Partly allowed

Reliance General Insurance Co. Ltd., v. Musthafa

Kerala HC8 Feb 2023MACA/276/2019

Case brief

AI extract

What is this about?

High Court enhanced compensation for a motor accident victim. Court upheld the notional income and disability percentage but increased awards for pain and suffering, loss of amenities, and future earning due to inadequate assessment and extended treatment needs.

What did the court decide?

Enhanced compensation to Rs. 24,20,602 including increased heads for pain, amenities, earning, and medical bills.

Reliance General Insurance Co. Ltd., Vs Musthafa — Medical Negligence | Kerala HC (2023)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶2

PRESENT

¶3

THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN

¶4

WEDNESDAY, THE 8TH DAY OF FEBRUARY 2023 / 19TH MAGHA, 1944

¶5

MACA NO. 276 OF 2019

¶6

(AGAINST THE AWARD DATED 24/9/2018 PASSED IN OP(MV)NO.554/2016 ON
THE FILE OF THE HON’BLE MOTOR ACCIDENTS CLAIMS TRIBUNAL, KALPETTA)

¶7

APPELLANT/2ND RESPONDENT:

¶8

RELIANCE GENERAL INSURANCE CO. LTD.,
2ND FLOOR, CITADEL ARCADE, R.C. ROAD,
KOZHIKODE-673 001, REP. BY ITS LEGAL CLAIMS MANAGER,
RELIANCE GENERAL INSURANCE CO. LTD. ERNAKULAM.

¶9

BY ADV R.AJITH KUMAR (128/84)

¶10

RESPONDENT/CLAIMANT:

¶11

MUSTHAFA, AGED 37 YEARS,
S/O. SOOPPY, KANHIROLI HOUSE,
PADINHARATHARA POST AND VILLAGE,
VYTHIRI TALUK, WAYANAD DISTRICT-673 575.

¶12

BY ADV SMT.CELINE JOSEPH

¶13

THIS MACA HAVING COME UP FOR ADMISSION ON 08.02.2023, ALONG
WITH CO.51/2020, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:

¶14

MACA No.276/2019 & C.O.No.51/2020

¶15

-2-

¶16

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶17

PRESENT

¶18

THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN

¶19

WEDNESDAY, THE 8TH DAY OF FEBRUARY 2023 / 19TH MAGHA,

¶20

¶21

CO NO. 51 OF 2020

¶22

(AGAINST THE AWARD DATED 24/9/2018 PASSED IN
OP(MV)NO.554/2016 OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL,

¶23

KALPETTA, WAYANAD)

¶24

CROSS APPELLANT/ RESPONDENT:

¶25

MUSTHAFA, AGED 37 YEARS,
S/O. SOOPPY, KANHIROLI HOUSE,
PADINHARATHARA POST,
VYTHIRI TALUK, WAYANAD DISTRICT-673 575.
BY ADV CELINE JOSEPH

¶26

RESPONDENT/APPELLANT:

¶27

RELIANCE GENERAL INSURANCE CO. LTD.,
2ND FLOOR, CITADEL ARCADE, R.C. ROAD,
KOZHIKODE-673 001.

¶28

BY ADV R.AJITH KUMAR (128/84)

¶29

THIS CROSS OBJECTION/CROSS APPEAL HAVING COME UP
FOR ADMISSION ON 08.02.2023, ALONG WITH MACA.276/2019,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

¶30

MACA No.276/2019 & C.O.No.51/2020

¶31

-3-

¶32

JUDGMENT

¶33

[MACA No.276/2019, C.O.No.51/2020]

¶34

The Reliance General Insurance Company

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Limited (‘Insurance Company’, for short), which

¶36

was the 2nd respondent in OP(MV)No.554/2016 on

¶37

the files of the Motor Accidents Claims

¶38

Tribunal, Wayanad, Kalpetta (‘Tribunal’, for
short), impugns the Award issued in favour of
the claimant - Sri.Musthafa, asserting that the
compensation granted is excessive; while so,
Sri.Musthafa has filed C.O.No.51/2020 assailing

¶39

the same on the ground that larger sums ought to
have been given to him as compensation for the
road accident suffered by him on 01.10.2015,
which crippled him.

