Thomas Jacob v. P. J. Louis and Oriental Insurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE T.R.RAMACHANDRAN NAIR & THE HONOURABLE SMT. JUSTICE P.V.ASHA** **FRIDAY, THE 16TH DAY OF JANUARY 2015/26TH POUSHA, 1936** **MACA.No. 2056 of 2008 ( ) --------------------------** **AGAINST THE AWARD IN OPMV 387/2000 ON THE FILE OF THE MOTO R ACCIDENTS CLAIMS TRIBUNAL, PERUMBAVOOR DATED 12.9.2007** **APPELLANT/PETITIONER:** **------------------------** **THOMAS JACOB, S/O.JACOB CHAKKETHU HOUSE, AZHAKAM KARAYIL, KARUKUTY VILLAGE ANGAMALY.** **BY ADV. SRI.SHIJU VARGHEESE** ## **RESPONDENTS/RESPONDENTS :** **----------------------------** **1. P.J.LOUIS, PUTHUSSERY HOUSE, MOOKKANNOOR PO, ANGAMALI, PIN-683 577.** **2. ORIENTAL INSURANCE CO.LTD., IIND FLOOR KALLOOKKARAN SHOPPING COMPLEX, ANGAMALI-683572.** **R2 BY ADV. SRI.GEORGE CHERIAN (THIRUVALLA)** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 16-01-2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **AL/-** ## **T.R.RAMACHANDRAN NAIR & P.V.ASHA, JJ.,** **- - - - - - - - - - - - - - - - - - - - - - - - - -** M.A.C.A.No.2056 of 2008 **- - - - - - - - - - - - - - - - - - - - - - - - -** Dated this the 16[th] day of January 2015 ## **JUDGMENT** ## **Asha, J.,** The appellant is the injured in a motor accident. The accident occurred when the motor vehicle which he was riding collided with another motor cycle on 14.8.1999. He sustained very serious injuries and was immediately taken to Little Flower Hospital, Ankamaly. From there he was taken to Specialist Hospital, Ernakulam. The nature of the injuries sustained are explained in the award by the Tribunal as revealed from Ext.17 wound certificate and discharge summary. He had sustained the following injuries : _1. Lacerated wound 3cms right leg._ - _2.Fracture to shaft right tibia and fibula._ _3.Fracture with dislocation over right forearm-radius._ _4. Abrasion over left hand._ _5.Fracture to left clavicle._ 2. The appellant was a pharmacist and running a medical shop. Claiming that he was getting a monthly income of Rs.5000/-, the claim petition was filed seeking a sum of Rs. 13 lakhs towards compensation. The Tribunal awarded a sum of Rs. 4,05,900/-. This appeal is filed seeking enhancement of compensation, on the ground of inadequacy. 3. We heard the learned counsel on both sides. M.A.C.A.2056 of 2008 2 4. From the hospital records Ext A19, it is seen that the appellant sustained fracture to both bones of his right leg with fracture to right radius. He underwent treatment as in-patient initially from 14.08.1999 to 17.09.1999; from 18.10.1999 to 12.11.1999 and from 12.12.1999 to 22.12.2009. The course of treatment undergone, includes wound debridement; open reduction and internal fixation with 8 hole DCP and bone grafting, SR, LA cast, LL Slab, blood transfusion, etc. He underwent 10 surgeries, apart from bone grafting and skin grafting. He underwent treatment during several spells at Little Flower Hospital, Ankamaly and Specialist Hospital, Ernakulam, for a period of 70 days. 28 bottles of blood was transfused to his body. He was bedridden for a period of 16 months with rings. From the records it is seen that he had to continue the treatment upto 2002. Thus recurrent visits to the Specialist Hospital, Ernakulam was required. The Medical Board, General Hospital, Ernakulam, in Ext A32 certificate, found that the injuries resulted in traumatic stiffness of right ankle and toes; shortening of limb and assessed his disability as 40%. Tribunal took it as 25% whole body disability. Thus appellant incurred disfiguration also, apart from permanent disability. 5. The appellant got himself examined before the Tribunal as PW4 and deposed in terms of his claim. He claimed to have a monthly earning of Rs. 5000/-. The registration certificate as Pharmacist and drug license to run the medical shop issued by Assistant Drugs Controller were marked as Ext A29 and 30. Exts.A25 to A29 certificates showing the license issued by the 3 M.A.C.A.2056 of 2008 Kalady Grama Panchayat were also marked through him. The Tribunal fixed his monthly income as Rs.2500/-. It was found that the business in medical shop continued even after his accident even though it became necessary to engage somebody else to run the shop. The Tribunal awarded a sum of Rs. 25,000/- towards loss of income for 10 months. Having regard to the wage structure prevailing in the State,we fix the income at the rate of Rs. 3,000/per month. We find that after the in-patient treatment for 70 days the appellant was bed ridden for a period of 16 months initially. Therefore he would not have been able to work at least for 18 months. Thus the compensation for loss of earnings for 18 months will come to Rs. 54000/-. 