Pradeesh N.G. v. Murugan s/o Paramsivan; P. Alagu Subramanyam; New India Assurance Co. Ltd.

M.A.C.A.1726/2009 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN FRIDAY, THE 17[TH] DAY OF JUNE 2022 / 27TH JYAISHTA, 1944 MACA NO. 1726 OF 2009** **AGAINST THE ORDER/JUDGMENT IN OPMV 1513/2000 OF MOTOR ACCIDENT CLAIMS TRIBUNAL , IRINJALAKUDA** ## **APPELLANT/S:** PRADEESH.N.G., S/O.GOPALAKRISHNAN, NADUVATHARA HOUSE, KANDESWARAM P.O., ARATTUPUZHA,THRISSUR. BY ADV A.N.SANTHOSH ## **RESPONDENTS/RESPONDENTS:** 1 MURUGAN, S/O.PARAMSIVAN, HOUSE NO.1(A),LEKSHMI NAGAR,, NEAR COUNDER PALAYAM BUS STOP, METTUPALAYAM ROAD, COIMBATORE, TAMILNADU. 2 P.ALAGU SUBRAMANYAM S/O.PICHAYIYAPPILLAI (LATE), 5/18, AMTP ROAD,, COUNDER PALAYAM, COIMBATORE-30. 3 NEW INDIA INSURANCE CO. LTD BRANCH OFFICE, 1ST FLOOR, AVANASSI ROAD,, PEELAMEDU,COIMBATORE. BY ADVS. SHRI.LAL K.JOSEPH, SC, NEW INDIA ASSURANCE COMPANY LTD. SRI.GEORGE CHERIAN THIRUVALLA SRI.T.K.KUNHABDULLA THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 17.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.A.C.A.1726/2009 2 ## **C.JAYACHANDRAN, J.** **---------------------------------------------M.A.C.A.No.1726 of 2009 --------------------------------------------Dated this the 17[th] day of June, 2022** ## **J U D G M E N T** **1.** The claimant, who is the injured person in O.P. (M.V.)No.1513 of 2000 of the Motor Accidents Claims Tribunal, Irinjalakkuda, is the appellant herein. He assails the award dated 20.07.2006, seeking enhancement under the following heads. **2.** Learned counsel for the appellant pointed out that, as per Ext.A15 disability certificate, 45% permanent disability was assessed by the expert doctor, whereas, the Tribunal has taken only 30%, without assigning any reason. Learned counsel invited the attention of this Court to the discussion in paragraph 12 of the judgment, where the Tribunal spoke of fixing the permanent disability at 30%, after considering the M.A.C.A.1726/2009 3 nature of injury sustained, the present condition of the injury and the functional disability caused to the claimant. This Court cannot endorse the approach made by the learned Tribunal. It is important to note that the doctor who issued Ext.P15 disability certificate was examined as PW2. There is not even a suggestion in his cross examination that the permanent disability of 45% found is on the higher side. In such circumstances, Ext.P15 stands proved. In the matter of assessing the disability of an injured in an accident, the Court cannot substitute its view/estimation over the opinion of an expert, unless supported by adequate and cogent reasons. This Court is therefore inclined to take the disability at 45%, as recommended in Ext.P15 disability certificate. **3.** Secondly, learned counsel assailed the monthly income reckoned by the learned Tribunal at Rs.1,250/-. Learned counsel pointed out that the claimant was aged only 15 years as on the date of accident and therefore, M.A.C.A.1726/2009 4 notional income will have to be reckoned, to which, future prospects will have to be added. No amount has been added by reckoning the future prospects by the learned Tribunal. Learned counsel invited the attention of this Court to the notional income fixed in **Ramachandrappa** v. **Manager, Royal Sundaram Alliance Insurance Company Ltd.** [2011 KHC 4675] pertaining to the year 2004 at Rs.4,500/-. A graded deduction from the said figure for a period of four years @Rs.500/- per year would take us to Rs.2,500/-. As regards the future prospects, learned counsel submitted that, going by the judgments in **Sarla Verma** v. **Delhi Transport Corporation** [2010(2) KLT 802(SC)] and **National Insurance Co. Ltd.