## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`**
## **`PRESENT`**
```
THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
TUESDAY, THE 28[TH] DAY OF MARCH 2023 / 7TH CHAITHRA, 1945
MACA NO. 1554 OF 2016
```
```
AGAINST THE JUDGMENT OPMV 594/2012 OF MOTOR ACCIDENT
```
## **`CLAIMS TRIBUNAL ,ERNAKULAM`**
## **`APPELLANT/PETITIONER:`**
```
SUGESH,
AGED 37 YEARS
S/O.SHANMUGHAN PILLA, THUNDIPARAMBIL HOUSE,
S.R.M ROAD, NORTH END, PACHALAM, ERNAKULAM.
BY ADVS.
T.R.SUGUNAN
CINZIA RAJU
P.S.GEETHA KUMARY
```
## **`RESPONDENTS/RESPONDENTS:`**
```
1RASHEED.,
S/O.IBRAHIM, 4/834, NEERUNGAL HOUSE, RAJAGIRI
PO, KARIPPAYI ROAD, KALAMASSERY, COCHIN -4.
2THE NEW INDIA ASSURANCE CO. LTD.
PATHICHERIL GARDENS, CHANGAMPUZHA NAGAR PO,
COCHIN 33.
BY ADVS.
K.Y.SAJEEB
SRI.M.RAJAGOPALAN
M.RAJAGOPALAN
VIPIN VARGHESE
```
```
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN
FINALLY HEARD ON 28.03.2023, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
```
**MACA 1554/16**
..2..
## **JUDGMENT**
The appellant Sri.Sugesh was unfortunately hit by the offending Autorikshaw, while he was standing on road on 08.01.2012 and he sustained very serious injuries. He was taken to a private hospital and treated for a long period of time, including 92 days as an inpatient; and he, therefore, filed OP(MV)No.594/2012 before the Motor Accidents Claims Tribunal, Ernakulam (“Tribunal” for short), seeking an amount of Rs.6,32,000/-, limited to Rs.6,20,000/-, as compensation; and which has been allowed to a sum of Rs.6,80,760/-. He nevertheless challenges the compensation as being inadequate on various grounds.
2. Smt.Geethakumari – learned counsel for the appellant, argued that the notional income of Rs.4,000/adopted by the Tribunal in favour of her client, is grossly unjust and inadequate because, he had claimed Rs.5,000/- per month saying that he is working as a Cable TV Operator. She argued that when these assertions were not controverted, the learned Tribunal ought to have accepted that figure; and in the alternative, even if it found reason to hold otherwise, it ought to have been guided by the postulations in _**Ramachandrappa**_
_**v. Manager, Royal Sundaram Alliance Insurance**_
## **MACA 1554/16**
..3..
_**Company Ltd.**_ [(2011) 13 SCC 236], which, in fact, authorises a sum of Rs.8,500/- per month for a person who is working as a ‘Coolie’, or with unascertainable income, in the year 2012 – when the accident occurred.
3. Smt.Geethakumari then added that, since Ext.C1 - Disability Certificate certifies that appellant has suffered 32% Permanent Disability and since it is without doubt that he is confined to an assisted life, being unable to take care of his normal living routine without the help of another, the learned Tribunal ought to have granted future prospects, as sanctioned in _**National Insurance Company Ltd. v. Pranay Sethi**_ [2017 (4) KLT 662 (SC)]. She concluded asserting that, in any event, the learned Tribunal ought to have granted much more under the head ‘Future Treatment’, which is manifest from the fact that medical bills for an amount of Rs.76,446/- have been already produced along with IA No.1/21 before this Court and marked in evidence without objection. She thus prayed that this appeal be allowed.
4. In response, Sri.M.Rajagopal, learned Standing Counsel for the respondent - New India Assurance Company, argued that, though the appellant has claimed Rs.5,000/- as his income when there are no documents or evidence to prove
**MACA 1554/16**
..4..
it, or of his assertion that he is working as a Cable TV Operator, the learned Tribunal could have only fixed his notional income, which it has done correctly, by adopting a figure of Rs.4,000/-. He added that, since the appellant has suffered only 32% permanent disability as per Ext.C1, no future prospects is eligible to him. He, however, conceded that the amounts covered by the medical bills now produced can be awarded under the head ‘Future Treatment’, since they are not disputed.
