Allowed

Ashly Babu v. the Icici Lombard General Insurance

Kerala HC6 Jul 2022MACA/2391/2016

Case brief

AI extract

What is this about?

In an appeal against the Motor Accidents Claims Tribunal award, this High Court enhanced the compensation due to excessive injuries including permanent disability and long hospitalization, directing the insurance company to deposit the enhanced amount.

What did the court decide?

The petitioner is entitled to an enhanced compensation of Rs. 9,10,000/-, to be deposited by the insurance company along with interest at 8% p.a.

Ashly Babu Vs the Icici Lombard General Insurance — Motor Accident Claims | 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 WEDNESDAY, THE 6^TH DAY OF JULY 2022 / 15TH ASHADHA, 1944

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MACA NO. 2391 OF 2016

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AGAINST THE AWARD DATED 21.04.2016 IN OP(M.V) NO.127/2012 ON THE FILE OF MOTOR ACCIDENT CLAIMS TRIBUNAL, IRINJALAKUDA

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APPELLANT/PETITIONER:

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ASHLY BABU AGED 27 YEARS S/O. SRI. BABU, ARAKKAL MALAKKARAN HOUSE, KIZHAKKE CHALAKUDY VILLAGE, CHALAKUDY P. O., MUKUNDAPURAM TALUK, THRISSUR DISTRICT.

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BY ADVS. SRI. ANIL S.RAJ SMT. ANILA PETER SMT. K.N. RAJANI SRI. RADHIKA RAJASEKHARAN P.

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RESPONDENT/3RD RESPONDENT:

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THE ICICI LOMBARD GENERAL INSURANCE CO. LTD., MAHALAXMI, MUMBAI – 400 034.

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SRI. R.AJITH KUMAR

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THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 06.07.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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MACA No.2391 OF 2016

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JUDGMENT

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The petitioner in O.P (M.V) No.127 of 2012 on the files of the Motor Accidents Claims Tribunal, Irinjalakuda has filed this appeal challenging the amount of compensation awarded by the Tribunal. The parties in this appeal are referred to as per their status in the claim petition.

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According to the petitioner, while he was riding a motor cycle through Thrissur – Chalakkudy Sector of NH 47, a car bearing Registration No.KL-45/B 2221 driven by the 2^nd respondent in a rash and negligent manner, hit down the motor cycle and the petitioner sustained serious injuries. The petitioner was aged 23 years at the time of the accident and was working as Marketing Manager of a private firm, drawing an amount of Rs.12,500/- as salary. He claimed a total compensation of Rs.1,00,00,000/- for the injuries

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MACA No.2391 OF 2016

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sustained in the accident.

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Before the Tribunal, respondents 1, 2 and 4

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remained ex-parte. On the side of the petitioner, PWs 1 to 3 were examined and Exts.A1 to A24 documents were

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marked. The 3^rd respondent Insurance Company filed a written statement admitting that the car was having a valid insurance policy at the time of the accident. However, they contended that the compensation claimed is excessive and exorbitant.

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The Tribunal found that the accident happened due to the rash and negligent driving of the car by the 2^nd respondent and awarded an amount of Rs.38,25,170/- as total compensation with 8% interest per annum from 23.02.2012 till realisation and proportionate costs.

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The Tribunal awarded compensation under various heads as follows:-

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Sl.	Head of claim	Amount	Amount	Basis vital
No		Claimed	Awarded	details in a
		(Rs.)	(Rs.)	nut shell

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MACA No.2391 OF 2016

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1	Loss of earnings	7,50,000	62,500	(Rs.12500x5 months)
2	Transportation expenses	3,00,000	10,000
3	Extra nourishment	3,00,000	10,000
4	Damage to clothings	5,000	500
5	Bystander's Expenses	5,00,000	10,000
6	Medical Expenses	25,00,000	21,32,170
7	Pain and suffering	10,00,000	50,000
8	Permanent disability	15,00,000	13,50,000	(1,50,000x18 x50%)
9	Loss of amenities	10,00,000	50,000
10	Loss of earning power	40,00,000	--
11	Disfiguration	2,00,000	50,000
12	Anticipated medical expenses	10,00,000	50,000
13	Loss of employment	10,00,000	--
14	Future bystander expenses	5,00,000	--
15	Loss of marriage prospects	10,00,000	50,000
16	Mental dejection	5,00,000	--
	Total	1,60,55,000 (limited to Rs.1,00,00,000	38,25,170	Rs.38,25,170 along with interest 8% p.a from 23.02.2012 till realisation

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MACA No.2391 OF 2016

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Aggrieved by the amount of compensation awarded by the Tribunal, the petitioner has preferred this appeal.

