Abdul Rahim @ Abdul Rahuman v. Sharufudeen, Hussain and Oriental Insurance Company Limited

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE T.R.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH MONDAY, THE 22ND DAY OF JUNE 2015/1ST ASHADHA, 1937 MACA.No. 546 of 2005 ( ) ------------------------- AGAINST THE AWARD IN OPMV 132/2001 of M.A.C.T.,NEYYATTINKARA DATED 1405-2004 APPELLANT(S)APPLICANT:: ------------------------------------------------------------------ ABDUL RAHIM @ ABDUL RAHUMAN S/O. LATE ABUBACKER, VAVUVILAKOM HOUSE SHARAFUDEEN MANZIL, VIZHINJAM P.O., TRIVANDRUM BY ADVS.SRI.NAGARAJ NARAYANAN SRI.N.NARAYANAN NAIR SRI.NAIR AJAY KRISHNAN SRI.SAIJO HASSAN SRI.SABU SREEDHARAN SRI.A.G.GIRISH KUMAR RESPONDENT(S):RESPONDENTS ---------------------------- 1. SHARUFUDEEN VIZHINJAM P.O., THIRUVANANTHAPURAM. (DELETED) 2. HUSSAIN, SAJID MAHAL, T.C.48/1165, NEAR PUTHENPALLY, POONTHURA P.O., THIRUVANANTHAPURAM.(DELETED) 3. M/S. ORIENTAL INSURANCE COMPANY LIMITED DIVISIONAL OFFICE NO.1, THAKARAPARAMBU ROAD PAZHAVANGADI, TRIVANDRUM. R1 DELETED FROM THE PARTY ARRAY AS PER ORDER DT.11.6.2015 R2 DELETED FROM THE PARTY ARRAY AS PER ORDER IN IA 514/2013 DT.22.2.2013) R,R3 BY ADV. SRI.MATHEWS JACOB (SR.) R,R3 BY ADV. SRI.P.JACOB MATHEW THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 22-06-2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **T.R. RAMACHANDRAN NAIR & K.P. JYOTHINDRANATH, JJ.** **- - - - - - - - - - - - - - - - - - - - - - - - -** ## **M.A.C.A.No.546 of 2005** **- - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 22[nd] day of June, 2015** ## **JUDGMENT** ## **Ramachandran Nair, J.** In an accident occurred on 9.7.2001 the appellant suffered serious injuries. the appellant was a driver by profession and he was walking along Alappuzha - Kayamkulam National Highway. Near Iravukkadu Mosque he was knocked down by a car bearing Reg. No.KL-01-P-8555. 2. Mainly it is a case where the appellant is aggrieved by the quantum of compensation. As against the total compensation of Rs.5 Lakhs, an amount of Rs.1,11,850/- has been granted. It is submitted that the same is not commensurate with the seriousness of the injuries, the disability including functional disability of the appellant and the non grant of amounts under various other heads. 3. Heard learned Counsel for the appellant and learned Senior Counsel for the insurance company. MACA 546/2005 2 4. The policy is admitted and the insurance company has been fastened with the liability to pay the amount also. Learned Counsel for the appellant, based on Exts.A10 and A11, contended that the functional disability as far as the appellant is concerned, will be total (100%). It is submitted that he was aged only 40 years at the time of accident and was working as a driver. Due to the accident he has sustained absolute hearing loss of both ears. There were multiple injuries which have affected his limb movements including legs also. It is submitted that the Medical Board has assessed the partial permanent disability at 85% but these aspects have not been properly considered by the Tribunal. On the monthly income fixed by the Tribunal also, arguments have been raised by both sides. 5. The appellant, evidently, was a driver by profession and therefore since the accident occurred in the year 2001, it will be reasonable to fix the monthly income at Rs.3,500/-. He was aged 40 years at the time of accident and therefore the correct multiplier, going MACA 546/2005 3 by the dictum laid down in **Sarla Verma v. Delhi Transport Corporation** (2010 (2) KLT 802 - SC), will be 15. 