Pramod T. v. Thottimmal AbdulSalam, Abdul Azeez Valappan & United India Insurance Co. Ltd.

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** # **`THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN WEDNESDAY, THE 15[TH] DAY OF MARCH 2023 / 24TH PHALGUNA,`** ## **`1944`** ## **`MACA NO. 1998 OF 2011`** ## **`AGAINST THE JUDGMENT IN OPMV 626/2007 OF MOTOR ACCIDENT`** ## **`CLAIMS TRIBUNAL , MANJERI`** ## **`APPELLANT/PETITIONER:`** ``` PRAMOD T. AGED 27 YEARS, S/O.MAYYAN, PAROCHALIL HOUSE P.O.KAVANNOOR, (VIA) AREACODE, MALAPPURAM DISTRICT. ``` ``` BY ADV SRI.P.SAMSUDIN ``` ## **`RESPONDENTS/RESPONDENTS:`** - `1 THOTTIMMAL ABDULSALAM S/O.MOHAMED, VILAYIL P.O.-673 652, MALAPPURAM DISTRICT.` ``` 2ABDUL AZEEZ VALAPPAN S/O.VEERANKUTTY HAJI, POOKAYIL HOUSE, KUZHIMANNA P.O.PIN-673 641, MALAPPURAM DISTRICT. ``` ``` 3UNITED INDIA INSURANCE CO.LTD. BRANCH OFFICE, ARAFA BUILDING, COURT ROAD, MANJERI-676 122, MALAPPURAM DISTRICT. BY ADV SRI.THOMAS MATHEW NELLIMOOTTIL ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 15.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` **MACA 1998/2011** ..2.. ## **JUDGMENT** This matter is of the year 2011 and has not been admitted. However, both sides are ad idem that it can be disposed of, after being formally admitted, based on the undisputed evidence on record, handed over by them across the Bar. I, therefore admit this Appeal and proceed to dispose it of finally, with the consent of both sides. 2. The appellant was engaged as a Cleaner in a vehicle owned by the 2[nd] respondent; and on 23.05.2006, when he was traveling in such capacity, on account of the rash and negligent driving of its driver, it capsized, causing him severe injuries. He had to be hospitalized for 63 days and suffered various surgical and medical procedures; and thus filed OP(MV)No.626/2007 before the Motor Accidents Claims Tribunal, Manjeri (‘Tribunal’ for short), seeking compensation of an amount of Rs.2,00,000/-, but which has been allowed only to a sum of Rs.1,83,349/-. He impugns this Award as being inadequate. 3. Sri.P.Samsudin – learned counsel for the appellant, pointed out that, even though his client has claimed Rs.6,000/- **MACA 1998/2011** ..3.. as the monthly income, the learned Tribunal adopted his notional income to be a mere Rs.3,500/-; and thus, fixed the compensation eligible under the head ‘Permanent Disability’ very low. He then pointed out that the compensation for ‘Loss of Earnings’ was reckoned for a period of six months, also taking the afore as the notional income; while very meagre amounts have been given as compensation under the heads ‘Pain and Sufferings’ and ‘Loss of Amenities’, even after noticing that his client had suffered multiple skull injuries and cervical disc collapse, apart from other injuries. He argued that this is more so because, Ext.B1 certificate issued by a competent Medical Board has certified his Permanent Disability to be 10%; and thus prayed that this appeal be dismissed. 4. In response, Sri.Thomas Mathew Nellimoottil – learned Standing Counsel for the Insurance Company, argued that the notional income adopted by the Tribunal is not in error because, the accident occurred in the year 2006, when the normal income for a Cleaner was not more than Rs.3,500/-. He argued that the compensation arrived at by the Tribunal is without error because, it has calculated it on the basis of the Workmen’s Compensation Act, taking note of the fact that the appellant was an employee of the 2[nd] respondent in his lorry. **MACA 1998/2011** ..4.. He thus prayed that this appeal be dismissed. 5. I have considered the afore submissions, on the touchstone of the evidence and documents on record, which I have evaluated carefully. 6. I note upfront that, after adopting the notional income of the appellant to be Rs.3,500/- per month, the learned Tribunal computed the compensation for disability based on the Workmen’s Compensation Act. The reasoning given was that, since the appellant was working as a Cleaner in the offending lorry, he is only entitled to the compensation as per the same. I am afraid that this cannot appeal to this Court at all because, it has now been well settled, through a series of judgments of this Court, and that of the Hon’ble Supreme Court, that when a person is injured in a road accident - be that a third party or an employee of the owner, riding or travelling in the vehicle - the principles enunciated for such will have to be fully followed. The provisions of the Motor Vehicles Act and the modus of compensation under it, certainly, become attracted in such case and confinement of the compensation as per the Workmen’s Compensation Act becomes untenable. I am, therefore, of the firm view that the learned Tribunal has erred in computing the compensation under the head ‘Loss of ..5.. ## **MACA 1998/2011** Disability’. 7. That said, the notional income adopted by the Tribunal is also in error, because _**Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company**_ _**Ltd.