Remesh v. The New India Assurance Co. Ltd.

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN TUESDAY, THE 7[TH] DAY OF MARCH 2023 / 16TH PHALGUNA, 1944 MACA NO. 3599 OF 2015 ``` ## **`AGAINST THE JUDGMENT IN OP(MV)548/2012 OF MOTOR ACCIDENT`** ## **`CLAIMS TRIBUNAL ,ERNAKULAM`** ## **`APPELLANT/PETITIONER:`** ``` REMESH AGED 46 YEARS S/O.KARUNAKARAN, KOCHELLAKKATTU HOUSE, PATTANAKKADU P.O. CHERTHALA. BY ADVS. SRI.M.S.BREEZ SRI.A.N.SANTHOSH ``` ## **`RESPONDENT/RESPONDENTS:`** - `1 SAJAYAKUMAR (DELETED) MANNUSSERIL HOUSE, KEERITHODE P.O, IDUKKI DISTRICT.` - `2 MATHEW JOSEPH SO.JOSEPH (DELETED) VADAKKEPARAMBIL HOUSE, 44, POTTAKUZHI ROAD, KOCHI.` - `3 THE NEW INDIA ASSURANCE CO. LTD. M.G. ROAD, ERNAKULAM DISTRICT. *(RESPONDENTS 1 AND 2 ARE DELETED FROM THE PARTY ARRAY AT THE RISK OF THE APPELLANT AS PER ORDER DATED 13/01/2023 IN MACA 3599/2015.) BY ADV P.JACOB MATHEW` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 07.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ..2.. ## **MACA.No.3599/2015** ## **`JUDGMENT`** In a horrific accident, which happened on 10.06.2011, the appellant, who was riding pillion on a motor cycle, was knocked down by the offending car driven in a rash and negligent manner. He fell on the road and sustained very grave injuries, thus incapacitating him fully. He has been reduced to complete assisted living, without any access to his physical or cogitative faculties; and his wife, as his next friend, moved the Motor Accidents Claims Tribunal, Ernakulam (“Tribunal”), through OP(MV)No.548 of 2012, seeking compensation of an amount of Rs.30,15,000/-, but which has been awarded only to the sum of Rs.20,47,500/-. The appellant assails the award of the Tribunal as being inadequate. 2. Sri.A.N.Santhosh – learned counsel for the appellant, submitted that the aftermath of the injuries sustained by his client was to such extent that he is fully bed ridden, with an assistant required even for the most basic human needs. He showed me photographs to drive from the point that the appellant is even today in no better situation, than he was when the accident occurred, though more than 12 years had ## **MACA.No.3599/2015** ..3.. now elapsed. He thus prayed that the compensation awarded by the Tribunal be substantially enhanced. 3. In response, Sri.P.Jacob Mathew – learned Standing Counsel for the Insurance Company, argued that, it is taking note of the grievous nature of the injuries, that the Tribunal has awarded a large sum as Rs.20,47,500/- to the appellant. He concluded his submission saying that, in fact, the Tribunal has awarded more than what it should have, in offering Rs.2,00,000/- to the appellant under the head ‘Loss of Earnings’; when “Compensation for continuing Permanent Disability” has already been granted. He thus prayed that this appeal be dismissed, but deleting the afore head of compensation. 4. I have considered the afore submissions on the touchstone of the evidence and documents on record – copies of which have been handed over across the Bar by the learned counsel for the parties, with the express consent that they can be acted upon by this Court without dispute. 5. The facts involved in this case are neither disputed, nor the injuries sustained by the appellant and that he is now in a virtual vegetative stage is also without contest. In fact, in paragraph 9 of the impugned Award, the learned Tribunal also **MACA.No.3599/2015** ..4.. speaks about it which, for the purpose of avoiding repetition is extracted as under: _“The petitioner has produced Ext.A3 treatment summary issued from Ernakulam Medical Centre, which shows he was admitted there on 11.06.2011 and he was an inpatient there till 07.07.2011. Ext.A3 also shows that he was initially treated in Medical College Hospital, Alappuzha. From Ext.A3 it can be seen that when he was brought to Ernakulam Medical Centre, he was on ambulance bag ventilation, intubated and unconscious also. It is seen that he has sustained severe head injury. His CT brain shows fracture right frontal region with underlying EDH with minimal mass effect contusions in the right fronto temporal regions, IVH right lateral ventricle and pnenmocephalus. His repeat CT brain shows increase in the EDH with mass effect. Therefore, craniotomy with evacuation of EDH was done. He has undergone a surgery on 11.06.2011. Atracheostomy was done for respiratory toileting. He was in ventilator. He has developed chest infection. It shows the poor conditions of the petitioner due to the injuries sustained in the accident. Though he was discharged from Ernakulam Medical Centre on 07.07.2011, it is seen that he was discharged at the request of the relatives to attend a local hospital. Ext.A4 is the discharge card issued from S.H.General Hospital, Cherthala, which shows that he was admitted there on 07.07.2011 and discharged on 28.07.2011 On the same day after discharging from S.H.General Hospital, Cherthala, he was again admitted in Ernakulam Medical Centre and Ext.A5 is the discharge card, which shows that he was admitted there on 28.07.2011 for removal of trachestomy and discharged 01.08.2011. It shows that he was on trachestomy for more than 1 ½ months. After the accident, till 01.08.2011 he was inpatient in the hospital itself. Ext.A10 series (230 in Nos.) are the medical bills, which show that he had spent an amount of Rs.6,24,831/- towards his treatment_ **MACA.No.3599/2015** ..5.. _expenses. Ext.A11 series (16 in Nos.) are taxi bills, which show that he has spent an amount of Rs.12,400/- towards his transport expenses. Ext.A13 series (83 in Nos.) are another set of medical bills, which show that he had spent an amount of Rs.59,932/- towards his treatment expenses. Ext.A14 is a bill for Rs.178/- for purchasing ayurvedic medicine. Even now the petitioner is laid up and he needs future treatment also. He always needs assistance of another person for his day to day needs.”