Vishnu P. v. Saji M.J. and M/S The Oriental Insurance Company Ltd.

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. ``` ``` TUESDAY, THE 27[TH] DAY OF FEBRUARY 2024 / 8TH PHALGUNA, 1945 ``` ``` MACA NO. 1642 OF 2019 ``` ``` AGAINST AWARD DATED 12.04.2017 IN OP(MV) 701/2014 OF MOTOR ``` ## **`ACCIDENT CLAIMS TRIBUNAL, THALASSERY`** ## **`APPELLANT/PETITIONER:`** ``` VISHNU P., AGED 25 YEARS, S/O.PURUSHOTHAMAN C., RESIDING AT MEPPADAN HOUSE, PERUMBARAMBA, MAVULLAKARI, IRITTY P.O., IRITTY TALUK, KANNUR DISTRICT - 670 703. ``` ``` BY ADVS. SRI.PRANOY K.KOTTARAM SRI.GEORGE MATHEWS SR.GRASHIOUS KURIAKOSE - ADGP ``` ## **`RESPONDENTS/RESPONDENTS:`** ``` 1SAJI M.J., S/O.CHACKO, AGED 45 YEARS, RESIDING AT MOOLEKKATTU HOUSE, KALLODY, KARUVANCHAL P.O., KANNUR DISTRICT. ``` ``` 2M/S.THE ORIENTAL INSURANCE COMPANY LTD., MARINA SHOPPING CENTER, NATIONAL HIGHWAY, TALIPARAMBA, KERALA - 670 141. ``` ``` BY ADVS. JACOB MATHEW P MATHEWS JACOB (SR.)(M-186) ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 27.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA NO. 1642 OF 2019 ``` ``` 2 ``` ## **`JUDGMENT`** The appellant was the petitioner in O.P.(M.V.) No.701/2014 on the files of the Motor Accident Claims Tribunal, Thalassery. The said claim petition was submitted by him seeking compensation for the injuries sustained in a motor accident that occurred on 14.02.2014. 2. According to the appellant, the accident occurred when the motorcycle ridden by him was hit by a lorry bearing Registration No.KL-13 J/8939, driven by the 1[st] respondent in a rash and negligent manner. The 1[st] respondent himself was the owner of the said vehicle and it was insured with the 2[nd] respondent insurer. The appellant was aged 20 years at the time of the accident and was a B.Com student. Consequent to the injuries, he suffered physical disablement as well. The claim petition was submitted in such circumstances seeking compensation. 3. The 2[nd] respondent filed a written statement admitting the insurance coverage for the lorry. However, they denied the negligence on the part of the 1[st] respondent in driving the lorry. ``` MACA NO. 1642 OF 2019 ``` ``` 3 ``` According to them, the accident occurred due to the negligence of the appellant himself. They also disputed the quantum of compensation. 4. To substantiate the contentions, the appellant produced and marked Exts.A1 to A8. The disability certificate issued by the Medical Board was marked as Ext.X1. No oral evidence was adduced. The respondents have also not adduced any evidence. After the trial, the Tribunal found that the accident occurred due to the negligence of the 1[st] respondent in driving the lorry and being the insurer, the 2[nd] respondent was held liable to pay the compensation. The quantum of compensation was fixed as Rs.10,15,200/- and the said amount was directed to be deposited with interest @ 9% per annum from the date of petition till realisation with proportionate cost. This appeal is submitted in such circumstances seeking enhancement of compensation. 5. Heard Sri.Grashious Kuriakose, learned senior counsel appearing for the appellant and Sri.Mathews Jacob, learned senior counsel appearing for the 2[nd] respondent Insurance Company. ``` MACA NO. 1642 OF 2019 ``` ``` 4 ``` 6. The learned senior counsel appearing for the appellant would submit that the amounts awarded by the Tribunal under various heads are grossly inadequate. Besides the same, the learned senior counsel further points out that, the appellant is even now undergoing treatment and he has to undergo two more surgeries to rectify the disability and the difficulties arising therefrom. These surgeries necessitate additional amounts towards the expenses. To substantiate the necessity to undergo the surgeries and the expenses likely to be incurred for the same, the learned senior counsel places reliance upon Annexure A1 to A4 which were produced along with I.A. No.1/2022. The said documents are marked as Exts.A9 to A12 in this appeal. Along with the said documents, the appellant also produced certain bills for the expenses incurred by him for treatment after the award of the Tribunal. 7. On the other hand, the learned senior counsel appearing for the 2[nd] respondent opposes the said contention by pointing out that a very reasonable award has been passed and no interference is required. As far as the claim for medical expenses for undergoing the surgeries are concerned, it was ``` MACA NO. 1642 OF 2019 ``` ``` 5 ``` objected to by highlighting that, there is absolutely no evidence to show that the said surgeries are inevitable. Therefore, the said documents cannot be accepted, contends the learned senior counsel for the 2[nd] respondent. However, as regards the medical bills produced, the learned senior counsel doe the 2[nd] respondent did not raise serious objections. 