Suresh Kumar B & Others v. Linsmon Xavier and National Insurance Company Ltd. (MACA No. 969 of 2012)

## `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ``` THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN ``` ``` WEDNESDAY, THE 22[ND] DAY OF FEBRUARY 2023 / 3RD PHALGUNA, 1944 ``` ## `MACA NO. 969 OF 2012` ``` [AGAINST THE AWARD DATED 02.04.2011 IN OP(MV)NO.147/2007 ON THE ``` ``` FILE OF MOTOR ACCIDENT CLAIMS TRIBUNAL, PATHANAMTHITTA] ``` ## `APPELLANT/PETITIONER:` - `1 SURESH KUMAR.B, AGED 34 YEARS, S/O.BHASKARAN PILLAI, MUNDACKALATTU HOUSE, MUNDIYAPPALLY.P.O., THIRUVALLA.` - `*ADDL.A2 BHASKARAN PILLAI, AGED 82 YEARS, S/O. LATE KRISHNA PILLAI, RESIDING AT MUNDAKKALETTU HOUSE, MUNDIYAPPALLY P.O., KAVIYOOR VILLAGE, THIRUVALLA TALUK, PATHANAMTHITTA DISTRICT.` - `*ADDL.A3 PONNAMMA BHASKARAN PILLAI, W/O. BHASKARAN PILLAI, RESIDING AT MUNDAKKALETTU HOUSE, MUNDIYAPPALLY P.O., KAVIYOOR VILLAGE, THIRUVALLA TALUK, PATHANAMTHITTA DISTRICT.` ``` (ARE IMPLEADED AS ADDITIONAL APPELLANTS 2 AND 3 AS PER ORDER DATED 17/11/2022 IN IA 1/2022 IN MACA 969/2012.) ``` ``` BY ADV SRI.K.N.RADHAKRISHNAN(THIRUVALLA) ``` ## `RESPONDENTS/RESPONDENTS:` - `1 LINSMON XAVIER, ALUMMOOTTIL HOUSE, PERUPANACHI.P.O., MADAPPALLY, CHANGANACHERRY, KOTTAYAM DISTRICT. PIN-686 001.` - `2 NATIONAL INSURANCE COMPANY LTD. CHANGANACHERRY. PIN-686 101.` ``` BY ADVS.SRI.P.JACOB MATHEW SRI.MATHEWS JACOB SR. SMT.PREETHY R. NAIR ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ``` ``` ADMISSION ON 22.02.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA NO. 969 OF 2012 ``` ``` -2- ``` ## `JUDGMENT` ``` The victim of a road accident, who ``` ``` subsequently died (it being not conceded that it was on account of the injuries sustained by him), filed OP(MV)No.147/2007 before the Motor Accidents Claims Tribunal (‘Tribunal’, for short), Pathanamthitta, while he was alive, seeking compensation for the injuries, which he sustained when the motor cycle in which he was riding as a pillion, collided with a tree on account of the rash and negligent riding of the 1[st] respondent – who was the rider-cum-owner of the said vehicle. ``` ``` 2.Sri.K.N.Radhakrishnan – learned counsel ``` ``` for the present appellants – who are the legal heirs of the now deceased original claimant - says that late Suresh Kumar B., sustained very serious injuries, thus being reduced to a state ``` ``` MACA NO. 969 OF 2012 ``` ``` -3- ``` ``` of total incapacity; but that, in spite of this, the learned Tribunal awarded only an amount of Rs.8,88,500/-,againsthisclaimof Rs.15,00,000/-,whichwaslimitedto ``` ``` Rs.10,00,000/-. He thus assailed the Award of the Tribunal to such extent. ``` ``` 3.In response, Sri.P.Jacob Mathew – ``` ``` learned Standing Counsel for the National Insurance Company Limited (‘Insurance Company’, ``` ``` for short), refuted the afore submissions of ``` ``` Sri.K.N.Radhakrishnan,sayingthatthe ``` ``` computations adopted by the Tribunal are without ``` ``` error and therefore, prayed that this Appeal be dismissed. ``` ``` 4.I have considered the afore rival ``` ``` submissions on the touchstone of the evidence on record, which I have examined very carefully. ``` ``` 5.There can be little doubt that, while ``` ``` assessing the notional income of a person with ``` ## `MACA NO. 969 OF 2012` ``` -4- ``` ``` unascertainable income in the year 2006 – the year when the accident occurred - a minimum of Rs.5,500/- ought to be taken, as per the judgment of the Hon’ble Supreme Court in Ramachandrappa v. Manager, Royal Sundaram ``` ``` Alliance Insurance Company Ltd. [(2011) 13 SCC ``` ``` 236]. However, since the injured/claimant, who ``` ``` was alive at the time of filing the Original Petition, claimed Rs.5,000/- as his income, I am certain that the Tribunal ought to have adopted it, rather than had reduced the same in any ``` ``` manner whatsoever. ``` ``` 6.Coming to the percentile of disability, the Tribunal has taken 100, taking note of the pathetic condition of the injured/claimant. It has clearly recorded that he has been totally incapacitated from taking care of himself and that he was surviving with the assistance of other persons. ``` ``` MACA NO. 969 OF 2012 ``` ``` -5- ``` ``` 7.The medical records in evidence, namely ``` ``` Exts.A6 - Wound Certificate and A7 series – Discharge Summaries, show the horrible nature of injuries suffered by Suresh Kumar. In fact, this has been recorded by the learned Tribunal, which, for the purpose of avoiding repetition, I extract as