Sicily Johnson @ Thressiamma Thomas Jose Bhavan v Mount Bethany English Higher Secondary School, Fr. Siju Mathew, Royal Sundaram Alliance Insurance Company Limited

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** **WEDNESDAY, THE 8[TH] DAY OF MARCH 2023 / 17TH PHALGUNA, 1944** **MACA NO. 2126 OF 2018** **AGAINST THE AWARD IN OPMV 98/2014 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, PUNALUR** ## **APPELLANT/PETITIONER:** SICILY JOHNSON @ THRESSIAMMA THOMAS JOSE BHAVAN, THAZHATHU VADAKKU, PATTAZHY VADAKKEKARA VILLAGE, KOLLAM DISTRICT. BY ADV SRI.ANCHAL C.VIJAYAN ## **RESPONDENTS/RESPONDENTS:** 1 THE MANAGER, MOUNT BETHANY ENGLISH HIGHER SECONDARY SCHOOL, MYLAPRA, PATHANAMTHITTA, PIN - 689671. 2 FR. SIJU MATHEW, MOUNT BETHANY ASHRAM, MYLAPRA P.O., PATHANAMTHITTA, PIN - 689671. 3 ROYAL SUNDARAM ALLIANCE INSURANCE COMPANY LIMITED SUNDARAM TOWERS, 46 WHITES ROAD, ROYAPETTAH, CHENNAI, PIN - 600014. BY ADV P.JACOB MATHEW THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 08.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: MACA NO. 2126 OF 2018 2 ## **JUDGMENT** This matter is of the year 2018 and has not been admitted. However, both sides are ad idem that it can be disposed of, after being formally admitted, based on the undisputed evidence on record, handed over by them across the Bar. 2. I, therefore, admit this appeal and proceed to dispose it of finally, with the consent of both sides. 3. The appellant, who claims to have been a teacher, met with a horrific accident on 07.09.2013, while she was travelling in a car and being hit by the offending vehicle driven in a rash and negligent manner. She sustained very serious injuries, including fracture of left humerus, blunt injury to her abdomen and chest, along with liver laceration and renal hematoma. She had to be treated for a long period of time, including as an impatient for 88 days; and thereupon, filed OP(MV) No.98/2014 before the Motor Accidents Claims Tribunal, Punalur (Tribunal), seeking a compensation of Rs.50,00,000/-, but which has been allowed only to the extent of Rs.32,47,255/-. The appellant assails the compensation as being inadequate. 4. Sri.Anchal C.Vijayan – learned counsel for the MACA NO. 2126 OF 2018 3 appellant, submitted that the aftermath of the accident and the trauma of the injuries are available from the medical evidence on record, which has also been noticed by the learned Tribunal. He pointed out that, as per Ext.A13 - Medical Certificate, which has been issued by the Medical Board constituted in a private hospital, 75% permanent disability has been found; but that the learned Tribunal has reduced it to 60%, merely because the Medical Board was not one constituted in a Government hospital, and since some of the doctors on the Board had not signed it. He submitted that, however, even though the Insurance Company assailed the said certificate on such basis, the fact remains that the injuries admitted by them would clearly establish that the percentage of 75% as permanent disability is the least that could have been awarded by any medically trained person. He added that this is more so because, the learned Tribunal also found - when the appellant presented herself before it during trial - that she was very tired, could move only with the help of multiple assistants, and was also complaining of respiratory problems and weakness of hands and legs. He added that, though not specifically stated in the claim, the fact remains that the appellant is forced to carry a bag connected to her MACA NO. 2126 OF 2018 4 kidneys for the expulsion of human waste and that this would certainly entitle her to future expenses for treatment. 5. After arguing as afore, Sri.Anchal C.Vijayan submitted that the compensation awarded by the Tribunal under the head 'permanent disability' has been granted only to the extent of Rs.5,61,600/- and this has been kept so low, only because it had adopted the notional income of the appellant to be a mere Rs.6,000/- even though she was a teacher. He then pleaded that the compensation under the head 'pain and suffering' be substantially enhanced, as also under the head 'loss of amenities', taking note of the rather pitiable situation now faced by her. 6. Sri.Mathew Jacob – learned senior counsel, instructed by Smt.Preethy Nair appearing for the Insurance Company, on the other hand, submitted that the Tribunal has been more than fair to the appellant in computing the compensation and thus prayed that this appeal be dismissed. He argued that he is making this submission also because the permanent disability of the appellant has been correctly found by the learned Tribunal to be 60%, because Ext.A13 certificate issued by a private Medical Board can never be fully accepted. 7. I have considered the afore rival submissions on the MACA NO. 2126 OF 2018 5 ## touchstone of the evidence on record. 8. I will first assess the contentions of the rival parties on the notional income of the appellant. Even though she had claimed that she is a teacher, earning Rs.15,000/- per month, it is true that she was not able to produce any document in substantiation. However, the fact that she was a qualified person and capable of being a teacher is apodictic from Exts.A1 and A2 - her educational records, which remain unimpeached. In **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Ltd.** [(2011) 13 SCC 236], the Hon'ble Supreme Court has postulated that, even in the case of a person who is a “coolie” and one with an unascertainable income in the year 2013 – when the accident occurred – the minimum income to be reckoned is Rs.9,000/-. In **Rajani v. Oriental Insurance Co. Ltd.