REETHA N. v. Abdul Razak, Firoz C.S. and National Insurance Company Limited

## `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ## `THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN` ``` THURSDAY, THE 13[TH] DAY OF APRIL 2023 / 23RD CHAITHRA, 1945 ``` ## `MACA NO. 1549 OF 2019` ``` AGAINST THE AWARD DATED 30.11.2016 IN OPMV 1851/2015 OF MOTOR ``` ## `ACCIDENT CLAIMS TRIBUNAL ,KOZHIKODE` ## `APPELLANT/PETITIONER (CLAIMANT):` ``` REETHA N., AGED 36 YEARS W/O.KRISHNAN, KIZHAKKUMPADATH HOUSE, PAYYADIMEETHAL P.O., PANTHEERANKAVU, KOZHIKODE. BY ADV NABIL KHADER ``` ## `RESPONDENTS/RESPONDENTS:` ``` 1ABDUL RAZAK, S/O.ABOOBACKER, VADAKKE MARADATH HOUSE, P.O.PARAMBIL, KOZHIKODE - 673 012. 2FIROZ C.S., S/O.ABDULLA, 19 YEARS, ANGADI PARAMBIL HOUSE, THATHOOR, P.O.PAZHOOR, KOZHIKODE - 673 661. 3NATIONAL INSURANCE COMPANY LIMITED, 4TH FLOOR, PARCO TOWERS, P.M.TAJ ROAD, KOZHIKODE - 673 001. BY ADVS. SRI.P.JERIL BABU SRI.ABHIJETT LESSLI ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 13.04.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA NO. 1549 OF 2019 ``` ``` 2 ``` ## `JUDGMENT` ``` On 10.02.2015, while the appellant was walking through a public road, the offending motorcycle hit her, driven in a rash and negligent manner by the 2[nd] respondent. She sustained very serious injuries and had to be treated for a long period of time, including as an inpatient for thirteen days; whereupon, she filed OP(MV).No.1851/2015 before the Motor Accidents Claims Tribunal, Kozhikode ('Tribunal' for short), seeking compensation of an amount of ``` ``` Rs.5,00,000/-, but which has been allowed only for a sum of Rs.1,87,666/-. She impugns the compensation as being exiguous. ``` ``` 2.Sri.Nebil Khader – learned counsel for the appellant, argued that the primary reason why the compensation fixed by the Tribunal is low, is because it adopted the notional income ``` ``` MACA NO. 1549 OF 2019 ``` ``` 3 ``` ``` of his client to be a mere Rs.5,000/- per month, when there is clear evidence, in the nature of Ext.A8 – Salary Certificate, to establish that he was drawing Rs.10,000/- monthly. He added that, even though his client had suffered 13 days of hospitalization, she has not been ``` ``` awarded any amount under the head 'Extra Nourishment', while, the compensation awarded under the heads 'Pain and Suffering' and 'Loss of Amenities' has been fixed to a minimum figure of Rs.20,000/- and Rs.10,000/- respectively. ``` ``` 3.Sri.Nebil Khader, thereafter, submitted ``` ``` that the learned Tribunal has erred in granting ``` ``` only Rs.5,000/- towards 'Future Treatment' ``` ``` because, consequent to the fracture sustained to ``` ``` her tibia on account of the accident and because it was not united initially and an implant having been necessitated, it remainsin situ. He ``` ``` MACA NO. 1549 OF 2019 ``` ``` 4 ``` ``` pointed out that the documents produced along with IA No.1/2023, establishes that she would require at least Rs.5,00,000/- for removal of the said implant and for “Knee Arthroplasty”. He thus prayed that the compensation awarded by the Tribunal be enhanced and an amount of Rs.5,00,000/- mentioned above, be granted as ``` ``` additional compensation for 'Future Treatment'. ``` ``` 4.Before going on, I must record that when ``` ``` this matter was listed on 05.04.2023, Sri.Abhijit Lessli – learned Standing Counsel for the Insurance Company, sought time to obtain instructions as to whether the aforementioned additional documents can be accepted in evidence. This appeal was thereafter listed on 12.04.2023. I am, therefore, inferentially guided to the impression that they have no objection to the new documents produced by the appellant, along with ``` ``` MACA NO. 1549 OF 2019 ``` ``` 5 ``` ``` I.A., being accepted. They are hence marked as Annexure 2. ``` ``` 5.Coming to the adequacy of the notional income adopted by the learned Tribunal in favour of the appellant, as I have said above, she claimed Rs.10,000/- to be her actual income and tried to substantiate it through Ext.A8 – Salary Certificate. The learned Tribunal, however, did not find the said Certificate to be worthy of credence and hence adopted Rs.5,000/- as her notional income. I am afraid that I cannot find ``` ``` favour with this because, in Ramachandrappa v. ``` ``` Manager, Royal Sundaram Alliance Insurance Company Limited. [(2011) 13 SCC 236], the Hon’ble Supreme Court has postulated that, even in the case of a “Coolie”, or a person with unascertainable income, in the year 2015 – when the accident occurred – the minimum figure to be ``` ``` MACA NO. 1549 OF 2019 ``` ``` 6 ``` ``` adopted as notional