Veerammal @ Veeramma v. P.A.Kamal and T.V.Francis Xavier and National Insurance Company Limited

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE T.R.RAVI** **MONDAY, THE 27[TH] DAY OF SEPTEMBER 2021 / 5TH ASWINA, 1943** **MACA NO. 1674 OF 2012** **AGAINST THE AWARD DATED 06.04.2010 IN OPMV 1470/2005 OF MOTOR** **ACCIDENT CLAIMS TRIBUNAL, ERNAKULAM** ## **APPELLANT/PETITIONER:** VEERAMMAL @ VEERAMMA, AGED 52 YEARS, W/O.ARUMUGAN, 5/114, POMMAGOUNDER PUTHOOR STREET, VADUGAMPADY GRAMAM, VEDASANTHOOL VILLAGE,DINDIGUL DISTRICT, TAMIL NADU STATE. BY ADVS. SRI.R.SUDHISSH SMT.M.MANJU SRI.K.R.RANJITH ## **RESPONDENTS/RESPONDENTS:** - *1 P.A.KAMAL, S/O ABOOBACKER, PUTHUVAYIL HOUSE, MUTTOM, THAIKKATTUKARA.P.O, ALUVA-683106. **( DELETED)** - 2 T.V.FRANCIS XAVIER, S/O.VARGHESE, THAYYIL HOUSE, WEST OF CHURCH, KANNAMALY.P.O, COCHIN-682008. - 3 NATIONAL INSURANCE COMPANY LIMITED SHRIRAM SITE OFFICE, 2A, PRAKASAM ROAD, T.NAGAR, CHENNAI-600017. *4 ALRAFI, S/O.ALIYAR, PUTHENPURACKAL HOUSE, V.K.COLONY.P.O, ALUVA-683101. **( DELETED)** *RESPONDENTS 1 AND 4 DELETED RESPONDENTS 1 AND 4 ARE DELETED FROM THE PARTY ARRAY AT THE RISK OF THE APPELLANT AS PER ORDER DATED 23/3/2021 IN I.A.1/2019 IN MACA 1674/2012. BY ADVS. SRI.S.K.BALACHANDRAN, FOR R2 SRI.P.G.GANAPPAN, FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 02.09.2021, THE COURT ON 27.09.2021 DELIVERED THE FOLLOWING: **MACA 1674 OF 2012** **2** ## **T.R.RAVI, J.** ## **-------------------------------------M.A.C.A.No. 1674 of 2012 -----------------------------------------------** Dated this the 27[th] day of September, 2021 ## **JUDGMENT** Due to the rash and negligent driving of the 2[nd ] respondent, who was the driver of a stage carriage bus in which the appellant was travelling, she got thrown out of the bus onto the road and suffered very serious injuries. She was initially taken to the General Hospital, Ernakulam, where she was admitted on 16.02.2005 and discharged on 18.02.2005 to be transferred to Medical College Hospital, Kottayam, where she remained as an inpatient from 19.02.2005 to 09.03.2005. After discharge, she had to continue as a regular outpatient in Tamil Nadu, where she was residing. The 4[th] respondent is the owner of the vehicle and the 3[rd] respondent is the insurer. The injuries that the appellant suffered were; - (a) head injury, - (b) right fronto-temporal acute subdural haematoma, - (c) right lateral subfrontal haemorrhagic contusion 2x3x3 cms, **MACA 1674 OF 2012** **3** - (d) fracture of the neck of femur (L) Garden type-II, and - (e) Body ache. 2. The appellant was aged 45 years at the time of the accident and she preferred a claim before the Motor Accidents Claims Tribunal, Ernakulam. She claimed that she was working as a Coolie, earning about Rs.5,500/- per month. All the respondents remained _ex-parte_ before the Tribunal. The Tribunal awarded a sum of Rs.2,25,000/-. It is not discernible from the judgment as to how the amounts granted towards permanent disability/loss of earning power, loss of earnings etc., were arrived at. Aggrieved by the compensation awarded, the appellant has preferred this appeal seeking enhancement. The appellant filed I.A.No.2 of 2012, producing Annexures A1 and A2. Annexure A1 is the series of medical bills for an amount of Rs.1,23,473/-, which are medical expenses that were incurred subsequent to discharge from the Hospital. Annexure A2 would show that the appellant was again hospitalised in the Madurai Institute of Orthopaedics and Traumatology and that the reason for hospitalisation was non-union of the fracture of the neck of left femur and total hip replacement. The appeal had been filed with a delay of 696 days and the delay **MACA 1674 OF 2012** **4** was condoned by this Court on condition that the appellant will not be entitled to interest for any enhanced compensation which may be granted in this appeal, for the period of 696 days. 3. On 05.02.2020, this Court passed an order directing the Superintendent, Government Rajaji Hospital, Madurai, to constitute a Medical Board to assess the permanent disability, if any, of the appellant, on account of the motor accident which occurred on 16.02.2005. It can be seen from the order that the standing counsel for the insurer had submitted that Ext.X1 disability certificate which was issued earlier assessing 36% disability, was issued before attaining the maximum stage of medical rehabilitation