Kerala High Court
Reetha N vs Abdul Razak on 13 April, 2023
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
THURSDAY, THE 13TH DAY OF APRIL 2023 / 23RD CHAITHRA, 1945
MACA NO. 1549 OF 2019
AGAINST THE AWARD DATED 30.11.2016 IN OPMV 1851/2015 OF MOTOR
ACCIDENT CLAIMS TRIBUNAL ,KOZHIKODE
APPELLANT/PETITIONER (CLAIMANT):
REETHA N.,
AGED 36 YEARS
W/O.KRISHNAN, KIZHAKKUMPADATH HOUSE, PAYYADIMEETHAL P.O.,
PANTHEERANKAVU, KOZHIKODE.
BY ADV NABIL KHADER
RESPONDENTS/RESPONDENTS:
1 ABDUL RAZAK,
S/O.ABOOBACKER, VADAKKE MARADATH HOUSE, P.O.PARAMBIL,
KOZHIKODE - 673 012.
2 FIROZ C.S.,
S/O.ABDULLA, 19 YEARS, ANGADI PARAMBIL HOUSE, THATHOOR,
P.O.PAZHOOR, KOZHIKODE - 673 661.
3 NATIONAL INSURANCE COMPANY LIMITED,
4TH FLOOR, PARCO TOWERS, P.M.TAJ ROAD, KOZHIKODE - 673
001.
BY ADVS.
SRI.P.JERIL BABU
SRI.ABHIJETT LESSLI
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION
ON 13.04.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
MACA NO. 1549 OF 2019
2
JUDGMENT
On 10.02.2015, while the appellant was
walking through a public road, the offending
motorcycle hit her, driven in a rash and
negligent manner by the 2nd respondent. She
sustained very serious injuries and had to be
treated for a long period of time, including as
an inpatient for thirteen days; whereupon, she
filed OP(MV).No.1851/2015 before the Motor
Accidents Claims Tribunal, Kozhikode ('Tribunal'
for short), seeking compensation of an amount of
Rs.5,00,000/-, but which has been allowed only
for a sum of Rs.1,87,666/-. She impugns the
compensation as being exiguous.
2. Sri.Nebil Khader - learned counsel for
the appellant, argued that the primary reason
why the compensation fixed by the Tribunal is
low, is because it adopted the notional income
MACA NO. 1549 OF 2019
of his client to be a mere Rs.5,000/- per month,
when there is clear evidence, in the nature of
Ext.A8 - Salary Certificate, to establish that
he was drawing Rs.10,000/- monthly. He added
that, even though his client had suffered 13
days of hospitalization, she has not been
awarded any amount under the head 'Extra
Nourishment', while, the compensation awarded
under the heads 'Pain and Suffering' and 'Loss
of Amenities' has been fixed to a minimum figure
of Rs.20,000/- and Rs.10,000/- respectively.
3. Sri.Nebil Khader, thereafter, submitted
that the learned Tribunal has erred in granting
only Rs.5,000/- towards 'Future Treatment'
because, consequent to the fracture sustained to
her tibia on account of the accident and because
it was not united initially and an implant having
been necessitated, it remains in situ. He
MACA NO. 1549 OF 2019
pointed out that the documents produced along
with IA No.1/2023, establishes that she would
require at least Rs.5,00,000/- for removal of the
said implant and for "Knee Arthroplasty". He thus
prayed that the compensation awarded by the
Tribunal be enhanced and an amount of
Rs.5,00,000/- mentioned above, be granted as
additional compensation for 'Future Treatment'.
4. Before going on, I must record that when
this matter was listed on 05.04.2023, Sri.Abhijit
Lessli - learned Standing Counsel for the
Insurance Company, sought time to obtain
instructions as to whether the aforementioned
additional documents can be accepted in evidence.
This appeal was thereafter listed on 12.04.2023.
I am, therefore, inferentially guided to the
impression that they have no objection to the new
documents produced by the appellant, along with
MACA NO. 1549 OF 2019
I.A., being accepted. They are hence marked as
Annexure 2.
5. Coming to the adequacy of the notional
income adopted by the learned Tribunal in favour
of the appellant, as I have said above, she
claimed Rs.10,000/- to be her actual income and
tried to substantiate it through Ext.A8 - Salary
Certificate. The learned Tribunal, however, did
not find the said Certificate to be worthy of
credence and hence adopted Rs.5,000/- as her
notional income. I am afraid that I cannot find
favour with this because, in Ramachandrappa v.