5. I have considered the afore submissions on the touchstone of the evidence and documents 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 law relating to fixing of notional income is now well settled for requirement of any restatement. The appellant claimed Rs.5,000/- per month as his income saying that he is a Cable TV Operator. Even though the learned Tribunal is right in holding that there is no evidence to prove either the factum of his avocation or the quantum of income, it ought to have then been guided by the postulations in **Ramachandrappa** (supra), while fixing his notional income. As rigthly argued by Smt.Geethakumari, the notional income authorised by the said
## **MACA 1554/16**
..5..
judgment, even for a person who is a ‘Coolie’ or one with unascertainable income, in the year 2012 – when the accident occurred, is Rs.8,500/-. However, since the appellant claimed only Rs.5,000/-, I am certain that the learned Tribunal ought to have accepted it as his income.
7. That said, Ext.C1 establishes the horrifying aftermath of the injuries on the appellant. He was treated as an inpatient for more than 92 days and had to be subjected to various surgical procedures, including “craniotomy, tracheostomy, cranioplasty, re-craniotomy and evacuation of centrigion and pus”. The medical evidence on record show that he had suffered head injury, leading to the afore surgical procedures, including craniotomy, to be done. The Discharge Summaries record that, apart from the trauma of the injuries, he also suffered seizure disorder with drug incompliance.
8. The condition of the appellant is, therefore, extremely pitiable and the learned Tribunal has also found that he is suffering from seizures on regular basis, even five years afer the accident. In fact, it had also examined Ext.A20 - Series of Photographs – which this Court has also now evaluated – to come to the correct conclusion that the
**MACA 1554/16**
..6..
appellant has serious disfiguration to his head: “ _pitch shape portion on his right side of head_ ”(sic).
9. The injuries sustained by the appellant can never be seen to be trivial, particularly because he had suffered grievous head injuries. I am certain, therefore, that as, per the judgments of the Hon’ble Supreme Court in _**Syed Sadiq &**_
_**Ors. v. Divisional Manager, United India Insurance Company Ltd.**_ [2014 (2) SCC 735], _**Vijaya Kumar Rastogi v. Uttar Pradesh State Roadway Transport Corporation**_ [AIR 2018 SC 819], _**Erudhaya Priya v. State Express Transport Corporation Ltd.**_ [2020 ACJ 2159] and _**Satheesh E. v. The New India Assurance Company Ltd. & Ors.**_ [(2022) SCC OnLine 1828], the appellant is entitled to have his notional income added with 40% future prospects, as authorised in **Pranay Sethi** (supra).
10. That being said, I notice that the learned Tribunal has not granted any compensation under the head ‘Disfiguration’, because the appellant did not claim any. However, when it itself has found, particularly from the photographs, that he has suffered “serious disfiguration to his head”, I am without doubt that some amount under the same should have been granted to the appellant.
**MACA 1554/16**
..7..
11. Similarly, for the afore reasons, the appellant is also entitled to sums under the head ‘Loss of Amenities’, especially when he is stilll suffering from seizures and associated neurological problems, on account of the injury to his head. I propose an amount of Rs.50,000/- under that head, as claimed.
12. As I have already said above, the appellant was admitted in hospital for 92 days. However, the learned Tribunal has granted no amount under the head ‘Extra Nourishment’ and only Rs.10,000/- towards ‘Attendant Expenses’. I am certain that both these have to be granted and revised, at the rate of Rs.200/- and Rs.300/- per day respectively.
13. Finally, since the Insurance Company also admits the new documents produced along with IA No.1/21, I have no doubt that an amount of Rs.76,446/- is eligible to the appellant towards future treatment, along with the amount of Rs.50,000/- earlier granted, since he surely needs treatment in the future also.
In the afore circumstances, this appeal is partly allowed, in the following manner:
a. The compensation under the head ‘Permanent Disability’ is enhanced to Rs.4,30,080/-, from Rs.2,45,760/now awarded, reckoning the notional income of the appellant
**MACA 1554/16**
..8..
to be Rs.5,000/-, with 40% added to it as future prospects and accepting his permanent disability to be 32%, as certified in Ext.C1 and approved by the Tribunal;
b. An amount of Rs.50,000/- is awarded under the head ‘Loss of Amenities’.
c. An amount of Rs.18,400/- is awarded under the head ‘Extra Nourishment’, reckoning Rs.200/- per day to be the expenses for such purpose, for 92 days of hospitalisation.
d. The compensation under the head ‘Attender Charges’ is enhanced to Rs.27,600/-, reckoning Rs.300/- per day to be the expenses for such purpose, for 92 days of hospitalisation.
e. An amount of Rs.40,000/- is awarded under the head ‘Compensation for Disfiguration’, taking note of the medical evidence on record.
In all other heads, the compensation awarded by the Tribunal will remain unaltered.
