Sabitha Salim v. P.A. Gopi, Ramesh Babu, National Insurance Company Ltd.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON & THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN WEDNESDAY, THE 20TH DAY OF JANUARY 2016/30TH POUSHA, 1937 **MACA.No. 314 of 2011 ( ) -------------------------** (AGAINST THE AWARD IN OPMV 1258/2005 of M.A.C.T.,ERNAKULAM DATED 25-09-2009) APPELLANT(S)/PETITIONER: ---------------------------------------------- SABITHA SALIM, AGED 26 YEARS, D/O. SALIM IBRAHIM, 23/1071-A, RAMANKUTTY BAGHAVADHAR LANE, PANCHAYATH RAJ ROAD, PALLURUTHY COCHIN-6. BY ADVS.SRI.R.SUDHISH SMT.M.MANJU SRI.K.R.RANJITH RESPONDENT(S)/RESPONDENTS: ---------------------------------------------------- 1. P.A.GOPI, S/O. ACHUTHAN NAIR, ELAMKOOLIYATTU HOUSE, KUSUMAGIRI P.O., MAPPARAM KAKKANAD, COCHIN-30. 2. RAMESH BABU, S/O. VASU, MADAKKAPPILLY HOUSE, KOONAMTHAI BHAGOM PUTHUPALLYPURAM, EDAPPALLY P.O., COCHIN-24. 3. NATIONAL INSURANCE COMPANY LTD., DAMODHAR CHAMBERS, STATUE JUNCTION, TRIPUNITHURA, ERNAKULAM – 682 301. R3 BY ADV. SRI.RAJAN P.KALIYATH THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 20-01-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **(CR)** ## **P.R. RAMACHANDRA MENON & ANIL K. NARENDRAN, JJ.** .............................................................................. ## **M.A.C.A.No.314 OF 2011** ......................................................................... **Dated this the 20[th] January, 2016** ## **JUDGMENT** ## **P.R. Ramachandra Menon, J.** The claimant is the appellant before this Court. She was a Post Graduate student doing her first year M.Sc course. The fate struck her very hard in the form of a road traffic accident. The appellant was walking along the M.G. Road, near Perumannor Junction, when a stage carriage bearing No.KL.7/E.414, owned, driven and insured by the respondents 1 to 3 respectively knocked her down causing serious injuries, resulting in multiple fracture and also loss of 12 teeth. This led to the claim petition filed before the Tribunal, seeking for a total compensation of Rs.10,00,000/- under various heads. 2. The owner and driver of the bus did not choose to contest the matter and were set ex parte. The claim was resisted by the Insurance Company on general grounds, as no violation of **2** ## **M.A.C.A.No.314 OF 2011** statutory/policy conditions was available. 3. The evidence adduced before the Tribunal consists of documentary evidence of Exts.A1 to A17, marked from the part of the petitioner/claimant, besides the oral testimony of the concerned doctors as P.W.1 and 2, who issued the relevant certificates. Ext.X1 case sheet pertaining to the treatment of the claimant was marked as court exhibit. No evidence, either oral or documentary, was adduced from the part of the respondents. Based on the evidence adduced, the Tribunal arrived at a finding that the accident was solely because of the negligence on the part of the driver of the bus. While computing the compensation payable, the Tribunal reckoned the notional income of the appellant as Rs.2000/- per month and adopting the multiplier of '17', granted a sum of Rs.28,800/- towards permanent disability 4. The amounts awarded by the Tribunal under different heads are noted below.: |**Head**|**Amount**<br>**(Rs.)**| |---|---| |Permanent disability|28800| |Global compensation|10000| **M.A.C.A.No.314 OF 2011** **3** |**Head**|**Amount**<br>**(Rs.)**| |---|---| |Transportation expenses|3000| |Damage to clothingand articles|1000| |Extra nourishment|5000| |Medical expenses|186565| |Attendant expenses|12000| |Pain and suffering|40000| |Loss of amenities|25000| |Disfigurement|30000| |Loss of studies|10000| |Future treatment|15000| |TOTAL|356865| The inadequacy of the compensation awarded is the subject matter of this appeal. 5. Heard the learned Counsel for the appellant as well as the learned Counsel for the Insurance Company. 