P.M. Bhasi Plangayil v. Mani S/o Ramachandran and others (MACA No. 1790 of 2009)

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN WEDNESDAY, THE 12[TH] DAY OF APRIL 2023 / 22ND CHAITHRA, 1945 MACA NO. 1790 OF 2009** **AGAINST THE ORDER/JUDGMENT OPMV 950/2002 OF SPECIAL C SPE/CBI-I&3 ADDITIONAL DISTRICT COURT / I ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL, EKM** ## **APPELLANT/PETITIONER IN OP(MV):** P.M.BHASI PLANGAYIL HOUSE, KADAKKAVOOR P.O., KADAKKAVOOR VILLAGE, CHIRAYINKEEZHU TALUK,, THIRUVANANTHAPURAM DISTRICT. BY ADVS. SRI.T.ABY JACOB SRI.ANIL S.RAJ SMT.K.N.RAJANI SRI.RADHIKA RAJASEKHARAN P. SMT.ANILA PETER SRI.S.SUDHEESH SRI.SAJEN THAMPAN ## **RESPONDENTS/RESPONDENTS IN OP(MV):** 1 MANI S/O.RAMACHANDRAN, KALLUNGAL HOUSE, M.K.B.ROAD, KOCHI – 35. (DECEASED LR'S IMPLEADED) 2 T.N.SREENIVASAN SO. NEELAN THUNDITHARA HOUSE, WARD NO.14, SOUTH OF LIGHT HOUSE, PUTHUVYPE, OCHANTHURUTH P.O., ERNAKULAM DISTRICT. 3 THE UNITED INDIA INSURANCE CO.LTD. BRANCH NO.III, HOSPITAL ROAD, KOCHI - 11. 4 SANDHYA, W/O MANI, KALLUNGAL HOUSE. MKB ROAD, KOCHI - 682035 *LEGAL HEIRS OF DECEASED FIRST RESPONDENT IS IMPLEADED AS PER ORDER DATED 07.12.2022 IN IA 3/2020 IN MACA 1790/2009* 5 SAUMYA, D/O MANI, KALLUNGAL HOUSE. MKB ROAD, KOCHI - 682035 *LEGAL HEIRS OF DECEASED FIRST RESPONDENT IS IMPLEADED AS PER ORDER DATED 07.12.2022 IN IA 3/2020 IN MACA 1790/2009* M.A.C.A.No.1790 of 2009 : 2 : BY ADVS. SMT.DEEPA GEORGE SRI.M.A.GEORGE THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 12.04.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.A.C.A.No.1790 of 2009 : 3 : ## **DEVAN RAMACHANDRAN, J. ========================= M.A.C.A.No. 1790 of 2009** ## **========================== Dated this the 12[th] day of April, 2023** ## **JUDGMENT** The appellant was injured in a road accident on 18.07.2001, when the autorickshaw in which he was travelling was rammed into by the offending vehicle, driven in a rash and negligent manner. He says that, consequent to the collision, the autorickshaw hit against an iron post on a traffic island, causing him very severe injuries, requiring long and arduous treatment. He asserts that he had to be subjected to several surgical procedures; and hence that he was constrained to approach the Motor Accidents Claims Tribunal, Ernakulam (the 'Tribunal' for short), through OP(MV) No.950 of 2002, seeking compensation of an amount of Rs.17,00,000/-; but which has been allowed only to a sum of Rs.4,27,952/-. He assails the compensation as being inadequate. 2. Smt.Ameena, appearing on behalf of Smt.Rajani K.N. – learned counsel for the appellant, argued that the main reason why the compensation has been fixed low by the learned Tribunal is because the income of her client has been reckoned on the lower side; and no future prospects has been added, even though he has, admittedly, suffered 45% permanent disability. She pointed out from the medical evidence, that her client had to suffer amputation M.A.C.A.No.1790 of 2009 : 4 : of his leg; and thus argued that even the disability of 45%, reckoned by the learned Tribunal, is not sufficient. She concluded saying that the compensation awarded by the learned Tribunal under the heads “Loss of Earning”; “Loss of Amenities and Convenience”; “Shock, Pain and Sufferings;, “Attendant Expenses and Extra Nourishment” is so exiguous, that it obtains no rational nexus to the agony and pain suffered by him. She thus prayed that this appeal be allowed. 3. In response, Smt.Deepa George – learned Standing Counsel for the Insurance Company, submitted that the computations adopted by the Tribunal, in allowing the compensation, is without error, since the accident happened in the year 2001, when the present day fiscal standards could not have been adopted. She thus prayed that this appeal be dismissed. 4. I have evaluated the afore rival submissions on the touchstone of various materials 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 they can be acted upon by this Court without dispute. 5. I will first deal with the question of adequacy of income adopted by the learned Tribunal in favour of the appellant. I notice that it has fixed Rs.2,000/- in such regard; but going by **Ramachandrappa v. Manager, Royal Sundaram Alliance** M.A.C.A.No.1790 of 2009 : 5 : **Insurance Company Ltd. [(2011) 13 SCC 236],** the Hon'ble Supreme Court has postulated that, even in the case of a “Coolie”, or a person with an unascertainable income, in the year 2001 – when the accident occurred – the minimum figure to be reckoned is Rs.3,000/-. It is, however, on record that the appellant was not an ordinary “coolie”, but was working as a Manager, which factum is proved through Ext.A17 – Certificate of a Grama Panchayat, which remains undisputed. Therefore, as per the ratio in **Rajani v. Oriental Insurance Co.Ltd. [2022 (5) KLT Online 1012],** this Court is obliged to take a more robust view; and am, therefore, of the firm opinion that the notional income of the appellant should be reckoned to be Rs.3,500/-, which is a mere Rs.500/- more than what has been authorised by **Ramachandrappa (supra)** in the case of a “Coolie”. 