Manager, Royal Sundaram Alliance Insurance
Company Limited. [(2011) 13 SCC 236], the Hon'ble
Supreme Court has postulated that, even in the
case of a "Coolie", or a person with
unascertainable income, in the year 2015 - when
the accident occurred - the minimum figure to be
MACA NO. 1549 OF 2019
adopted as notional income ought to be
Rs.10,000/-. Since the amount claimed by the
appellant is the same, I fail to understand why
the learned Tribunal did not accept it.
6. That said, the medical evidence on record
establishes that the appellant had suffered
fracture of her left proximal tibia, along with
other injuries; and that she had to endure open
reduction; internal fixation, along with bone
grafting. It is also without dispute that an
implant has been fixed because the fracture did
not unite as expected. As is also without
contest, the appellant had to be in hospital as
an inpatient for 13 days. The appellant is a lady
who was in charge of her family; and without
doubt, the pain and suffering undergone by her
was sufficiently grave. I am, therefore, left
without doubt that the appellant is entitled to
MACA NO. 1549 OF 2019
be granted necessary compensation under the head
"Extra Nourishment", which I propose to be
Rs.300/- per day; while, the compensation awarded
by the learned Tribunal under the heads "Pain and
Suffering" and "Loss of Amenities" would require
to be marginally enhanced, which I propose to be
Rs.30,000/- and Rs.20,000/- respectively.
7. Finally, qua the compensation for future
treatment, Annexure A2 document produced along
with I.A.No.1/2023 recommends removal of implant
of the appellant and "Knee Arthroplasty"
subsequently. It records the approximate expense
for the said "Staged Procedure" to be
Rs.5,00,000/-. Even though this document is not
being opposed by the Insurance Company, I cannot
grant the entire figure at this stage because
same represents the amount required for implant
removal and Knee Arthroplasty, the latter of
MACA NO. 1549 OF 2019
which procedure has been recommended only in a
future date. I, therefore, propose to award an
amount of Rs.2,00,000/- under this head, in
addition to what has been awarded by the learned
Tribunal, since I am certain that it would be
sufficient for removal of the implant.
In the afore circumstances, this appeal is
partly allowed in the following manner:
a) The compensation under the head
"Disability" is enhanced to Rs.1,92,000/-, from
Rs.96,000/- reckoning the notional income of the
appellant to be Rs.10,000/- per month and her
permanent disability to be 10%, as recorded in
Ext.C1 - Disability Certificate, which remains
undisputed.
b) Consequently, the compensation awarded by
the learned Tribunal under the head "Loss of
Earnings" would stand enhanced to Rs.60,000/-,
MACA NO. 1549 OF 2019
again reckoning the notional income of the
appellant to be Rs.10,000/-, for six months as
correctly reckoned by the learned Tribunal.
c) The compensation under the head "Pain and
Suffering" is enhanced to be Rs.30,000/-, from
Rs.20,000/-, as awarded by the learned Tribunal.
d) The compensation under the head "Loss of
Amenities" will stand enhanced to be Rs.20,000/-,
from Rs.10,000/- as awarded by the learned
Tribunal.
e) The compensation under the head "Future
Treatment" will stand enhanced to Rs.2,00,000/-,
from Rs.5,000/- as awarded by the learned
Tribunal.
f) An amount of Rs.3,900/- is allowed under
the head "Extra Nourishment", reckoning Rs.300/-
per day as expenses for such purpose, for 13 days
MACA NO. 1549 OF 2019
of hospitalisation.
g) In all other heads, the compensation
awarded by the Tribunal and its findings will
remain unaltered.
h) Consequently, the appellant will be
entitled to recover the compensation, as enhanced
by this Court, from the respondent - Insurance
Company, along with interest at the rate of 8%
(modifying the rate of interest of 9% granted by
the Tribunal, in view of the escalation granted
by this Court)from the date of filing of the
claim until it is realised. The appellant
will also be entitled to proportionate costs on
the enhanced amounts as ordered by the Tribunal.
i) However, while calculating the interest,
the period of 728 days - being the delay caused
by the appellant in filing this appeal - shall
stand excluded.
MACA NO. 1549 OF 2019
j) In view of the afore, the amount as
fixed above shall be deposited by the Insurance
Company before the learned Tribunal, within a
period of two months from the date of receipt
of a copy of this judgment.
Sd/-
DEVAN RAMACHANDRAN
JUDGE
lsn/SAS
MACA NO. 1549 OF 2019
APPENDIX OF MACA 1549/2019
PETITIONER'S ANNEXURES
Annexure A1 ORIGINAL COPY OF MEDICAL CERTIFICATE ISSUED TO
PETITIONER DATED 5.9.2018 BY CONSULTANT ORTHO
AND SURGEON
Annexure A2 ORIGINAL COPY OF MEDICAL CERTIFICATE ISSUED TO
PETITIONER DATED.10.3.2023 BY CONSULTANT ORTHO
AND SURGEON
