY VIHAR, 3RD FLOOR, M.G.ROAD ERNAKULAM-682 035** **R2 BY ADV. SRI.GEORGE CHERIAN (SR.) R2 BY ADV. SMT.K.S.SANTHI R2 BY ADV. SMT.LATHA SUSAN CHERIAN R BY SRI.M.A.GEORGE** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 18-07-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **K.V.** **MACA 138 OF 2015:** ## **----------------** ## **APPENDIX** **PETITIONERS ANNEXURES:** **---------------------** - **A1; COPY OF THE DISCHARGE SUMMERY 26/5/2015 ISSUED FROM RENAI MEDICITY,ERNAKULAM.** - **A2: COPY OF THE CONSOLIDATED MEDICAL BILLS FOR RS 31.640.10 DATED 26/5/2015 ISSUED FROM RENAl MEDICITY,ERNAKULAM.** - **A3: COPY OF THE MEDICAL BILLS FOR RS 2733.85 ISSUED FROM RENAI MEDICITY,ERNAKULAM.** ## **RESPONDENTS ANNEXURES: NIL** **----------------------** **/TRUE COPY/** **K.V.** **P.A.TO JUDGE** ## **P.N. Ravindran & A.Muhamed Mustaque, JJ.** **- - - - - - - - - - - - - - - - - - - - - -- - -** **M.A.C.A.No.138 of 2015 - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 18[th] July, 2016** ## **J U D G M E N T** ## **P.N. Ravindran, J.** The appellant is the claimant in O.P.(MV).No.479 of 2012 on the file of the III Additional Motor Accidents Claims Tribunal, Ernakulam wherein he had claimed the sum of Rs.2,00,000/- as compensation for the injuries sustained by him in a motor accident which took place on 10.10.2011. The appellant contended that while he was riding his motor cycle through Aluva-Edapally road, a goods autorickshaw owned and driven by the first respondent collided with his motor cycle and in that accident he suffered grievous injuries. The appellant contended that the accident took place solely on account of the rash and negligent driving of the first respondent. 2. Though notice was served, the owner-cum-driver of the auto rickshaw did not enter appearance, with the result he was set ex parte. The second respondent, the insurer of the auto-rickshaw entered appearance and filed a written statement wherein it contended, after admitting insurance coverage for the auto rickshaw that the accident took place on account of the negligence of the claimant himself. It also contended that the compensation claimed is exorbitant and excessive. MACA 138 of 2015 -:2:- 3. Before the tribunal, no oral evidence was adduced on either side. However, on the side of the claimants Exts.A1 to A8 were produced and marked. The tribunal held, relying mainly on the police records that the accident took place on account of the negligence of the first respondent. The tribunal also held that he sustained injuries in the motor accident which took place on 10.10.2011. The tribunal thereafter awarded the sum of Rs.1,12,644/- as compensation under various heads as shown below: |rious heads as shown below:||| |---|---|---| |Heads|Amount<br>claimed|Amount<br>awarded| |Compensation for loss of earning|Rs.35,000|Rs.3,000| |Transport expenses|Rs.1,000|Rs.500| |Extra nourishment|Rs.3,000|Rs.1,000| |Damage to clothes and articles|Rs.1,000|Rs.500| |Bystander’s expenses|Rs.5,000|Rs.2,000| |Treatment expenses|Rs.75,000|Rs.50,644| |Compensation for pain and sufferings|Rs.50,000|Rs.30,000| |Compensation for loss of amenities and<br>enjoyment in life|Rs.20,000|Rs.10,000| |Compensation for the disability|Rs.1,00,000|--| |Compensation for future treatment|Rs.50,000|Rs.5,000| |Compensation for loss of earning power|Rs.50,000|--| |Compensation for disfiguration|Rs.10,000|--| |Compensation for loss of expectation|Rs.10,000|--| |Compensation for loss of future<br>prospectus|Rs.1,00,000|Rs.10,000| |Total<br>Claim is limited to Rs.2 lacs|Rs.5,10,000|Rs.1,12,644| MACA 138 of 2015 -:3:- In view of the fact that the second respondent insurer had admitted insurance and had not pleaded and proved breach of policy conditions, it was directed to satisfy the award. The claimant has, dissatisfied with the quantum of compensation awarded by the tribunal, filed this appeal. 4. We heard Sri.A.N.Santhosh, learned counsel appearing for the appellant and Smt.K.S.Santhi, learned counsel appearing for the second respondent. A Division Bench of this court has, by order passed on 26.5.2015 dispensed with notice to the first respondent, the owner-cum-driver of the auto rickshaw insured with the second respondent. Learned counsel appearing for the appellant contended that pursuant to the order passed by this court on 26.2.2016 on I.A.No.561 of 2016, the appellant was subjected to examination by the medical board constituted by the Superintendent, General Hospital, Ernakulam and the medical board has certified that the claimant has a whole body disability of 6% as per McBride’s scale. Learned counsel contended that the tribunal has not awarded any amount as compensation for permanent disability except the sum of