6. The appellant was aged 31 years at the time of the accident and the multiplier adopted is 17. Tribunal awarded a sum of Rs. 1,27,500/- as compensation towards disability, reckoning his monthly income @ 2500/- and disability at 25%, adopting the multiplier of 17. At the same time, the Tribunal found that the disability did not affect his avocation as he was a Pharmacist and the medical shop continued to run. .On account of the injuries sustained to his right ankle he is unable to walk and work properly. We find that the disability incurred by the appellant has not affected his avocation in running the medical shop. He is able to run his medical shop in his capacity as Pharmacist and on the strength of the requisite license. Therefore it is not necessary to compensate him on loss of earning capacity, adopting the multiplier method. At the same time we find it necessary that he should be adequately M.A.C.A.2056 of 2008 4 compensated for the non-pecuniary loss caused to him, on account of the injuries suffered, disabilities incurred and inconveniences caused,. 7. The Tribunal has awarded a sum of Rs. 10,000/- only, towards bystanders expenses, for 70 days of inpatient treatment. We have found that appellant was bedridden for another period of 16 months with rings, apart from the hospitalisation for 70 days. He he required the help of another person for his personal needs for the said period of at least 18 months. We find it is only just to fix a sum of Rs. 4500/- per month as expenses to engage a bystander. Hence he will be entitled to a sum of Rs. 81,000/- for 18 months. 8. It is seen that the appellant had to undertake several visits to the hospital right from the date of accident i.e from 14.08.1999. The treatment is seen to have continued even till December 2002. Therefore, we find that a sum of Rs. 15,000/- will be just and proper compensation for transportation. Similarly, we enhance the compensation for extra nourishment to Rs.10,000/- 9. Going by the grievous nature of the injuries sustained, prolonged treatment from 1999 to 2002 involving his hospitalisation for 70 days, 10 surgeries undergone, transfusion of blood and various procedures of treatment including bedrest for 16 months on rings and the disability and disfiguration incurred by him, the pain he suffered and mental agony caused would definitely be visualised. We find that a sum of Rs. 1 lakh would be a just compensation towards pain and suffering, in the place of Rs.30,000/-awarded by the Tribunal.. M.A.C.A.2056 of 2008 5 10. As seen from the disability certificate and the evidence on record, it is seen that the accident resulted in disfiguration on account of shortening of limb. His ankle is not working properly. He cannot climb steps or stand properly. He is still having puss from the wounds. So, at the age of 31 years, he has become unable to have the normal enjoyments and amenities of life available to normal human beings in ordinary course. The inconvenience caused to him and amenities lost to him lifelong, has to be compensated properly. We are of the view that a sum of Rs. 2 lakhs will be a just and reasonable compensation towards loss of enjoyment of life, loss of amenities of life, in modification of Rs.30000/ -awarded by the Tribunal. Apart from this, it is found that serious injuries sustained on him resulted in shortened expectation of life also, for which we award a sum of Rs. 50,000/- The Tribunal has awarded a sum of Rs. 10000 towards future treatment. We enhance the same to Rs. 25,000/-. The award is modified accordingly as follows. |**_Sl._**<br>**_No._**|**_Heads_**|**_Amt.awar_**<br>**_ded_**|**_Amt.modi_**<br>**_fied_**|**_Basis_**| |---|---|---|---|---| |1|Loss of income|25000|54000|| |2|Transportation expense|6000|15000|| |3|Extra nourishment|4000|10000|| |4|Attendant's charges|10000|81000|| |5|Treatment expenses|160400|160400|| |6|Pain and suffering|30000|100000|| |7|Loss of amenities|30000|200000|| |8|Future treatment|10000|25000|| |9|Disfiguration|3000|3000|| |10|Disability|1,27,500||| |11|Shortened expectation in<br>life|-|50000|| M.A.C.A.2056 of 2008 6 |**_Sl._**<br>**_No._**|**_Heads_**|**_Amt.awar_**<br>**_ded_**|**_Amt.modi_**<br>**_fied_**|**_Basis_**| |---|---|---|---|---| ||TOTAL|4,05,900|698400|| 11. Thus the appellant will be entitled to a sum of Rs. 6,98,400 /- as compensation. In the light of the decision of the apex court reported in _**Supe Dei (Smt.) & Ors. v. National Insurance Co. Ltd. And Anr.[(2009)4 SCC 513],**_ we enhance the rate of interest to 9% from the date of petition. 12. The Insurance Company is directed to deposit the entire compensation less the amount already deposited within a period of three months. The appeal is allowed as above. Sd/- **T.R.RAMACHANDRAN NAIR (JUDGE)** Sd **/P.V.ASHA (JUDGE)** AL/- True copy P.A to Judge M.A.C.A.2056 of 2008 7 corrected fair copy