Ramesh v. Poulose P.V., Saimon Joseph & The Oriental Insurance Company Ltd.

# `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ``` THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN FRIDAY, THE 10[TH] DAY OF MARCH 2023 / 19TH PHALGUNA, 1944 ``` ## `MACA NO. 111 OF 2016` ``` [AGAINST THE AWARD DATED 8.7.2014 IN OP(MV)NO.760/2009 ON THE FILE OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, PALAKKAD] ``` ## `APPELLANT/PETITIONER` ``` RAMESH, AGED 30 YEARS, S/O.CHANDRAN, 288(2/415), NALLUR, KOZHIPARA (P.O), PALAKKAD DISTRICT. ``` ``` BY ADVS.SRI.SUNIL NAIR PALAKKAT SRI.K.N.ABHILASH SRI.M.A.AHAMMAD SAHEER ``` ## `RESPONDENTS/RESPONDENTS:` ``` 1POULOSE P.V, AGED NOT KNOWN, S/O.VARGHESE, 4/618, PYNADATH HOUSE, KARUKUTTY P O, ANGAMALY, ERNAKULAM DISTRICT, PIN – 683 572. 2SAIMON JOSEPH, AGED 33 YEARS, S/O.OUSEPH, GMDS, KANJOOKKARAN HOUSE, KOKKUNNU, PERUMBAVOOR (P.O), ERNAKULAM – 683 542. 3THE ORIENTAL INSURANCE COMPANY LTD., PALAKKATT BUILDING, MARKET JUNCTION, THRIPUNITHURA, COCHIN – 682301. ``` ``` BY ADVS.SMT.BOBBY RAPHEAL.C K.S.SANTHI, SC SRI.E.C.POULOSE THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 10.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA NO. 111 OF 2016 ``` ``` -2- ``` ## `JUDGMENT` ``` This matter is of the year 2016 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 driving along the main ``` ``` road on 08.12.2008, when the offending tipper ``` ``` lorry ran into it, causing him grave injuries and leading to amputation of leg. He thereupon filed OP(MV)No.760/2009 before the Motor ``` ``` Accidents Claims Tribunal, Palakkad (‘Tribunal’, ``` ``` for short), seeking compensation of an amount of Rs.23,32,000/-; but which has been allowed only to a sum of Rs.12,50,050/-. He impugns the said ``` ``` compensation as being exiguous. ``` ``` MACA NO. 111 OF 2016 ``` ``` -3- ``` ``` 3.Sri.Rithik S.Anand – learned counsel for the appellant, argued that the primary reason why the compensation has been fixed so low by the learned Tribunal is because it has adopted ``` ``` the notional income of his client to be a mere ``` ``` Rs.5,000/- per month; when, in fact, he was earning much more than that. He then asserted ``` ``` that the compensation awarded under the heads “Pain and Suffering”, “Bystander Expenses” and “Extra Nourishment” is absolutely low, which has no nexus to the gravity of the injuries ``` ``` sustained by his client. He thus prayed that this Appeal be allowed and the compensation enhanced as prayed for. ``` ``` 4.Smt.K.S.Santhi – learned Standing ``` ``` Counsel for the Insurance Company, on the other hand, submitted that the computations arrived at by the Tribunal are as per the standards available in the year 2008 – when the accident ``` ``` MACA NO. 111 OF 2016 ``` ``` -4- ``` ``` occurred – and are, therefore, just and fair. ``` ``` She thus prayed that this Appeal be dismissed. 5.I have considered the afore rival ``` ``` submissions on the touchstone of 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.On the question of notional income of the appellant, I find favour with the ``` ``` submissions of Sri.Rithik S.Anand because, even ``` ``` going by the judgment of the Hon’ble Supreme Court inRamachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Ltd. [(2011) ``` ``` 13 SCC 236], the minimum notional income that ``` ``` could have been reckoned by the learned Tribunal in favour of the appellant was Rs.6,500/-, in the year 2008. This is because, said judgment postulates that even for a person, with an ``` ``` MACA NO. 111 OF 2016 ``` ``` -5- ``` ``` unascertainable income or a ‘coolie’, such a figure ought to be the minimum reckoned. Since it is admitted that the appellant sustained serious injuries, leading to amputation of leg, and since the Tribunal has correctly found that his disability is 80% - which is not controverted by the Insurance Company by filing an Appeal – he is certainly entitled to future prospects at the rate of 40%, as per the declarations of the Hon’ble Supreme Court in National Insurance Company Ltd. v. Pranay Sethi [2017 (4) KLT 662)]. ``` ``` 7.That said, I notice that the learned Tribunal has granted Rs.42,000/- under the head ``` ``` “Loss of Earning”, reckoning a period of 12 months. However, if this period is reckoned, then the multiplier to be adopted in the case of computation for disability would have to be reduced. I am, therefore, of the firm view that ``` ``` MACA NO. 111 OF 2016 ``` ``` -6- ``` ``` the period reckoned for the grant of compensation under the head “Loss of Earning” must be reduced to 10 months, which is also supported by the medical records. ``` ``` 8.As far as the injuries of the appellant are concerned, Ext.A5 - Wound Certificate and Ext.A7 – Discharge Certificate, establish ``` ``` unequivocally that he has sustained “closed multi-fragmentary fracture diaphysis left femur, ``` ``` grade IIIA open fracture right tibia multi- ``` ``` fragmentary, closed fracture mid-shaft of femur right side, fracture inferior pole of right ``` ``` patella and fracture pelvis involving anterior ``` ``` and posterior column, right and superior pubic ramus left.” (sic). He was hospitalized initially for 12 days and then further for 46 days, which is evident from Exts.A13 and A13(a) – Discharge Certificates. The learned Tribunal has also said that when he appeared before it on ``` ``` MACA NO. 111 OF 2016 ``` **==> picture [22 x 8] intentionally omitted <==** ``` 16.06.2014, his leg was seento have been ``` ``` amputated above the knee and an artificial limb fixed. ``` ``` 9.Obviously, the appellant must have gone ``` ``` through great amount of trauma, particularly ``` ``` when he claimed – though without being ``` ``` substantiated – that he was a professional ``` ``` driver at the time of the accident. ``` **==> picture [377 x 12] intentionally omitted <==** ``` thecompensationfor “Pain and Suffering” ``` ``` requires to be doubled from what has been ``` ``` granted by the Tribunal; while the compensation ``` ``` under the heads “Bystander Expenses” and “Extra ``` ``` Nourishment” must be granted at the rates of ``` ``` Rs.200/- and Rs.150/- per day respectively. ``` ``` Resultantly, this Appeal is partly allowed ``` ``` in the following manner: ``` ``` (a)Thecompensationunder the head permanentdisabilityisenhancedto ``` ``` MACA NO. 111 OF 2016 ``` **==> picture [22 x 9] intentionally omitted <==** ``` Rs.15,72,480/- (Rupees fifteen lakhs seventy two thousand, four hundred and eighty only), reckoning the notional income of the appellant to be Rs.6,500/- with 40% future prospects added to it and adopting the multiplier to be ‘18’, as perSarla Verma & Others v.Delhi Transport ``` ``` Corporation & Another [2010 (2) KLT 802]. ``` - `(b) Axiomatically, the compensation under` ``` the head“Loss of Earning” is enhanced to Rs.65,000/-(Rupees sixty five thousand only), ``` ``` reckoning the notional income of the appellant to be Rs.6,500/- and taking 10 months period for such purpose. ``` **==> picture [377 x 12] intentionally omitted <==** ``` “Bystander Expenses” is enhanced to Rs.11,600/- (Rupeeseleven thousand six hundred only), granting Rs.200 per day for 58 days of hospitalization. ``` ``` (d) An additional amount of Rs.8,700/- ``` ``` MACA NO. 111 OF 2016 ``` ``` -9- ``` ``` (Rupees eight thousand seven hundred only) is granted under the head “Extra Nourishment”, reckoning Rs.150/- as per diem expenses for 58 days hospitalization. ``` - `(e) The compensation under the head “Pain` ``` and Suffering” is enhanced to Rs.50,000/- ``` ``` (Rupees fifty thousand only), from Rs.25,000/- ``` ``` as awarded by the Tribunal. ``` - `(f) In all other heads, the compensation` ``` granted by the Tribunal will remain intact. ``` ``` Needless to say, theappellant 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 ``` ``` 7.5%, modifying the rate of interest of ‘9’ ``` ``` awarded by the Tribunal, taking note 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 ``` ``` MACA NO. 111 OF 2016 ``` **==> picture [30 x 9] intentionally omitted <==** ``` amount as ordered by the Tribunal. ``` ``` In view of the afore, the amount as fixed above shall be deposited by the Insurance Company before the Tribunal, within a period of two months from the date of receipt of a copy this judgment. ``` ``` Sd/- ``` ``` DEVAN RAMACHANDRAN ``` ``` JUDGE ``` ``` akv ```