Ponnappan P.V. v. Santosh P.R and Others

## `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ``` THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN FRIDAY, THE 17[TH] DAY OF MARCH 2023 / 26TH PHALGUNA, 1944 ``` ## `MACA NO. 1334 OF 2021` ``` [AGAINST THE AWARD DATED 21.10.2019 IN OP(MV)NO.1103/2016 ON THE FILE OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, KOTTAYAM] ``` ## `APPELLANT/PETITIONER:` ``` PONNAPPAN.P.V, AGED 48 YEARS, S/O. VALLON, PUTHUCHIRA HOUSE, THOTTAKOM, THALAYAZHAM P.O., VAIKOM. ``` ``` BY ADVS.V.N.SASIDHARAN SRI.T.R.SATHYAN ``` ## `RESPONDENTS/RESPONDENTS:` - `1 SANTHOSH P.R, PALAKKOTTIL HOUSE, IRUMPAYAM P.O., KOTTAYAM, PIN 686 605.` - `2 REJIMON, S/O. VARKEY, ARACKAL HOUSE, IRUMPAYAM P.O., THALAYOLAPARAMBU, PIN-686 605.` - `3 SREERAM GENERAL INSURANCE COMPANY LTD. REPRESENTED BY THE OFFICER-LEGAL E8, EPIP, RII CO. INDUSTRIAL AREA, SITAPURA, JAIPUR, RAJASTAN, PIN-302022, INDIA.` - `4 SUJA, W/O. THOMAS ABRAHAM MANGALALAYAM, KOTTARKAVU, KALLUMALA, ALAPUZHA, PIN-690 101.` ``` BY ADV SRI.P.JACOB MATHEW, SC ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 17.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA NO. 1334 OF 2021 ``` ``` -2- ``` ## `JUDGMENT` ``` The appellant was very grievously injured in a road accident on 16.03.2015 - when the autorickshaw being driven by him was hit by the offending tipper lorry, driven in a rash and negligent manner. He sustained serious injuries and was taken to a hospital, where he underwent ``` ``` treatment for a very prolonged period of time, still rendering him bedridden and in a vegetative state.He thus filed OP(MV) No.1103/2016 before the Motor Accidents Claims ``` ``` Tribunal, Kottayam, (‘Tribunal’, for short), seeking compensation of an amount of Rs.1,21,26,000/-, limited to Rs.50,00,000/-; but ``` ``` which has been granted only to a sum of ``` ``` Rs.15,90,000/-. He assails the Award as being exiguous. ``` ``` 2.Sri.V.N.Sasidharan – learned counsel for ``` ``` the appellant, argued that, since his client ``` ``` MACA NO. 1334 OF 2021 ``` ``` -3- ``` ``` was a professional “autorickshaw” driver, he was entitled to be reckoned the income which he had claimed, namely, Rs.7,500/-, along with sufficient future prospects. He pointed out that, however, the learned Tribunal has adopted the notional income of the appellant to be Rs.6,000/- without any basis; and, consequently, that the compensation awarded to him has been reduced substantially. ``` ``` 3.Sri.V.N.Sasidharan further submitted ``` ``` that, since his client has now been reduced to a ``` ``` completely vegetative state, he is entitled to the assistance of an attender and relied upon the judgments of the Hon’ble Supreme Court in ``` ``` Kajal v.Jagdish Chand & Others [AIR 2020 SC 776] ``` ``` andJithendran v. The New India Assurance Company Limited [2021 KHC 6653]. He concluded, saying that the compensation awarded by the Tribunal towards “Extra Nourishment” and “Loss ``` ``` MACA NO. 1334 OF 2021 ``` ``` -4- ``` ``` of Amenities” is extremely inadequate and bears ``` ``` no reasonable nexus to the injuries sustained by his client. ``` ``` 4.In response, Sri.P.Jacob Mathew – ``` ``` learned Standing Counsel for the Insurance Company, argued that, since there is no evidence to establish that appellant was a professional ``` ``` autorickshaw driver, the computations arrived at ``` ``` by the Tribunal are without error; and thus prayed that this Appeal be dismissed. ``` ``` 5.I have considered the afore rival ``` ``` submissions on the touchstone of the 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 dispute. ``` ``` 6.I will first deal with the correctness ``` ``` of the notional income reckoned in favour of the ``` ``` appellant. Even though the Insurance Company ``` ``` MACA NO. 1334 OF 2021 ``` ``` -5- ``` ``` says that there is nothing to show that he was a ``` ``` professional driver, Ext.A23 – Certificate ``` ``` clearly establishes so. ``` ``` 7.That said, though, in Ext.A23, the ``` ``` appellant claims that he was earning an income of Rs.1,500/- per day, in the absence of the ``` ``` same being proved validly - including through ``` ``` other