Allowed

Damodaran E.V. v. New India Assurance Company Ltd., Represented by Its Branch Manager.

Kerala HC14 Feb 2023MACA/171/2023

Case brief

AI extract

What is this about?

The High Court modified the Tribunal award enhancing bystander expenses, pain and sufferings, and permanent disability compensation. It increased the disability percentage to 65%, deleted loss of earnings, fixed notional income at Rs.12,000 and multiplier at 15.

What did the court decide?

The compensation under 'Loss of Earnings' deleted; 'Bystander's Expenses' enhanced to Rs.54,500; 'Pain and Sufferings' enhanced to Rs.1,00,000; 'Continuing or Permanent Disability' revised to Rs.14,04

Damodaran E.V. Vs New India Assurance Company Ltd… — 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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TUESDAY, THE 14TH DAY OF FEBRUARY 2023 / 25TH MAGHA, 1944

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MACA NO. 171 OF 2023

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AGAINST THE AWARD IN OP(MV)NO.130/2020 OF THE MOTOR ACCIDENTS
CLAIMS TRIBUNAL,KASARAGOD

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APPELLANT:

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DAMODARAN E.V.
AGED 42 YEARS
S/O.KUNHAMBU, CHITHARI RAVANESWARAM P.O.,
HOSDURG TALUK, KASARAGOD DISTRICT, PIN - 671316
BY ADV V.N.RAMESAN NAMBISAN

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RESPONDENTS:

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NEW INDIA ASSURANCE COMPANY LTD.,
REPRESENTED BY ITS BRANCH MANAGER,
1ST FLOOR, CITY PLAZA, OPP. LIC OF INDIA,
MARKET JUNCTION, NILESWAR, P.O. NILESWAR,
HOSDURG TALUK, KASARAGOD DISTRICT, PIN - 671316
BY ADV SHRI.LAL K.JOSEPH, SC, NEW INDIA ASSURANCE
COMPANY LTD.

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THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR
HEARING ON 14.02.2023, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:

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MACA NO. 171 OF 2023 2

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JUDGMENT

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This appeal is being disposed of with the consent of both sides, and as required by them, today itself.

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The appellant is the claimant in O.P(MV)No.130 of 2020 on the files of the Motor Accidents Claims Tribunal, Kasaragod (‘Tribunal’ for short); and he impugns its Award dated 24.09.2022, on the ground that the compensation awarded thereunder is exiguous.

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Sri.V.N.Ramesan Nambisan – learned counsel for the appellant, argued that, since the factum of the accident and the nature of the injuries suffered by his client are not contested, the compensation awarded to his client is certainly inadequate, especially because he has suffered greatly on account of the open fracture of the right distal femur bone and the right tibia, as also the metacarpal bones. He submitted that his client also suffered a multi ligamentous injury with right foot drop, and that he was operated thrice for this condition. He says that his client has now been completely immobilized and that he is forced to assisted living, with the help of a third person/bystander.

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Sri.V.N.Ramesan Nambisan, thereafter, argued that the

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Tribunal has erred in adopting the notional income of his client as being Rs.9,500/- only, when there is evidence to show that he was

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MACA NO. 171 OF 2023 3

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drawing Rs.20,000/- per month. He then pointed out that the multiplier adopted by the Tribunal is also in error, since his client was only 40 years at the time of the accident and had to undergo 109 days in hospitalization. He contended that, therefore, the amounts granted as compensation for ‘Bystander’ is totally inadequate; then adding that the disability assessed by the Tribunal - of 52% whole body - is also without any basis, particularly when the Disability Certificate issued by the competent Authority, namely Ext.X1, would establish that he has suffered 86% permanent disability. He thus prayed that the impugned Award, to the extent to which it is assailed, be modified.

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Sri.Lal K.Joseph – learned Standing Counsel appearing for the Insurance Company, on the other hand, submitted that the compensation awarded by the Tribunal is without error; however, conceding that the notional income could have been taken as Rs.12,000/-, going by the judgment of the Hon’ble Supreme Court in Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Ltd. [(2011) 13 SCC 236]; while the multiplier ought to have been 15. He, however, added that since Ext.X1 Medical Certificate has not been issued by a Medical Board, the Tribunal was right in taking 60% of it, to reckon it as the whole body disability. He thus prayed that this appeal be dismissed.

