Rahul v. Divisional Manager, New India Assurance Co. Ltd.

**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. 3162 OF 2019** **AGAINST THE AWARD DATED 18.04.2017 IN OPMV 1042/2014 OF** **MOTOR ACCIDENT CLAIMS TRIBUNAL ,KOLLAM** ## **APPELLANT/PETITIONER:** **RAHUL, AGED 27 YEARS S/O.RAJU, S.A.BHAVAN, MRA 60, UDAYAMARTHANDAPURAM, MUNDAKKAL, KOLLAM - 691 010.** **BY ADV P.T.SHEEJISH** ## **RESPONDENT/2ND RESPONDENT:** **THE DIVISIONAL MANAGER,** **NEW INDIA ASSURANCE CO.LTD., BEACH ROAD, KOLLAM - 691 001.** **BY ADVS. SRI.JOHN JOSEPH VETTIKAD SRI.C.JOSEPH JOHNY** **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. 3162 OF 2019** **2** ## **JUDGMENT** The appellant assails the Award of the Motor Accidents Claims Tribunal, Kollam (‘Tribunal’ for short) in OP(MV) No. 1042/2014, seeking compensation of an amount of Rs.16,00,000/- for the injuries sustained by him in a road accident on 11.06.2014, when the motor cycle driven by him was hit by the offending vehicle, driven in a rash and negligent manner. He says that injuries were very grave, requiring prolonged treatment and considerable period of hospitalisation. Therefore, that he is entitled to the amount claimed by him, but that the learned Tribunal has reduced it to Rs.8,61,985/-, without any cogent reason. He thus impugns the Award as being inadequate. 2. Sri.P.T.Shejish – learned counsel for the appellant, argued that the primary reason why the compensation in favour of his client is so exiguous is because, the learned Tribunal has adopted his notional income to be Rs.6,000/-, against the claim of Rs.9,500/- per month, even though there is evidence to show that he was earning such figure in his capacity as a professional driver. He added that the **MACA NO. 3162 OF 2019** **3** compensation awarded by the Tribunal under the heads 'Loss of Earnings, 'Extra Nourishment' and 'Bystander Expense' is inadequate; exiguous and hence prayed that this appeal be allowed. 3. Sri.P.T.Shejish, thereafter, argued that, while computing the notional income of the appellant, the learned Tribunal ought to have granted 'Future Prospects' also because he has suffered 30% Permanent Disability, as is evident from Ext.C1 - Disability Certificate, which also makes it abundantly clear that he will not be in a position to work as a driver, but will have to seek other avocations, for which he is not competent. He concluded saying that, in any event, the compensation awarded by the Tribunal under the head 'Future Treatment' is inadequate because only Rs.25,000/has been granted, while the medical bills produced on record before this Court, along with I.A.No.1/2023 - under the ambit of Order XLI Rule 27 of the Code of Civil Procedure, clearly show that he had to expend more than Rs.2,00,000/- towards such expenses, which continue. 4. In response, Sri.John Joseph Vettikkad – learned Standing Counsel for the respondent - Insurance Company, argued that the accident happened in the year 2014, when **MACA NO. 3162 OF 2019** **4** the appellant was only 18 years of age, and therefore, that his assertion, that he is a driver by profession and that he was earning Rs.9,500/-, cannot be accepted. He thus prayed that this appeal be dismissed. He further argued that the documents produced before this Court along with IA No.1/2023 may not be fully tenable because they related to the period of 2017; while the accident happened in the year 2014. He thus prayed that same may not be accepted. 5. I have considered the afore submissions and have also gone through 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 adopted by the Tribunal in favour of the appellant. In ## **Ramachandrappa v. Manager, Royal Sundaram Alliance** **Insurance Company Ltd. [(2011) 13 SCC 236],** the Honourable Supreme Court has postulated that, even in the case of a person with unascertainable income or who is working as a ‘Coolie’, the minimum figure to be reckoned as income is Rs.9,500/- in the year 2014 - when the accident occurred. Further, in **Rajani v. Oriental Insurance** **MACA NO. 3162 OF 2019** **5** **Company Ltd. [2022 (5) KLT Online 1012)],** the Honourable Supreme Court says that, in the case of a person who was involved in technical avocation, a more robust view ought to be adopted. I, therefore, am of the view that the learned Tribunal is in error in having adopted Rs.6,000/- as the notional income of the appellant, when he claimed Rs.9,500/-. In fact, I propose to add to this, by a mere Rs.1,000/- more than what is authorised by **Ramachandrappa** (supra), taking note of the undisputed fact that he was working as a driver. 7. Coming to the percentile of permanent disability suffered by the appellant, the learned Tribunal has adopted it to be 30%, in tune with Ext.C1 - Disability Certificate. The said certificate records the permanent impairment of the appellant to be as under, even on 30.11.2016 - when he was assessed by the Medical Board: _“1. Malunion of distal femur (with implants in situ) in 10º angulation._ _2. Three inch shortening of right lower limb._ _3. Healed fracture right tibia with – chronic osteomyelitis and implant in situ._ _4. Partial ankylosis right knee 0 to 90º flexion, partial_ **MACA NO. 3162 OF 2019** **6** ## _ankylosis right ankle 90º to 125º.”