** [2022 (5) KLT Online 1012 (SC)], the Hon'ble Supreme Court then said that, in the case of a person who is qualified or otherwise engaged in a technical avocation, a more robust view ought to be taken. Guided by the sum total of the afore declarations, I am certain that this Court will be justified in revising the notional income of the appellant to be Rs.11,000/-, which is a mere Rs.2,000/more than what has been authorised by **Ramachandrappa** MACA NO. 2126 OF 2018 6 (supra). 9. That said, since the learned Tribunal has also found that the permanent disability of the appellant is more than 50%, 25% future prospects have to be added to her notional income, taking note of the fact that she was hale and hearty at the time of the accident. 10. Coming to the medical evidence on record, Ext.A13 certainly certifies that the appellant has permanent medical disability of 75%. This has not been accepted by the learned Tribunal, acceding to the objection of the Insurance Company that the said certificate had not been signed by all the doctors and had been issued by a private hospital. 11. Before I conclude on this, I deem it necessary that I look through the other documents relating to the injuries and treatment of the appellant. Ext.A7 wound certificate, read along with Exts.A9, A10 and A11 discharge summaries and Ext.A12 treatment certificate, render it indubitable that the appellant suffered from the following injuries and endured treatment as below: “1. Fracture left humerus. 2. Blunt injury abdomen and chest. 3. Scalp injury. MACA NO. 2126 OF 2018 7 4. Liver laceration. ## 5. Renal area retroperitoneal hematoma. 6. Splenectomy done 7. Re-laprotomy done.” 12. The learned Tribunal itself has found, when it saw the appellant personally during trial, that she was extremely weak and tired, unable to stand or walk without assistance and that she had complained of other problems like respiratory issues, weakness of her limbs and general fatigue. 13. In such a perspective, even though Ext.A13 is not a certificate issued by the Government hospital, since the Insurance Company does not impeach the competence of the doctors who were part of the Medical Board mentioned therein, I am of the view that the percentage of disability could not have been reduced by the Tribunal to 60, when it certified it to be 75. This is more so because, the injuries sustained by the appellant would certainly lead to the indubitable conclusion that her condition is extremely pitiable, particularly because of the problems she is facing relating to her liver and kidneys. To add to this, the submission of Sri.Anchal C.Vijayan, her learned counsel, made responsibly at the Bar – which I see no reason to disbelieve - that she is MACA NO. 2126 OF 2018 8 forced to walk with a human waste bag persuades me to find in her favour. I, therefore, propose to accept the disability certificate and reckon the disability to be 75% as certified therein. 14. Coming to the compensation under the head 'pain and suffering' and 'loss of amenities', for the same reasons I have recorded above, am of the view that a marginal increase is necessary. I propose the compensation under those heads to be Rs.2,00,000/- and Rs.1,00,000/-, in modification of Rs.40,000/- and Rs.50,000/- presently awarded. 15. Finally, on the question of bystanders' expenses, I am of the certain view that the appellant is entitled to a marginal increase because even in 2013, the minimum that a person would have to expend for such would be Rs.400/- per day. This certainly should be offered to her. 16. However, as regards the future treatment expenses, since there is no evidence on record, I do not propose to accede to anything but I am certain that the appellant should be given liberty to move the Tribunal with cogent evidence, if it becomes so warranted in the future. In the afore circumstances, this appeal is allowed in the following manner: MACA NO. 2126 OF 2018 9 (a) The compensation under the head 'permanent disability' is enhanced to Rs.16,08,750/-, reckoning the monthly income of the appellant to be Rs.11,000/-, with 25% future prospects added to it and adopting the percentage of her permanent disability to be 75%. (b) Axiomatically, the compensation under the head 'loss of earning' is enhanced to Rs.1,32,000/-, reckoning the notional income of the appellant to be Rs.11,000/- per month. (c) The compensation under the head 'pain and suffering' is enhanced to Rs.2,00,000/-, from Rs.40,000/- now granted. (d) The compensation under the head 'loss of amenities' is enhanced to Rs.1,00,000/-, instead of Rs.50,000/- now granted. (e) The compensation under the head 'bystanders' expenses' is enhanced to Rs.400/- per day, thus awarding a total compensation of Rs.3,35,200/- for 88 days of hospitalisation. (f) As regards future medical treatment is concerned, I leave full liberty to the appellant to move the learned Tribunal, if it become so warranted, to seek, but which shall be done based on germane and relevant documents and evidence; for MACA NO. 2126 OF 2018 10 which purpose, all contentions are left open. In all other respects, the Award of the Tribunal will stand intact. 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 6.5% 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. In view of the afore, the amount as fixed above shall be deposited by the Insurance Company before the learned Tribunal, within a period of two months from the date of receipt of a copy of this judgment. **Sd/- DEVAN RAMACHANDRAN** **JUDGE** stu