cogent methods to show that he was ``` ``` receiving such amounts - the learned Tribunal ``` ``` was right in not having accepted it, at least ``` ``` with respect to the income shown therein. ``` ``` Obviously, it was, therefore, obligated to fix ``` ``` the notional income, and the question is whether same has been done acceptably. ``` ``` 8.In this regard, going by Ramachandrappa ``` ``` v. Manager, Royal Sundaram Alliance Insurance ``` ``` Company Ltd. [(2011) 13 SCC 236], even a person ``` ``` with an unascertainable income, or who was a ``` ``` ‘Coolie’, in the year 2015 - when the accident ``` ``` MACA NO. 1334 OF 2021 ``` ``` -6- ``` ``` occurred – the minimum figure to be reckoned as notional incomeis Rs.10,000/-. Since the appellant has claimed only Rs.1,500/- per day, ``` ``` but which has not been established with cogent ``` ``` or reliable means, I see no reason why the ``` ``` Tribunal should not have adopted a standardized figure. ``` ``` 9.That said, since there is material to show that he was a professional driver, the ratio inRajani v. Oriental Insurance Company ``` ``` Limited [2022 (5) KLT OnLine 1012] would come to ``` ``` apply, in which, the Hon’ble Supreme Court has directed the Tribunals and this Court to take a ``` ``` robust view in such cases. I, therefore, propose ``` ``` to adopt the notional income of the appellant to be Rs.11,000/- per month, which is a mere Rs.1,000/- more than what has been authorized by Ramachandrappa (supra). ``` ``` 10.That being so concluded, the appellant ``` ``` MACA NO. 1334 OF 2021 ``` ``` -7- ``` ``` is certainly entitled to future prospects, which has been correctly adopted by the learned Tribunal as being 25%, to be added to his income. ``` ``` 11.The medical evidence on record, ``` ``` particularly Exts.A11 – Medical Certificate, A12 ``` ``` – Disability Certificate and Exts.A3 to A10 – Scan Reports, read along with Exts.A14 – Coronary Angiogram Report, A15 - Treatment Certificate from Indo American Hospital, Vaikom and Ext.A17 – Medical Certificate from the ``` ``` Department of Palliative Care Taluk Hospital, Vaikom, establish the horrific nature of the injuries and its aftermath suffered by the appellant. Exts.A6 to A8 – Reports and the ``` ``` Medical Certificates mention that the appellant suffered “minimally displaced fracture of inferior facet of L5, L6, displaced fracture left transverse process of C6 vertebra.” (sic) ``` ``` MACA NO. 1334 OF 2021 ``` **==> picture [22 x 9] intentionally omitted <==** ``` 12.The appellant was treated for a very ``` ``` long period of time, including as an inpatient for 86 days; and the learned Tribunal itself has found that he requires the support of a full time assistant/caregiver for daily living. This ``` ``` is because, he has been completely incapacitated ``` ``` to take care of even his basic needs and has ``` ``` been bedridden, as has also been correctly found by the learned Tribunal. ``` ``` 13.Further, Ext.A5 – Discharge Certificate ``` ``` and other evidence show that the appellant required domiciliary physiotherapy and that he is in a state where he cannot even lift himself from the bed. The learned Tribunal has also ``` ``` recorded, in paragraph 20 of the impugned Award, ``` ``` that when the appellant was brought to the ``` ``` Court, and on examination of his photographs, it became evident that his assertion, of being fully bedridden and being incapacitated even for ``` ``` MACA NO. 1334 OF 2021 ``` ``` -9- ``` ``` basic human requirements, has been established. ``` ``` It is thus without doubt that the appellant is ``` ``` suffering from traumatic quadriplegia; and it is based on this, that Ext.A12 – Disability ``` ``` Certificate records his whole body disability to be 75%. The learned Tribunal has also accepted the said percentile. ``` ``` 14.However, I am afraid that, while ``` ``` computing the compensationeligible to the appellant, it should not have been sufficient ``` ``` for the Tribunal to have adopted the afore ``` ``` percentile because, when there is clear evidence ``` ``` to show that he is fully bedridden and incapable ``` ``` of doing anything on his