**_ [(2011) 13 SCC 236] postulates that, even in the case of a person with unascertainable income, or one who is working as a ‘Coolie’, in the year 2006 – when the accident occurred, the minimum reckonable notional income is Rs.6,000/- per month. Since the appellant claimed only the said figure, it ought to have been accepted. 8. As far as Permanent Disability is concerned, the learned Tribunal has correctly adopted the percentile certified in Ext.B1 certificate and I see no reason for not to affirm it. 9. The medical evidence on record, particularly, Ext.A2 - Wound Certificate, records that, after the accident there was bleeding from the appellant’s nose that he was disoriented and suffered multiple fractures on his skull. He was hospitalized for different spells of treatment, for a total period of 63 days, followed by Ayurveda treatment, which went on even in the years 2009-10. Ext.A7 - Discharge Summary records that the appellant experienced numbness and weakness of his left hand and general weakness of his body, including recent memory ## **MACA 1998/2011** ..6.. loss. Though the Medical Board, Manjeri, did not notice any neurological defect in the appellant, it has recorded that he was suffering from “seizure disorder”, induced by the head injuries sustained in the accident; and thus assessed his permanent disability as being 10%. 10. Taking note of the afore and in particular, his head injuries and cervical disc collapse consequent to the accident, I am without doubt that the compensation awarded by the Tribunal under the heads ‘Pain and Sufferings’ and ‘Loss of Amenities’ require to be enhanced, at least to the extent which was claimed, as far as the first head is concerned. As far as the second head is concerned, I propose Rs.20,000/-. 11. Though **Ramachandrappa** (supra) authorizes the notional income of Rs.5,500/- even for a ‘Coolie’, same standard cannot be adopted in favour of the appellant because, he was a Cleaner of the Bus. Therefore, being guided by _**Rajani v. Oriental Insurance Company Ltd.**_ [2022 (5) KLT 1012], I am of the view that the amount claimed by him, namely Rs.6,000/-, ought to have been granted. 12. At this time, Sri.P.Samsudin intervened to request that some amount be reserved for his client for future treatment, since he still has not got over the aftermath of the **MACA 1998/2011** ..7.. injuries. This is surely a request to be considered, since the appellant seems to be suffering from the consequences of his injuries long after the accident, which is discernible from Exts.A9 and A10, which shows that he had been forced to continue treatment even in the year 2010-2011. 13. As regards ‘Bystanders Expenses’ and expenses for ‘Extra Nourishment’, I find favour with the appellant because, he had to suffer 63 days of hospitalization and has been granted only Rs.6,300/- under the first head; and nothing under the second head. I propose to take the _per diem_ expenses to be Rs.200/- under both heads and to award compensation on such basis. In the afore circumstances, this appeal is partly allowed in the following manner: - a The compensation under the head ‘Loss of earning power’ is revised to Rs.1,29,600/-, from Rs.75,600/-, reckoning the notional income of the appellant to be Rs.6,000/- per month, his percentile of disability to be 10% as found by the Tribunal and adopting the multiplier of ‘18’, adverting to the fact that he was 23 years of age at the time of the accident. b Axiomatically, the compensation under the head ‘Loss **MACA 1998/2011** ..8.. of Earnings’ is revised to Rs.36,000/-, again reckoning the notional income of the appellant to be Rs.6,000/per month and for six months as adopted by the Tribunal. - c The compensation under the head ‘Pain and Sufferings’ is enhanced to Rs.30,000/- from Rs.15,000/awarded by the Tribunal. - d An additional amount of Rs.25,000/- is awarded to the appellant under the head ‘Loss of Amenities’. - e The compensation under the head ‘Bystanders Expenses’ is enhanced to Rs.12,600/-. - f In addition, an amount of Rs.12,600/- is awarded for ‘Extra Nourishment’. - g Finally, a sum of Rs.15,000/- is awarded towards “Future Medical Expenses”. - h In all other heads, the compensation awarded by the Tribunal will remain unaltered. Consequently, the appellant will be entitled to recover the compensation, except under the head “Future Medical Expenses”, as enhanced by this Court from the Insurance Company, along with interest at the rate of 7.5% per annum (modifying the rate of interest 9% per annum as ordered by **MACA 1998/2011** ..9.. the Tribunal, in view of the escalation granted by this Court) 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. As regards the compensation for “Future Medical Expenses”, the said sum will carry interest at the rate of 7.5% per annum from the date of this judgment, until it is realised. However, while computing the interest eligible to the appellant as above, the period of 79 days - being the delay caused by the appellants in filing the appeal - shall stand excluded. 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** ACR