Shibin v. Kannan P.H. and Shanmughadas and Reliance General Insurance Company Ltd.

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MRS. JUSTICE MARY JOSEPH MONDAY, THE 4[TH] DAY OF DECEMBER 2023 / 13TH AGRAHAYANA, 1945`** ``` MACA NO. 766 OF 2021 AGAINST THE ORDER/JUDGMENT IN OPMV 2709/2011 OF MOTOR ACCIDENT CLAIMS TRIBUNAL & SPECIAL COURT FOR E.C. ACT CASES, THRISSUR DATED 03/07/2020 ``` ## **`APPELLANT/PETITIONER:`** ``` SHIBIN AGED 26 YEARS S/O RAVI, ILAYAKOVIL HOUSE, P O, AYILAKKAD, MALAPPURAM. ``` ``` BY ADV SHEJI P.ABRAHAM ``` ## **`RESPONDENTS/RESPONDENTS:`** ``` 1KANNAN P.H. C/O SHANMUGHADAS, S/O VISHNUDAS, KANADY HOUSE, PERINGOTTUKARA P O, THRISSUR-680 565. 2SHANMUGHADAS S/O VISHNUDAS, KANADY HOUSE, PERINGOTTUKARA P O, THRISSUR-680 565. 3RELIANCE GENERAL INSURANCE COMPANY LTD, 2ND FLOOR, GLOBAL PLAZA, VANCHIKULAM ROAD, OPP. NEW RAILWAY PLATFORM, POOTHOLE P O, THRISSUR-680 004. REPRESENTED BY ITS BRANCH MANAGER. ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 04.12.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA No. 766 OF 2021 ``` ``` 2 ``` ## **J U D G M E N T** ## **Dated this the 4[th] day of December, 2023** This appeal is originated from an award passed by Motor Accidents Claims Tribunal, Thrissur (for short ‘the Tribunal’) on 03.07.2020 in O.P(M.V)No.2709/2011. 2. For the sake of convenience, the parties to this appeal will hereinafter be referred to as the petitioner and respondents 1 to 3 in accordance with their status in the Original Petition. 3. The appellant is the petitioner before the Tribunal and the appeal has been preferred seeking for enhancement of compensation. As per the averments in the Original Petition, the petitioner met with a motor accident on 06.09.2011 when a car bearing registration No. KL 08 AT 2683 hit on the bicycle ridden by him, near Edappal Sona Book shop. He sustained serious injuries and was rushed to West Fort Hospital, Thrissur, where he had undergone four spells of in-patient treatment. Seeking for ``` MACA No. 766 OF 2021 ``` ``` 3 ``` a sum of `14,00,000/- as compensation, the above Original Petition was filed before the Tribunal impleading the driver, the registered owner and the insurer of the car as respondents 1 to 3. All respondents were served with notice from the Tribunal. 1[st] respondent did not turn up to contest the Original Petition and therefore was declared ex-parte. 4. 2[nd] respondent filed written statement where a contention was taken that the motor accident was occurred not due to the rash and negligent driving of the car by the 1[st] respondent but due to negligence on the part of the petitioner himself. Admittedly, the 1[st] respondent was holding a valid driving license and the vehicle driven by him at the relevant time was insured with the 3[rd] respondent. 5. 3[rd] respondent also entered appearance and filed written statement admitting insurance coverage for the car as on date of the motor accident. It was contended that intimation regarding the motor accident was not given by ``` MACA No. 766 OF 2021 ``` ``` 4 ``` the 2[nd] respondent to the insurer and thus a term in the policy was violated. The age, the monthly income and the occupation of the petitioner were alleged as incorrect. 1[st] respondent was contended as driving the vehicle with due care and caution and the compensation claimed is excessive and without any basis. 6. Before the Tribunal, from the side of the petitioner, the doctor who examined the petitioner and issued certificate of disability was examined as PW1 and Exts.A1 to A22 were marked. On the side of the 3[rd] respondent, policy was marked in evidence as Ext.B1. Based on the evidence on record, the Tribunal found that the motor accident in question was occurred due to the rash and negligent driving of the car by the 1[st] respondent. The Tribunal also found that the petitioner is entitled to get reasonable compensation for the serious injuries caused to him in the motor accident. `12,28,170/- was arrived at by the Tribunal as the compensation payable and the 3[rd] respondent, the insurer was directed to pay it with ``` MACA No. 766 OF 2021 ``` ``` 5 ``` interest at the rate of 8% per annum from the date of filing of the Original Petition till the date of realisation alongwith proportionate costs. 