6. That said, Ext.A9 – Disability Certificate, establishes that the appellant suffered 45% permanent disability. Obviously, therefore, going by the judgments of the Hon'ble Supreme Court in **Syed Sadiq v. United India Insurance Co. Ltd. [(2014) 2 SCC 735]; Vijay Kumar Rastogi v. Uttar Pradesh State Roadways Transport Corporation [AIR 2018 SC 819]; Erudhaya Priya v. State Express Transport Corporation Ltd. [2020 SCC Online 601],** and **Satheesh E. v. The New India Assurance Company Ltd. and others [2022 SCC OnLine 1828]** , future prospects of M.A.C.A.No.1790 of 2009 : 6 : 25% becomes eligible to be added to his income, as is sanctioned by **National Insurance Company Ltd. v. Pranay Sethi [2017** - **(4) KLT 662],** because the appellant was only 46 years old at the time of the accident, which is proved from Ext.A16 – Passport. 7. That said, the medical evidence on record – particularly Ext.A5 – Wound Certificate, establishes that the appellant suffered the following injuries, after the accident: 1. Swelling and tenderness with limitation of movement distal end of left forearm; 2. Swelling and tenderness with limitation of movement of lower part of thigh and left knee; 3. Swelling, tenderness and deformity of left ankle; 4. Lacerated wound left side of forehead 3x2x1cm; 5. Lacerated wound medial aspect of left thigh 4x3x2cm; 6. Multiple abrasions left knee and abdomen; 8. Further, Ext.A6 – Discharge Summary records that the appellant had suffered _“supracondylar fracture left femur, fracture left tibia and fibula lower third, vascular injury left lower limb (femoral artery cut above popliteal fossa) and fracture radius and_ _ulna left forearm”_ (sic). It further contains that, on 18.07.2001, external fixator was applied and vascular repair done by a plastic surgeon, on account of massive muscle necrosis with toxaemia and reperfusion injury. This led to septicaemia and unfortunately, on M.A.C.A.No.1790 of 2009 : 7 : 19.07.2001, his left lower limb had to be amputated. 9. The Gastroenterologist, to whom the appellant was thereafter referred, found abdomen distention, malena and reactivation of old peptic ulcer, added with the fact that he was a diabetic patient. He had to further suffer internal fixation on the left ulna and radius. He thus endured a total of 72 days of inpatient treatment, which is evident and undisputed from the medical evidence on record. 10. Obviously, the trauma suffered by the appellant cannot be understated at all, particularly because he had to suffer amputation of his leg. 11. I have, therefore, no doubt that the compensation awarded by the learned Tribunal under the heads “Shock, Pain and Sufferings” and “Loss of Amenities and Convenience” is extremely meagre; while, that awarded under the head “Attendant Expenses and Extra Nourishment” will have to be sufficiently enhanced, taking note of the fact that he was hospitalised for a total of 72 days. In the afore circumstances, this appeal is allowed in the following manner: (a) The compensation under the head “Permanent Disability” is revised to Rs.3,07,125/-, reckoning the notional income of the appellant to be Rs.3,500/-, with 25% future prospects added and the multiplier of '13' M.A.C.A.No.1790 of 2009 : 8 : ## adopted, as per **Sarla Verma v. Delhi Transport Corporation [2010 (2) KLT 802].** (b) Axiomatically, the compensation for “Loss of Earning” will stand enhanced to Rs.17,500/-, from Rs.10,000/-, reckoning the notional income of the appellant to be Rs.3,500/-, taking five months period for such purpose, as correctly done by the learned Tribunal. - (c) The compensation under the head “Shock, Pain and Sufferings” is enhanced to Rs.75,000/-, from Rs.30,000/- awarded by the learned Tribunal. - (d) The compensation under the head “Loss of Amenities & Convenience” is enhanced to Rs.75,000/-, from Rs.20,000/- awarded by the Tribunal. - (e) The compensation under the heads “Attender Expenses and Extra Nourishment” is enhanced to Rs.28,800/-, reckoning the total per day expense under both these heads to be Rs.400/-, for 72 days of hospitalisation. - (f) In all other heads, the compensation awarded by the Tribunal will remain unaltered. Consequently, the appellant 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 7.5% as awarded by the M.A.C.A.No.1790 of 2009 : 9 : Tribunal, from the date of the claim until it is recovered. He will also be entitled to proportionate costs, on the enhanced amount, as ordered by the Tribunal. In view of the afore, the amount as fixed above shall be deposited by the Insurance Company before the learned Tribunal, within a period of two months from the date of receipt of a copy of this judgment. **Sd/DEVAN RAMACHANDRAN JUDGE** anm