¶40

2.I have heard Sri.R.Ajith Kumar Varma –
learned counsel appearing for the appellant and
Smt.Celine Joseph for cross objector.

¶41

3.Sri.R.Ajith Kumar Varma – learned

¶42

MACA No.276/2019 & C.O.No.51/2020

¶43

-4-

¶44

counsel for the appellant, vehemently argued

¶45

that the reckoning of Rs.10,000/- as the

¶46

notional income of Sri.Musthafa by the Tribunal
was wrong; while the compensation granted for

¶47

“Loss of Future Earning”, reckoning 56% as his
permanent disability, was also in error. He
further added that adoption of 40% towards
future prospects in favour of the claimant by

¶48

the Tribunal was impermissible; while, no
amounts could have been given under the heads
“Pain and Suffering” and “Loss of Amenities”.

¶49

4.Per contra, Smt.Celine Joseph appearing

¶50

for the Cross Objector, submitted that her

¶51

client was a headload worker - being a skilled

¶52

avocation - at the time of the accident and
therefore, was entitled to much higher notional

¶53

income than Rs.10,000/-. She supported the

¶54

decision of the Tribunal in having added 40% as

¶55

future prospects; and then took me through the

¶56

MACA No.276/2019 & C.O.No.51/2020

¶57

medical evidence on record to show that her

¶58

client had suffered very grievous injuries, thus
being entitled to much larger amounts under the
heads “Pain and Suffering” and “Loss of

¶59

Amenities”.

¶60

5.Smt.Celine Joseph then further submitted
that, going by the injuries sustained by her
client, it was improper for the Tribunal to have
confined the “Loss of Future Earning” to eight
months and that it should have been a minimum of
12 months.

¶61

6.I have considered the afore submissions

¶62

and have also examined the evidence on record.

¶63

disputed; nor that the Cross Objector has

¶64

suffered injuries, as disclosed by the medical
evidence available.

¶65

Rs.10,000/- to be notional income of the Cross

¶66

MACA No.276/2019 & C.O.No.51/2020

¶67

-6-

¶68

Objector, being guided by the judgment of the
Hon’ble Supreme Court inRamachandrappa v.

¶69

Manager, Royal Sundaram Alliance Insurance
Company Ltd.[(2011) 13 SCC 236], which

¶70

standardizes the income to be adopted in the
case of a person whose income is otherwise
unascertainable in the year 2015 to be such. Of

¶71

course, in Rajani v. Oriental Insurance Company
Limited [2022 (5) KLT OnLine 1012 (SC)], the
Hon’ble Supreme Court has further declared that,
in the case of skilled employees, a robust view
ought to be taken and therefore, that the figure
can be reasonably enhanced. However, in the case
at hand, except for Sri.Musthafa saying that he

¶72

is a headload worker, he does not establish it
as a skilled avocation.

¶73

9.I am, therefore, of the firm view that

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the Tribunal has not erred in adopting notional

¶75

income of the Cross Objector as being

¶76

MACA No.276/2019 & C.O.No.51/2020

¶77

-7-

¶78

Rs.10,000/- per month, being guided by

¶79

Ramachandrappa (supra).

¶80

10.That being so said, I am also in favour
of the conclusion of the learned Tribunal that

¶81

40% future prospects had to be added to the
notional income, because the medical evidence on
record shows how seriously the Cross Objector

¶82

was injured; and that he was disabled
permanently to the extent of 56% - which, of
course, is now disputed. In any event, grant of
future prospects at the rate of 40% can never be
found to be unjustified, and it is, therefore,
confirmed.

¶83

11.As far as the disability of the Cross

¶84

Objector is concerned, Ext.A5 - accident
register-cum-wound certificate details his
injuries being “FRACTURE BOTH BONES RIGHT LEG;

¶85

FRACTURERIGHTPATELLA;OPENFRACTURE
DISLOCATION RIGHT KNEE JOINT and HEEL PAD

¶86

MACA No.276/2019 & C.O.No.51/2020

¶87

-8-

¶88

AVULSION RIGHT.” Added to this, Ext.A7 Discharge
Summary shows that he was hospitalized for over
12 days and the final diagnosis of the hospital
records as under:

¶89

“FRACTURE DISLOCATION RIGHT KNEE OPEN TYPE
III A; FRACTURE BOTH BONES RIGHT LEG SEGMENTAL
OPEN TYPE III B; HEEL FLAP INJURY RIGHT and

¶90

FRACTURE PATELLA RIGHT OPEN.”