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Exts.A3 and A21 wound certificates produced

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by the petitioner would show that he sustained the

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following injuries:-

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“1. Large laceration involving eye brows and eyes.

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Large scalp laceration

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Swelling (L) wrist joint

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Diffuse sub arachanoid heamorrhage

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Diffuse brain oedema.

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Left side periorbital oedema

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7.Multiple abrasion on the face, back and exrteometus

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Fracture of (L) zygoma

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Fracture of (L) clavicle.”

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Ext.A4 is the discharge summary issued from

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the Medical Trust Hospital, Ernakulam during the period

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2011 – 2015 . As per the same, the petitioner underwent (R) FTP decompressive craniectomy and evacuation of hygroma with placement of bone flap in

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MACA No.2391 OF 2016

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abdominal layers on 08.10.2011. Wound debridement

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and suturing was done by plastic surgery. He was treated with antiodema measures, AED's, neuroprotective measures, analgescis, antacids and other supportive measures. Tracheostomy was also done. He has undergone Excision of heterotropic ossification + THR (R) hip on 11.09.2013, Exploration + reconstruction of femoral artery using great saphenous venous graft (R), Implant removal and excision arthoplasty on 30.01.2014 and incision and drainage (R) hip performed with antibiotic cement spacer exchange on 25-07-2015.

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Ext.A5 is the CT scan report. As per Ext.A8 discharge summary, the petitioner was admitted in Life Care Clinic from 10-04-2012 to 18-04-2012, 20-082012 to 19-10-2012 and from 02-08-2013 to 28-082013 for rehabilitation of traumatic brain injury and myosistis osificans of hip joint. He was treated with rehabilitative measures including physiotherapy and

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MACA No.2391 OF 2016

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occupational therapy. As per Ext.A9 discharge summary, he was admitted in Kumar Centre for Stroke & Rehabilitation, Vaduthala from 03-01-2012 and discharged on 11-01-2012 for rehabilitation with complaints of quadriparesis, inability to walk and fixed deformity of both Lower limbs. Ext.A10 discharge summary would show that he was admitted in Brain & Spine Centre, Chemmanakary on 01-04-2012 and discharged on 06-04-2012. He was treated with rehabilitative measures including physiotherapy. Ext.A11 discharge summary is to the effect that he was admitted in Christian Medical College, Vellore from 1507-2015 and discharged on 17-07-2015 to rule out septic arthritis of right hip joint.

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In Ext.A19 disability certificate issued by PW1 Doctor, the percentage of disability of the petitioner is noted as 42.66%. Ext.A20 is the disability certificate issued by PW2, Eye Micro Surgeon, wherein, the disability has been noted as 15%. Taking note of

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Exts.A19 and A20 certificates, the Tribunal took the disability of the petitioner as 50% for the purpose of assessment of compensation.

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The Tribunal has taken the income of the petitioner as Rs.12,500/- taking into account Ext.A18 salary certificate. Towards loss of earnings, an amount of Rs.62,500/- has been awarded stating that he had loss of earnings for five months. Taking note of the period of hospitalisation of 335 days during 14 different spells, I re-fix the compensation for loss of earnings as Rs.1,25,000/- (12,500x10 months). Therefore, the petitioner is entitled for an additional amount of Rs.62,500/- (1,25,000-62,500) under the said head.

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The Tribunal has awarded an amount of Rs.13,50,000/- towards permanent disability. In Pappu Deo Yadav v . Naresh Kumar and others [AIR 2020

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SC 4424], the Apex Court has held that, in cases of serious injuries resulting in permanent disablement incurred as a result of a motor accident, the claimant

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MACA No.2391 OF 2016

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can seek, apart from compensation for future loss of income, amounts for future prospects too; and to the extent of disability. Since the percentage of disability found by the Tribunal is 50%, the Tribunal ought to have added 40% of the income towards future prospects. Accordingly, the monthly income of the petitioner is refixed as Rs.17,500/- (12500+5000) for assessment of disability compensation. Therefore, the compensation for permanent disability is re-assessed as Rs.18,90,000/- (17,500 x 12 x 18 x 50%). After deducting the amount of Rs.13,50,000/- already awarded, the petitioner is entitled for an enhanced compensation of Rs.5,40,000/- (18,90,000-13,50,000) under the said head.

