Salini v. Sudheer S., Dili K R, and Cholamandalam MS General Insurance Company

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN FRIDAY, THE 3[RD] DAY OF MARCH 2023 / 12TH PHALGUNA, 1944** **MACA NO. 2852 OF 2020** **AGAINST THE AWARD DATED 18.09.2019 IN OPMV 34/2013 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, THRISSUR** ## **APPELLANT/PETITIONER:** **SALINI AGED 37 YEARS W/O GOKULAPALAN, THERAMBIL HOUSE, KUTTOOR, THRISSUR-680013.** **BY ADVS. C.HARIKUMAR SRI.RENJITH RAJAPPAN SMT.NOVA SEN ABRAHAM** ## **RESPONDENTS/RESPONDENTS:** - **1 SUDHEER S/O BAHULEYAN, PEREUMARATH HOUSE, 4/153, CHENGALOOR, THRISSUR-680312.** - **2 DILI K R S/O RAMANATHAN, KOTTIKKAL HOUSE, KURICHIKKARA, THRISSUR-680028.** - **3 CHOLAMANDALAM** **MS GENERAL INSURANCE COMPANY, 2ND FLOOR, CITY ARCADE COMPLEX, GURUVAYOOR ROAD, POOTHODE P O, THRISSUR-680004, REPRESENTED BY ITS DIVISIONAL MANAGER.** **BY ADVS. SRI.P.JACOB MATHEW** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 03.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA 2852 OF 2020** **2** ## **JUDGMENT** While the appellant was riding pillion on a scooter, along with her husband, it was knocked down by the offending bus driven in a rash and negligent manner, on 16.06.2012. She suffered severe crush injury on her right foot, loss of extensor tendon and fracture of metatarsal, apart from other injuries, and had to endure prolonged treatment. She later filed OP(MV)No.34/2013 before the Motor Accidents Claims Tribunal, Thrissur (the 'Tribunal' for short), seeking compensation of Rs.15,00,000/-, but which has been allowed only to a sum of Rs.6,12,747/-; thus constraining her to file this appeal. 2. Smt.Sandra Sunny – learned counsel appearing for the appellant, argued that the compensation awarded by the Tribunal is inadequate because it has taken her client's notional income to be a mere Rs.5,500/- per month, when claimed was Rs.7,187/-, and that too, on the strength of a validly proved document, namely, Ext.A9 – Leave Certificate. She argued that 50% future prospects ought to have been added to this by the Tribunal, and she relied upon the judgment of the Hon'ble Supreme Court in **Erudhaya Priya** **MACA 2852 OF 2020** **3** ## **v. State Express Transport Corporation Ltd. [2020 SCC Online SC 601].** 3. Smt.Sandra Sunny, thereafter, submitted that, reckoning the severe trauma suffered by her client, the learned Tribunal ought to have granted much more under the heads “pain and suffering” and “extra nourishment” and thus prayed that this appeal be allowed. 4. In response, Sri.P.Jacob Mathew - learned Standing Counsel appearing for the Insurance Company, argued that the computations adopted by the Tribunal are without error and, therefore, prayed that this appeal be dismissed. 5. I have evaluated the afore rival submissions, on the touchstone of various materials and 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 they can be acted upon by this Court without dispute. 6. The major component of compensation in the Award of the Tribunal is under the head “permanent disability”. This has been allowed to a sum of Rs.2,87,496/-, reckoning the notional income of the appellant to be Rs.5,500/- and the permanent disability 24.2%, as certified by Ext.A10 – Certificate. However, in **Ramachandrappa v. Manager,** **MACA 2852 OF 2020** **4** ## **Royal Sundaram Alliance Insurance Company Ltd.** **[(2011) 13 SCC 236],** the Hon'ble Supreme Court has declared that, even in the case of a 'coolie' or a person with an unascertainable income in the year 2012 – when the accident occurred – a minimum figure of Rs.8,500/- ought to have been reckoned. But, since the appellant had claimed only Rs.7,187/-, at least that sum ought to have been granted. 