Rs.10,000/awarded under the head future prospects, and therefore, the appellant is entitled to additional compensation under the head permanent disability. Learned counsel also submitted that the compensation awarded under the head pain and suffering, loss and amenities and loss of earnings is grossly inadequate. MACA 138 of 2015 -:4:- 5. Referring to the impugned award, learned counsel contended that though for the purpose of assessment of compensation the tribunal had estimated the income of the claimant at Rs.4,000/per mensem, the tribunal has awarded compensation for loss of earnings for a period of one month taking the monthly income as Rs.3,000/-. Learned counsel contended that having regard to the ground realities, the claimant being a painter, on a modest estimate the sum of Rs.4,500/- can be taken as his monthly income. Learned counsel also submitted that applying the dictum laid down by the Apex Court in **Syed Sadiq and others v. Divisional Manager, United India Insurance Co.Ltd.[AIR 2014 SCC 1052]** future prospects will have to be taken into account for the purpose of calculating the compensation payable under the head permanent disability. Inviting our attention to the documents produced along with I.A.No.2317 of 2016, learned counsel submitted that as noticed by the tribunal in the impugned award, the appellant had undergone implant removal after the award was passed and had to expend a total sum of Rs.31,640/- in that regard, that the originals of the medical bills produced along with I.A.No.2317 of 2016 are relevant and necessary for a proper adjudication of this appeal and therefore, they may be received into additional evidence on the side of the appellant. Referring to the disability certificate forwarded by the Superintendent, General Hospital, Ernakulam, learned counsel submitted that the compensation awarded under the head pain and suffering and the compensation MACA 138 of 2015 -:5:- awarded under the head loss of amenities are also liable to be enhanced. 6. Per contra, Smt.K.S.Santhi, learned counsel appearing for the second respondent/insurer contended that the tribunal has, having regard to the nature of the injuries suffered by the appellant awarded just and fair compensation and therefore, enhancement of the compensation awarded by the tribunal is not warranted. 7. We have considered the submissions made at the Bar by learned counsel on either side. We have also gone through the pleadings and the materials on record. The fact that the claimant was aged 55 years at the time of the accident and he was a painter by profession is not seriously disputed. The accident took place on 10.10.2011. Having regard to the ground realities and the wage structure prevailing at that time, we are of the opinion that on a modest estimate, the monthly income of the claimant can be taken as Rs.4,500/-. The Apex Court has in **Syed Sadiq** ’s case (supra) held that future prospects can be taken into account for the purpose of awarding compensation under the head permanent disability/loss of earnings on account of disability and its application is not confined to fatal accident cases. In the case of a victim in the age group of 50-60, 15% of the monthly income can be taken into account for that purpose. It has come out in evidence that the claimant has suffered a whole body permanent disability of 6%. The medical certificate forwarded by the Superintendent, General Hospital, Ernakulam, MACA 138 of 2015 -:6:- discloses that though the comminuted fracture (R) patella has healed, rotation of movement is restricted from 170 degree to 100 degree due to pain. The medical records disclose that the implant removal was done on 23.5.2015. It is thus evident from the materials on record that the claimant has suffered a permanent disability which would certainly affect his earning capacity. As a painter he would have to fold his legs and work in conditions in which painters, masons and other similar workers have to work. Having regard to the aforesaid circumstances, we are of the opinion that the appellant/claimant has made out a case warranting the grant of compensation under the head permanent disability resulting in loss of earning capacity. Computed applying the aforesaid principles, the compensation payable to the appellant under the head loss of earning capacity would be Rs.4,500 x 115% = Rs.5,175 x 12 x 11 x 6/100 = Rs.40,986/-. The tribunal has in the instant case awarded only Rs.10,000/- under the head future prospects. The claimant would therefore be entitled to additional compensation of Rs.30,986/- under that head. We accordingly award to the appellant an additional compensation of Rs.30,986/- under the head loss of earning capacity on account of permanent disability. 