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I have considered the afore rival submissions and have also

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MACA NO. 171 OF 2023 4

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gone through the 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 it can be acted upon by this Court without dispute.

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There is great force in the submissions of Sri.V.N.Ramesan Nambisan that both the notional income taken by the Tribunal and the multiplier adopted are incorrect. This is because, going by Ramachandrappa (Supra), even in the case of a person with an unasertainable income in the year 2019 – when the accident occurred – the minimum notional income to be taken is Rs.12,000/-; while the multiplier for a 40 year old man is 15 as per Sarala Verma v. Delhi Transport Corporation [2010 (2) KLT 802]. To this extent, I certainly find in favour of the appellant.

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That said, coming to the disability, Ext.X1 certainly has not been issued by a Medical Board, but by a competent Doctor. This certificate, marked as a court document, has not been controverted by the Insurance Company, though they take the stand that the permanent disability recorded therein is only in relation to the right lower limb, and not that of the whole body. There is some merit in this because, going by the said Medical Certificate, the certification therein of 86% is certainly with respect to one limb. Obviously, therefore, the Tribunal was obligated to consider its impact and then

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MACA NO. 171 OF 2023 5

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to assess the whole body disability.

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In this regard, when I go through the medical evidence on record, particularly Exts.A4, A4(a) and A9 - Discharge Summaries and Ext.A3 - Wound Certificate, it is incontestable that the appellant suffered, apart from a lacerated wound over his right thigh, open fracture of the right distal femur bone, right tibia bone and the 3^rd and 4^th metacarpal bones. He also suffered from a right knee multi ligamentous injury, with right foot drop; and says that he had to be operated upon in the right knee, as also the right hand; and hence that its mobility has been virtually lost. As I have recorded above, he asserts that he has been reduced to a condition of assisted living and that he is unable to take care of himself, without a bystander/third person.

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The afore facts being uncontroverted and without any assail, I am certainly of the view that the whole body disability adopted by the Tribunal is inadequate, though Ext.X1 is not issued by a competent Medical Board.

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The learned Tribunal adopted the formula of 60% of the percentile shown in Ext.X1, to arrive at 51.6% and has rounded it to 52%, being the whole body disability. However, going by the medical evidence on record, it is clear that the appellant still finds it difficult

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MACA NO. 171 OF 2023 6

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to take care of himself without the assistance of a third person; and therefore, I am of the view that requisites of fair and just compensation would warrant that the whole body disability of the appellant be reckoned as 65%. This certainly is a rough estimate, but am of the opinion that it will be justified taking note of the totality of the evidence on record and the uncontested injuries suffered by the appellant.

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Before I close, I must, however, deal with the contentions of Sri.Lal K.Joseph, that the compensation awarded by the Tribunal under the head ‘Loss of Earnings’ was impermissible, because his dependency has already been compensated. I must say that I find force in this submission, going by United India Insurance Company Ltd. v. Satinder Kaur @ Satwinder Kaur [(2021) 11 SCC 780].

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In the afore circumstances, I allow this appeal in the following manner:

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(a) The compensation awarded by the Tribunal under the head ‘Loss of Earnings’ is deleted.

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(b) The ‘Bystander’s Expenses’ is enhanced to Rs.54,500/-, taking Rs.500 for 109 days, when the appellant was admittedly hospitalized.

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MACA NO. 171 OF 2023 7

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(c) The compensation for ‘Pain and Sufferings’ is enhanced, taking note of the grievous nature of the injuries and the treatment suffered by the appellant, to Rs.1,00,000/- instead of Rs.40,000/- now awarded.

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(d) The compensation for ‘Continuing or Permanent Disability’ is revised to Rs.14,04,000/-, taking the notional income of the appellant to be Rs.12,000/- and multiplier of 15, as per the judgment of the Hon’ble Supreme Court in Sarala Verma (Supra).

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In all other heads, the compensation awarded by the Tribunal; as also its findings 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 8% as awarded by the Tribunal, from the date of claim until it is recovered. He will also be entitled to proportionate cost 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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MC/14.2

Damodaran E.V. v. New India Assurance Company Ltd., Represented by Its Branch Manager.

Case brief

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What did the court decide?

Damodaran E.V. v. New India Assurance Company Ltd., Represented by Its Branch Manager.

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