7. The first and foremost contention raised by the learned counsel was that the petitioner though claimed to be a paper supply boy aged 18 years, the Tribunal took only `5,000/- as his monthly income and compensation was calculated on its basis. According to him, the motor accident was occurred in the year 2011 and therefore, the Tribunal ought to have considered a higher sum as his monthly income and compensation calculated on its basis. He canvassed for fixation of a sum proportionate to that fixed by the Apex court as monthly income in **Ramachandrappa vs. Manager, Royal Sundaram Alliance Insurance Company Limited [(2011) 13 SCC 236]** 8. According to the learned counsel, the petitioner had undergone 4 spells of hospitalisation at West Fort Hospital, Thrissur. He was a native of Malapuram, met with ``` MACA No. 766 OF 2021 ``` ``` 6 ``` the motor accident at Ponnani and had undergone treatment at West Fort Hospital, Thrisssur. According to him, the petitioner had to spend a huge sum on transportation on account of the above factors, but the Tribunal overlooked those aspects while awarding compensation towards transportation expenses. The learned counsel contended further that the petitioner had to undergo several surgical procedures of treatment and had also to remain in the hospital for a considerably long time, but the Tribunal failed to award just and reasonable compensation towards extra nourishment and bystander expenses. 9. Inviting attention of this Court to the injuries sustained by the petitioner in the motor accident, the learned counsel contented that the compensation stood awarded by the Tribunal towards loss of amenities and enjoyments in life is on the lower side and therefore, inadequate. It is specifically pointed out by the learned counsel that the permanent disability of the petitioner was ``` MACA No. 766 OF 2021 ``` ``` 7 ``` certified by a Neurosurgeon associated with West Fort Hospital, Thrissur where the petitioner had undergone treatment following the motor accident as 35%. According to him, the petitioner appeared before the Medical Board further at a later point of time, got his permanent disability on account of the injuries sustained in the motor accident assessed and obtained Ext.A11, where his permanent disability was certified as 40%. According to him, loss of vision of left eye also formed basis for assessment of 40% disability. The Tribunal confined its consideration to Ext.A10 and discarded Ext.A11. It was contended by the learned counsel that the Tribunal is unjustified in discarding Ext.A11. The learned counsel contended furthermore that the age of the petitioner was taken by the Tribunal as 18 years and therefore the multiplier ought to have adopted by it was 18 instead of 16. 10. The treatment particulars are available in the materials marked in evidence. Discharge summaries disclose four spells of inpatient treatment. It is revealed ``` MACA No. 766 OF 2021 ``` ``` 8 ``` from the treatment records that the petitioner met with a motor accident on 06.09.2011 and was immediately transported to West Fort Hospital, Thrissur. Left fronto temporal contusion, fractures of frontal, orbital roof, orbital walls, Le Fort III, maxilla, palatal split, mandible and nasal bone were diagnosed. There was extensive maxillofacial injury with airway destruction. The petitioner was intubated and ventilated. There was nasal and oral bleed controlled with packing. Left eye was dilated but not reacting. In CT scan of brain, left fronto temporal contusion was detected. Report of CT scan also confirms various fractures. Petitioner underwent ORIF, elevation of depressed frontal bone and fused wiring to fix the maxillofacial injury. Petitioner was treated with antibiotics, anti edema measures/AED and Analgesics. Petitioner was discharged on 03.10.2011 and was advised to review after two weeks. He was admitted at the very same hospital on 26.10.2011 and treated as in-patient till 31.10.2011 for post traumatic surgery. He was admitted in the very same hospital on 16.12.2011 and was treated till 19.12.2011. He was ``` MACA No. 766 OF 2021 ``` ``` 9 ``` admitted at the same hospital on 23.05.2012 and continued as in-patient till 26.05.2012. Treatment was continued there again from 22.11.2012 till 26.11.2012. 11. The Neurosurgeon of Westfort Hospital, Thrissur examined him after concluding the treatment and assessed 35% as his permanent disability. Later to that, the petitioner appeared before the Medical Board and on the basis of loss of vision in left eye, his permanent disability was certified as 40%. 12. The Tribunal considered the age of the petitioner as 18 years but failed to adopt 18, the correct multiplier applicable. Instead, it adopted 16 as the multiplier. It being incorrect, is replaced by 18. The monthly income was fixed as `5,000/- on a notional basis. Petitioner failed to adduce any evidence to establish his monthly income at the relevant time. The motor accident being occurred in the year 2011, `5,000/- fixed by the Tribunal as notional income appears too low and therefore modified to `8,000/-. ``` MACA No. 766 OF 2021 ``` ``` 10 ``` 13. The Tribunal has gone wrong in assessing the compensation for permanent disability based on Ext.A10, which is nothing but a certificate issued by an individual doctor, instead of Ext.A12 issued by the Medical Board. It is found from Ext.A12, that the petitioner suffers permanent disability of 40% on account of loss of vision of left eye, which also is a trauma resulted from the injuries sustained in the motor accident. The Tribunal is erred in not relying on Ext.A12 for awarding compensation for disability. Therefore, this Court finds it appropriate to reassess the compensation on the basis of 40% disability assessed and certified by the Medical Board in Ext.A12. 