** v. **Pranay Sethi** [2017(4) KLT 662 (SC)], 40% is the future prospects to be reckoned even in cases of injuries. Finally, learned counsel pointed out that the date of birth of the claimant/injured is 11.11.1981 going by Annexure-14 S.S.L.C. certificate. Therefore, as on the date of the accident, he has crossed 15 years. Therefore the multiplier to be applied, going by Sarla Verma's ## M.A.C.A.1726/2009 ## 5 case (supra), is 18. I find that the submissions made by the learned counsel for the appellant is reasonable. A monthly income of Rs.2,500/- in the year 2000 towards notional income is nothing but, reasonable. The rest of the matters like the percentage at which future prospects is to be reckoned and the multiplier are subjects covered by authoritative pronouncements made by the Honourable Supreme Court in _Sarla Verma_ and _Pranay Sethi_ . In the circumstances, the submissions of the learned counsel for the appellant is accepted. **4.** The third ground urged is compensation under the head pain and suffering, under which, learned Tribunal had granted only Rs.15,000/-. Learned counsel pointed out that the victim/injured had undergone as many as 20 surgeries and he had to undergo prolonged treatment for a period of 4 years from 2000 to 2004. This aspect is not factually disputed by the learned counsel for the respondent. That being so, this Court is of the opinion that a sum of Rs.25,000/- will be M.A.C.A.1726/2009 6 reasonable to be granted under the head pain and suffering. **5.** The 4[th] ground is the compensation under the head loss of amenities, where, Tribunal had reckoned only Rs.7,500/-. Here also, this Court is of the opinion that a sum of Rs.15,000/- would be reasonable, especially taking into account the multiple fractures suffered by the claimant and the number of surgeries he had to undergo. The final aspect pointed out by the learned counsel for the appellant is under the head 'bystander expenses' and 'extra nourishment'. Conjoining the same, Tribunal had granted a sum of Rs.17,300/-. It is not in dispute that the appellant had undergone inpatient treatment for a total period of 173 days in different spells. If that be so, bystander expenses @Rs.200/- per day is reasonable. Similarly, extra nourishment @Rs.100/- per day is also reasonable. The compensation under that head is reworked accordingly. M.A.C.A.1726/2009 7 **6.** In the circumstances, this appeal is allowed and the appellant is entitled for a enhanced compensation of Rs.3,20,300/- as detailed in the schedule here below. |**Sl.**<br>**No.**|**Head of Claim**|**Amount**<br>**awarded by**<br>**the**<br>**Tribunal**|**Total amount after**<br>**enhancement in**<br>**appeal**| |---|---|---|---| |1|Cost of extra<br>nourishment and<br>bystander expenses|17,300|51,900 [173x100+<br>173x200]| |2|Medical Expenses|1,85,195|1,85,195| |3|Pain and Suffering|15,000|25,000| |4|Transportation charges|10,860|10,860| |5|Loss of amenities and<br>happiness in life|7,500|15,000| |6|Permanent disability and<br>future prospects|72,000|3,40,200<br>[2500+1000=3500x12x<br>45/100x18]| ||Total|3,07,855|6,28,155| |Amount enhanced = Rs.6,28,155 – Rs.3,07,855 =**Rs.3,20,300/**|||| M.A.C.A.1726/2009 8 **7.** The Insurance Company shall pay interest for the amount awarded by the Tribunal at the rate directed in the impugned award; and for the enhanced amount, at the rate of 5% from the date of petition. If any amount has already been paid, the same shall be granted set off. Since there was a delay of 809 days in filing the appeal, the interest for the enhanced quantum shall not run for the said period, as directed in order dated 30.11.2021 in C.M.A.No.2/2009 in this appeal. The claimant shall produce the details of the Bank account before the Insurance Company/Tribunal within two months from the date of receipt of a certified copy of this judgment and amount shall be transferred to the Bank account directly through NEFT/RTGS mode, within a period of one month thereafter. If the Bank account is not given within the time stipulated, it is made clear that, no interest shall run on the enhanced amount after the period stipulated by this Court. However, if the Insurance Company fails to deposit the amount, as directed, interest on the enhanced amount shall also run M.A.C.A.1726/2009 9 at the rate ordered by the Tribunal from the date of petition. The appeal is allowed to the above extent. **Sd/-** **C.JAYACHANDRAN JUDGE** ``` Sbna/ ```