7. That being so declared, going by the injuries sustained by the appellant, which is proved by Ext.A3 – Wound Certificate and Ext.A4 - Discharge Summary, namely: “severe crush injury on right foot with flap avulsion on the antero medial aspect big toe, metatarsal of 2nd, 3rd and 5th toes with gross contamination” (sic), it is indubitable that she had to go through extreme trauma, which is further fortified by the fact that she was treated as an inpatient for 27 days. The Tribunal itself has recorded, based on the Discharge Summary, that the appellant underwent plastic surgery to manage the crush injury, which was reiterated by an Assistant Professor in Orthopaedics, Govt. Medical College, Thrissur, who issued Ext.A10 – Disability Certificate, recording her whole body disability to be 24.2%. Even though the **MACA 2852 OF 2020** **5** Tribunal has accepted this figure, which the Insurance Company has not opposed, the fact remains that it did not add any amount towards future prospects, along with the income claimed by her. 8. As rightly argued by Smt.Santra Sunny, in **Erudhaya Priya (** supra), the Honourable Supreme Court granted 50% 'Future Prospects' in the case of a person who suffered injuries leading to a permanent disability of 31.1%. Going by the standards which the Honourable Supreme Court has so shown, I am certain that 'Future Prospects' of 20% can certainly be added and that this will be just and fair because, even with such, the notional income in favour of the appellant will not exceed then what has been postulated by the Honourable Supreme Court in **Ramachandrappa** (supre) in the case of a “Coolie”. 9. On the aspects of compensation under the head 'Pain and Suffering', even though the Tribunal has granted more than what has been asked for, I am of the view that, taking note of the aftermath of the accident and the treatment suffered by her, the appellant is entitled to atleast Rs.50,000/-. **MACA 2852 OF 2020** **6** 10. I am persuaded to hold so because Ext.A10 – Disability Certificate shows that the problems faced by the appellant in great detail which, for the purpose of easy reading, are extracted infra: - Walks with aid of walking stick - Swelling right foot++ - Foot external rotated right - Big toe, 2[nd] and 3[rd] toe removed right - Flexion contracture of 4[th] and 5[th] toe right - Flap scar antero-medial aspect right foot - Recurrent episodes of discharge+ - - Heel right atropy+ - Hyperpigmented skin over right leg and foot - • Numbness antero-medial aspect of right leg - • Pain and Stiffness of anteromedial aspect of right ankle joint - Dorsiflexion and plantarflexion of right ankle joint decreased by 80% - Difficulty in ascending and descending steps - Difficulty in cross-legged sitting - Difficulty in squatting - Difficulty in standing on affected leg - Right calf muscle weakness by grade 1 11. The appellant was a 'Casual Worker' and when she is unable to stand or to climb steps or to sit or squat crossed- legged; and when the Doctor has certified her disability to **MACA 2852 OF 2020** **7** include weakness of her 'Right calf muscle weakness by grade 1', there can be little doubt that her 'Future Prospects' has been impeded. 12. As regards other heads, I do not think that this Court should not intervene, since they are just and fair. Resultantly, I allow this appeal: (a) Enhancing the compensation for 'Permanent Disability' to Rs.4,24,564/- instead of Rs.2,87,496/-, reckoning the notional income of the appellant to be Rs.7,200/-, with 20% 'Future Prospects' added, thus totalling Rs.8,600/- and adopting the correct multiplier '17' instead of '18'. (b) The percentile of disability is confirmed to be 24.2% as recorded in Ext.A10. (c) The compensation under the head 'Loss of Earning' is axiomatically enhanced to Rs.50,400/- from Rs.38,500/reckoning the notional income of the appellant as Rs.7,200/-. In all other heads, the compensation awarded by the Tribunal will remain unaltered. Needless to say, the appellant 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 8% **MACA 2852 OF 2020** **8** as awarded by the Tribunal, from the date of claim until it is recovered. He will also be entitled to proportionate costs on the enhanced amount as ordered by the Tribunal before it. **Sd/-DEVAN RAMACHANDRAN, JUDGE** lsn