Sumesh Kumar v. United India Insurance Co. Ltd.

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN ``` ``` WEDNESDAY, THE 12[TH] DAY OF OCTOBER 2022 / 20TH ASWINA, 1944 MACA NO. 587 OF 2015 ``` ``` AGAINST THE ORDER/JUDGMENT IN OPMV 900/2007 DATED 11.08.2014 OF ADDITIONAL DISTRICT COURT & IST ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL ,ALAPPUZHA. ``` ## **`APPELLANT/PETITIONER:`** ``` SUMESH KUMAR AGED 35 YEARS S/O. GOPALAKRISHNA PANICKER, KOCHUPARAMBIL HOUSE, KOTTAMKULANGARA WARD, AVALOOKUNNU P.O., ALAPPUZHA. BY ADVS. SRI.K.ABDUL JAWAD SRI.MATHEW A KUZHALANADAN SMT.VINEETHA V.KUMAR ``` ## **`RESPONDENT/3RD RESPONDENT:`** ``` THE BRANCH MANAGER, THE UNITED INDIA INSURANCE CO. LTD. DIVISIONAL OFFICE, SHARADA SHOPPING COMPLEX, MULLAKKAL, ALAPPUZHA-688 501. ``` ``` BY ADVS. SRI.P.JACOB MATHEW, SC ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 12.10.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA NO. 587 OF 2015 ``` ``` -2- ``` ## **JUDGMENT** This appeal is preferred by the injured in O.P(MV)No.900/2007 of the Motor Accidents Claims Tribunal, Alappuzha. The appellant seeks enhancement of compensation granted under various heads. 2. Heard Sri. K.Abdul Jawad, learned counsel appearing for the appellant and Sri. John Joseph Vetticade, learned Senior counsel for the respondent. 3. Learned counsel for the appellant submitted that the actual loss of earning ought to have been reckoned for a period of 22 months as certified in Ext.A19, whereas the Tribunal has taken only 10. It was also pointed out that the appellant/claimant had undergone inpatient treatment for a period of 67 days in five different spells, supported by the discharge certificates for each admission. In answer to the same, learned counsel for the respondent Insurance Company submitted that, loss of earning can be reckoned only for the period from the date of accident up to the ``` MACA NO. 587 OF 2015 ``` **==> picture [260 x 9] intentionally omitted <==** date of claim petition. From the date of claim petition, the loss under this head will coalesce with compensation under the head ‘the permanent disability’, where, in this case, the maximum multiplier of 18 has been applied. 4. Having heard the learned counsel on both sides, this court finds merit in the contention made by the learned counsel for the respondent. In the instant case, the accident occurred on 11.03.2007, and the claim petition was preferred on 13.07.2007. Therefore, loss of earning capacity reckoned by the Tribunal for a period of 10 months is not liable to be enhanced. There is no quarrel with respect to the monthly income reckoned at Rs.10,750/-, as specifically indicated in Ext.A19 salary certificate. 5. The next ground urged by the learned counsel is with respect to the permanent disability assessed by the Medical Board at 20% vide Ext.C1, whereas Tribunal had taken only 15%. This Court finds no justification in reducing the percentage of disability as assessed by the Medical Board and there is no reason stated by the Tribunal, as to why it has been reduced. Therefore, the percentage of ``` MACA NO. 587 OF 2015 ``` disability assessed at 20% is liable to the taken. 6. Learned counsel for the appellant then invited the attention of this Court to the discussion in paragraph No.8 of the impugned award to point out that the appellant/claimant had suffered serious and irreparable damage to his knee, that he had undergone two surgeries, besides nail and skin grafting and that the petitioner requires surgery for fixation/replacement of knee on every eight years. The learned counsel also invited the attention of this Court to Ext.C1 disability certificate to point out that the appellant/claimant had suffered gross derangement of knee, with articular surface damage. Even after a period of five years, when the disability was reckoned, it is noted by the Medical Board that his knee is kept in extension and that his left leg is short by 2 centimeters. In such circumstances, having regard to the ordeal undergone by the appellant as detailed in paragraph No.8 of the award, the amount granted under the heads ‘pain and sufferings’ and ‘loss of amenities’ and ‘future treatment’ are grossly on the lower side, is the submission made by the learned counsel for the appellant. This was ``` MACA NO. 587 OF 2015 ``` ``` -5- ``` opposed by the learned Senior Counsel appearing for the Insurance Company, pointing out that adequate and reasonable compensation has already been granted. 