8. After carefully going through the entire materials placed on record, I find some force in the contention put forward by the learned senior counsel appearing for the appellant. It is to be noted that, this is a case in which a 20-year-old student of B.Com, sustained very severe injuries which practically incapacitated the movements of his right hand. In the wound certificate itself the following injuries are referred: lacerated wound over right frontal, multiple lacerated wound over neck, right shoulder and chest, lacerated wound over right knee, right leg, left forearm, multiple abrasion and contusion right shoulder, right elbow and forearm. Ext.X1 is the disability certificate issued by the Medical Board wherein the injuries sustained by him are mentioned as follows: “Sustained Brachial plexus injury ®, open ``` MACA NO. 1642 OF 2019 ``` ``` 6 ``` fracture patella ®, ORIF done, Implants in situ. Brachial plexus, involving all radicular groups, essentially complete.” After considering the said aspects, the Medical Board assessed the whole body disability of the appellant as 45%. The Tribunal had accepted the said percentage of disability. However, the income taken by the Tribunal for assessing the compensation for loss of earning capacity owing to physical disability was Rs.40,000/- per annum, which appears to be on the lower side. It is to be noted that this is a case in which the accident occurred in the year 2014. The learned senior counsel places reliance upon the decision rendered by the Honourable Supreme Court in **Basanti Devi and Anr. v. New India Assurance Company Limited & Ors.** , [2021 ICO 2356] wherein the monthly income of a graduate Engineer was taken as Rs.20,000/-. However, the said decision cannot be applied as such, in view of the fact that pertains to an Engineering graduate, whereas the appellant herein was a student of B.Com Degree. The learned senior counsel appearing for the 2[nd] respondent specifically contended that, as he was a student at the relevant point of time, income taken by the Tribunal is justified in ``` MACA NO. 1642 OF 2019 ``` ``` 7 ``` view of the fact that, practically he was not earning any income at the time of the accident. 9. However, merely because the victim was not earning any amount at the time of the accident, that cannot or should not preclude the Tribunal or this Court from taking a proper monthly income based on the method of computation which is usually adopted for calculating the monthly income in other cases of earning members. This is particularly because, the victim in this case was aged 20 years at the time of the accident and even though he was a student at the relevant time, the fact that he was likely to start earning in the near future cannot be ignored. Now consequent to the serious injuries and the disability arising therefrom, the capacity of the victim to earn has been substantially affected and while assessing the compensation this Court cannot ignore the said crucial aspect. Therefore, for all practical purposes he has to be treated at par with an earning member, since he was an able bodied youth as on the date of the accident. Therefore, I do not find any justification in confining the income of the victim as Rs.40,000/- per annum which appears to be very low ``` MACA NO. 1642 OF 2019 ``` ``` 8 ``` from any point of view. When the method of computation evolved from the principle laid down by the Honourable Supreme Court in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Co.Ltd** [(2011) 13 SCC 236] and **Syed Sadiq v. Divisional Manager, United India Insurance Company** [(2014) 2 SCC 735] is adopted, the monthly income of an ordinary worker for the year 2014, has to be fixed as Rs.9,500/- (by fixing the basic monthly income as Rs.4,500/- for the year 2004 and to determine the monthly income for the subsequent years, an addition of Rs.500/- per year has to be made). In this case, as observed above he was an able bodied youth and was a final year student of B.Com at the relevant time. Therefore, considering the educational qualifications and other aspects, I am of the view that, a slightly higher income than what is calculated for ordinary workers without any skills, as per the principles in **Ramachandrappa** (supra) and **Syed Sadiq** (supra) can be adopted. Accordingly, I fix the monthly income as Rs.10,000/-. The percentage of disability is already accepted by the Tribunal 45% in the light of Ext.X1. Since the victim was aged 20 years at ``` MACA NO. 1642 OF 2019 ``` ``` 9 ``` the time of the accident, the multiplier applicable is 18. Thus while reassessing the compensation for disability and consequential earning capacity, the amount comes to Rs.9,72,000/- (10,000 x 12 x 18 x 45/100). The amount already awarded by the Tribunal comes to Rs.3,24,000/- and therefore, the additional amount receivable by the appellant towards loss of earning capacity is determined as Rs.6,48,000/-. Even though the learned counsel contended regarding additional compensation for loss of amenities and pain and suffering, I do not find any necessity for enhancement. The Tribunal has already granted Rs.90,000/- and Rs.80,000/- under these heads, and these amounts appear to be reasonable. 