Prinson.T.J v. T. Varghese, T.V. Jaison and I.C.I.C.I Lombard General Insurance Co. Ltd.

# `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ## `THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN` ``` WEDNESDAY, THE 22[ND] DAY OF FEBRUARY 2023 / 3RD PHALGUNA, 1944 ``` ## `MACA NO. 1551 OF 2010` ``` AGAINST THE THE AWARD IN OPMV 683/2006 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, OTTAPPALAM ``` ## `APPELLANT/PETITIONER:` ``` PRINSON.T.J, AGED 34 YEARS S/O.JACOB, REP.BY HIS WIFE ALPHONSA LIJI, THALAKKOTUR HOUSE, MATTAM GROUND, TRICHUR. BY ADV SRI.SHEJI P.ABRAHAM ``` ## `RESPONDENTS/RESPONDENTS:` ``` 1T.T.VARGHESE, S/O THOMAS,THALAKKODAN HOUSE, KURUMAL VELUR, VAKAKKANCHERY (VIA), THRISSUR-671 513 2T.V.JAISON HOUSE NO.III 167/2 THIRUVENGIDAM, GURUVAYOOR, THRISSUR-671 502. 3I.C.I.C.I.LOMBARD GENERAL INSURANCE CO.LTD. MARINE DRIVE, ERNAKULAM ROAD, KOCHI -682 031. (COVER NOTE NO. 1037072, VALID FROM, 23.03.2007. BY ADVS. SRI.R.AJITH KUMAR 12884 SRI.K.B.RAMANAND ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 22.02.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA NO. 1551 OF 2010 ``` ``` 2 ``` ## `JUDGMENT` ``` The appellant was injured in a road accident, which occurred on 25.04.2006, when the offending vehicle collided with his Autorikshaw, in a rash and negligent manner. He thereupon filed OP(MV)No.683/2006 on the files of the Motor Accidents Claims Tribunal, Ottappalam (“Tribunal” for short), seeking compensation; but which was allowed only to the extent of Rs.4,68,600/-. Being aggrieved by the same, he has filed this appeal. ``` ``` 2.Sri.Sheji P.Abraham – learned counsel ``` ``` for the appellant, pointed out that the Tribunal erred in having taken the notional income of his client - for the purpose of assessment of the compensation towards disability - as being only Rs.3,000/-, even though what has been claimed is ``` ``` MACA NO. 1551 OF 2010 ``` ``` 3 ``` ``` Rs.4,500/-. He pointed out that, going by Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited [(2011) 13 SCC 236], even in the case of a person with an unascertainable income in the year 2006, the notional income has been standarised to be Rs.5,500/-. He then pointed out that his client has suffered very grievously on account of the fracture of bone on his leg and tear of ligament on his right knee, coupled with head injuries; but that even though he is unable to speak properly due to all these, the learned Tribunal has awarded only Rs.25,000/- towards “Pain and Suffering” and Rs.15,000/- towards “Loss of Amenities”. He concluded his submissions adding that since the notional income has been wrongly taken, the compensation towards “Loss of income” is also inadequate. ``` ``` MACA NO. 1551 OF 2010 ``` ``` 4 ``` ``` 3.In response, Smt.Dhanya Babu – learned ``` ``` Standing Counsel for the Insurance Company, argued that no error has been committed by the ``` ``` Tribunal in either reckoning the notional income of the appellant, or in fixing the compensation; and thus prayed that this appeal be dismissed. ``` ``` 4.I have considered the afore submissions, ``` ``` on the touchstone of the evidence on record, which I have examined very carefully. ``` ``` 5.I find great force in the submissions of ``` ``` Sri.Sheji P.Abraham, that the notional income of ``` ``` the appellant ought to have been taken by the ``` ``` Tribunal to be at least Rs.4,500/-, which is ``` ``` theamountclaimedbyhimbecause, Ramachandrappa(supra)authorises a higher ``` ``` figure of Rs.5,500/-. ``` ``` 6.That said, when I evaluate the medical ``` ``` evidence on record, particularly Exts.A5 and A6 ``` ``` MACA NO. 1551 OF 2010 ``` ``` 5 ``` ``` – Discharge Certificates and Ext.A4 – Wound ``` ``` Certificate, it becomes indubitable that, on account of the accident, the appellant suffered ``` ``` “lacerations on his left wrist, subluxation of right knee, pneumocephalus along with temporal contusion in situ” (sic). The said certificates also record that the medical investigation established “right temporal contusion in situ, traumatic SAH with oedema and pneumocephalus, bilateral Bronchopneumonia and subluxated right knee with compartment syndrome right leg” (sic). This is reflected in the subsequent Ext.A6 ``` ``` Discharge Summary also, which records as under: ``` ``` “Right Temporal contusion with IVH traumatic SAH with edema and pneumocephalus, bilateral bronchopneumonia (VAP), subluxated (R) knee with compartment syndrome (R)leg. Investigation showed CT brain traumatic SAH with diffuse edema and pneumocephalus.” ``` ``` 7.The appellant went through a prolonged ``` ``` treatment, with several bouts of admissions to ``` ``` MACA NO. 1551 OF 2010 ``` ``` 6 ``` ``` hospital; and Ext.A11 - Disability Certificate issued by the treating doctor, who was also examined as PW2, records that the appellant suffers from “headache, loss of memory, giddiness, impaired speech and difficulty in swallowing liquids”; and he thus certified his ``` ``` neurological disability to be 12%. ``` ``` 8.In addition to this, the Orthopedic Surgeon of the hospital, who treated the appellant, issued Ext.A12 Certificate and he ``` ``` deposed as PW3 in support of the same, asserting that the appellant has stiffness and instability ``` ``` of his right knee; and that on account of the injury sustained by him, he is suffering from ``` ``` 20% permanent disability. ``` ``` 9.The Tribunal, thereupon, considered both the afore certificates and arrived at a figure of 19% disability, on a combined basis, adopting ``` ``` MACA NO. 1551 OF 2010 ``` ``` 7 ``` ``` the applicable formula. ``` ``` 10.Though the appellant seeks that the ``` ``` disability percentaile be enhanced, I am not in ``` ``` favour of it because, the reasons given by the Tribunal finds favour with me. ``` ``` 11.However, taking note of the afore ``` ``` injuries suffered by the appellant and the trauma undergone by him, I am left without doubt ``` ``` that the compensation under the head “Pain and Suffering”, and that under the head “Loss of ``` ``` Amenities” require to be enhanced to Rs.40,000/- ``` ``` and Rs.25,000/- respectively, from Rs.25,000/- and Rs.15,000/- now granted. Since the notional ``` ``` income of the appellant has to be revised to ``` ``` Rs.4,500/-, his compensation for “Loss of Income”, taking four months as adopted by the Tribunal, would have also to be revised to ``` ``` Rs.18,000/-, instead of Rs.12,000/- now granted. ``` ``` MACA NO. 1551 OF 2010 ``` ``` 8 ``` ``` Resultantly, this appeal is partly allowed in the following manner: ``` ``` a)The compensation under the head “Disability” is enhanced to Rs.1,74,420/-, from Rs.1,16,300/- granted by the Tribunal, reckoning ``` ``` the notional income of the appellant to ``` ``` Rs.4,500/- and adopting the multiplier of 17 with 19% disability being acceded to. ``` ``` b)The compensation under the head “Pain and Suffering” is enhanced to Rs.40,000/-, instead of Rs.25,000/- now granted. ``` ``` c)The compensation under the head “Loss of Amenities” is enhanced to Rs.25,000/-, from Rs.15,000/- now granted. ``` ``` d)The compensation under the head “Loss of Income” is enhanced to Rs.18,000/-, instead of Rs.12,000/- awarded by the Tribunal. ``` ``` In all other repects, the Award of the ``` ``` MACA NO. 1551 OF 2010 ``` ``` 9 ``` ``` Tribunal will remain unaltered. ``` ``` Needless to say, every other finding of the Tribunal, including the liberty granted to the Insurance Company to pay and recover from the owner and driver (R1 and R2 in the original ``` ``` petition) of the vehicle is left intact. ``` ``` Consequently, the appellant would be entitled ``` ``` to recover the compensation, as enhanced by this Court, from the respondent – Insurance Company, along with interest at the rate of 8% from the date of filing of the claim until it is realised. ``` ``` The appellants will also be entitled to proportionate costs on the enhanced amounts as ordered by the Tribunal. ``` ``` Sd/- ``` ## `DEVAN RAMACHANDRAN` ``` SAS ``` ## `JUDGE`