Allowed

Nidhin v. Gladson K.Varghese

Kerala HC23 Feb 2023MACA/1046/2020

Case brief

AI extract

What is this about?

High Court allowed the victim's appeal partly. Court held Tribunal's notional income figure of Rs.12,000 was fair despite precedent, but enhanced "pain and suffering" compensation to Rs.1.25 lakhs due to grave injuries.

What did the court decide?

Compensation for "pain and suffering" enhanced to Rs.1,25,000/-.

What the court decided

Nidhin Vs Gladson K.Varghese — Medical Negligence | Kerala HC (2023)

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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 DEVAN RAMACHANDRAN

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THURSDAY, THE 23^RD DAY OF FEBRUARY 2023 / 4TH PHALGUNA, 1944

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MACA NO. 1046 OF 2020

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AGAINST THE ORDER/JUDGMENT OPMV 430/2017 OF ADDITIONAL DISTRICT COURT & SESSIONS COURT - III, MANJERI / III

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ADDITIONAL MACT, MANJERI

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APPELLANT/PETITIONER:

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NIDHIN AGED 29 YEARS, S/O NARAYANAN, CHAKKANAMKANDI HOUSE, EDAKKARA.P.O, NILAMBUR TALUK, MALAPPURAM DISTRICT, PIN-679331. BY ADVS. K.M.SATHYANATHA MENON SMT.KAVERY S THAMPI

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RESPONDENTS/RESPONDENTS:

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1 GLADSON K.VARGHESE, S/O VARGHESE KOSHI, KARIKKATTIL HOUSE, VEETTIKUTH, NILAMBUR.P.O, NILAMBUR TALUK, MALAPPURAM DISTRICT, PIN-679329. 2 SALI NAVAS, W/O NAVAS, BASIL BATH, MANAKAMKUZHI.P.O, VETTIYAR, MAVELIKKARA, ALAPPUZHA DISTRICT, PIN-690558. 3 SHRIRAM GENERAL INSURANCE, REPRESENTED BY MANAGER, E-8, RIICO, INDUSTRIAL AREA, BILWA.P.O, SITAPURA, JAIPUR DISTRICT, RAJASTHAN STATE, PIN-302022. BY ADV LINTO FRANCIS

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THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 23.02.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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M.A.C.A.No.1046 of 2020

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: 2 :

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DEVAN RAMACHANDRAN, J. ========================= M.A.C.A.No. 1046 of 2020

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========================== Dated this the 23^rd day of February, 2023

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JUDGMENT

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This appeal, by the victim of a road accident – who suffered grievous injuries when the vehicle in which he was riding as a pillion was hit by the offending vehicle – impugns the Award of the Motor Accidents Claims Tribunal, Manjery (the 'Tribunal' for short), in OP (MV) No. 430/2017, on the ground that the compensation awarded by it is inadequate.

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The appellant, through his learned counsel – Sri.K.M.Sathyanatha Menon, argued that the Tribunal has erred in adopting his notional income and not in awarding sufficient compensation under the head “pain and suffering”. The learned counsel pointed out that the claim made by his client for computation of income was based on Exts.A8 and A8(a), which both justify reckoning of a minimum income of Rs.15,000/- per month; but that same had been discarded by it, without assigning any reason. He then pointed out to the medical evidence on record, to argue that the “pain and suffering” endured by his client should have been compensated much more than Rs.1,00,000/-; and thus prayed that this Court grant a higher figure.

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M.A.C.A.No.1046 of 2020

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: 3 :

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In response, Sri.Linto Francis – learned Standing Counsel for the 3^rd respondent – Insurance Company, submitted that the computation of the Tribunal, in awarding compensation, is just and fair; and thus prayed that this appeal be dismissed. He then argued that, going by Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Ltd. [(2011) 13 SCC 236], the notional income that could have been taken by the Tribunal in favour of the appellant was only Rs.10,500/-, but that it has taken Rs.12,000/-, which is much more than fair.

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I have evaluated the afore submissions, on the touchstone of various materials and evidence on record – copies of which have been handed over across the Bar by the learned counsel for the parties, with the express consent that they can be acted upon by this Court without dispute.

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As I have said above, the two issues raised by the appellant are with respect to the notional income adopted by the Tribunal in his favour and the amount of compensation under the head “pain and suffering”.

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On the first above, I am afraid that I cannot find favour with the appellant because, as rightly argued by the Insurance Company, Ramachandrappa (supra), would have permitted the adoption of only Rs.10,500/- as his notional income. However, the Tribunal has taken Rs.12,000/-, and this is based on the fact that the appellant is an engineering graduate.

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M.A.C.A.No.1046 of 2020

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: 4 :

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That said, Exts.A8 and A8(a) have been allegedly issued by two private companies, but they have not been corroborated by any other evidence, including the oral testimony of the persons who issued the certificates. Further, when the appellant was examined as PW1, he conceded that he was unemployed at the time of the accident and that he had resigned from the entities which had issued Exts.A8 and A8(a). Obviously, the Tribunal could not have accepted the said documents for any reason, and I cannot, therefore, find fault with it in having adopted a figure of Rs.12,000/-, which, in my view, is more than fair.

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That said, the medical evidence on record, particularly Ext.A2 – Wound Certificate, shows that the appellant had suffered the following injuries:

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Complaint of pain right thigh, right leg and right ankle.

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Degloving injury right ankle 100% peroneus longus and peroneus brevis tendon cut.

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1 cm lacerated wound with contamination on the anterior aspect of right leg middle ½ with abnormal mobility, tenderness and crepitus.

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Swelling, abnormal mobility, tenderness and crepitus over right thigh.

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Closed comminuted fracture shaft of femur right mid 1/3^rd .

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Type-II open comminuted fracture both bones right leg.

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M.A.C.A.No.1046 of 2020

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: 5 :

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Comminuted bimalleolar fracture right ankle.

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As also rightly noticed by the Tribunal, Ext.A3 – Discharge

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Summary shows the surgical procedures which the appellant had to undergo, which is as under:

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Primary wound debridement and suturing done under LA on 13.09.2016.

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Closed reamed static ILN femur (11x420 mm) 1 proximal and 2 distal locking.

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Wound debridement and open reamed static ILN tibia (10x360 mm) with 2 proximal and 2 distal locking screws.

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Wound debridement and open reduction and 2K wire fixation for lateral malleolus CMR and 2K wire fixation of medial malleolus and peroneus tendon repair and BK POP cast application done under Epidural anesthesia on 13.09.2016.

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The injuries are certainly very grave, and the procedures were also very time-consuming. I am, therefore, of the firm view that the compensation to the appellant under the head “pain and suffering” requires to be marginally enhanced, which I propose as being Rs.1,25,000/-.

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In the afore circumstances, this appeal is allowed in part, enhancing the compensation under the head “pain and suffering” to Rs.1,25,000/-, from Rs.1,00,000/- as awarded by the Tribunal.

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M.A.C.A.No.1046 of 2020

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: 6 :

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In all other heads, the compensation awarded by the Tribunal will remain unaltered.

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Needless to say, the appellant will be at full liberty to recover the compensation, as enhanced by this Court, from the Insurance Company, along with interest at the rate of 9% as awarded by the Tribunal, from the date of claim until it is recovered. He will also be entitled to proportionate costs, on the enhanced amount, as ordered by the Tribunal.

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Sd/-

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DEVAN RAMACHANDRAN JUDGE

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anm

Nidhin v. Gladson K.Varghese

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Nidhin v. Gladson K.Varghese

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