¶91

12.There are other Discharge Certificates,
namely Exts.A10 series, which show that he was
again hospitalized for a continuous period of 36

¶92

days, where again, the diagnosis recorded is as
under:

¶93

“WOUND DEBRIDEMENT AND VAC APPLICATION

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(RIGHT) KNEE OPEN TYPE IIIA, FRACTURE BOTH BONES
RIGHT LEG SEGMENTAL OPEN TYPE III B, HEEL FLAP
INJURY RIGHT and FRACTURE PATELLA RIGHT OPEN.”

¶95

13.The Tribunal has, thereafter, noticed

¶96

that, in Exts.A10(a), A10(b), A10(c), A10(d) and

¶97

MACA No.276/2019 & C.O.No.51/2020

¶98

-9-

¶99

A10 (e) series of Discharge Certificates, the

¶100

Cross Objector had to undergo further
hospitalization and the opinion of the hospitals
was also recorded therein, which is in
conformity with the earlier ones; all showing
the horrendous nature of the aftermath of the
injuries.

¶101

14.In fact, Exts.A10 series – Discharge

¶102

Summaries, record that his tibia has not been
yet properly joined, in spite of an implant;
while Ext.A13 series photographs graphically
project the injuries sustained to him.

¶103

15.The Disability Certificate produced by
the Cross Objector, namely Ext.C1, records his
disability to be 56%, which has been accepted by
the Tribunal in its full. However, Smt.Celine
Joseph argues that, even though this is the
whole disability, the functional disability is
much higher, since her client would be unable to

¶104

MACA No.276/2019 & C.O.No.51/2020

¶105

continue with the avocation of being a headload
worker.

¶106

16.Though this Court certainly has empathy

¶107

for the trauma undergone by the Cross Objector,

¶108

I cannot find myself to agree with the
submissions of Smt.Celine Joseph, that his
disability should be reckoned to be more than

¶109

56%, or different to what has been recorded in
Ext.C1 Certificate. This is because, the binding
precedents of the Hon’ble Supreme Court are to
the effect that unless the injured is able to
show that he is incapacitated from doing any
other avocation, not merely the one in which he

¶110

is presently engaged in, the disability

¶111

percentile will have to follow the opinion of
the experts and cannot be left to judicial
interpretation.

¶112

17.In this case, as I have already stated

¶113

above, Ext.C1 unequivocally records that the

¶114

MACA No.276/2019 & C.O.No.51/2020

¶115

Cross Objector’s whole body disability is 56%,

¶116

and since the Tribunal has adopted it, I cannot
find any error in it.

¶117

18.However, taking note of the afore and

¶118

particularly the nature of the injuries and its

¶119

aftermath - leading to several days of
hospitalization, treatment and even continued

¶120

treatment - I am certain that the amounts

¶121

granted by the Tribunal under the heads “Pain
and Suffering” and “Loss of Amenities” are

¶122

woefully inadequate.

¶123

19.I, therefore, propose to enhance the

¶124

compensation under the head “Pain and Suffering”
to Rs.2,00,000/- from Rs.25,000/-; and under the
head “Loss of Amenities” to Rs.1,50,000/-, from
Rs.25,000/- now awarded.

¶125

20.Finally, as far as the claims of the

¶126

Cross Objector, for “Loss of Earning” for a

¶127

period of 12 months is concerned, I certainly

¶128

MACA No.276/2019 & C.O.No.51/2020

¶129

-12-

¶130

find favour with him for the same reason as have

¶131

said above, because he had to undergo continued
treatment for a very very long period of time,
which, even by a rough estimate, would justify
one year, if not more.

¶132

21.In other respects, however, I do not

¶133

think that the findings of the Tribunal requires
to be modified.

