The Reliance General Insurance Co. Ltd. vs Musthafa (MACA No. 276 of 2019 & CO No. 51 of 2020)

# `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ``` THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN WEDNESDAY, THE 8[TH] DAY OF FEBRUARY 2023 / 19TH MAGHA, 1944 ``` ``` MACA NO. 276 OF 2019 ``` ``` (AGAINST THE AWARD DATED 24/9/2018 PASSED IN OP(MV)NO.554/2016 ON THE FILE OF THE HON’BLE MOTOR ACCIDENTS CLAIMS TRIBUNAL, KALPETTA) ``` ## `APPELLANT/2ND RESPONDENT:` ``` RELIANCE GENERAL INSURANCE CO. LTD., 2ND FLOOR, CITADEL ARCADE, R.C. ROAD, KOZHIKODE-673 001, REP. BY ITS LEGAL CLAIMS MANAGER, RELIANCE GENERAL INSURANCE CO. LTD. ERNAKULAM. ``` ``` BY ADV R.AJITH KUMAR (128/84) ``` ## `RESPONDENT/CLAIMANT:` ``` MUSTHAFA, AGED 37 YEARS, S/O. SOOPPY, KANHIROLI HOUSE, PADINHARATHARA POST AND VILLAGE, VYTHIRI TALUK, WAYANAD DISTRICT-673 575. ``` ``` BY ADV SMT.CELINE JOSEPH ``` ``` THIS MACA HAVING COME UP FOR ADMISSION ON 08.02.2023, ALONG WITH CO.51/2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA No.276/2019 & C.O.No.51/2020 ``` ``` -2- ``` ``` IN THE HIGH COURT OF KERALA AT ERNAKULAM ``` ``` PRESENT ``` ``` THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN WEDNESDAY, THE 8[TH] DAY OF FEBRUARY 2023 / 19TH MAGHA, ``` ``` 1944 ``` ## `CO NO. 51 OF 2020` ``` (AGAINST THE AWARD DATED 24/9/2018 PASSED IN OP(MV)NO.554/2016 OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, KALPETTA, WAYANAD) ``` ## `CROSS APPELLANT/ RESPONDENT:` ``` MUSTHAFA, AGED 37 YEARS, S/O. SOOPPY, KANHIROLI HOUSE, PADINHARATHARA POST, VYTHIRI TALUK, WAYANAD DISTRICT-673 575. BY ADV CELINE JOSEPH ``` ## `RESPONDENT/APPELLANT:` ``` RELIANCE GENERAL INSURANCE CO. LTD., 2ND FLOOR, CITADEL ARCADE, R.C. ROAD, KOZHIKODE-673 001. ``` ``` BY ADV R.AJITH KUMAR (128/84) ``` ``` THIS CROSS OBJECTION/CROSS APPEAL HAVING COME UP FOR ADMISSION ON 08.02.2023, ALONG WITH MACA.276/2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA No.276/2019 & C.O.No.51/2020 ``` ``` -3- ``` ## `JUDGMENT` ``` [MACA No.276/2019, C.O.No.51/2020] ``` ``` The Reliance General Insurance Company Limited (‘Insurance Company’, for short), which was the 2[nd] respondent in OP(MV)No.554/2016 on the files of the Motor Accidents Claims Tribunal, Wayanad, Kalpetta (‘Tribunal’, for ``` ``` short), impugns the Award issued in favour of ``` ``` the claimant - Sri.Musthafa, asserting that the ``` ``` compensation granted is excessive; while so, ``` ``` Sri.Musthafa has filed C.O.No.51/2020 assailing ``` ``` the same on the ground that larger sums ought to ``` ``` have been given to him as compensation for the road accident suffered by him on 01.10.2015, ``` ``` which crippled him. ``` ``` 2.I have heard Sri.R.Ajith Kumar Varma – ``` ``` learned counsel appearing for the appellant and Smt.Celine Joseph for cross objector. ``` ``` 3.Sri.R.Ajith Kumar Varma – learned ``` ``` MACA No.276/2019 & C.O.No.51/2020 ``` ``` -4- ``` ``` counsel for the appellant, vehemently argued that the reckoning of Rs.10,000/- as the notional income of Sri.Musthafa by the Tribunal was wrong; while the compensation granted for “Loss of Future Earning”, reckoning 56% as his permanent disability, was also in error. He further added that adoption of 40% towards future prospects in favour of the claimant by the Tribunal was impermissible; while, no amounts could have been given under the heads ``` ``` “Pain and