Peter P.K. @ Shibu v. Sudheesh, Janeesh and The Branch Manager, New India Assurance Company Ltd.

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN THURSDAY, THE 9[TH] DAY OF MARCH 2023 / 18TH PHALGUNA, 1944 MACA NO. 2683 OF 2012 ``` ``` AGAINST THE JUDGMENT IN OP(MV)186/2009 OF DISTRICT COURT ``` ``` & SESIONS & MOTOR ACCIDENT CLAIMS TRIBUNAL ,KALPETTA APPELLANT/PETITIONER: ``` ``` PETER.P.K. @ SHIBU, S/O. P.K. KURIAKOSE, AGED 35 YEARS, PALLANTHANIKAL HOUSE, KOTTATHARA POST, KALPETTA VIA, WAYANAD DISTRICT. ``` ``` BY ADV CELINE JOSEPH ``` ## **`RESPONDENTS/RESPONDENTS:`** ``` 1SUDHEESH, AGED NOT KNOWN, S/O. SASI, KALADITHARA HOUSE, KAMBALAKKAD, KANIYAMBETTA POST, WAYANAD DISTRICT. ``` ``` 2JANEESH, AGE AND FATHER'S NAME NOT KNOWN, PADALLILYIL HOUSE, PARALIKKUNNU, MADAKKIMALA, WAYANAD. 3THE BRANCH MANAGER, NEW INDIA ASSURANCE COMPANY LTD., M.G.T. BUILDINGS, KALPETTA NORTH, WAYANAD DISTRICT. BY ADV RAJI T.BHASKAR ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 09.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` **MACA 2683/2012** ..2.. ## **JUDGMENT** On 07.09.2008, while the appellant was riding his motorcycle, it was hit by the offending vehicle driven in a rash and negligent manner, at great speed. The accident left the appellant severly injured and had to be treated as an inpatient for more than 145 days, thus virtually rendering him incapacitated even to take care of his basic needs. He, therefore, filed OP(MV)No.186/2006 before the Motor Accidents Claims Tribunal, Kalpetta (‘Tribunal’ for short), seeking a compensation of Rs.30,26,000/-, limited to Rs.10,00,000/- and which has been allowed to a sum of Rs.9,52,100/-. The appellant argues that this figure is inadequate and seeks that it be enhanced appropriately. 2. Smt.Celine Joseph – learned counsel for the appellant, pointed out from the pleadings and evidence on record – copies of which have been handed over across the Bar by the learned counsel for the parties with the express consent that it can be acted upon by this Court without contest that even the Tribunal has found that, consequent to the accident, **MACA 2683/2012** ..3.. the appellant has been forced to an assisted life and is bed ridden. She pointed out that, in fact, the competent Medical Board of the Medical College Hospital, Kozhikode, has assessed the permanent disability of her client to be 80% and his occupational disability to be 100%; and that this is available from Ext.C2 - Disability Certificate issued by them. She thus prayed that the compensation under the various heads be enhanced suitably, particularly, under the head ‘Pain and Sufferings’ and ‘Loss of Amenities’. 3. In response, Smt.Raji T.Bhaskar - learned Standing Counsel for the Insurance Company, argued that the computations adopted by the Tribunal reflect the scenario available in the year 2008 - when the accident occurred and cannot be assessed by the present day standards. She submitted that, therefore, the compensation offered cannot be seen to be unfair or inadequate; and thus prayed that this appeal be dismissed. 4. I have considered the afore submissions on the touchstone of evidence which has been made available by the learned counsel for the parties as said above. 5. I see from the impugned Award and materials on ## **MACA 2683/2012** ..4.. record that, for computing the permanent disability, the learned Tribunal has adopted the notional income of the appellant to be a mere Rs.3,000/- and it has done so concluding that no cogent evidence has been led to establish his actual income. However, even in such a case, the learned Tribunal ought to have gone by the postulations in _**Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Ltd.**_ [(2011) 13 SCC 236], which mandates that a minimum of Rs.6,500/- be taken as the notional income of a person with unascertainable income in the year 2008. Coupled with this, the ratio in _**Rajani v. Oriental Insurance Company Ltd.**_ [2022 (5) KLT 1012] made it incumbent upon the Tribunal to have awarded a slightly larger figure because, the appellant, without dispute, was engaged in the avocation of a professional driver. I am of the opinion that a figure of Rs.7,500/- would be just and fair in this regard. 6. That said, I notice that the Tribunal has accepted Ext.C2 Certificate and has found that the permanent disability of the appellant is 80% and his occupational disability to be 100%. 7. The medical evidence, particularly Ext.A9 – Wound **MACA 2683/2012** ..5.. Certificate and Ext.A10 - Discharge Summary, show the horrific aftermath of the accident on the appellant. It records that he had suffered the following injuries at the time when he was admitted to the hospital immediately after the accident: i. Vomited four time – blood stained vomiting, ii. Black eye right side. iii. Multiple abrasion face, head both hands dorsum and right knee. iv. Incontinence of urine. v. He was ventilated. vi. C.T.Brain maxillary region showed defuse brain swelling, fracture right maxilla. vii. C.T.Scan thorax-Acute pulmonary embolism involving the right pulmonary artery, its inferior lohar branches and basel segmental branches. 