# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`**
## **`PRESENT`**
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THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
FRIDAY, THE 3[RD] DAY OF MARCH 2023 / 12TH PHALGUNA, 1944
MACA NO. 317 OF 2023
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AGAINST THE AWARD DATED 14.11.2022 IN OP(MV) NO.1935/2018 OF THE
MOTOR ACCIDENT CLAIMS TRIBUNAL, ERNAKULAM
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## **`APPELLANT:`**
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ROSE MARY, AGED 65 YEARS, W/O LOUIS,
20/2270, ARANATTU TEMPLE ROAD, PADASSERY HOUSE,
KUMBALANGHY VAZHI, PALLURUTHY VILLAGE, PIN – 682006
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BY ADV V.A.OMANAKUTTAN
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## **`RESPONDENTS:`**
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NEW INDIA ASSURANCE COMPANY LTD.
THOPPUMPADY BRANCH, REPRESENTED BY THE REGIONAL
MANAGER, NEW INDIA ASSURANCE COMPANY LIMITED ,
KANDANKULATHI BUILDING, GROUND JUNCTION, M.G. ROAD,
ERNAKULAM, PIN – 682011
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BY SRI LAL K JOSEPH-SC
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THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR
ADMISSION ON 03.03.2023, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
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## **`JUDGMENT`**
The appellant, who was injured in a road accident on 01.07.2018 - when the scooter, in which she was riding pillion, skid and fell on the road, on account of its driver being bewildered by another vehicle – has approached this Court impugning the Award of the Motor Accidents Claims Tribunal, Ernakulam (hereinafter referred to as ‘the Tribunal’ for short), in OP(MV) No.1935/2018, on the ground that the compensation awarded is inadequate.
2. Sri.V.A.Omanakuttan - learned counsel for the appellant, argued that the learned Tribunal ought to have fixed the notional income of his client to be Rs.40,000/- per month, because she was running a ‘Photocopying’ business of her own, but that it has only adopted Rs.11,500/-, which is woefully
insufficient. He added that, taking note of the prolonged treatment which his client had to undergo, the Tribunal ought to have reckoned at least six months to compute the compensation
for ‘Loss of Earnings’ and that it has erred in reckoning it as
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only four months. As his final submission, the learned counsel argued that even though his client had produced the medical bills to establish the actual treatment undergone by her, some of it have been rejected by the Tribunal, holding that it has no correlation to the accident or injuries sustained. He argued that this was improper because, the treatment covered by the said bills are on account of the fact that his client suffered from escalated diabetes and heart disease, which had its genesis in the accident, compounded by COVID-19 disease she had while admitted in the hospital. He thus prayed that the Award, to the extent assailed herein, be set aside and the compensation enhanced.
3. Sri.Lal K.Joseph – learned Standing Counsel for the respondent – Insurance Company, in response, submitted that the afore submissions are completely untenable because, in the absence of any evidence to show the actual income of the appellant, the Tribunal could have done nothing more, but to have followed the stipulations postulated in Ramchandrappa v.
Manager, Royal Sundaram Alliance Insurance Company Ltd.
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[(2011) 13 SCC 236]. As regards the compensation for ‘Loss of Earnings’, he submitted that no evidence had been led by the appellant to show that she was incapacitated for more than four months and therefore, that the compensation awarded under that head also is without any mistake. Finally, on the question of admission of the medical bills relating to the periods covered by Exts.A9, A10 and A12 certificates, he submitted that they are for the periods from 25.09.2020 to 01.10.2020; from 06.10.2020 to 10.10.2020; and from 31.05.2021 to 29.06.2021 respectively, and that the evidence on record would show that her admissions on 25.09.2020 and 06.10.2020 were not on account of the injuries, but due to her long-lying diabetes and heart condition. He pointed out that, in spite of this, the learned Tribunal has accepted substantial portion of the bills for the period between 25.09.2020 to 01.10.2020. He thus contended that this Appeal deserves to be dismissed.
4. I have considered the afore rival contentions on the touchstone of the evidence on record – copies of which have been handed over across the Bar by the learned counsel for the
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parties, with the express consent that it can be acted upon by this Court without dispute.
5. On the question of notional income adopted by the Tribunal in favour of the appellant, I must say that it has not committed any error because, even when she claims that she was earning Rs.40,000/- or more from her business, not a scrap of evidence has been produced on record, nor did she enter the witness box in support. Obviously, the Tribunal could have only done what it did, namely, follow the standardization of income as postulated in Ramachandrappa (supra).
6. Coming to the question of admissibility of the medical bills for the periods the appellant had undergone treatment and which are covered by Exts.A9 and A10 certificates, I have no doubt that the learned Tribunal has concluded on it correctly because, the accident was on 01.07.2018 and she was discharged after nearly 38 days later, and Exts.A17 and A18 series medical bills for the period between 01.07.2018 and 27.07.2018 have been allowed by it. The appellant was thereafter admitted on 25.09.2020 and then on 06.10.2020, and Exts.A9 and A10
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certificates cover the period between 25.09.2020 to 01.10.2020 and from 06.10.2020 to 10.10.2020 respectively. Obviously, the admissions were all a year and after the accident and which is also apodictic from Ext.A12, being the mediclaim from 25.09.2020 to 01.10.2020; unless there is compelling evidence to show that her diabetes and heart disease were solely on account of the accident, her full claim for treatment for such periods could not have countenanced. Pertinently, a major portion of these have also been allowed by the learned Tribunal, but the bills for the period between 31.05.2021 and 29.06.2021 have been disallowed for the afore reason.
7. The Tribunal has evaluated these aspects very carefully and I do not find any reason to intervene with its conclusions in this regard. This is more so because, very interestingly, Sri.V.A.Omanakkuttan argues that his client’s admissions in the year 2020 and 2021 were on account of the fact that she had COVID-19, while under treatment for her injuries. This is completely unacceptable because, as said above, the accident was of the year July 2018, when the world had not even heard about
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a disease called COVID-19. I can only, therefore, repel such contention. In any event, there is no evidence to show that the appellant had been infected by COVID-19 while in any hospital.
8. What survives is the argument of the learned counsel for the appellant that the period for reckoning ‘Loss of Earnings’ ought to have been six months instead of four months, as has been presently granted. The medical evidence on record show that the appellant had suffered fracture of both bones of her left leg and contusion and abrasion over the left elbow. She was treated with ‘external fixation and ORIF surgery’ and she again admitted for ‘Knee ROM exercise’. The total days she had been confined as an in-patient for 38 days, in four spells; and it is perhaps, taking this into account, as also the period required for convalescence, that the learned Tribunal has adopted the number of months for computation of compensation under the head ‘Loss of Earnings’, as four months.
9. Though this may appear to be reasonable, I am of the view that a further latitude must be shown to the appellant, taking note of the fact that she was 61 years of age and having
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suffered fracture of both bones in her leg, thus incapacitating her from running her business. I, therefore, propose that the period, for reckoning compensation under ‘Loss of Earnings’, be enhanced to six months, instead of four months.
Resultantly, this Appeal is allowed in part, granting an additional sum of Rs.23,000/- under the head ‘Loss of Earnings’.
In all other heads, the findings of the Tribunal will remain unaltered.
Consequently, the appellant will be at liberty to recover the compensation, as enhanced by this Court, from the Insurance Company, along with interest at the rate awarded by the Tribunal, from the date of claim until it is recovered. She will also be entitled to proportionate costs on the enhanced amount, as ordered by the Tribunal.
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RR
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Sd/-
DEVAN RAMACHANDRAN
JUDGE
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