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Towards bystander's expenses, the petitioner claimed an amount of Rs.5,00,000/-. However, the Tribunal awarded only Rs.10,000/-. Taking note of the injuries sustained by the petitioner and the period of hospitalisation, I find that the amount awarded under

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MACA No.2391 OF 2016

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the head bystander's expenses is on the lower side. Since the petitioner was in the hospital for 335 days, I re-fix the compensation for bystander's expenses as Rs.1,67,500/- (335 days x 500) and he will be entitled for an amount of Rs.1,57,500/- (1,67,500-10,000) as additional compensation under the said head.

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Towards pain and suffering, the petitioner was

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awarded an amount of Rs.50,000/-. Taking note of the injuries sustained by the petitioner, I re-fix the compensation for the same as Rs.75,000/-. Therefore, an amount of Rs.25,000/- (75,000-50,000) is awarded additionally under the head pain and suffering.

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The Tribunal has awarded Rs.50,000/- each towards loss of amenities, marriage prospects and disfiguration. Since the petitioner was a bachelor aged only 23 years at the time of the accident and taking note of the disability sustained by him, I find that an additional amount of Rs.1,00,000/- can be awarded under the head compensation for loss of amenities.

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MACA No.2391 OF 2016

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The petitioner has been awarded Rs.50,000/under the head anticipated medical expenses. The Tribunal found that the petitioner would require prolonged physiotherapy for his weakness and hip following excision arthroplasty. In Nagappa v. Gurudayal Singh [(2003) 2 SCC 274], the Apex Court observed as follows:

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“23. However, it is to be clearly understood that M.V. Act does not provide for passing of further award after final award is passed. Therefore, in a case where injury to a victim requires periodical medical expenses, fresh award cannot be passed or previous award cannot be reviewed when the medical expenses are incurred after finalization of the compensation proceedings. Hence, only alternative is that at the time of passing of final award, tribunal/court should consider such eventuality and fix compensation accordingly. No one can suggest that it is improper to take into account expenditure genuinely and reasonably

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MACA No.2391 OF 2016

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required to be incurred for future medical expenses. Future medical expenses required to be incurred can be determined only on the basis of fair guesswork after taking into account increase in the cost of medical treatment.”

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Taking note of the nature of the injuries sustained by the petitioner, an additional amount of Rs.25,000/- is

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awarded under the said head.

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Accordingly, the compensation is re-worked as

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follows, for easy reference:-

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Sl. No	Head of claim	Amount Claimed (Rs.)	Amount Awarded (Rs.)	Enhanced amount
1	Loss of earnings	7,50,000	62,500	62,500
2	Transportation expenses	3,00,000	10,000	-
3	Extra nourishment	3,00,000	10,000	-
4	Damages to clothings	5,000	500	-
5	Bystander's Expenses	5,00,000	10,000	1,57,500
6	Medical Expenses	25,00,000	21,32,170	--
7	Pain and suffering	10,00,000	50,000	25,000

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MACA No.2391 OF 2016

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8	Permanent disability	15,00,000	13,50,000	5,40,000
9	Loss of amenities	10,00,000	50,000	1,00,000
10	Loss of earning power	40,00,000	--	-
11	Disfiguration	2,00,000	50,000	-
12	Anticipated medical expenses	10,00,000	50,000	25,000
13	Loss of employment	10,00,000	--	-
14	Future bystander expenses	5,00,000	--	-
15	Loss of marriage prospects	10,00,000	50,000	-
16	Mental dejection	5,00,000	--	-
	Total	1,60,55,000 (limited to Rs.1,00,00,000	38,25,170	9,10,000

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The Tribunal has awarded just and reasonable compensation under other heads.

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In the result, the petitioner will be entitled for an enhanced amount of Rs.9,10,000/- in this appeal. The 3^rd respondent Insurance Company shall deposit the said amount before the Tribunal with 8% interest per annum from the date of the petition till realisation and

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MACA No.2391 OF 2016

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proportionate costs within a period of two months from today. It is made clear that the compensation awarded under the head anticipated medical expenses (future treatment) will carry interest only from the date of the

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award.

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The appeal is disposed of.

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Sd/-

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MURALI PURUSHOTHAMAN JUDGE

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SPR

Ashly Babu v. the Icici Lombard General Insurance

Case brief

What is this about?

What did the court decide?

Ashly Babu v. the Icici Lombard General Insurance

Case brief

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