Shaji C. John v. Biju S. and The Manager, National Insurance Co Ltd

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN** **THURSDAY, THE 21[ST] DAY OF JULY 2022 / 30TH ASHADHA, 1944** **MACA NO. 1912 OF 2010** **OPMV 903/2002 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL,** ## **PATHANAMTHITTA** ## **APPELLANT/PETITIONER** SHAJI C.JOHN, S/O JOHN AGED 21 YEARS, CHAMAKALA HOUSE, UMMANNOOR VILLAGE, NELIKUNNAM MURI, KOTTARAKARA TALUK, KOLLAM DISTRICT BY ADV SRI.JOSEPH GEORGE ## **RESPONDENT/RESPONDENT** 1 BIJU S. S/O SIVADASAN, CHANKOOR EDAYILEPPURA HOUSE, ATTUVASSERY, MAVADY PO, KULAKADU VILLAGE, KOTTARAKARA, KOLLAM DISTRICT. 2 THE MANAGER NATIONAL INSURANCE CO LTD BRANCH OFFICE, KOTTARAKARA PO,KOLLAM DISTRICT. BY ADVS. SRI.K.V.ANIL KUMAR SMT.RAJI T.BHASKAR THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 21.07.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: MACA.1912/2010 2 ## JUDGMENT Dated : 21[st] July, 2022 1. A 21 year old male, who met with an accident on 23.11.2001 is the appellant herein. As per the Award in OP(MV).903/2002 of the Motor Accident Claims Tribunal, Pathanamthitta, he was granted a total compensation of Rs.5,92,730/- together with interest at the rate specified. The same is under challenge at the instance of the claimant, seeking enhancement. 2. The first point canvassed by the learned counsel for the appellant is with respect to the monthly income. The claimant/appellant claimed a monthly income of Rs.5000/-, whereas the Tribunal has reckoned only at Rs.2000/- Admittedly no proof of income was produced before the Tribunal, though the claimant contended that he was engaged in a part time job in a Printing Press, besides pursuing his Post Graduation course. The notional income deducible from MACA.1912/2010 3 **Ramachandrappa** v. **The Manager, Royal Sundaram Alliance Insurance Company Ltd. [(2011) 13 SCC 236]** , pertaining to the year 2001 is Rs.3000/-. Therefore the monthly income/notional income is liable to be taken at **Rs.3000/-.** 3. The second contention is with respect to the multiplier adopted by the Tribunal. The Tribunal took 17 as multiplier, as against the correct multiplier of 18, in respect of which there is no quarrel before this Court by the learned counsel appearing for the Insurance Company. Therefore the correct multiplier of **18** is liable to be reckoned. 4. The third contention is with respect to the percentage of disability, in respect of which two certificates have been produced by the claimant/appellant; the first one being marked as Ext.A8(1) and the second one marked as Ext.A8(2). As per Ext.A8(1), the whole body disability assessed is at 48%, whereas as per Ext.A8(2), the disability is seen assessed at 75%. The first one is dated 21.3.2003 and the MACA.1912/2010 4 second one, dated 18.2.2009. The learned counsel pointed out that the appellant/claimant sustained serious injuries and he was treated at five different hospitals including Specialist Hospital, Ernakulam and Christian Medical College Hospital, Vellore. Still his problem with the right hand persists and that is why a subsequent disability certificate was necessitated, wherein the disability indicated is at 75%. The learned counsel also pointed out that the claimant/appellant had been treated as an inpatient for a period of 56 days and had undergone four surgeries. This submission was strongly opposed by the learned counsel for the 2[nd] respondent/Insurance Company. Learned counsel pointed out that the Tribunal has rightly placed reliance on Ext.A8(1) and the entire disability reckoned therein at the rate of 48% is taken into account. Subsequent certificate is not liable to be taken into account, as it is issued at the instance of the Taluk Headquarters Hospital, Kottarakkra, whereas the former one by MACA.1912/2010 5 the District hospital. It was also pointed out that in the first certificate, Ext.A8(1), it is clearly indicated that the disability reckoned is pertaining to the whole body, whereas the second certificate is silent about it, which would go to show that the disability indicted therein, if at all correct, can only