¶134

22.That said, the Cross Objector has

¶135

produced on record bills of medical treatment
worth Rs.1,09,000/-, along with his Cross
Objections; and a further set of bills for
Rs.39,575/-, along with I.A.No.1/2020. Since
Insurance Company does not oppose these bills,
nor any tenable argument impelled why this Court
should not accept it, I am certain that the
amounts incurred by the Cross Objector for his
further treatment is entitled to be granted to
him additionally. Thus, a total amount of

¶136

MACA No.276/2019 & C.O.No.51/2020

¶137

Rs.1,48,575/- would also be entitled to him, in

¶138

addition to the afore compensation.

¶139

Resultantly,

¶140

compensation under the head “Pain and Suffering”

¶141

in favour of the Cross Objector as
Rs.2,00,000/-; and under the head “Loss of

¶142

Amenities” as Rs.1,50,000/-; with an additional
amount of Rs.1,48,575 being entitled to him
towards further expenses for treatment.
Additionally, the compensation under the “Loss

¶143

ofEarning”wouldstandrevisedto
Rs.1,20,000/-, instead of Rs.80,000/- now

¶144

granted by the Tribunal; thus enhancing the

¶145

total compensation to be Rs.24,20,602/-, instead

¶146

of Rs.20,30,027/-, as ordered by the Tribunal.

¶147

Needless to say, apart from the afore heads,

¶148

the findings of the Tribunal in others will

¶149

MACA No.276/2019 & C.O.No.51/2020

¶150

stand confirmed.

¶151

The Cross Objector will be entitled to

¶152

recover the compensation, as enhanced by this
Court, from the Insurance Company, along with

¶153

interest at the rate 8% per annum from the date
of his claim until it is realized. He will also
be entitled to proportionate cost on the
enhanced amount as ordered by the Tribunal

¶154

before it.

¶155

Sd/-

¶156

DEVAN RAMACHANDRAN

¶157

JUDGE

¶158

akv

¶159

MACA No.276/2019 & C.O.No.51/2020

¶160

-15-

¶161

APPENDIX IN C.O.NO.51/2020

¶162

CROSS APPELLANT’S ANNEXURES

¶163

ANNEXURE A1 TO A46TRUE COPY OF THE MEDICAL BILLS
SUBMITTED BY THE PETITIONER.

¶164

ANNEXURES B1 TO B9TRUE COPY OF THE TRIP SHEETS.

¶165

ANNEXURES C1 TO C4TRUE COPY OF THE PHOTOGRAPHS SHOWING
THE CONDITION AND THE NATURE OF
INJURIES SUSTAINED BY ME IN THE
ACCIDENT.

¶166

ANNEXURES DTRUE COPY OF THE DISCHARGE SUMMARY
DATED 11.01.2019 ISSUED FROM RAJENDRA
HOSPITAL, KOZHIKODE.

¶167

ANNEXURES ETRUE COPY OF THE MEDICAL CERTIFICATE
DATED 31.12.2019.

¶168

ANNEXURES IN I.A.NO.1/2022

¶169

`ANNEXURE`	`A1` `TRUE` `ISSUE`	`COPI` `D TO`	`ES` `THE`	`OF` `PETI`	`THE MEDICAL BILLS` `TIONER.`
`ANNEXURE`	`A2` `TRUE`	`COP`	`IES`	`OF`	`THE BILLS FOR`
	`TRAVE` `PETIT`	`LLING` `IONER`	`E` `.`	`XPENS`	`ES ISSUED TO THE`
`ANNEXURE`	`A3` `TRUE`	`COPY`	`OF`	`THE`	`MEDICAL CERTIFICATE`
	`DATED` `HOSPI`	`16.` `TAL.`	`09.`	`2021`	`ISSUED FROM THE`
`ANNEXURE`	`A4` `TRUE` `31.07`	`COPY` `.2021`	`OF` `IS`	`THE` `SUED`	`PRESCRIPTION DATED` `FROM HOSPITAL.`

Reliance General Insurance Co. Ltd., v. Musthafa

Case brief

What is this about?

What did the court decide?

Reliance General Insurance Co. Ltd., v. Musthafa

Case brief

What is this about?

What did the court decide?

What the court decided

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