Praseed Mammen v. John Thomas and Manager, Future Generali India Insurance Co. Ltd.

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE BASANT BALAJI`** ``` FRIDAY, THE 10[TH] DAY OF JUNE 2022 / 20TH JYAISHTA, 1944 ``` ## **`MACA NO. 729 OF 2019`** ``` OPMV 638/2014 OF ADDITIONAL DISTRICT COURT & SESSIONS COURT ``` ``` - IV, PATHANAMTHITTA / IV ADDL. M.A.C.T. ``` ## **`APPELLANT/S:`** ``` PRASEED MAMMEN, AGED 32 YEARS KANNANKARA PUTHENVEEDU HOUSE, PERINGALA P.O., KAYAMKULAM VILLAGE, KARTHIKAPALLY TALUK. BY ADV T.K.KOSHY ``` ## **`RESPONDENT/S:`** - `1 JOHN THOMAS, MULAMOOTTIL HOUSE, PERINGOLE, KAVUMBHAGOM P.O., THIRUVALLA, PIN-689102.` ``` 2MANAGER, FUTURE GENERALI INDIA INSURANCE CO. LTD., 8TH FLOOR, CARMEL TOWER COTTON HILL POST, VAZHUTHACADU, THIRUVANANTHAPURAM, PIN-695014. BY ADV SRI.THOMAS M.JACOB ``` ## **`OTHER PRESENT:`** ## `AKHIL MADHAV FOR RESPONDENT` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 10.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA NO. 729 OF 2019 ``` -2- ## **JUDGMENT** (Dated this the 10[th] day of June 2022) Dissatisfied with the award of compensation in O.P. (M.V.) No.638 of 2014 on the files of the Additional District and Sessions Court and Additional M.A.C.T., Pathanamthitta, this M.A.C.A. is filed by the petitioner therein. 2. On 15.2.2014, while the appellant/petitioner was standing by the side of Kavumbhagam-Peringol-Uthramel Public Road, he was hit by a car driven by the first respondent in a rash and negligent manner. As a result of the accident, he sustained serious injuries and was taken to T.M.M. Hospital, Thiruvalla from where he was referred to Pushpagiri College Hosptial, Thiruvalla. He was treated as inpatient from 15.2.2014 to 28.3.2014 and continued ``` MACA NO. 729 OF 2019 ``` treatment as outpatient for many months. At the time of accident, the appellant was aged 27 years and a nurse by profession. He has also secured employment in Qatar. The Medical Board assessed permanent disability at 16% and due to the said accident and disability, he could not join as a nurse in Qatar. Though the appellant claimed compensation of Rs.40,00,250/-, the same was limited to Rs.20,00,250/-. The Tribunal, relying on Ext.Nos.A1 to A17, awarded a compensation of Rs.10,26,860/- with 9% interest from the date of the petition till deposit of the award amount. 3. The counsel for the appellant submits that the Tribunal failed to take the income of the appellant as Rs.50,000/- per month, since he is a qualified nurse with B.Sc nursing degree and got a job opportunity in Qatar. ``` MACA NO. 729 OF 2019 ``` The Tribunal took Rs.12,000/- as the income of the appellant, as he was employed as a nurse in Baby Memorial Hospital Ltd., Kozhikode proved by Ext.A16 certificate. The counsel for the appellant relied on the decision reported in **Ashvinbhai Jayantilal Modi v. Ramkaran Ramchandra Sharma and Another [2015 (2) SCC 180]** for the proposition that the Apex Court has taken Rs.25,000/- per month for a student of Medicine who died in a motor accident in 2002. In another decision reported in **National Insurance Co.Ltd., Chennai v. Fathimath Zuhara @ Zuhra Razak and another (2016 KHC 691** ), this court has held that notional income of an Engineering student, who died in a road accident in 2005, can be fixed as Rs.12,000/-. Similarly, in **Ramakrishnapillai K. and others v. New India Assurance Company Limited (2015** ``` MACA NO. 729 OF 2019 ``` -5- **KHC 3703),** a Division Bench of this court held that for a B.Tech student who died in a motor accident in 2011, the income can be fixed at Rs.12,000/- per month. Functional disability of the appellant herein was fixed at 30% by the Tribunal. Taking note of the above decisions, I am of the considered opinion that the income of the appellant who was a nurse by profession, aged 27 years, having experience of little more than 2 years in a reputed hospital at Kozhikode, the income can be fixed at the rate of Rs.15000/- per month. Taking Rs.15,000/- per month, the compensation for future earning power on account of permanent disability can be reworked as Rs.15,000 x 12 x 17 x 30/100 = Rs.9,18,000/-. The Tribunal has awarded Rs.4,89,600/-. 4. Towards pain and suffering, the Tribunal has ``` MACA NO. 729 OF 2019 ``` -6- awarded only Rs.25,000/- as against the claim of Rs.2,00,000/-. It is seen that the appellant was treated as inpatient for 41 days and the injuries sustained are (i) deep lacerated wound 6cm x 5 cm size in the region of right popliteal fossa, (ii) crush degloving avulsion injury around the right knee and (iii) contusion over the lumbar region. Taking note of the above injuries and being inpatient for 41 days, I am inclined to enhance the compensation under pain and suffering to Rs.75,000 from Rs.25,000/-. 5. As far as the compensation under the head bystander expenses, the Tribunal awarded only Rs.1,000/. It is an admitted fact that he was an inpatient for 41 days as per Discharge Summary issued from Pushpagiri Medical College and produced as additional document and marked as Annex.A1. Since the accident happened in the year ``` MACA NO. 729 OF 2019 ``` -7- 2014, the bystander expenses can be Rs.300/- per day and as he was in-patient for 41 days, it can be calculated as Rs.300 x 41=Rs.12,300/-. The Tribunal has awarded only Rs.1,000/- towards bystander expenses. 6. Under the head, extra nourishment expenses, the Tribunal awarded Rs.3,000/-, which I am inclined to enhance to Rs.10,000/-. Accordingly, the following enhancements are made to the award passed by the Tribunal: |Sl.<br>No.|Head of Claim|Amt. Awarded<br>by Tribunal<br>(Rs.)|Amt. Enhanced<br>in appeal (Rs.)| |---|---|---|---| |1.|Compensation for<br>permanent disability|4,89,600/-|9,18,000/-| |2.|Pain and suffering|25,000/-|75,000/-| |3.|Bystander expenses|1,000/-|12,300/-| |4.|Extra nourishment<br>expenses|3,000/-|10,000/-| ||Total|5,18,600/-|10,15,300/-| ||Amount enhanced – 10,15,300 - 5,18,600 =**4,96,700/-.**||| ``` MACA NO. 729 OF 2019 ``` In the result, the appeal is allowed and the Insurance Company shall pay interest for the amounts awarded by the Tribunal at the rate directed in the impugned award and for the enhanced amounts at the rate of 7% from the date of petition. If any amounts have already been paid, the same shall be granted set off. The claimants shall produce the details of the Bank account before the Insurance Company/Tribunal within one month 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 furnished 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 shall run at the rate ordered by the Tribunal from the date of petition. ## **SD** ## **BASANT BALAJI, JUDGE** _dl/_