6. The learned Counsel for the appellant points out that inspite of the certified disability of 12% as borne by Ext.A15 certificate issued by the concerned doctor and inspite of examining the doctor as P.W.1, **4** ## **M.A.C.A.No.314 OF 2011** the Tribunal simply reduced the same to 10%, to work out the compensation. Reference is also made to Ext.A16 certificate issued by the Orthodontist, who was examined as P.W.2 certifying the adverse consequences resulted because of the loss of 12 teeth and the disability to an extent of 12%. It is also pointed out that, by virtue of age factor of the claimant and in view of the law declared by the Apex Court in _**Sarla Verma vs. Delhi Transport Corporation** [_ 2009 (6) SCC 121] , the appropriate multiplier ought to have been reckoned as '18' and not '17'. We find considerable force in the said submission made by the learned Counsel for the appellant. 7. The learned Counsel for the Insurance Company submits that, amounts have been awarded under almost all the possible heads including for pain and suffering , loss of amenities and loss of marriage prospects including the mental agony. But the question is whether, considering the nature and gravity of the injuries, the award could be termed as a 'just' award in terms of Section 168 of the M.V.Act,1988. 8. To have an effective adjudication and appreciation of the facts, reference to the actual injuries sustained by the appellant is necessary and the same has been referred to and extracted in **5** ## **M.A.C.A.No.314 OF 2011** paragraph 7 of the award, which reads as follows: 1. Lacerated wound on the (L) elbow, lips and ears, 2. Abrasion on extremities 3. Loss of 12 teeth 4. Fracture frontal sinus, nasal bone, medial condyle (L) humerus 5. Comminuted fracture maxilla 6. Fracture supra condylar humerus with intraarticular extension (L) 7. Ulnar nerve transposed anteriorly and is exposed 8. Skin edge neurosis 9. Post traumatic defect (L) elbow. 10. Intraparenchymal foreign body in (L) lung 11. Haematoma over (L) thigh postero lateral aspect 12. Bleeding from nose, mouth and ears. The adverse consequences resulted have been discussed by the Tribunal, resulting in inpatient treatment for '40' days by way of seven different spells. The factual position in this regard is discernible from paragraphs 7 and 8, relevant portions of which are extracted below for convenience of reference. “Petitioner had to take in-patient treatment for 40 days by seven phases. During the period of hospitalization, wound debridement was done. Above elbow POP slab was given to (L) hand under local anesthesia. Thereafter redebridement of wound and fixation of medial condyle (L) was done under GA. K- **6** ## **M.A.C.A.No.314 OF 2011** wire and screws were fixed with anterior transportation of ulnar nerve done. Plastic surgery was done with soft tissue coverage (L) elbow with parascapular and SSG done by plastic surgeon. Subsequently since K-wire fixation was found unstable it was restabilised under GA. Petitioner was discharged from the hospital on the 1[st] occasion with advice for report on 14.03.2005. Petitioner was again admitted on 23.3.2005 and discharged on the next day for K-wire removal and elbow mobilization. Thereafter K-wire was removed on 15.6.2005. Since petitioner had lost 12 teeth and had sustained serious injuries on mouth she was unable to take solid food and hence tracheostomy was done on 13.04.2005. The details of treatment undergone are discernible from Ext.X1 case sheet. 8. In the accident petitioner had also lost 12 teeth, 5 in the upper jaw and 7 in the lower jaw, all in the front row. After putting tracheostomy, open reduction and internal fixation of fracture of maxilla was done under GA and rehabilitation of 12 teeth was done by dental correction could be seen from Exts.A13, A17 and X1. Petitioner had to continue in-patient treatment upto 14.4.2006 and thereafter out-patient treatment till 28.06.2008 on intermittent intervals. During the period petitioner also underwent gone physiotherapy for nearly 8 months.” **7** ## **M.A.C.A.No.314 OF 2011** 9. With regard to the extent of disability, the Tribunal has blamed the petitioner for not offering any reason for subjecting herself for examination by the approved