Partly allowed

V.Ratheesh v. the National Insurance Co.Ltd

Kerala HC10 Jan 2022MACA/2287/2016

Case brief

AI extract

What is this about?

In a motor accident appeal, the High Court of Kerala enhanced the compensation awarded by the Tribunal. The Court re-fix compensation for loss of earnings based on the petitioner's notional income and adjusted awards for personal assistance, pain and suffering, and permanent disability, while deducting future prospects due to low disability percentage.

What did the court decide?

Enhanced compensation of Rs. 64,364/- to be paid by the insurer with 9% interest.

V.Ratheesh Vs the National Insurance Co.Ltd — Medical Negligence | Kerala HC (2022)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN

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MONDAY, THE 10^TH DAY OF JANUARY 2022 / 20TH POUSHA, 1943

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MACA NO. 2287 OF 2016

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AGAINST THE ORDER/JUDGMENT IN OPMV 2447/2007 OF III ADDITIONAL DISTRICT COURT, THRISSUR / II ADDITIONAL MACT, THRISSUR APPELLANT/PETITIONER:

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V. RATHEESH AGED 32 YEARS, S/O. RAMANKUTTY, VARIKKASSERY HOUSE, TRIPRAYAR P.O, VALAPPAD, THRISSUR, PERMENANTLY RESIDING AT VARIKKASSERY HOUSE, KALLUR P. O., ALAKAPPA NAGAR – 680 317. BY ADV SRI. JACOB SEBASTIAN

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RESPONDENT/RESPONDENT NO.3:

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THE NATIONAL INSURANCE CO.LTD, REPRESENTED BY BRANCH MANAGER, PERUMBAVOOR, ERNAKULAM, PIN - 683 542.

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BY ADV SRI.P M M.NAJEEB KHAN

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THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 10.01.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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M.A.C.A No.2287 OF 2016

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JUDGMENT

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The petitioner in O.P(M.V) No.2447 of 2007 on the file of the Additional Motor Accidents Claims Tribunal, Thrissur has preferred this appeal aggrieved by the amount of compensation awarded. The status of the parties herein are referred to as it appears in the claim petition.

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According to the petitioner, on

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08.06.2007,while he was travelling in a mini lorry bearing Registration No.KL-7-AM/1088, it hit against another vehicle and the petitioner sustained injuries. He was admitted in the hospital for sixty seven days. The petitioner claimed an amount of Rs.7,00,000/- as compensation for the injuries sustained in the accident. According to the petitioner, the accident happened due to the negligence of the 2^nd respondent, the driver of the mini lorry. The 1^st respondent is the owner of the

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M.A.C.A No.2287 OF 2016

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said vehicle and the 3^rd respondent is the insurer. Respondents 1 and 2 remained ex-parte before the Tribunal.

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The 3^rd respondent, Insurance Company filed written statement disputing the claim including the quantum of compensation, however, admitted that the vehicle was having a valid insurance policy at the time of the accident.

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4.The evidence in the case before the Tribunal consists of Exts.A1 to A10 from the side of the petitioner and Ext.B1 from the side of the 3^rd respondent insurer. The Tribunal found that, the accident happened due to the negligence of the 2^nd respondent, the driver of the mini lorry. The Tribunal awarded a total compensation of Rs.4,13,819/- with 9% interest from the date of petition, till realisation with proportionate costs. The 3^rd respondent was directed to satisfy the award. The compensation awarded under various heads is as follows:

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M.A.C.A No.2287 OF 2016

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Heads	Amount claimed	Amount awarded by Tribunal
Loss of earnings	30000	24000
Transportation to Hospital	10000	5000
Extra Nourishment	2000	2000
Damage to clothing	2000	1000
Medical Expenses	2,00,000	2,07,095
Personal assistants	20000	14000
Pain and sufferings	30000	12000
Dis-figuration	10000	5000
Permanent disability, loss of earning power, future prospects	2,30,000 66,000	1,13,724
Loss of amenities of life, Loss of marriage prospects	1,00,000	30000
Total	7,00,000	4,13,819

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5.According to the petitioner, the amounts

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awarded by the Tribunal under various heads are totally inadequate.

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6.Towards loss of earnings, the petitioner claimed an amount of Rs.30,000/-. The Tribunal found that the petitioner was incapacitated to work for eight months.

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M.A.C.A No.2287 OF 2016

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The Tribunal took his monthly income as Rs.3,000/and awarded an amount of Rs.24,000/- (Rs.3000×8

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months) under the head loss of earnings. Going by the decision in Ramachandrappa v . Manager, Royal Sundaram Alliance Insurance Company Limited [2011 (13) SCC 236: AIR 2011 SC 2951] , the notional monthly income of the petitioner has to be taken as Rs.6,000/- as on 2007. However, the petitioner has claimed his monthly income as Rs.4,000/-. I take the monthly income of the petitioner as Rs.4,000/- for the purpose of assessing loss of earnings. Therefore, the compensation for loss of earnings is re-fixed as Rs.32,000/- (Rs.4,000×8 months). Since an amount of Rs.24,000/- has already been awarded under the said head, the petitioner is entitled to get an amount of Rs.8,000/- (32,00024,000) as enhanced compensation for loss of . earnings

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M.A.C.A No.2287 OF 2016

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Towards personal assistance, an amount of