6. One of the aspects pointed out by the learned counsel for the appellant is the inadequacy of the amount granted towards compensation for pain and suffering. It is submitted that the appellant had sustained head injury with multiple fractures of facial bones on both sides and fracture of both bones of right leg. He was treated in Medical College Hospitals at Alappuzha and Thiruvananthapuram. Ext.A10 medical certificate shows that emergency endotracheal intubation was done and he was admitted in Neurosurgery unit. Orthopaedic, ENT and Ophthalmology consultation were also done. It is recorded therein that he was referred to Medical College Hospital, Thiruvananthapuram on 24.7.2001 for further management. In the Medical College Hospital, ender nailing and bone grafting was done for fracture tibia, on 6.8.2001. He was advised to have hearing aid for deafness and below knee walking cast was given on 6.11.2001 and that MACA 546/2005 4 the plaster was removed on 18.12.2001. The total period of treatment as inpatient is 38 days, i.e. from 9/7/2001 to 24/7/2001 (at Alappuzha) and from 24.7.2001 to 15.8.2001 (at Thiruvananthapuram). In view of the procedures undertaken for treating him, it is evident that he is entitled for enhancement in compensation for pain and suffering. We fix an amount of Rs.50,000/- in total since it is pointed out that even after inpatient treatment, he continued his treatment as outpatient. 7. As far as compensation for permanent disability is concerned, learned counsel for the appellant submitted that the disability can be fixed at a higher percentage. Learned Senior counsel for the insurance company submitted that going by Ext.A10 certificate of the doctor the disability is only 16%. But going by Ext.A11 certificate issued by the Medical Board, it has been stated that he has got total deafness of both ears and the partial permanent disability is calculated at 85%. Evidently, being a driver, he will not be able to perform his function. Apart from the same, in Ext.A10 the following difficulties have also MACA 546/2005 5 been noticed: “The fracture has united with implants in situ. Surgical scars over right leg and left iliac crest. There is lateral angulation of 10 at lower 1/3 of leg. Grade II lateral ligament laxity of right knee. Knee flexion 100 . Available range of painful due to early osteoarthrities of the knee. No dorsiflexation or right ankle from 90 . Plantar flexion limited by 10 . Available range of movement painful due to early osteoarthritis. Waisting of 3cm of calf and 3 cm of thigh movements. Sensory dulling on dorsum of right foot. Occasional oedema of right ankle Pain over scar over right iliac crest Difficulty in squatting. Not able to lift weight. Not ale to drive vehicles. Pain on prolonged walking Scar on upper lip. Pain on facial skeletan Loss of three teeth in upper jaw Hearing loss on both sides. Occasional headache. MACA 546/2005 6 It is therefore only proper to fix functional disability as 50%. Therefore, the compensation for permanent disability will be Rs.3,15,000/- (3500 x 12 x 15 x 50/100). 8. As far as loss of enjoyment and amenities in life is concerned, it is submitted by the learned counsel for the appellant that the appellant is entitled for a higher amount which we accept. He will have to lead a life with hearing incapacity which will deprive him the normal pleasures of life and it will affect his enjoyment and amenities in life also. Therefore, we fix an amount of Rs.50,000/- under this head. Accordingly, we recompute the compensation in the following ## manner: |**_Head of claim_**|**_Amount awarded by_**<br>**_the Tribunal_**|**_Modified award_**<br>**_passed by this Court_**| |---|---|---| |Pain and suffering|20000|50000| |Expenses for bystander||38 x 150 = 5700| |Extra nourishment||3500| |Loss of earnings|12000|21000| |Medical expenses|10000|10000| |Damage to clothing|250|500| |Transportation charges|2000|2000| MACA 546/2005 7 |**_Head of claim_**|**_Amount awarded by_**<br>**_the Tribunal_**|**_Modified award_**<br>**_passed by this Court_**| |---|---|---| |Permanent disability|57600|315000| |Loss of amenities &<br>enjoyment in life|10000|50000| |||457700| (Rupees Four lakhs fifty-seven thousand and seven hundred only) (The enhanced amount of compensation will carry interest at 9% per annum from the date of petition and the insurance company is directed to deposit the entire amount of compensation with interest, less the amount already deposited, within a period of three months. The appellant is permitted to withdraw the same also, on such deposit being made. The appeal is allowed as above. The parties will suffer their costs in the appeal. ## **(T.R. RAMACHANDRAN NAIR, JUDGE.)** ## **(K.P. JYOTHINDRANATH,, JUDGE.)** ## **kav/**