_ When it is, thus, admitted that the appellant has been reduced to a state of assisted living, with 100% disability, as certified by a competent Medical Board in Ext.C1 certificate, this Court is then obligated to consider whether the compensation awarded to him is just and fair, from that perspective. 6. I notice that, under the head ‘Pemanent Disability’, the Tribunal has awarded Rs.8,40,000/-, reckoning the notional income of the appellant to be Rs.5,000/-. The accident, as I have said above, was in the year 2011 and going by _**Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Ltd.**_ [(2011) 13 SCC 236], even in the case of a “Coolie” or a person with unascertainable income in that year, a minimum figure of Rs.8,000/- ought to have been granted. To add to this, 25% future propects also ought to have been added, because the appellant was 44 years at the time of the accident. **MACA.No.3599/2015** ..6.. 7. As I have already said above, the appellant has been reduced to a vegetative stage and requires assistance even for the most basic needs. The Hon’ble Supreme Court has dealt with such a situation in _**Kajal v. Jagdish Chand & Ors.**_ [MANU/SC/0126/2020], to hold that a person in such situation is entitled to two assistants at the rate of Rs.5,000/per month, since, he would require to be taken care of 24 hours a day. The Insurance Company cannot resist this saying that his wife is taking care of him, because she has other duties to the family, particularly, because the appellant is now unable to earn and with the entire burden of the other members being on her shoulders. I have no doubt that, in this case, this Court is obliged to follow **Kajal** (supra) and to award compensation to the appellant for two assistants – he being uncontrovertedly fully incapacitated. 8. The medical evidence on record show the graphic nature of the injuries sustained by the appellant and the procedures which he had to endure. These are available in the afore extracted paragraph of the impugned Award; but I notice that the learned Tribunal has only awarded Rs.1,00,000/towards ‘Pain and Sufferings’ perhaps because, that was the amount which was asked for. Similarly, under the head ‘Loss of ..7.. ## **MACA.No.3599/2015** Amenities’, an amount of Rs.1,00,000/- has been awarded, with another Rs.1,00,000/- towards ‘Compensation for Future Treatment’. 9. Before I proceed, I feel it necessary to record that the scenario faced by the appellant is unimaginable and incapable of verbal expression; and perhaps, even worse than death. The suffering is a continuous process, manifest by the fact that he has survived twelve years after the accident, but without any change. The psychological burden and trauma on the family is far more and it might well be imagined what his wife is presently going through. The support which the appellant requires can never be fully compensated in pecuniary terms, but it is the obligation of this Court to offer what is most apposite. 10. Keeping the afore in mind, I propose to enhance the compensation for ‘Pain and Sufferings’ – which a continuing one – to a sum of Rs.2,00,000/- and award an equal sum under the head ‘Loss of Amenities’. However, as rightly argued by Sri.P.Jacob Mathew, the amount of Rs.2,00,000/- awarded by the Tribunal under the head ‘Loss of Earnings’ will have to be deleted, since this has been factored into the compensation awarded for disability. **MACA.No.3599/2015** ..8.. In the afore circumstances, this appeal is partly allowed in the following manner: a. The compensation for ‘Permanent Disability’ is revised to Rs.16,80,000/-, adopting the notional income of the appellant to be Rs.8,000/- per month, with 25% future prospects added to it and reckoning 100% disability as correctly found by the Tribunal, based on Ext.C1 - Disability Certificate issued by the Medical Board; b. An additional amount of Rs.16,80,000/- is awarded towards ‘Bystanders Expenses’ for two persons, reckoning Rs.5,000/- for each of them and adopting the multiplier of 14. This is in terms of the judgment of the Hon’ble Supreme Court in **Kajal** (supra). c. The compensation under the head ‘Pain and Sufferings’ is enhanced to Rs.2,00,000/-, from Rs.1,00,000/- as awarded by the Tribunal; d. The compensation under the head ‘Loss of Amenities’ is enhanced to Rs.2,00,000/-, from Rs.1,00,000/now granted by the Tribunal; e. The compensation under the head ‘Loss of Earnings’ is deleted. **MACA.No.3599/2015** ..9.. In all other heads, the compensation awarded by the Tribunal remains unaltered. Needless to say, the appellant will be entitled to recover the compensation, as enhanced by this Court, from the Insurance Company, along with interest at the rate of 8% per annum, as ordered by the Tribunal, except under the head ‘Bystanders Expense’, from the date of claim until it is realised. As far as the ‘Bystanders Expenses’ is concerned, the said amount will carry interest at the rate of 8%, as ordered by the Tribunal, from the date of this judgment until it is paid. The appellant will also be entitled to proportionate costs as awarded by the Tribunal on the enhanced amounts 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** SAS/ACR