under: ``` ``` “10. Ext. A6 and A7 series (4 in numbers) are the treatment records of the injured petitioner. Ext. A6 is the copy of the wound certificate prepared by the Medical Officer, Pushpagiri Medical College Hospital, Thiruvalla after examining the injured petitioner immediately after the accident. Head injury is noted in Ext. A6. It is also noted in Ext. A6 that patient is unconscious. Ext. A7 series are discharge summary issued from Pushpagiri Medical College Hospital, Thiruvalla. Ext. A7 is for the period from 12-11-2006 to 1-1-2007. (50 days IP). Ext. A7 (a) is for the period from 28-4-2007 to 5-5-2007 ( 7 days IP). Ext. A7 (b) is for the period from 27-7-2008 to 5/8/2008 (9 days IP). Ext. A7(c) is for the period from 23-8-2008 to 1-9-2008 (9 days IP). Diagnosis noted in Ext. A7 is "severe head injury, Acute sub dural hemorrhage (SDH) left fronto tempero parietal. It is also noted in Ext. A7 that petitioner underwent a surgery on 12-11-2006 i.e. trauma craniectomy and evacuation haematoma. The details of the treatment underwent by the petitioner are described in Ext. A7 series discharge ``` ``` MACA NO. 969 OF 2012 ``` ``` -6- ``` ``` summary. From Ext. A7 series it can be seenthatpetitionerunderwent tracheostomy also. ``` ``` 11. Ext. A8 is the disability certificate issued by the Medical Board, General Hospital Pathanamthitta after examining the injured petitioner. The details of the injury sustained by the petitioner are mentioned in Ext. A8 also. Severe head injury is noted in Ext. A8. The medical board assessed 75% (seventy five) permanent disability after examining the petitioner and issued Ext. A8 disability certificate.“ ``` ``` 8.I have no doubt that the amounts granted ``` ``` by the Tribunal under the head “Pain and ``` ``` Suffering” and “Loss of Amenities” are ``` ``` inadequate; and therefore, propose to revise it ``` ``` to Rs.1,00,000/- and Rs.75,000/- respectively, ``` ``` taking note of the fact that the claimant had no ``` ``` access to any of his faculties, consequent to the injuries. ``` ``` Resultantly, this appeal is partly allowed ``` ``` in the following manner: ``` ``` (a)The compensation under the head “Pain and Suffering” is revised to Rs.1,00,000/- ``` ``` (Rupees one lakh only), instead of Rs.50,000/- ``` ``` MACA NO. 969 OF 2012 ``` ``` -7- ``` ``` as now granted by the Tribunal. ``` ``` (b)The compensation under the head “Loss of Amenities of Life” is enhanced to Rs.75,000/- (Rupees seventy five thousand only) from ``` ``` Rs.25,000/- now granted. ``` ``` (c)The compensation under the head “Disability” is enhanced to Rs.9,60,000/- ``` ``` (Rupees nine lakhs sixty thousand only) ``` ``` reckoning the notional income of the ``` ``` injured/claimant to be Rs.5,000/-. ``` ``` (d)In all other heads, the compensation ``` ``` granted by the Tribunal will remain intact. ``` ``` Needless to say, the appellants 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 ``` ``` 7.5%, as awarded by the Tribunal, from the date of claim until it is recovered. They will also be entitled to proportionate costs on the ``` ``` MACA NO. 969 OF 2012 ``` ``` -8- ``` ``` enhanced amount as ordered by the Tribunal. ``` ``` It goes without saying that, while computing the interest as afore, a period of 239 days, being the delay in filing this Appeal, will be excluded in terms of the order of this Court, dated 08.07.2022, in I.A.No.2/2022. ``` ``` Before I close, I must, however, advert to ``` ``` the fact that this Court had on 08.07.2022, while allowing I.A.No.2/2022 filed by the additional appellants to implead themselves in the place of the original appellant, ordered ``` ``` that the delay of 239 days caused in filing it, will not be counted for computation of interest. ``` ``` Though there is no review against this order, ``` ``` the fact remains that same is legally untenable, ``` ``` since the Appeal was pending throughout this period, without it having been brought up by either of the parties for disposal. The dealy in filing the impleading petition, therefore, can ``` ``` MACA NO. 969 OF 2012 ``` **==> picture [22 x 9] intentionally omitted <==** ``` never be seen to have contributed to the ``` ``` pendency of this Appeal. ``` ``` I am, therefore, of the firm view that the order dated 08.07.2022, deserves to be suo motu reviewed, which I hereby do; and consequently, the period mentioned therein will also count for computation of interest. ``` ``` Sd/- ``` ``` DEVAN RAMACHANDRAN ``` ``` JUDGE ``` ``` akv ```