income ought to be Rs.10,000/-. Since the amount claimed by the appellant is the same, I fail to understand why the learned Tribunal did not accept it. ``` ``` 6.That said, the medical evidence on record establishes that the appellant had suffered fracture of her left proximal tibia, along with other injuries; and that she had to endure open reduction; internal fixation, along with bone grafting. It is also without dispute that an implant has been fixed because the fracture did not unite as expected. As is also without contest, the appellant had to be in hospital as an inpatient for 13 days. The appellant is a lady who was in charge of her family; and without doubt, the pain and suffering undergone by her was sufficiently grave. I am, therefore, left without doubt that the appellant is entitled to ``` ``` MACA NO. 1549 OF 2019 ``` ``` 7 ``` ``` be granted necessary compensation under the head “Extra Nourishment”, which I propose to be Rs.300/- per day; while, the compensation awarded by the learned Tribunal under the heads “Pain and Suffering” and “Loss of Amenities” would require to be marginally enhanced, which I propose to be Rs.30,000/- and Rs.20,000/- respectively. ``` ``` 7.Finally, qua the compensation for future treatment, Annexure A2 document produced along with I.A.No.1/2023 recommends removal of implant of the appellant and “Knee Arthroplasty” subsequently. It records the approximate expense for the said “Staged Procedure” to be Rs.5,00,000/-. Even though this document is not being opposed by the Insurance Company, I cannot grant the entire figure at this stage because same represents the amount required for implant removal and Knee Arthroplasty, the latter of ``` ``` MACA NO. 1549 OF 2019 ``` ``` 8 ``` ``` which procedure has been recommended only in a future date. I, therefore, propose to award an amount of Rs.2,00,000/- under this head, in ``` ``` addition to what has been awarded by the learned Tribunal, since I am certain that it would be sufficient for removal of the implant. ``` ``` In the afore circumstances, this appeal is ``` ``` partly allowed in the following manner: ``` ``` a)The compensation under the head ``` ``` “Disability” is enhanced to Rs.1,92,000/-, from Rs.96,000/- reckoning the notional income of the appellant to be Rs.10,000/- per month and her permanent disability to be 10%, as recorded in Ext.C1 – Disability Certificate, which remains undisputed. ``` ``` b)Consequently, the compensation awarded by the learned Tribunal under the head “Loss of Earnings” would stand enhanced to Rs.60,000/-, ``` ``` MACA NO. 1549 OF 2019 ``` ``` 9 ``` ``` again reckoning the notional income of the appellant to be Rs.10,000/-, for six months as correctly reckoned by the learned Tribunal. ``` ``` c)The compensation under the head “Pain and Suffering” is enhanced to be Rs.30,000/-, from Rs.20,000/-, as awarded by the learned Tribunal. ``` ``` d)The compensation under the head “Loss of Amenities” will stand enhanced to be Rs.20,000/-, from Rs.10,000/- as awarded by the learned Tribunal. ``` ``` e)The compensation under the head “Future Treatment” will stand enhanced to Rs.2,00,000/-, from Rs.5,000/- as awarded by the learned Tribunal. ``` ``` f)An amount of Rs.3,900/- is allowed under the head “Extra Nourishment”, reckoning Rs.300/- per day as expenses for such purpose, for 13 days ``` ``` MACA NO. 1549 OF 2019 ``` ``` 10 ``` ``` of hospitalisation. ``` ``` g)In all other heads, the compensation ``` ``` awarded by the Tribunal and its findings will ``` ``` remain unaltered. ``` ``` h)Consequently, the appellant will be entitled to recover the compensation, as enhanced ``` ``` by this Court, from the respondent – Insurance Company, along with interest at the rate of 8% (modifying the rate of interest of 9% granted by the Tribunal, in view of the escalation granted by this Court)from the date of filing of the claim until it is realised. Theappellant will also be entitled to proportionate costs on the enhanced amounts as ordered by the Tribunal. ``` ``` i)However, while calculating the interest, ``` ``` the period of 728 days - being the delay caused by the appellant in filing this appeal - shall stand excluded. ``` ``` MACA NO. 1549 OF 2019 ``` ``` 11 ``` ``` j)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 ``` lsn/SAS ``` MACA NO. 1549 OF 2019 ``` ``` 12 ``` ## `APPENDIX OF MACA 1549/2019` ``` PETITIONER’S ANNEXURES Annexure A1ORIGINAL COPY OF MEDICAL CERTIFICATE ISSUED TO PETITIONER DATED 5.9.2018 BY CONSULTANT ORTHO AND SURGEON Annexure A2ORIGINAL COPY OF MEDICAL CERTIFICATE ISSUED TO PETITIONER DATED.10.3.2023 BY CONSULTANT ORTHO AND SURGEON ```