Consequently, the appellant will be entitled to recover the compensation, as enhanced by this Court from the Insurance Company, along with interest at the rate of 8% per annum, as ordered by the Tribunal, from the date of claim until it is
## **MACA 1554/16**
**==> picture [20 x 9] intentionally omitted <==**
realised. The appellant will also be entitled to proportionate costs as awarded by the Tribunal on the enhanced amounts.
Needless to say, while calculating interest on the amounts enhanced by this Court, a period of 432 days - being the delay in filing this Appeal - shall stand excluded.
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**
ACR
**MACA 1554/16**
..10..
## **`APPENDIX OF MACA 1554/2016`**
## `PETITIONER ANNEXURES`
|`Annexure A1`|`DISCHARGE CERTIFICATE DATED 03.11.2014`|
|---|---|
||`ISSUED FROM LISSIE HOSPITAL .`|
|`Annexure A2`|`THE ORIGINAL BILL NO. 130917 DATED`|
||`31.10.2014 FOR RS. 579.00 ISSUED FROM`|
||`LISIE HOSPITAL.`|
|`Annexure A2 I`|`THE ORIGINAL BILL NO. 12884 DATED`|
||`31.10.2014 FOR RS.750.00 ISSUED FROM`|
||`LISIE HOSPITAL, KOCHI .`|
|`Annexure A2 (2)`|`THE ORIGINAL BILL NO. 7114 DATED`|
||`03.11.2014 FOR RS. 476.85 ISSUED FROM`|
||`FERIA MEDICALS PACHALAM .`|
|`Annexure A2(3)`|`THE ORIGINAL BILL NO. 483159 DATED`|
||`16.02.2015 FOR RS. 610.00 ISSUED FROM`|
||`LORDES HOSPITAL, KOCHI .`|
|`Annexure A2(4)`|`THE ORIGINAL BILL NO. 0000913622 DATED`|
||`3.11.2014 FOR RS. 12,080.00 ISSUED`|
||`FROM LISIE HOSPITAL, KOCHI.`|
|`Annexure A2( 5)`|`THE ORIGINAL BILL NO. 46757 DATED`|
||`1.11.2014 FOR RS-2300.00 ISSUED FROM`|
||`EXCELL SCAN KOCHI .`|
|`Annexure A2 (6)`|`THE ORIGINAL BILL NO. 15073 DATED`|
||`3.11.2014 FOR RS. 917.00 ISSUED FROM`|
||`LISIE HOSPITAL, KOCHI .`|
|`Annexure A2 (7)`|`THE ORIGINAL BILL NO. 2508 DATED`|
||`20.06.2015 FOR RS. 1275.66 ISSUED FROM`|
||`FERIA MEDICALS, PACHALAM .`|
|`Annexure A2 (8)`|`THE ORIGINAL BILL NO. 2616 DATED`|
||`28.07.2015 FOR RS. 1275.66 ISSUED`|
||`FERIA MEDICALS, PACHALAM .`|
|`Annexure A2 (9)`|`THE ORIGINAL BILL NO. 101144 DATED`|
||`07.08.2015 FOR RS. 10.00 ISSUED FROM`|
||`LISIE HOSPITAL, KOCHI .`|
|`Annexure A2 (10)`|`THE ORIGINAL BILL NO. 101162 DATED`|
||`07.08.2015 FOR RS. 291.00 ISSUED FROM`|
||`LISIE HOSPITAL, KOCHI .`|
|`Annexure A2(11)`|`THE ORIGINAL BILL NO. 9332 DATED`|
||`07.08.2015 FOR RS. 1040.00 ISSUED FROM`|
||`LISIE HOSPITAL, KOCHI .`|
|`Annexure A2(12)`|`THE ORIGINAL BILL NO. 2784 DATED`|
||`21.09.2015 16 FOR RS. 1275.66 ISSUED`|
||`FROM FERIA MEDICALS, PACHALAM .`|
## **MACA 1554/16**
..11..
```
Annexure A2(13)THE ORIGINAL BILL NO. 2740 DATED
22.08.2015 FOR RS. 1275.66 ISSUED FROM
FERIA MEDICALS, PACHALAM.
Annexure A2(14)THE ORIGINAL BILL NO. 8637 DATED
23.12.2015 FOR RS. 1275.66 ISSUED FROM
FERIA MEDICALS, PACHALAM.
Annexure A2(15)THE ORIGINAL BILL NO. 2794 DATED
19.10.2015 FOR RS. 1275.66 ISSUED FROM
FERIA MEDICALS, PACHALAM.
