Thakappan v. Rajaram, Ganesh and Royal Sundaram Alliance Insurance Co. Ltd.

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN THURSDAY, THE 16[TH] DAY OF MARCH 2023 / 25TH PHALGUNA, 1944 ``` ## **`MACA NO. 476 OF 2015`** ``` AGAINST THE AWARD DATED 22.12.2014 IN OP(MV) NO.438/2009 OF THE MOTOR ACCIDENT CLAIMS TRIBUNAL, IRINJALAKUDA ``` ## **`APPELLANT:`** ``` THAKAPPAN, S/O.VELAYUDHAN, ODATTIL HOUSE, ULUMBATHKUNNU DESOM, NELLAI VILLAGE & P.O.MUKUNDAPURAM TALUK, THRISSUR DISTRICT. ``` ``` BY ADV SRI.P.V.BABY ``` ## **`RESPONDENTS:`** ``` 1RAJARAM, S/O.KULANDAI VELU, NO. 2/8A, VETRILAIKALI PALAYAM, RAKKI PALAYAM P.O., COIMBATORE - 461 031. 2GANESH, S/O.GOPALAKRISHNA PILLAI, MIAMALA ESTATE, THENGEKKAL VANDIPERIYAR P.O., IDUKKI - 685 533. 3ROYAL SUNDARAM ALLIANCE INSURANCE CO.LTD C/O.AMBAL AUTO INSURANCE DESK, IYER HOSPITAL ROAD, SINGANALLUR, COIMBATORE - 571 443. BY ADVS. SRI.P.JACOB MATHEW SRI.MATHEWS JACOB SR. ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 16.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` MACA 476/15 2 ## **`JUDGMENT`** This is a case where a person, who was involved in a road accident, has suffered immensely and is likely to continue so the rest of his life. 2. On 30.11.2008, while the appellant was walking through a public road, he was hit by the offending vehicle - driven in a rash and negligent manner in high speed - while it attempted to overtake another and it is a miracle that he is still alive. The aftermath of the injuries sustained by him is so horrific that he has been reduced to a vegetative state, requiring an attender/assistant even for the purpose of expulsion of human waste, being unable to take care of his basic needs; and the enormity of the situation presents when one understands that such is required to be done for the rest of his life. 3. The appellant filed OP(MV) No.438/2009 before the Motor Accidents Claims Tribunal, Irinjalakkuda (hereinafter referred to as ‘the Tribunal’ for short), seeking compensation of an amount of Rs.30,27,000/-, limited to Rs.15,00,000/-; but which has MACA 476/15 3 been awarded only to an extent of Rs.7,01,440/-. He impugns the said Award as being totally inadequate, particularly because he requires a person to take care of him 24 hours a day, including to remove his fecal matter and urine, since he is incapacitated even qua his most basic needs. 4. Sri.P.V.Baby – learned counsel for the appellant, expatiated the horrific nature of the life that his client is forced to live, reading from Ext.A13 – Disability Certificate. He pointed out that the opinion of the Medical Board, which issued this certificate is in tandem with Ext.A1 – Disability Certificate, issued by a Doctor; and therefore, prayed that the compensation granted by the Tribunal be enhanced under the heads ‘Pain and Suffering’; ‘Loss of Amenities’; ‘Loss of Earning Power’ and ‘Bystander’s/Attender’s Expenses’. 5. In response, Sri.P.Jacob Mathew – learned Standing Counsel appearing for the respondent – Insurance Company, argued that the computation arrived at by the Tribunal is without error, especially because the accident happened in the year 2011. He thus prayed that this Appeal be dismissed. MACA 476/15 4 6. I have considered the afore rival contentions on the touchstone of the evidence on record, which I have examined very carefully. 7. As I have said above, though this case is technically termed as one in which compensation for injury has been sought, the fate of the appellant is far worse than even death. Ext.A1 – Disability Certificate issued by PW1 – Doctor graphically describes his pathos as under: His upper limbs and lower limbs are only ornamental and function less. It has no strength, stability, sensation and range of movements. His urine is to be catheterized daily, fecal matter is to be evacuated manually daily. He requires external help to lye in the bed, to turn side ways in the bed, to sit up in the bed and to transfer him to a wheel chair (only in the wheel chair is able to move from place to another). He is suffering from total loss of strength, stability and range of movement from neck level down wards. He needs two pairs of surgical gloves for evacuation of fecal matter manually and one pair of rubber/catheter of appropriate type to catheterize for urine every day. This has to be continued lifelong. 8. Further, Ext.A13 is the Disability Certificate issued by a validly constituted Medical Board, which records the disability of the appellant on the day when he was evaluated ut infra: a) Upper Limb Disabilities: Mean percentage loss of musele strength of upper MACA 476/15 5 limb on both sides considering shoulder, elbow and wrist joints is 42%. Impaired co-ordinated activities of arm components include not able to lift objects, unable to touch nose with end of extrimity. Unable to eat in Indian style, unable to comb hair, putting a shirt, drinking a glass of water, buttoning or writing. The disability amounts to 90%. Hand component disabilities are, impaired prehension (30%) impaired sensation of both hands (15%) and grip and pinch strength of both hands is almost nil (30%). The total values is 75%. Combined upper limb disability is 90%. ## Lower limb disabilities: 40% mean loss of strength of muscles of lower limb. When considering the stability component disabilities, the person is bed ridden or wheel chair bound. Cannot walk or standing on both legs. Sitting unsupported is also not possible. The disability amounts to 90%. Urinary bladder disability – continuously catheterized for urination and the bowel movement also not controlled – Disability amounts to 75%. The combined whole person disability is 90% (Ninety percentage). 