10. The next head which was mainly highlighted by the learned senior counsel for the appellant is the medical expenses which were already incurred and the expenses he is likely to be incurred for undergoing two surgeries as suggested by the Doctors. To substantiate the necessity to undergo the surgeries, the learned counsel places reliance upon Exts.A11 and A12 which are the certificates issued by Professor G. Balakrishnan, Right ``` MACA NO. 1642 OF 2019 ``` ``` 10 ``` Hospitals Private Limited, Chennai. In Ext.A12 certificate, it is mentioned that, the appellant had suffered Traumatic Brachial Plexus palsy right upper limb. He has loss of finger flexion and flail wrist. He needs, (1). Wrist Joint Arthrodesis in the first stage. (2). Biceps to FDP transfer after 3 months. It was also suggested that, the said surgical procedure may require expenses of at least Rs.3,00,000/-. Ext.A12 is an estimate dated 15.12.2018 and the learned senior counsel for the appellant points out that, by this time the expenses must have been increased and therefore the same has also to be considered while fixing the compensation. On the other hand, the learned counsel appearing for the 2[nd] respondent would oppose the said prayer by pointing out that, Ext.A11 and A12 documents were not properly proved and therefore, we cannot simply assume that the appellant is in requirement of the surgeries as suggested in Exts.A11 and A12 and therefore, no amount can be granted him under the said head, points out the learned counsel for the 2[nd] respondent. 11. However, after carefully going through the medical records already produced and the contents of Exts.A11 and A12, ``` MACA NO. 1642 OF 2019 ``` ``` 11 ``` the possibility of the requirement of the appellant to undergo the surgeries as referred to in Exts.A11 and A12 cannot be ruled out. The medical records would indicate that the right hand of the appellant has become practically non-functional and such a serious disability has been suffered by the appellant at a young age of 20 years. Therefore, to avoid the difficulties arising therefrom or reducing the disability consequent to the same, every possible measures are to be taken. Therefore, as I have already found that, the contention of the appellant as to the necessity of surgeries cannot be ruled out, some amount has to be awarded for enabling the appellant to have such surgeries. In such circumstances, I deem it appropriate to accept Ext.11 and thereby awarding a further sum of Rs.3,00,000/- under the said head. 12. As regards the medical expenses incurred by the appellant after passing the award, there is no serious dispute. Ext.A9 series bills are for a total amount of Rs.1,26,937/-. In the result, the said amount is also awarded. Thus, the additional compensation comes to Rs.10,74,937/[648000+300000+126937]. ``` MACA NO. 1642 OF 2019 ``` ``` 12 ``` In the result, this appeal is allowed. The award dated 12.04.2017 passed by the Motor Accident Claims Tribunal, Thalassery in O.P.(M.V.) No.701/2014 is hereby modified by granting an additional compensation of Rs.10,74,937/- (Rupees ten lakhs seventy four thousand, nine hundred and thirty seven only).Out of the said amount, Rs.6,48,000/- will carry interest @ 8% per annum from the date of petition till realisation. For Rs.1,26,937/- which is awarded towards the medical expenses incurred by him after passing the award, the interest at the rate as mentioned above, shall become payable from 06.11.2018 onwards, the date on which the latest bills were issued. As far as Rs.3,00,000/- awarded towards expenses of the surgeries to be performed, the said amount shall carry interest from the date of this judgment at the rate as referred to above. The amount as referred to above shall be deposited by the 2[nd] respondent within a period of three months from the date of receipt of a copy of this judgment. However, it is clarified that as the delay of 531 days in filing the appeal was condoned by this Court subject to the condition that the appellant shall not be entitled to interest for the ``` MACA NO. 1642 OF 2019 ``` ``` 13 ``` said period, the 2[nd] respondent shall be at liberty to exclude the said period while computing the interest on the compensation awarded. It is further clarified that the claimant shall furnish the details of the PAN card, Aadhar Card and bank details to enable the Insurance Company to make the deposit as ordered above, within period of two months from the date of receipt of a copy of this judgment. In case, he fails to furnish the said details, it shall be open for the insurance company to deposit the said amount before the Tribunal. **Sd/-** **`ZIYAD RAHMAN A.A. JUDGE`** scs ``` 14 ``` ## **`MACA NO. 1642 OF 2019`** ## **`APPENDIX OF MACA NO. 1642 OF 2019`** ``` APPELLANT’S ANNEXURES ANNEXURE A1(1) toTRUE COPY OF VARIOUS MEDICAL BILLS A1(37)ISSUED FROM RIGHT PHARMACY AND NEETHI MEDICAL STORE ANNEXURE A2(1) TOTRUE COPY OF TRAIN TICKET BOOKED WITH A2(4)IRCTC ANNEXURE A3TRUE COPY OF THE ESTIMATION LETTER- FROM RIGHT HOSPITAL (P) LTD. CHENNAI DATED 08.01.2018 ANNEXURE A4TRUE COPY OF THE CERTIFICATE FROM RIGHT HOSPITAL (P) LTD. CHENNAI DATED 15.12.2018. ```