be with respect to the particular limb and not pertaining to the whole body. 5. This Court find force in the argument submitted by both the counsel appearing for the appellant, as also, the Insurance Company. It is one thing to note that the second certificate, Ext.A8(2), is also issued by the Board consisting of Psychiatrists, Orthopedics and ENT surgeon and the same cannot be eschewed in toto, giving extra waightage and conclusiveness in the first certificate issued by the District Board. However, this Court find some infirmity with respect to the second certificate, inasmuch as, the same does not refer to the present physical condition of the claimant/appellant, as also, MACA.1912/2010 6 the physical issues, if any, suffered by him at the time of issuance of the certificate. In such circumstances, this Court is of the view that the interests of justice would be best served if the disability reckoned at Ext.A8(1) is slightly enhanced though nowhere near the extent as indicated in Ext.A8. It is noteworthy that Ext.A8(1), the first certificate, specifically states that the physical disability calculated at the rate of 48% is for the present, that is to say, at the time of issuance of the certificate in the year 2003. It remains a fact that the petitioner had undergone treatment in two Specialist Centres, apart from two other hospitals including the Specialist Hospital, Ernakulam and the Christian Medical College Hospital, Vellore. Taking into account the over all circumstances this Court is of the view that the physical disability can be fixed at **55%** . It is ordered accordingly. 6. Compensation for pain and suffering has been reckoned by the Tribunal only at Rs.50,000/- MACA.1912/2010 7 which is liable to be enhanced to Rs.75,000/-, having regard to the fact that the claimant/appellant was an inpatient for a period of 56 days and he had to undergo four surgeries. The loss of amenities reckoned by the Tribunal is Rs.25,000/- which also is liable to be enhanced to **Rs.35,000/** -. This Court takes note of the fact that the appellant/claimant was 21 years at the time of accident. The personal expenses/bystander expense is to be reckoned at the rate of Rs.200/- per day and extra nourishment at Rs.150/- per day. Corresponding enhancement has to be done. 7. In the circumstances, the appeal is allowed and the compensation awarded to the appellant/claimant is re-worked as follows: |Sl.<br>No.|Head of claim|Amount awarded<br>by the<br>Tribunal(Rs)|Total amount<br>after enhancement<br>in appeal (Rs.)| |---|---|---|---| |1|Pain and sufferings|50,000/-|75,000/-| |2|Loss of amenities of<br>life, inconvenience<br>and discomforts<br>caused|25,000/-|35,000/-| |3|Medical and treatment<br>expenses|2,89,890/-|2,89,890/-| MACA.1912/2010 8 |4|Transportation<br>expenses and damage<br>to clothing|20000/-|20000/-| |---|---|---|---| |5|Bystander expenses<br>and extra nourishment|12000/-|19600/- (11200/-<br>+ 8400/-)| |6|Loss on account of<br>permanent disability<br>caused|1,95,840/-|3,56,400/-(3000<br>x 12 x 18 x<br>55/100)| |7|Total|5,92,730/-|7,95,890/-| ||Amount enhanced =**Rs.2,03,160/-** (7,95,890 – 5,92,730)||| The Insurance Company shall pay interest for the amounts awarded by the Tribunal at the rate directed in the impugned award; and for the enhanced amounts at the rate of 5% from the date of petition. If any amount has already been paid, the same shall be granted set off. The claimants shall produce the details of the Bank account before the Insurance Company/Tribunal within one month from the date of receipt of a certified copy of this judgment and amount shall be transferred to the Bank account directly through NEFT/RTGS mode, within a period of one month thereafter. If the Bank account is not furnished within the time stipulated, it is made clear that no interest shall run on the enhanced amount after the period stipulated by this Court. However, if the Insurance Company fails to deposit 9 ## MACA.1912/2010 the amount as directed, interest on enhanced amount shall also run at the rate ordered by the Tribunal from the date of petition. Sd/- C.JAYACHANDRAN, Judge Mrcs