8. It is without dispute in this case that the appellant was hospitalised for a total period of 145 days, which is also proved by various other documents on record, including Ext.A10 series. Further, the Tribunal found, when the appellant appeared before it during trial, that he was hemiplegic, unable to walk and was assisted by two persons. It is also recorded **MACA 2683/2012** ..6.. that the appellant did not understand the questions put to him by it and that he was not in a mentally fit condition to face the trial. It, thereupon, required the appellant to have a next friend to assist him and his wife was so appointed. The learned Tribunal has then gone on to say that his condition was “really pitiable”, particularly, because he was completely bedridden. 9. In the afore perspective, even though the Tribunal has taken the medical disablity of the appellant to be only 80% as certified in Ext.C2, the fact remains that he is actually 100% disabled, forced to live a continuous assisted life, for which he will certainly require an assistant. One cannot expect his wife to be a full time assistant to him, because she has the burden of the family, which includes two children who were school going at the time of the accident. _**Kajal v. Jagdish Chand & Ors.**_ [MANU/SC/0126/2020] is a _locus classicus_ in this regard, which obligates this Court to grant a minimum of Rs.5,000/per month to the appellant, so as to enable him to have an assistant to take care of him during his lifetime. This figure will certainly have to be added to the notional income. 10. Coming to the question of notional income of the appellant, as I have already said above, an amount of **MACA 2683/2012** ..7.. Rs.7,500/- would be apposite, since he was 32 years at the time of the accident, but it will have to be added with the future prospects of 40% as authorised by the Hon’ble Supreme Court in _**National Insurance Company Ltd. v. Pranay Sethi**_ [2017 (4) KLT 662 (SC)] and _**Satheesh E. v. The New India Assurance Company Ltd. & Ors.**_ [(2022) SCC OnLine 1828] 11. For the same reasons as afore, I am left without doubt that the compensation awarded by the Tribunal under the heads ‘Pain and Suffering’ and ‘Loss of Amenties’ are also exiguous. I propose to revise both of them to be Rs.1,00,000/and Rs.75,000/- respectively. 12. That said, I notice from the impugned Award that the learned Tribunal has awarded only Rs.100/- per day towards ‘Bystander Expenses’ for the period of hospitalisation of 145 days to the appellant: while ‘Extra Nourishment’ has been compensated only to the extent of Rs.200/- per day for the said period. I propose the figures to be enhanced to Rs.300/- and Rs.200/- per day respectively, for the entire period of hospitalisation, which is admitted to be 145 days. **MACA 2683/2012** ..8.. Resultantly, this appeal is partly allowed in the following manner: a. The compensation under the head ‘Permanent Disability’ is revised to be Rs.16,12,800/-, from Rs.4,60,800/offered by Tribunal, reckoning the notional income of the appellant to be Rs.7,500/- per month, with 40% future prosepcts added to it and his percentile of disability retained as 80%, as found by the Tribunal, based on Ext.C2. b. Axiomatically, the compensation under the head ‘Loss of Earnings’ is enhanced to Rs.45,000/-, again reckoning his notional income to be Rs.7,500/- per month for a period of six months as awarded by the Tribunal. c. The compensation under the head ‘Bystanders Expenses’ is enhanced to Rs.43,500/- from Rs.14,500/-, reckoning the per day expenses to be Rs.300/- for 145 days of hospitalisation. d. The compensation under the head ‘Extra Nourishment’ is enhanced to Rs.29,000/-, reckoning the per day expenses to be Rs.200/-. e. The compensation under the head ‘Pain and Sufferings’ is enhanced to Rs.1,00,000/-, from Rs.20,000/- **MACA 2683/2012** ..9.. awarded by the Tribunal. f. The comepnsation under the head ‘Loss of Amenities’ is enhanced to Rs.75,000/-, from Rs.5,000/awarded by the Tribunal. g. In view of the afore grant, the compensation under the head ‘Loss of Earning Power’ of Rs.5,000/- is deleted (going by the Judgment of the Hon’ble Supreme Court in _**United India Insurance Company Ltd. v. Satinder Kaur @ Satwinder Kaur**_ [(2021) 11 SCC 780]). In all other heads, the compensation awarded by the Tribunal will remain unaltered. Consequently, the appellant will be entitled to recover the compensation, as enhanced by this Court, from the Insurance Company, along with interest at the rate of 9% per annum, as ordered by the Tribunal, from the date of claim until it is realised. The appellant will also be entitled to proportionate costs as awarded by the Tribunal on the enhanced amounts. After I dictated this part of the judgment, Smt.Celine Joseph interevened to say that no amount has been awarded by the Tribunal for future treatment I am afraid that I cannot accede to her request for grant of money under this head at **MACA 2683/2012** **==> picture [26 x 9] intentionally omitted <==** this time because, there is no evidence to substantiate it. However, should the appellant be forced to incur expenses for his future treatment, he will certainly have liberty to move to the Tribunal with cogent and reliable evidence, which will then be considered by it in terms of law. It is needless to say, that all other findings of the Tribunal, including the grant of liberty by it to the Insurance Company to recover the compensation from the 2[nd] respondent is left unaltered. Sd/- **DEVAN RAMACHANDRAN, JUDGE** ACR