_ 8. As rightly argued by Sri.P.T.Shejish, the afore impairment would make it very difficult for the appellant to function as a professional driver, particularly because he has osteomyelitis and implants, along with Partial ankylosis of his right ankle and malnutrition of his distal femur, which has been corrected through implants again. The shortening of his right lower limb by 3 inches would certainly make it difficult for him to operate any vehicle in a professional capacity; and I am, therefore, of the view that he is entitled to ‘Future Prospects’ being added to his notional income, which I propose to be 10%. 9. As far as other heads of compensation awarded by the learned Tribunal are concerned, the amounts under ‘Extra Nourishment’ and ‘Bystander Expenses’ have been calculated at the rate of Rs.200/- and Rs.300/- per day respectively; but taking note of the fact that the expenses in the year 2014 – when the accident occurred - could have been much higher, I propose to revise it to be Rs.300/- and Rs.400/- respectively. 10. That said, the medical evidence establishes that the appellant had to undergo 187 days of hospitalisation. The trauma that he could have had suffer to and the agony which **MACA NO. 3162 OF 2019** **7** he had to endure is immeasurable and cannot be normally equated in pecuniary terms. I notice that the learned Tribunal had awarded Rs.75,000/- towards compensation under the head 'Pain and Suffering', but without awarding under the head 'Loss of Amenities' - which I am certain should have been, even if it is not asked. I, therefore, propose an amount of Rs.35,000/- under the head 'Loss of Amenities', but without modifying the compensation awarded under the head 'Pain and Suffering'. 11. Finally, as regards 'Future Treatment', no doubt the medical bills produced by the appellant along with IA No. 1/2023 relate to a period from 2017 until now. It takes in a total amount of nearly Rs.2,00,000/- and as rightly argued by Sri.John Joseph Vettikkad, there is little evidence to show that all such treatment relates to the accident. I, therefore, propose to accept it partly and remand the Original Petition for evidence on the other, particularly taking note of the fact that the learned Tribunal has already awarded Rs.25,000/under the head of 'Future Treatment'. I, therefore, propose further amount of Rs.50,000/- under this head, with liberty being reserved to the appellant to prove the validity of the further amounts before the Tribunal. **MACA NO. 3162 OF 2019** **8** 12. An amount of Rs.50,000/- is thus additionally granted under the head 'Future Treatment'; but with a consequential direction to the Tribunal to reconsider enhancement in this, based on the additional documents produced before this Court in IA No. 1/2023, after affording both sides necessary opportunities of pleading additional fresh evidence and also of further hearing; thus culminating a fresh order in this regard, as expeditiously as is possible, but not later than six months from the date of receipt of a copy of this judgment. In the afore circumstances , this appeal is partly allowed in the following manner: a) The compensation awarded by the Tribunal under the head ‘Permanent Disability’ is enhanced to Rs.7,48,240/-, adopting the notional income of the appellant to be Rs.9,500/- per month, with 10% 'Future Prospects' added to it and his percentile of disability accepted to be 30%, as has also been reckoned by the learned Tribunal, based on Ext.C1 Disability Certificate. b) Axiomatically, the compensation awarded by the Tribunal under the head 'Loss of Earnings' will stand enhanced to Rs.95,000/-, reckoning the notional income of the **MACA NO. 3162 OF 2019** **9** appellant to Rs.9,500/- per month. c) The compensation under the head 'Extra Nourishment' is enhanced to Rs.56,100/-, reckoning Rs.300/per day as expenses for a total period of 187 days of hospitalization. d) The compensation under the head 'Bystander Expenses' is enhanced to Rs.74,800/-, reckoning the _per diem_ expenses under such head is Rs.400/- per day for 187 days of hospitalization. e) In addition, an amount of Rs.35,000/- is awarded under the head 'Loss of Amenities'. f). A further amount of Rs.50,000/- is awarded under the head “Future Treatment Expenses”; and the Original Petition is remitted to the learned Tribunal for consideration of further enhancement, which shall be done as per observations of this Court in paragraph 12 supra. g) For the purpose of direction (f) above, the parties will appear before the learned Tribunal at 11.00 A.M on 05.04.2023. h) In all other heads, the compensation awarded by the Tribunal remains unaltered. **MACA NO. 3162 OF 2019** **10** Of course, this is without prejudice to the right of the appellant to recover any further amounts that may be awarded by the Tribunal consequent to the remand as ordered above, on the limited issue of future expenses. 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 8% (reducing the rate of interest of 9%, as awarded by the Tribunal in view of the escalation granted by this Court) 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 before it. 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, subject to their obligation to pay more, if the Tribunal is to find so, consequent to the remand ordered. ## **Sd/- DEVAN RAMACHANDRAN, JUDGE** lsn