and the Tribunal cannot be found fault with for not accepting the percentage of disability assessed in Exhibit X1. It was also contended that the permanent disability after the hip replacement surgery will have to be assessed. On the basis of the orders of this Court, the disability of the appellant was assessed and the report has been forwarded to this Court by the Dean, Government Rajaji Hospital, Madurai on 03.03.2021. Going by the report, it can be seen that the injury that was caused to the hip joint of the appellant at the time of the accident was corrected surgically and that even after the surgical correction the appellant **MACA 1674 OF 2012** **5** cannot stand and walk. The Medical Board has assessed 60% disability to the appellant. 4. The counsel for the appellant contended that the Tribunal fixed a notional income of Rs.2,500/-, which is very less and going by the judgment in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Co.Ltd.,** reported in **[AIR 2011 SC 2951]** the appellant is entitled to have the notional income fixed at Rs.5,000/-. As far as the medical bills for Rs.1,23,473/- are concerned, they relate to the period after the accident and during the time she underwent the surgical correction by hip replacement. There is no reason why the same should not be accepted in evidence and additional compensation granted for the said amount also. Going by the age of the appellant at the time of the accident, the multiplier to be adopted will be '14' and the disability is to be calculated at 60% as found by the Medical Board on directions issued by this Court. The counsel submitted that the appellant is entitled to future prospects going by the judgment of the Hon'ble Supreme Court in **Pappu Deo Yadav v. Naresh Kumar & Ors.** reported in **[AIR 2020 SC 4424]** . It is also submitted that the amount of Rs.3,000/- awarded towards transportation is factually erroneous. It was pointed out that in **MACA 1674 OF 2012** **6** paragraph 8 of the Award, the Tribunal has found on the basis of Exhibit A13, that the appellant had incurred Rs.17,425/- towards taxi charges and ambulance charges in connection with hospital visits and since the authors of the trip sheets were not examined, the Tribunal awarded Rs.15,000/-. However, when it came to the calculation part, only a sum of Rs.3,000/- was taken into account and not Rs.15,000/- as found entitled in paragraph 8. 5. Sri P.G.Ganappan, learned appearing for the insurer submitted that there is no evidence of treatment for the period from 09.03.2005 to 08.02.2011 and it is doubted that the appellant sustained another injury. It is also pointed out that in X1 disability certificate, the Board had assessed a neuro disability of 16% and ortho disability of 20%, which has been totalled to 36%. Regarding the notional income the counsel agreed that Rs.5,000/is reasonable, going by **Ramachandrappa (supra)** . 6. In reply to the question regarding lack of evidence regarding disability, the counsel for the appellant pointed out paragraph 11 of the Award, wherein the Tribunal has observed that the appellant was brought to the Court, with the assistance of her husband and son and that it appeared that she was not able to rise without any support. The appellant, when she was examined had **MACA 1674 OF 2012** **7** stated that she needs the help of an attendant for her daily pursuits and even to attend to the calls of nature and that she is practically bedridden and is feeling occasional giddiness and numbness. It is submitted that the situation continues even now, as is evident from the report of the Medical Board of Madurai. 7. I have considered the contentions of the counsel on either side. Regarding the notional monthly income, I am of the opinion that it has to be fixed at Rs.5,000/- going by **Ramachandrappa (supra)** . The disability assessed by the Medical Board at Government Rajaji Hospital, Madurai at 60% is to be taken for the purpose of assessing the compensation for permanent disability. The transportation charges has to be taken as Rs.15,000/- as found by the Tribunal. Having regard to the nature of the injuries suffered and the continuing difficulties of the appellant even after 16 years of the accident, there is no reason to disallow the amounts claimed by the appellant under the heads pain and suffering and loss of amenities and conveniences in life. The compensation under the head