9. The Insurance Company does not contest the afore facts, but they still maintain that the compensation awarded by the Tribunal is without error. 10. I cannot find favour with the afore assertion because, for one, the notional income of the appellant as has been adopted by the Tribunal is Rs.3,500/- per month, though in Ramchandrappa v. Manager, Royal Sundaram Alliance Insurance MACA 476/15 6 Company Ltd. [(2011) 13 SCC 236], the minimum amount to be reckoned for such purpose in the year 2008 – when the accident occurred – even in the case of a person whose income is unascertainable, or who was a ‘Coolie’, is Rs.6,500/-. Had the appellant not claimed any particular figure as his income, this would have been certainly entitled to him; but since he has disclosed Rs.4,000/- as his actual income, I see no reason why the Tribunal did not accept the same. 11. Further, Exts.A1 and A13 Disability Certificates are in union to the effect that the appellant is 100% disabled functionally (though his whole body disability has been technically found to be 90%), he is certainly also entitled to 10% future prospects being added to his income. 12. Turning to the question of percentile of permanent disability to be adopted in favour of the appellant, though the Tribunal has gone by Ext.A13 and has reckoned 90% in such regard, I am of the view that, taking the totality of the undisputed circumstances and the fact that he is fully bed-ridden and constrained to an assisted living, his disability surely ought to be MACA 476/15 7 reckoned as 100%. 13. It does not require this Court to speak further about the injuries sustained by the appellant because it is so severe, that he has been forced to be on bed for rest of his life. I am, therefore, without doubt that the compensation awarded by the Tribunal under the heads ‘Pain and Suffering’ and ‘Loss of Amenities’ requires to be substantially enhanced, at least to the extent claimed, since there can be no full pecuniary reparation for the actual scenario he is facing. 14. Finally, going by the medical records, the appellant’s condition is one which cannot improve during his life time. He will require at least one attender/assistant throughout his life and will also need articles like diapers, gloves, catheters and other surgical materials to keep himself alive. In Kajal V. Jagdish Chand and Others [MANU/SC/0126/20] (Civil Appeal No.735/2020 arising out of Special Leave Petition (C) No.15504/2019) and Jithendran v. New India Assurance Company Ltd. and Another [2021 KHC 6653), the Honourable Supreme Court has held that in such cases, the injured must be given the benefit of an attender, for which MACA 476/15 8 Rs.5,000/- per month is the minimum required. As regards the other articles mentioned above, taking a very conservative estimate, an amount of Rs.2,000/- per month would be the very least that will need to be expended. 15. However, as regards ‘Loss of Amenities’, in view of the compensation that this Court proposes for ‘Disability’ in favour of the appellant, I do not think any change from the sum awarded by the Tribunal is required. In the afore circumstances, this Appeal is partly allowed in the following manner: a) The compensation under the head ‘Disability’ is revised to Rs.6,53,400/-, from Rs.50,000/- now awarded by the learned Tribunal, reckoning the appellant’s notional income to be Rs.4,500/- per month with 10% future prospects added to it, adopting his permanent disability to be 100%. b) Axiomatically, the compensation now awarded by the Tribunal under the head ‘‘Loss of Earning Power’ is deleted. c) An amount equal to Rs.6,60,000/- is awarded towards ‘Attender Charges’, at the rate of Rs.5,000/- per month, adopting MACA 476/15 9 the multiplier of ‘11’, as per Sarala Verma and Others v. Delhi Transport Corporation & Another [2010 (2) KLT 802]. d) Consequently, compensation of Rs.50,000/- awarded by the Tribunal, under the head ‘Anticipated expenses for two bystanders’, is deleted. e) The compensation under the head ‘Pain and Suffering’ is enhanced to Rs.2,00,000/-, from Rs.50,000/- now granted by the Tribunal. f) The compensation under the head ‘Anticipated Medical Expenses’/‘Future Medical Expenses’ is enhanced to an amount of Rs.2,64,000/-, reckoning Rs.2,000/- per month towards the charges of diapers, gloves, catheters and such other surgical articles that will be required. g) In all other heads, the findings of the Tribunal will remain unaltered. Consequently, the appellant will be at liberty to recover the compensation, as enhanced by this Court, from the Insurance Company, along with interest at the rate of 7.5% on all heads except ‘Future Medical Treatment’, from the date of claim, until it MACA 476/15 10 is recovered. He will also be entitled to proportionate costs on the enhanced amount, as ordered by the Tribunal. As regards ‘Future Medical Treatment’, the appellant will be entitled to interest at the rate of 7.5% from the date of the Award until it is realised. I order so because the expenses for the purchase of diapers and such other articles, would have had to be borne by the appellant immediately after the accident itself. 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. Needless to say, all other findings and conclusions of the Tribunal, including the grant of liberty to the Insurance Company to recover the compensation, after paying the claimants, from the owner of the offending vehicle is left intact without any change. ``` Sd/- ``` ``` RR ``` ``` DEVAN RAMACHANDRAN ``` ``` JUDGE ```