own, same ought to have ``` ``` been reckoned as ‘100’. I am certain that he is ``` ``` entitled to such; and consequently, to be ``` ``` granted expenses for an attender in terms of ``` ``` Jithendran (supra) andKajal (supra), which I ``` ``` propose to be Rs.5,000/- per month for one ``` ## `MACA NO. 1334 OF 2021` ``` -10- ``` ``` person. ``` ``` 15.Finally, taking note of the horrific ``` ``` aftermath of the injuries on the appellant and the undisputed factum of his continuing in the ``` ``` same state as he was after the accident ``` ``` occurred; and which, most likely, appears to be ``` ``` continuing for his life, I am of the firm view ``` ``` that, though the compensation awarded under the ``` ``` head “Pain and Suffering” can be treated as ``` ``` adequate, that under the head “Loss of ``` ``` Amenities” requires to be marginally enhanced, ``` ``` keeping in mind that law is now well settled ``` ``` that when disability is adequately compensated, ``` ``` the sums towards “Loss of Amenities” are to be ``` ``` kept to the apposite minimum. I am certain that, ``` ``` even from that perspective, an amount of Rs.75,000/- would be the least that the appellant would be entitled to, particularly ``` ``` because he has sought Rs.55 lakhs under that ``` ``` MACA NO. 1334 OF 2021 ``` ``` -11- ``` ``` head. ``` ``` 16.As far as “Bystander Expenses” is concerned, I notice that the learned Tribunal has awarded Rs.21,500/-, reckoning Rs.250/- per diem to be the expenses for the same. I am sure that even in the year 2015 - when the accident occurred – the per day expenses for such ``` ``` purpose, would be much more than this and I propose to revise it to be Rs.400/- per day. ``` ``` Resultantly, this Appeal is partly allowed in the following manner: ``` ``` (a)The compensationunder the head ``` ``` disability (shown as loss/deduction earning capacity by the Tribunal) is enhanced to Rs.21,45,000/- (Rupees twenty one lakhs forty five thousand only), from Rs.8,77,500/- as ``` ``` awarded by the Tribunal, reckoning the notional income of the appellant to be Rs.11,000/- per month, with 25% future prospects added to it and ``` ``` MACA NO. 1334 OF 2021 ``` ``` -12- ``` ``` his percentile of disability reckoned as ‘100’. ``` ``` (b)Axiomatically, the compensation under the head “Loss of Earning” awarded by the Tribunal is deleted. ``` ``` (c)The compensation under the head “Loss of ``` ``` Amenities and conveniences” is enhanced to Rs.75,000/- (Rupees seventy five thousand only), from Rs.40,000/- now awarded. ``` ``` (d)The compensationunder the head ``` ``` “Bystander Expenses” is enhanced to Rs.34,400/-, ``` ``` (Rupees thirty four thousand four hundred only), from Rs.21,500/- now awarded, reckoning Rs.400/- as per diem expenses. ``` ``` (e) An amount of Rs.7,80,000/- (Rupees seven ``` ``` lakhs eight thousand only) is additionally ``` ``` awarded under the head “Attender Expenses”, ``` ``` being guided byJithendran (supra) andKajal ``` ``` (supra), reckoning Rs.5000/- per month for such ``` ``` purpose and adopting the multiplier of ‘13’, as ``` ``` MACA NO. 1334 OF 2021 ``` ``` -13- ``` ``` perSarla Verma & Others v.Delhi Transport ``` ``` Corporation & Another [2010 (2) KLT 802]. ``` ``` (f)In all other heads, the compensation ``` ``` granted by the Tribunal will remain intact. ``` ``` 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% (modifying the ``` ``` rate of interest of 9% granted by the Tribunal, ``` ``` in view of the escalation granted by this ``` ``` Court), except under the head “Attender ``` ``` Expenses”, 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. ``` ``` As far as the compensation under the head ``` ``` “Attender Expenses” is concerned, the said sum will carry interest at the rate of 7.5% per annum from the date of this judgment, until it ``` ``` MACA NO. 1334 OF 2021 ``` ``` -14- ``` ``` is paid or realized. ``` ``` In view of the afore, the amount as fixed above shall be deposited by the Insurance Company before the Tribunal, within a period of two months from the date of receipt of a copy this judgment. ``` ``` Sd/- ``` ``` DEVAN RAMACHANDRAN ``` ``` JUDGE ``` ``` akv ```