permanent disability is to be reworked based on the monthly income of Rs.5,000/- with future prospects at 40% added and applying a multiplier of 14, applying 60% permanent disability assessed by the Medical Board. Even **MACA 1674 OF 2012** **8** though the counsel for the appellant has contended that the appellant is not even in a position to move without help and all chances of employment has been affected, I do not think it would be appropriate to treat the disability as 100%, since several years have gone by before the appellant was assessed by the Medical Board at Madurai and as contended by the counsel for the insurer, the possibility of subsequent injury cannot be ruled out, in the absence of clear evidence. The appellant is also entitled to future medical expenses, which is determined on the basis of the medical bills produced as Annexure A1. However, the amount under the head future medical expenses will carry interest only from 01.08.2012, when the same were produced before the Court and not from the date of filing the claim. The compensation payable on the basis of the above findings in this appeal is reworked as shown in the table below. |Sl.No.|Head of Claim|Amount<br>claimed<br>(Rs)|Amount<br>awarded<br>(Rs)|Amount<br>awarded/modifie<br>d bythis Court| |---|---|---|---|---| |1|Loss of Earning|15000|15000|30000(5000x6)| |2|Transportation<br>expenses|3000|3000|15000| |3|Damage to clothing|2000|500|500| |4|Extra nourishment|5000|1500|1500| |5|Bystander expense|5000|5000|5000| **MACA 1674 OF 2012** **9** |6|Medical Expenses|10000|10000|10000| |---|---|---|---|---| |7|Shock, pain and<br>sufferings|50000|25000|50000| |8|Loss of amenities<br>and enjoyment in<br>life|50000|15000|50000| |9|Future treatment<br>expenses|25000|10000|10000 +<br>123473=133473| |10|For disability & loss<br>of earning power|200000|140000|705600<br>(5000x140%x12<br>x<br>14x60%)| |11|For disfiguration|15000|Nil|Nil| |12|For short<br>expectation in life|50000|Nil|Nil| ||Total|430000|225000|10,01,073/-<br>(Rs.123473 to<br>carry interest<br>from 1.8.2012<br>only)| In the result, the appeal is allowed. The compensation granted by the Tribunal is enhanced by a further sum of **Rs.7,76,073/- (Rupees Seven Lakh Seventy Six Thousand** **Seventy Three only)** with interest at 9% per annum on Rs.6,52,600/- from 07.06.2005 and at the rate of 9% per annum on Rs.1,23,473/- from 01.08.2012 till the date of realisation, with proportionate costs, excluding interest for the period of delay of 696 days, which was condoned as per order dated 17.8.2012 in C.M.Application No.1978/2012, with a condition that the appellant **MACA 1674 OF 2012** **10** will not be entitled to interest for the period of delay of 696 days. The 3[rd] respondent shall deposit the additional compensation granted in this appeal along with the interest and proportionate costs as awarded, before the Tribunal within two months from the date of receipt of a certified copy of this judgment, after deducting any amount to which the appellant is liable towards balance court fee and legal benefit fund. The disbursement of the compensation to the appellant shall be in accordance with law. Sd/- **T.R. RAVI, JUDGE** dsn The judgment dated 27.09.2021 in MACA 1674/2012 stands corrected as follows as per order dated 21.10.2021. The words “with future prospects at 40% added” occurring in paragraph 7 at page 7 is corrected as “with future prospects at 25% added”. The figure of Rs.7,05,600/- (5000x140%x12x14x60%)” awarded for disability and loss of earning power shown in the table at Sl.No.(10) in para 7 at page (9) of the judgment is corrected as “6,30,000/- (5000 x 125% x 12 x 14 x 60%)” and the total amount shown in the table as “10,01,073/-” stands corrected as **MACA 1674 OF 2012** **11** “9,25,473/-” The words and figures “Rs.7,76,073/- (Rupees Seven Lakh Seventy Six Thousand Seventy Three only)” and the figure of “Rs.6,52,600/-” occurring in the operative portion of the judgment stands corrected as **“Rs.7,00,473/- (Rupees Seven Lakhs Four Hundred and Seventy Three only)”** and Rs.5,77,000/- (Rupees Five Lakh Seventy Seven Thousand only) respectively”. Sd/- Deputy Registrar **MACA 1674 OF 2012** **12** ## **APPENDIX** ## **PETITIONERS' EXHIBITS** **ANNEXURE A1 MEDICAL BILLS SHOWING THE EXPENSES INCURRED IN THE SURGERY (34 NOS.)** **ANNEXURE A2 DISCHARGE SUMMARY ISSUED FROM MADURAI INSTITUTE OF ORTHOPAEDICS AND TRAUMATOLOGY**