Kerala High Court
Ashly Babu vs The Icici Lombard General ... on 6 July, 2022
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN
WEDNESDAY, THE 6TH DAY OF JULY 2022 / 15TH ASHADHA, 1944
MACA NO. 2391 OF 2016
AGAINST THE AWARD DATED 21.04.2016 IN OP(M.V) NO.127/2012 ON THE
FILE OF MOTOR ACCIDENT CLAIMS TRIBUNAL, IRINJALAKUDA
APPELLANT/PETITIONER:
ASHLY BABU
AGED 27 YEARS
S/O. SRI. BABU,
ARAKKAL MALAKKARAN HOUSE,
KIZHAKKE CHALAKUDY VILLAGE,
CHALAKUDY P. O., MUKUNDAPURAM TALUK,
THRISSUR DISTRICT.
BY ADVS.
SRI. ANIL S.RAJ
SMT. ANILA PETER
SMT. K.N. RAJANI
SRI. RADHIKA RAJASEKHARAN P.
RESPONDENT/3RD RESPONDENT:
THE ICICI LOMBARD GENERAL INSURANCE CO. LTD.,
MAHALAXMI,
MUMBAI - 400 034.
SRI. R.AJITH KUMAR
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR
ADMISSION ON 06.07.2022, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
MACA No.2391 OF 2016 2
JUDGMENT
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.
2. 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 2nd 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
sustained in the accident.
3. Before the Tribunal, respondents 1, 2 and 4
remained ex-parte. On the side of the petitioner, PWs 1
to 3 were examined and Exts.A1 to A24 documents were
marked. The 3rd 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.
4. The Tribunal found that the accident happened
due to the rash and negligent driving of the car by the
2nd 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.
5. The Tribunal awarded compensation under
various heads as follows:-
Sl. Head of claim Amount Amount Basis vital
No Claimed Awarded details in a
(Rs.) (Rs.) nut shell
1 Loss of earnings 7,50,000 62,500 (Rs.12500x5
months)
2 Transportation 3,00,000 10,000
expenses
3 Extra 3,00,000 10,000
nourishment
4 Damage to 5,000 500
clothings
5 Bystander's 5,00,000 10,000
Expenses
6 Medical Expenses 25,00,000 21,32,170
7 Pain and suffering 10,00,000 50,000
8 Permanent 15,00,000 13,50,000 (1,50,000x18
disability x50%)
9 Loss of amenities 10,00,000 50,000
10 Loss of earning 40,00,000 --
power
11 Disfiguration 2,00,000 50,000
12 Anticipated 10,00,000 50,000
medical expenses
13 Loss of 10,00,000 --
employment
14 Future bystander 5,00,000 --
expenses
15 Loss of marriage 10,00,000 50,000
prospects
16 Mental dejection 5,00,000 --
Total 1,60,55,000 38,25,170 Rs.38,25,170
(limited to along with
Rs.1,00,00,000 interest 8%
p.a from
23.02.2012
till realisation
6. Aggrieved by the amount of compensation
awarded by the Tribunal, the petitioner has preferred
this appeal.
7. Exts.A3 and A21 wound certificates produced
by the petitioner would show that he sustained the
following injuries:-
"1. Large laceration involving eye brows and
eyes.
2. Large scalp laceration
3. Swelling (L) wrist joint
4. Diffuse sub arachanoid heamorrhage
5. Diffuse brain oedema.
6. Left side periorbital oedema
7.Multiple abrasion on the face, back and
exrteometus
8. Fracture of (L) zygoma
9. Fracture of (L) clavicle."
8. Ext.A4 is the discharge summary issued from
the Medical Trust Hospital, Ernakulam during the period
2011 - 2015. As per the same, the petitioner
underwent (R) FTP decompressive craniectomy and
evacuation of hygroma with placement of bone flap in
abdominal layers on 08.10.2011. Wound debridement
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.
9. 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, 20-08-
2012 to 19-10-2012 and from 02-08-2013 to 28-08-
2013 for rehabilitation of traumatic brain injury and
myosistis osificans of hip joint. He was treated with
rehabilitative measures including physiotherapy and
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 15-
07-2015 and discharged on 17-07-2015 to rule out
septic arthritis of right hip joint.
10. 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
Exts.A19 and A20 certificates, the Tribunal took the
disability of the petitioner as 50% for the purpose of
assessment of compensation.
11. 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.
12. 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
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
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 re-
fixed 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.
13. 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
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.
14. Towards pain and suffering, the petitioner was
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.
15. 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.
16. 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:
"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
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."
Taking note of the nature of the injuries sustained by
the petitioner, an additional amount of Rs.25,000/- is
awarded under the said head.
17. Accordingly, the compensation is re-worked as
follows, for easy reference:-
Sl. Head of claim Amount Amount Enhanced
No Claimed Awarded amount
(Rs.) (Rs.)
1 Loss of earnings 7,50,000 62,500 62,500
2 Transportation 3,00,000 10,000 -
expenses
3 Extra 3,00,000 10,000 -
nourishment
4 Damages to 5,000 500 -
clothings
5 Bystander's 5,00,000 10,000 1,57,500
Expenses
6 Medical 25,00,000 21,32,170 --
Expenses
7 Pain and 10,00,000 50,000 25,000
suffering
8 Permanent 15,00,000 13,50,000 5,40,000
disability
9 Loss of amenities 10,00,000 50,000 1,00,000
10 Loss of earning 40,00,000 -- -
power
11 Disfiguration 2,00,000 50,000 -
12 Anticipated 10,00,000 50,000 25,000
medical
expenses
13 Loss of 10,00,000 -- -
employment
14 Future bystander 5,00,000 -- -
expenses
15 Loss of marriage 10,00,000 50,000 -
prospects
16 Mental dejection 5,00,000 -- -
Total 1,60,55,000 38,25,170 9,10,000
(limited to
Rs.1,00,00,000
18. The Tribunal has awarded just and reasonable
compensation under other heads.
In the result, the petitioner will be entitled for an
enhanced amount of Rs.9,10,000/- in this appeal. The
3rd 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
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
award.
The appeal is disposed of.
Sd/-
MURALI PURUSHOTHAMAN
JUDGE
SPR