7. Having heard the learned counsel appearing on both sides, this Court is of the view that the compensation granted under the said heads requires enhancement. This Court takes note of paragraph No.8 of the impugned award. It requires to be pointed out that the appellant/claimant had undergone treatment as inpatient on as many as five occasions. He had undergone two surgeries. Besides, there was nail and skin grafting done. Despite all these treatments, the finding of the Tribunal in paragraph No.8 at page No.5 is that the knee of the appellant has been completely damaged due to the accident and that he requires future treatment by way of further surgery for fixation/replacement of knee on every 8 years. The petitioner was aged only 28 years at the time of accident. Considering the cumulative effect of these facts, this Court is of the opinion that, as against ‘pain and sufferings’, a sum of Rs.75,000/- can be granted and as against ‘loss of amenities’ also a ``` MACA NO. 587 OF 2015 ``` ``` -6- ``` sum of Rs.75,000/- can be granted. For future treatment, taking into account the requirement of undergoing surgery in every 8 years, this Court fix the compensation on account of future treatment at Rs.1,00,000/-. The permanent disability will be reworked taking the same as 20%. 8. Learned counsel also contended that the entire amount covered by the medical bills produced was not reckoned by the Tribunal. As against the total amount of Rs.3,03,547/-, a sum of Rs.2,73,470/- only was reckoned. Based on the appellant’s contention, this Court has verified the medical bills produced vide Ext.A21 series. The total amount covered by inpatient bills is Rs.2,73,466/-. Rs.2,500/- is the bill pertaining to physiotherapy and Rs.25,498/- pertains to the bills for laboratory, scanning and medicines. Thus, the appellant/petitioner is entitled to a sum of Rs.3,03,547/-. 9. Finally, learned counsel for the respondent pointed out that the multiplier applied is incorrect. As against the correct multiplier of 17 for the age of 28 years of the appellant, the Tribunal had ``` MACA NO. 587 OF 2015 ``` ``` -7- ``` wrongly applied 18. This submission of the learned counsel is liable to be accepted, going by the judgment of the Hon’ble Supreme Court in _**Sarla Verma v. Delhi Transport Corporation [2010(2) KLT 802(SC)]**_ `10` . In the result, MACA is allowed and the amount to be paid to the appellant/claimant towards compensation under various heads is reworked as shown in the tabular statement here below: |Sl<br>No.|Head of claim|Amount<br>awarded by<br>the<br>Tribunal|Amount<br>enhanced<br>by this<br>Court| |---|---|---|---| |1|Loss of earning|1,07,500|1,07,500| |2|Treatment charges|2,73,470|3,03,547| |3|By-stander expenses|7,000|7,000| |4|Extra nourishment|5,000|5,000| |5|Transport to hospital|5,000|5,000| |6|Damage to clothing<br>and motorbike|250|250| |7|Pain and suffering|50,000|75,000| |8|Loss of amenities|50,000|75,000| |9|Future treatment|50,000|1,00,000| |10|Permanent disability|3,48,300|*4,38,460| |11|Loss of earning<br>power|-----|-----| ``` MACA NO. 587 OF 2015 ``` ``` -8- ``` ||Total|8,96,520|11,16,897| |---|---|---|---| |Amount enhanced = Rs.2,20,377/-<br>(11,16,897+8,96,520)<br>*(10,750 x 12 x 17 x 20/100)|||| 11. 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 amount at the rate of 5% from the date of petition. If any amount has already been paid, the same shall be granted set off. Since there was a delay of 15 days in filing the appeal, the interest for the enhanced quantum shall not run for the said period as directed in order dated 19.01.2022 in C.M.A.No.1/2015 in M.A.C.A.587/2015. The claimant shall produce the details of the Bank account before the Insurance Company/Tribunal within two months 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 given within the time stipulated, it is made clear that, no interest shall run on the enhanced amount after the period stipulated by this Court. ``` MACA NO. 587 OF 2015 ``` ``` -9- ``` However, if the Insurance Company fails to deposit the amount, as directed, interest on the enhanced amount shall also run at the rate ordered by the Tribunal from the date of petition. The appeal is allowed to the above extent. ``` Sd/- C. JAYACHANDRAN JUDGE ``` uu 12.10.2022