Medical Board, also observing that the X-ray and medical records were of the year 2005, whereas examination was conducted in the year 2009. It remains a fact that the extent of disability certified by the concerned doctor vide Ext.A15, is 12% and the doctors were examined as P.Ws.1 and 2. The lapses/faults, if any, for not causing examination by the Medical Board cannot be shifted to the shoulders of the appellant/claimant, in so far as no valid dispute was ever raised or established by the Insurance Company to the effect that the certificate produced and extent shown were false, fabricated or inflated in any manner. That apart, the doctors, who were examined by the claimant as P.Ws.1 and 2, were subjected to cross examination by the Insurance Company and nothing adverse to the certified extent could be elicited from them. This being the position, it was never proper for the Tribunal to have reduced the percentage of disability from 12% to 10%; more so when the Tribunal did not have any such expertise in this field. We deprecate the same **8** ## **M.A.C.A.No.314 OF 2011** and restore the entire extent of 12% as certified by the concerned doctors. 10. It is true that the appellant/claimant was a student and not an earning member on the relevant date. But on the very next breath, it has to be noted that she was pursuing her studies for P.G. Course. No evidence is necessary to hold that admission to M.Sc course is a difficult task, unless merit is established by the concerned candidate, in view of the limited availability of the seats/discipline in the relevant field. The adverse circumstances, which have been resulted because of the injuries in the accident cannot be lost sight of, in view of the description of the injuries and consequences, as extracted herein before. There is serious dis-figuration as revealed from Ext.A14 photograph. The swelling and bony thickening on the relevant parts of the body are referred to by the Tribunal in paragraph 15 of the Award. 11. The victim was aged 21 years and going by the standard of living in the year 2005, even a general worker could have earned much more than Rs.2000/- per month fixed by the Tribunal as notional income. Considering the relevant facts and circumstances in the present case, we find it appropriate to fix the notional income as **9** ## **M.A.C.A.No.314 OF 2011** Rs.5000/- to work out the compensation. On re-working the compensation for disability, adopting the notional monthly income as Rs.5000/-, percentage of disability as '12' and multiplier as '18', it comes to Rs.129600/-(5000 x 12 x 18 x 12/100). After giving credit to the sum of Rs.40000/-, the balance payable comes to **Rs.89,600/-.** The Tribunal has awarded only Rs.25000/- towards loss of amenities and enjoyment in life. We find it appropriate to award a further sum of **Rs.25000/-** in view of the consequences noted above. Similarly, only a sum of Rs.30000/- have been awarded towards disfigurement, loss of marriage prospects and the mental agony. We enhance the compensation by a further sum of **Rs.20000/-.** 12. It is seen that despite the loss of 12 teeth, the Tribunal has awarded only a sum of Rs.10000/-. In the instant case, a girl of 21 years lost 12 teeth ('5' in the upper jaw and 7 in the lower jaw). We find it appropriate to grant compensation of Rs.5000/per tooth, thus giving a total compensation of Rs.60000/- under the said head. After giving credit to the amount awarded by the Tribunal, the balance comes to **Rs.50000/-** for the loss of teeth. Thus, the total balance compensation comes to **Rs.1,84,600/-** , **10** ## **M.A.C.A.No.314 OF 2011** (Rupees one lakh eighty four thousand and six hundred only) which shall be satisfied with interest at the rate of 9% per annum from the date of the petition, till realisation. Since the policy is admitted, we direct the Insurance Company to satisfy the due amount within one month from the date of receipt of a copy of the judgment. Appeal stands allowed to the said extent. No cost. **P.R. RAMACHANDRA MENON, JUDGE** **ANIL K. NARENDRAN, JUDGE** lk