8. The tribunal has awarded to the appellant/claimant only Rs.3,000/- as compensation for loss of earnings. The medical records disclose that he had suffered besides other injuries, comminuted fracture of the right patella. Having regard to the nature of the injuries and the fact that the claimant was a painter, we are of the MACA 138 of 2015 -:7:- opinion that he would have been disabled from attending to his work at least for a period of six months. As we have estimated monthly income of the claimant as Rs.4,500/-, the claimant would be entitled to Rs.4,500 x 6 = Rs.27000/-as compensation for loss of earnings. The tribunal has, as stated earlier, awarded only Rs.3,000/- under that head. We accordingly award to the appellant/claimant an additional compensation of Rs,24,000/- under the head loss of earnings. The tribunal has awarded to the appellant/claimant only Rs.10,000/- as compensation under the head loss of amenities and enjoyment in life. It has now come out in evidence that he had undergone implant removal on 23.5.2015. The internal fixation was done on 10.10.2011. From the very nature of the injuries and the surgical procedures undergone by the claimant immediately after the accident and 4 years later for removal of the implant, we are of the opinion that a further sum of Rs.15,000/- can be awarded under the head loss of amenities and enjoyment in life. We accordingly award to the appellant/claimant a further sum of Rs.15,000/- under the head loss of amenities. In view of the fact that the claimant had again undergone a surgical procedure in May 2015 and was hospitalised for that purpose, during the period from 20.5.2015 to 26.5.2015, we are of the opinion that a MACA 138 of 2015 -:8:- further sum of Rs.10,000/- can be awarded under the head pain and suffering. We accordingly award to the appellant an additional sum of Rs.10,000/- as compensation under the head pain and suffering. 9. The appellant has produced along with I.A.No.2317 of 2016, a discharge summary issued from Renai Medicity which discloses that he had undergone treatment as an inpatient therein during the period from 20.5.2015 to 26.5.2015 for implant removal. He has also produced medical bills aggregating to Rs.31,640/-. After hearing learned counsel appearing for the appellant and the learned counsel appearing for the respondents, we are satisfied that the claim for future medical expenses is liable to be entertained. We accordingly allow I.A.No.2317 of 2016 and receive the documents produced along with it into additional evidence on the side of the appellant/claimant. The discharge summary dated 26.5.2015 issued from Renai Medicity is marked as Ext.P9. The final bill dated 26.5.2015 issued from Renai Medicity for Rs.9,140/- is marked as Ext.P10 and the receipt issued from Renai Medicity on 26.5.2015 evidencing payment of the said sum is marked as Ext.A11. The bills, 11 in number, issued from Renai Medicity for an aggregate sum of Rs.2,733.85, are marked as Ext.A12 series. Ext.A10 bill and Ext.A11 receipt produced by the appellant show that he has paid a total sum of Rs.31,640/- towards expenditure for implant removal as an inpatient. Besides, he has also expended Rs.2,733.85 evidenced by Ext.A12 series of medical bills for purchase of medicines and towards laboratory charges and consultation charges. MACA 138 of 2015 -:9:- The aggregate of the said amounts is Rs.34,374/-. The tribunal has awarded to the appellant/claimant only Rs.5,000/- as compensation for future medical expenses. Since the claimant has actually expended a total sum of Rs.34,374/- for further treatment, we are of the opinion that he is entitled to be paid the balance sum of Rs.29,374/- under that head. We accordingly award to the appellant/claimant an additional sum of Rs.29,374/- as compensation under the head future medical expenses. The compensation awarded under other heads does not in our opinion call for any enhancement. We accordingly allow the appeal in part and award to the appellant/claimant an additional compensation of Rs.24,000 + Rs.15,000 + Rs.10,000 + Rs.30,986 + Rs.29,374 = Rs.1,09,360/-. From out of the said amount, the second respondent insurer shall deposit the sum of Rs.69,986/- together with interest at 9% per annum from the date of petition till the date of deposit within two months from the date of receipt of a copy of this judgment. The balance amount of Rs.39,374/- which will carry interest at 9% per annum from 26.5.2015 till the date of deposit shall also be deposited within the said period. Upon such deposits being made, the amount deposited shall be disbursed to the appellant/claimant. No costs. Sd/- **(P.N. Ravindran, Judge)** Sd/- ## **(A.Muhamed Mustaque, Judge)** ms/