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Rs.14,000/- has been awarded. The petitioner claimed an amount of Rs.20,000 under this head. It has to be noted that the petitioner was hospitalised for sixty seven days. Therefore, I am of the view t hat, Rs.20,000/- will be a just and reasonable compensation under the said head. Therefore, the petitioner is entitled for an enhanced amount of . Rs.6,000/- under the head personal assistance

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For pain and suffering, an amount of Rs.30,000/- was claimed. However, the Tribunal awarded only Rs.12,000/-. Going by the nature of injuries referred to in paragraph 8 of the award, I am of the view that, the petitioner is entitled for an amount of Rs.30,000/- towards pain and suffering. Therefore, an enhanced amount of Rs.18,000/- is . awarded under the head pain and suffering

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For permanent disability, loss of earning

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power and future prospects, the petitioner claimed an

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M.A.C.A No.2287 OF 2016

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amount of Rs.2,96,000/-. The Tribunal has awarded an

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amount of Rs.1,13,724/- under the said head. The

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Tribunal calculated the said amount taking the monthly income of the petitioner as Rs.3,000/-. I have already found that the monthly income of the petitioner is to be taken as Rs.4,000/-. The petitioner was aged 23 years at the time of accident and the Tribunal has rightly taken the multiplier as 18. Ext. A11 disability certificate certifies that the petitioner i s having 11.7% whole body disability. Accordingly, the petitioner is entitled for an amount of Rs.1,01,088/- (4000x12x18x11.7%) under the head permanent disability and loss of earning power. Since an amount of Rs.75,816/(3000x12x18x11.7%) has been awarded by the Tribunal, the petitioner is entitled for an enhanced compensation of Rs.25,272/- (1,01,088–75,816) under the head permanent disability and loss of earning power. The Tribunal has added 50% towards future prospects to the compensation for permanent

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M.A.C.A No.2287 OF 2016

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disability and loss of earning power. However, since the whole body disability assessed in Ext. A11 disability certificate is only 11.7%, the petitioner is not entitled to compensation towards future prospects. The counsel for the petitioner relied on the decision of the v . Hon'ble Supreme Court in Pappu Deo Yadev. Naresh Kumar and others [AIR 2020 SC 4424: 2020 KHC 6547] to contend that compensation for future prospects can be awarded in case of personal injuries also. No doubt, compensation for future prospects in addition to future loss of earnings, involving serious injuries resulting in permanent disablement can be awarded. The whole body disability of the petitioner assessed in Ext. A11 disability certificate is only 11.7%. Therefore, in the facts of this case, I am of the view that the petitioner is not entitled to compensation for future prospects in addition to future loss of earnings. So the amount of Rs.37,908/- awarded towards future prospects has to be deducted.

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M.A.C.A No.2287 OF 2016

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For loss of amenities of life and loss of

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marriage prospects, an amount of Rs.1,00,000/- was claimed by the petitioner and the Tribunal has awarded an amount of Rs.30,000/-. For dis-figuration, the petitioner claimed Rs.10,000/, and the Tribunal awarded Rs.5,000/-. Considering the nature of injuries and the age of the petitioner, the award of Rs.30,000/by the Tribunal for loss of amenities of life and loss of marriage prospects is grossly inadequate. For the loss of amenities of life and loss of marriage prospects, an amount of Rs.70,000/- will be a just and reasonable compensation. Therefore, the petiti oner is awarded an enhanced compensation of Rs.40,000/- (Rs.70,000Rs.30,000) for loss of amenities of life and loss of marriage prospects. Taking into account the fact that the petitioner was 23 years of age at the time of accident and was unmarried and the nature of injuries sustained, Rs. 10,000/- will be a just and reasonable compensation for dis-figuration. The petitioner is

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M.A.C.A No.2287 OF 2016

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therefore entitled to an amount of Rs. 5,000/- as

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. enhanced compensation for dis figuration

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Thus, the petitioner is entitled for an amount of Rs.64,364/- (8,000 + 6,000 + 18,000 + 25,272 + 40,000+5000-37,908) as enhanced compensation as shown in the chart given below:

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Heads	Amount claimed (Rs)	Amount awarded by Tribunal	Amount awarded by this Court
Loss of earnings	30000	24000	32,000
Transportation to Hospital	10000	5000	5000
Extra Nourishment	2000	2000	2000
Damage to clothing	2000	1000	1000
Medical Expenses	2,00,000	2,07,095	2,07,095
Personal assistants	20000	14000	20000
Pain and sufferings	30000	12000	30000
Dis-figuration	10000	5000	10000
Permanent disability, loss of earning power, future prospects	2,30,000 66,000	1,13,724	1,01,088
Loss of amenities of life, Loss of marriage prospects	1,00,000	30000	70,000
Total	7,00,000	4,13,819	4,78,183

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M.A.C.A No.2287 OF 2016

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The 3^rd respondent insurance company shall

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deposit the enhanced amount with 9% interest within a

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period of two months from the date of receipt of a certified copy of this judgment with proportionate costs. At the time of condoning the delay in filing the appeal, this Court has passed an order dated 08.12.2021 in C.M. Application No.1 of 2016 stating that the petitioner would be disentitled for interest for a period of 79 days. Therefore, while calculating the interest, the said period shall not be counted.

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The appeal is disposed of as above.

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Sd/-

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MURALI PURUSHOTHAMAN JUDGE

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SPR

V.Ratheesh v. the National Insurance Co.Ltd

Case brief

What is this about?

What did the court decide?

V.Ratheesh v. the National Insurance Co.Ltd

Case brief

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What did the court decide?

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