14. Loss of vision of left eye undoubtedly have some impact on his capacity to pursue the occupation the petitioner was engaged at the relevant time. The Tribunal failed to advert to that aspect. The age of the petitioner being 18 years, in view of **National Insurance Co.Ltd. Vs. Pranay Sethi and Others [2017 (4) KLT 662 (SC)]** the Tribunal ought to have added 40% to the monthly ``` MACA No. 766 OF 2021 ``` ``` 11 ``` income in consideration of loss of future prospects. When 40% is added to `8,000/-, the monthly income re-fixed now, `11,200/- (`8,000/- + 40% of `8,000/-) is arrived at. 15. The nature of injuries sustained, the period of treatment and the nature of surgical procedures undergone by the petitioner were already discussed elaborately. When viewed in that context, it is found that the compensation stood awarded by the Tribunal towards extra nourishment, bystander expenses, pain and sufferings, loss of amenities and enjoyments in life are also on the lower side. This Court finds it appropriate to modify the compensation payable proportionately. 16. A period of 24 months was considered by the Tribunal while calculating compensation for loss of earnings. The period taken by the Tribunal, being reasonable is maintained. In view of the modification of monthly income, the compensation payable towards loss of earnings would vary and therefore, `1,92,000/- (`8,000/- x 24) is arrived at. `1,20,000/- stood awarded by the ``` MACA No. 766 OF 2021 ``` ``` 12 ``` Tribunal as compensation when adjusted against, the petitioner will get `72,000/- (`1,92,000/- - `1,20,000/-) as compensation towards loss of earnings. The Tribunal has awarded only `6,000/- towards transportation expenses and that being inadequate, is modified to `15,000/-. Therefore, petitioner will get `9,000/- as additional compensation towards transportation expenses. As compensation towards extra nourishment, this Court is declined to enhance the compensation already granted and therefore that is maintained. The compensation stood awarded towards pain and sufferings and loss of amenities and enjoyments in life being inadequate, are modified to `1,00,000/- and `75,000/- respectively. Therefore, the petitioner will get `25,000/- each as additional compensation under the respective heads. 17. This Court is convinced from Exts.A15 and A16 photographs which include two photographs taken prior to and after the motor accident, that the petitioner has suffered disfigurement on account of the injuries sustained. ``` MACA No. 766 OF 2021 ``` ``` 13 ``` The Tribunal has already awarded `25,000/- as compensation towards disfigurement. It undoubtedly is inadequate and therefore this Court finds justification in awarding `50,000/- more as compensation towards loss of future prospects of marriage and the dis-figuration caused. 18. Recalculation of compensation is inevitable, since this Court has already added 40% to the monthly income re-fixed, in consideration of loss of future prospects, modified the multiplier as 18 and the permanent disability as 40%. `9,67,680/- (`8,000/- + 40% of `8,000/- ) x 12 x 18 x 40/100) is arrived at in the calculation as the compensation payable. A sum of `3,36,000/- stood awarded by the Tribunal when adjusted against, the petitioner will get `6,31,680/- (`9,67,680/- – `3,36,000/-) as additional compensation towards permanent disability. 19. In the above manner of calculation afresh, the petitioner will get `8,12,680/- (`6,31,680+ `72,000/- + `50,000/- + `9,000/- + `25,000/- + `25,000/-) (Rupees eight lakhs twelve thousand six hundred and eighty only) ``` MACA No. 766 OF 2021 ``` ``` 14 ``` as additional compensation with interest at the rate of 7.5% per annum from the date of filing of the Original Petition till the date of realisation. 3[rd] respondent, the insurer shall pay the additional compensation with interest, within a period of two months from the date on which a certified copy of this judgment is received. The disbursal of the compensation in favour of the petitioner shall be in accordance with the directions issued by this Court in Circular No.03/2019 dated 06.09.2019. M.A.C.A stands allowed accordingly. Sd/- **MARY JOSEPH JUDGE** SM