Suffering” and “Loss of Amenities”. ``` ``` 4.Per contra, Smt.Celine Joseph appearing ``` ``` for the Cross Objector, submitted that her ``` ``` client was a headload worker - being a skilled avocation - at the time of the accident and ``` ``` therefore, was entitled to much higher notional income than Rs.10,000/-. She supported the decision of the Tribunal in having added 40% as future prospects; and then took me through the ``` ``` MACA No.276/2019 & C.O.No.51/2020 ``` ``` -5- ``` ``` medical evidence on record to show that her client had suffered very grievous injuries, thus being entitled to much larger amounts under the heads “Pain and Suffering” and “Loss of ``` ``` Amenities”. ``` ``` 5.Smt.Celine Joseph then further submitted that, going by the injuries sustained by her client, it was improper for the Tribunal to have confined the “Loss of Future Earning” to eight ``` ``` months and that it should have been a minimum of 12 months. ``` ``` 6.I have considered the afore submissions and have also examined the evidence on record. ``` ``` 7.The factum of the accident is not ``` ``` disputed; nor that the Cross Objector has suffered injuries, as disclosed by the medical evidence available. ``` ``` 8.The Tribunal has clearly adopted ``` ``` Rs.10,000/- to be notional income of the Cross ``` ``` MACA No.276/2019 & C.O.No.51/2020 ``` ``` -6- ``` ``` Objector, being guided by the judgment of the Hon’ble Supreme Court inRamachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Ltd.[(2011) 13 SCC 236], which ``` ``` standardizes the income to be adopted in the case of a person whose income is otherwise unascertainable in the year 2015 to be such. Of ``` ``` course, in Rajani v. Oriental Insurance Company Limited [2022 (5) KLT OnLine 1012 (SC)], the Hon’ble Supreme Court has further declared that, in the case of skilled employees, a robust view ought to be taken and therefore, that the figure can be reasonably enhanced. However, in the case at hand, except for Sri.Musthafa saying that he is a headload worker, he does not establish it as a skilled avocation. ``` ``` 9.I am, therefore, of the firm view that the Tribunal has not erred in adopting notional income of the Cross Objector as being ``` ``` MACA No.276/2019 & C.O.No.51/2020 ``` ``` -7- ``` ``` Rs.10,000/- per month, being guided by ``` ``` Ramachandrappa (supra). ``` ``` 10.That being so said, I am also in favour of the conclusion of the learned Tribunal that ``` ``` 40% future prospects had to be added to the ``` ``` notional income, because the medical evidence on record shows how seriously the Cross Objector was injured; and that he was disabled ``` ``` permanently to the extent of 56% - which, of ``` ``` course, is now disputed. In any event, grant of ``` ``` future prospects at the rate of 40% can never be ``` ``` found to be unjustified, and it is, therefore, confirmed. ``` ``` 11.As far as the disability of the Cross ``` ``` Objector is concerned, Ext.A5 - accident ``` ``` register-cum-wound certificate details his ``` ``` injuries being “FRACTURE BOTH BONES RIGHT LEG; ``` ``` FRACTURERIGHTPATELLA;OPENFRACTURE DISLOCATION RIGHT KNEE JOINT and HEEL PAD ``` ``` MACA No.276/2019 & C.O.No.51/2020 ``` ``` -8- ``` ``` AVULSION RIGHT.” Added to this, Ext.A7 Discharge Summary shows that he was hospitalized for over 12 days and the final diagnosis of the hospital ``` ``` records as under: ``` ``` “FRACTURE DISLOCATION RIGHT KNEE OPEN TYPE III A; FRACTURE BOTH BONES RIGHT LEG SEGMENTAL OPEN TYPE III B; HEEL FLAP INJURY RIGHT and ``` ``` FRACTURE PATELLA RIGHT OPEN.” ``` ``` 12.There are other Discharge Certificates, namely Exts.A10 series, which show that he was again hospitalized for a continuous period of 36 days, where again, the diagnosis recorded is as under: ``` ``` “WOUND DEBRIDEMENT AND VAC APPLICATION ``` ``` (RIGHT) KNEE OPEN TYPE IIIA, FRACTURE BOTH BONES RIGHT LEG SEGMENTAL OPEN TYPE III B, HEEL FLAP INJURY RIGHT and FRACTURE PATELLA RIGHT OPEN.” ``` ``` 13.The Tribunal has, thereafter, noticed ``` ``` that, in Exts.A10(a), A10(b), A10(c), A10(d) and ``` ## `MACA No.276/2019 & C.O.No.51/2020` ``` -9- ``` ``` A10 (e) series of Discharge Certificates, the Cross Objector had to undergo further ``` ``` hospitalization and the opinion of the hospitals was also recorded therein, which is in conformity with the earlier ones; all showing the horrendous nature of the aftermath of the injuries. ``` ``` 14.In fact, Exts.A10 series – Discharge ``` ``` Summaries, record that his tibia has not been ``` ``` yet properly joined, in spite of an implant; while Ext.A13 series photographs graphically project the injuries sustained to him. ``` ``` 15.The Disability Certificate produced by ``` ``` the Cross Objector, namely Ext.C1, records his ``` ``` disability to be 56%, which has been accepted by ``` ``` the Tribunal in its full. However, Smt.Celine Joseph argues that, even though this is the whole disability, the functional disability is much higher, since her client would be unable to ``` ``` MACA No.276/2019 & C.O.No.51/2020 ``` ``` -10- ``` ``` continue with the avocation of being a headload worker. ``` ``` 16.Though this Court certainly has empathy ``` ``` for the trauma undergone by the Cross Objector, ``` ``` I cannot find myself to agree with the submissions of Smt.Celine Joseph, that his disability should be reckoned to be more than ``` ``` 56%, or different to what has been recorded in ``` ``` Ext.C1 Certificate. This is because, the binding precedents of the Hon’ble Supreme Court are to the effect that unless the injured is able to show that he is incapacitated from doing any other avocation, not merely the one in which he is presently engaged in, the disability ``` ``` percentile will have to follow the opinion of the experts and cannot be left to judicial interpretation. ``` ``` 17.In this case, as I have already stated ``` ``` above, Ext.C1 unequivocally records that the ``` ``` MACA No.276/2019 & C.O.No.51/2020 ``` ``` -11- ``` ``` Cross Objector’s whole body disability is 56%, ``` ``` and since the Tribunal has adopted it, I cannot ``` ``` find any error in it. ``` ``` 18.However, taking note of the afore and ``` ``` particularly the nature of the injuries and its aftermath - leading to several days of ``` ``` hospitalization, treatment and even continued ``` ``` treatment - I am certain that the amounts ``` ``` granted by the Tribunal under the heads “Pain and Suffering” and “Loss of Amenities” are ``` ``` woefully inadequate. ``` ``` 19.I, therefore, propose to enhance the ``` ``` compensation under the head “Pain and Suffering” to Rs.2,00,000/- from Rs.25,000/-; and under the ``` ``` head “Loss of Amenities” to Rs.1,50,000/-, from Rs.25,000/- now awarded. ``` ``` 20.Finally, as far as the claims of the ``` ``` Cross Objector, for “Loss of Earning” for a period of 12 months is concerned, I certainly ``` ## `MACA No.276/2019 & C.O.No.51/2020` ``` -12- ``` ``` find favour with him for the same reason as have said above, because he had to undergo continued treatment for a very very long period of time, which, even by a rough estimate, would justify one year, if not more. ``` ``` 21.In other respects, however, I do not think that the findings of the Tribunal requires ``` ``` to be modified. ``` ``` 22.That said, the Cross Objector has ``` ``` produced on record bills of medical treatment worth Rs.1,09,000/-, along with his Cross Objections; and a further set of bills for Rs.39,575/-, along with I.A.No.1/2020. Since ``` ``` Insurance Company does not oppose these bills, ``` ``` nor any tenable argument impelled why this Court ``` ``` should not accept it, I am certain that the amounts incurred by the Cross Objector for his further treatment is entitled to be granted to him additionally. Thus, a total amount of ``` ``` MACA No.276/2019 & C.O.No.51/2020 ``` ``` -13- ``` ``` Rs.1,48,575/- would also be entitled to him, in ``` ``` addition to the afore compensation. ``` ``` Resultantly, ``` ``` (a)MACA No.276 of 2019 is dismissed. ``` ``` (b)C.O.No.51/2020 is allowed, enhancing the ``` ``` compensation under the head “Pain and Suffering” ``` ``` in favour of the Cross Objector as Rs.2,00,000/-; and under the head “Loss of ``` ``` Amenities” as Rs.1,50,000/-; with an additional amount of Rs.1,48,575 being entitled to him towards further expenses for treatment. ``` ``` Additionally, the compensation under the “Loss ``` ``` ofEarning”wouldstandrevisedto Rs.1,20,000/-, instead of Rs.80,000/- now ``` ``` granted by the Tribunal; thus enhancing the ``` ``` total compensation to be Rs.24,20,602/-, instead of Rs.20,30,027/-, as ordered by the Tribunal. ``` ``` Needless to say, apart from the afore heads, the findings of the Tribunal in others will ``` ``` MACA No.276/2019 & C.O.No.51/2020 ``` ``` -14- ``` ``` stand confirmed. ``` ``` The Cross Objector will be entitled to recover the compensation, as enhanced by this Court, from the Insurance Company, along with interest at the rate 8% per annum from the date of his claim until it is realized. He will also be entitled to proportionate cost on the enhanced amount as ordered by the Tribunal before it. ``` ``` Sd/- ``` ``` DEVAN RAMACHANDRAN ``` ``` JUDGE ``` ``` akv ``` ``` MACA No.276/2019 & C.O.No.51/2020 ``` ``` -15- ``` ## `APPENDIX IN C.O.NO.51/2020` ## `CROSS APPELLANT’S ANNEXURES` ``` ANNEXURE A1 TO A46TRUE COPY OF THE MEDICAL BILLS SUBMITTED BY THE PETITIONER. ``` ``` ANNEXURES B1 TO B9TRUE COPY OF THE TRIP SHEETS. ``` ``` ANNEXURES C1 TO C4TRUE COPY OF THE PHOTOGRAPHS SHOWING THE CONDITION AND THE NATURE OF INJURIES SUSTAINED BY ME IN THE ACCIDENT. ``` ``` ANNEXURES DTRUE COPY OF THE DISCHARGE SUMMARY DATED 11.01.2019 ISSUED FROM RAJENDRA HOSPITAL, KOZHIKODE. ``` ``` ANNEXURES ETRUE COPY OF THE MEDICAL CERTIFICATE DATED 31.12.2019. ``` ``` ANNEXURES IN I.A.NO.1/2022 ``` ``` ANNEXURE A1TRUE COPIES OF THE MEDICAL BILLS ISSUED TO THE PETITIONER. ANNEXURE A2TRUE COPIES OF THE BILLS FOR TRAVELLING EXPENSES ISSUED TO THE PETITIONER. ANNEXURE A3TRUE COPY OF THE MEDICAL CERTIFICATE DATED 16.09.2021 ISSUED FROM THE HOSPITAL. ANNEXURE A4TRUE COPY OF THE PRESCRIPTION DATED 31.07.2021 ISSUED FROM HOSPITAL. ```