Annexure A2(16)THE ORIGINAL BILL NO. 101256 DATED
7.08.2015 FOR RS. 92.00 ISSUED FROM
LISIE HOSPITALS, KOCHI.
Annexure A2 (17)THE ORIGINAL BILL NO. 084876 DATED
14.01.2016 FOR RS. 150.00 ISSUED FROM
LISIE HOSPITAL, KOCHI .
Annexure A2( 18)THE ORIGINAL BILL NO. 093142 DATED
10.02.2016 FOR RS. 200.00 ISSUED FROM
LISIE HOSPITAL, KOCHI .
Annexure A2(19)THE ORIGINAL BILL NO. 197761 DATED
10.02.2016 FOR RS. 850.00 ISSUED FROM
LISIE HOSPITAL, KOCHI .
Annexure A2 (20)THE ORIGINAL BILL NO. 11257 DATED
23.02.2016 FOR RS. 1110.83 ISSUED FROM
FERIA MEDICALS, PACHALAM.
Annexure A2 (21)THE ORIGINAL BILL NO. 9656 DATED
28.01.2016 FOR RS. 1139.24 ISSUED FROM
FERIA MEDICALS, PACHALAM .
Annexure A2 (22)THE ORIGINAL BILL NO. 000392 DATED
05.04.2016 FOR RS. 2441.65 ISSUED FROM
LISIE HOSPITAL, KOCHI .
Annexure A2 (23)THE ORIGINAL BILL NO. 195 DATED
04.04.2016 FOR RS. 710.00 ISSUED FROM
LISIE HOSPITAL, KOCHI .
Annexure A2 (24)THE ORIGINAL BILL NO. 1707 DATED
04.04.2016 FOR RS. 1062.00 ISSUED FROM
LISIE HOSPITAL, KOCHI .
Annexure A2 (25)THE ORIGINAL BILL NO. 003028 DATED
05.04.2016 FOR RS. 529.00 ISSUED FROM
LISIE HOSPITAL, KOCHI .
Annexure A2(26)THE ORIGINAL BILL NO. 026520 DATED
14.05.2016 FOR RS. 100.00 ISSUED FROM
LISIE HOSPITAL, KOCHI .
Annexure A2 (27)THE ORIGINAL BILL NO. 534 DATED
18.04.2016 FOR RS. 653.48 ISSUED FROM
FERIA MEDICALS, PACHALAM .
```
## **MACA 1554/16**
..12..
```
Annexure A2(28)THE ORIGINAL BILL NO. 1415 DATED
28.03.2016 FOR RS. 994.23 ISSUED FROM
FERIA MEDICALS, PACHALAM.
Annexure A2(29)THE ORIGINAL BILL NO. 12894 DATED
14.05.2016 FOR RS. 208/ISSUED FROM
MEDICAL EMPORIUM.
Annexure A2 (30)THE ORIGINAL BILL NO. 2497 DATED
21.06.2016 FOR RS. 1376.42 ISSUED FROM
FERIA MEDICALS, PACHALAM .
Annexure A2 (31)THE ORIGINAL BILL NO. 1460 DATED
18.05.2016 FOR RS. 1184.76 ISSUED FROM
FERIA MEDICALS, PACHALAM.
Annexure A2 (32)THE ORIGINAL BILL NO. 049819 DATED
16.06.2016 FOR RS. 100.00 ISSUED FROM
LISIE HOSPITAL, KOCHI .
Annexure A2(33)THE ORIGINAL BILL NO. 050076 DATED
16.06.2016 FOR RS. 50.00 ISSUED FROM
LISIE HOSPITAL, KOCHI .
Annexure A2 (34)THE ORIGINAL BILL NO. 049586 DATED
16.06.2016 FOR RS. 650.00 ISSUED FROM
LISIE HOSPITAL, KOCHI
Annexure A2 (35)THE ORIGINAL BILL NO. 061321 DATED
16.06.2016 FOR RS. 102.00 ISSUED FROM
LISIE HOSPITAL, KOCHI .
Annexure A2 (36)THE ORIGINAL BILL NO. 049588 DATED
16.06.2016 FOR RS. 510.00 ISSUED FROM
LISIE HOSPITAL, KOCHI .
Annexure A2 (37)THE ORIGINAL BILL NO. 032014 DATED
21.06.2016 FOR RS. 2000.00 ISSUED FROM
LISIE HOSPITAL, KOCHI .
Annexure A2 (38)THE ORIGINAL BILL NO. 008668 DATED
23.06.2016 FOR RS. 18400.17 ISSUED
FROM LISIE HOSPITAL, KOCHI.
Annexure A2 (39)THE ORIGINAL BILL NO. 071445 DATED
28.06.2016 FOR RS. 102.00 ISSUED FROM
LISIE HOSPITAL KOCHI.
Annexure A2 (40)THE ORIGINAL BILL NO. 088380 DATED
4.08.2016 FOR RS. 90. 00 ISSUED FROM
LISIE HOSPITAL, , KOCHI.
Annexure A2 (41)THE ORIGINAL BILL NO. 797 DATED
4.08.2016 FOR RS. 108.00 ISSUED FROM
MEDICAL EMPORIUM.
Annexure A2 (42)THE ORIGINAL BILL NO. 4430
DATED26.08.2016 FOR RS. 1105.17 ISSUED
FROM FERIA MEDICALS, PACHALAM .
```
## **MACA 1554/16**
..13..
```
Annexure A2 (43)THE ORIGINAL BILL NO. 3600 DATED
29.07.2016 FOR RS. 1145.49 ISSUED FROM
FERIA MEDICALS, PACHALAM .
Annexure A2 (44)THE ORIGINAL BILL NO. 6600 DATED
1.11.2016 FOR RS. 1154.64 ISSUED FROM
FERIA MEDICALS, PACHALAM.
Annexure A2 (45)THE ORIGINAL BILL NO. 5633 DATED
29.09.2016 FOR RS. 1200.72 ISSUED FROM
FERIA MEDICALS, PACHALAM.
Annexure A2 (46)THE ORIGINAL BILL NO. 7141 DATED
25.11.2016 FOR RS. 1131.75 ISSUED FROM
FERIA MEDICALS, PACHALAM.
Annexure A2 (47)THE ORIGINAL BILL NO. 8220 DATED
25.12.2016 FOR RS. 616.39 ISSUED FROM
FERIA MEDICALS, PACHALAM .
Annexure A2 (48)THE ORIGINAL BILL NO. 190053 DATED
14.12.2016 FOR RS. 200.00 ISSUED FROM
LISIE HOSPITAL, KOCHI .
Annexure A2 (49)THE ORIGINAL BILL NO. 3597 DATED
14.12.2016 FOR RS. 325.50 ISSUED FROM
MEDICAL EMPORIUM.
Annexure A2 (50)THE ORIGINAL BILL NO. 58160501474
DATED 27.12.2016 FOR RS. 795.00 ISSUED
FROM E I LAB METROPOLIS.
Annexure A2 (51)THE ORIGINAL BILL NO. 9019 DATED
30.01.2017 FOR RS. 1688.42 ISSUED FROM
FERIA MEDICALS, PACHALAM.
Annexure A2 (52)THE ORIGINAL BILL NO. 008075 DATED
11.04.2017 FOR RS. 250.00 ISSUED FROM
LISIE HOSPITAL, KOCHI .
Annexure A2 (53)THE ORIGINAL BILL NO. 068241 DATED
22.06.2019 FOR RS. 250.00 ISSUED FROM
LISIE HOSPITAL, KOCHI .
Annexure A2 (54)THE ORIGINAL BILL NO. 075088 DATED
29.06.2019 FOR RS. 50.00 ISSUED FROM
LISIE HOSPITAL, KOCHI .
Annexure A2 (55)THE ORIGINAL BILL NO. 059088 DATED
29.06.2019 FOR RS. 2400.00 ISSUED FROM
LISIE HOSPITAL, KOCHI .
Annexure A2 (56)THE ORIGINAL BILL NO. 081397 DATED
06.07.2019 FOR RS. 250.00 ISSUED FROM
LISIE HOSPITAL, KOCHI .
Annexure A2 (57)THE ORIGINAL BILL NO. 074932 DATED
29.06.2019 FOR RS. 50.00 ISSUED FROM
LISIE HOSPITAL, KOCHI .
```
**MACA 1554/16**
..14..
```
Annexure A2 (58)THE ORIGINAL BILL NO. 58190500301
DATED 22.06.2019 FOR RS. 1400.00
ISSUED FROM E I LAB METROPOLIS.
Annexure A2 (59)THE ORIGINAL BILL NO. 58190500385
DATED 11.07.2019 RS. 700.00 ISSUED
FROM E I LAB METROPOLIS.
Annexure A2 (60)THE ORIGINAL BILL NO. 19868 DATED
13.07.2019 FOR RS. 117.11 ISSUED FROM
MEDICAL EMPORIUM.
Annexure A3PRESCRIPTION SLIP DATED 06.07.2019
ISSUED FROM LISSIE HOSPITAL.
```