Anishkumar A.K. v. Mohammadali and The Manager, National Insurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** ## **WEDNESDAY,THE 31ST DAY OF OCTOBER 2018 / 2ND KARTHIKA, 1940** ## **MACA.No. 402 of 2009** **AGAINST THE AWARD IN OPMV 495/2004 of MACT, IRINJALAKUDA DATED** **19-09-2008** ## **APPELLANT/S:** **ANISHKUMAR A.K., S/O. KUNJANDI, ALUMPARAMBIL HOUSE, VELLANGALLUR P.O., IRINJALAKUDA, THRISSUR DIST.** **BY ADV. SRI.N.KRISHNANKUTTY PILLAI** ## **RESPONDENT/S:** **1 MOHAMMADALI, S/O. BAVAKUTTY, AYYARIL THAICHALIL HOUSE, PRE-BAZAR DESOM, ERIYAD, KODUNGALLUR, THRISSUR DIST. 2 THE MANAGER, NATIONAL INSURANCE CO. LTD., P.B. NO. 25, MUNICIPAL SHOPPING COMPLEX, MAIN ROAD, NORTH PARAVOOR BRANCH, ERNAKULAM DIST.** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 31.10.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** M.A.C.A.402/2009 2 ## **J U D G M E N T** The petitioner was riding pillion in a bike, which was hit by a car, in which accident he suffered injuries. The accident occurred on 02.01.2004. The negligence was found on the car driver. The appellant claims enhancement of the compensation granted. 2. The appellant claimed to be working abroad when he was injured. No evidence was adduced as to the employment abroad. The passport alone was placed on record, which is Annexure-A11. The passport produced at Annexure-A11 shows that petitioner had returned to the country on 11.09.2003. The accident occurred on 02.01.2004 after about four months. Hence, it cannot be said that at the relevant time of the accident the claimant was employed abroad. There was some certificate produced, which was refused to be marked for the reason that there is no proof. The learned counsel for the appellant handed over the document, which was refused to be marked, which is dated 10.10.2003. In the said document it is certified that the appellant was working M.A.C.A.402/2009 3 with the establishment from 10.02.2000 to 09.09.2003. However, it has been specifically stated that he had left the organisation. In such circumstance, the income cannot be computed on the basis of his foreign employment, which stood not proved. However, the petitioner is said to be a structural welder. The accident occurred in the year 2004. The Tribunal adopted only 2,000/- as monthly₹ income. Appellant did not even been produce the certificate, which could prove his qualification to work as a structural welder, a skilled worker. In such circumstances, there cannot be a monthly income adopted as claimed by the appellant @ 80,000/-. However, the Honourable Supreme Court of India in **Ramachandrappa v.** ## **Manager, Royal Sundaram Alliance Insurance Co.Ltd.** **[(2011) 13 SCC 236]** had adopted a monthly income of ₹4,500/- for a coolie. Hence, in an accident which occurred in the same year the monthly income can be safely adopted as 4,500/-.₹ 3. Petitioner was hospitalised for 57 days and suffered the following injuries: “Ext.A5 is the discharge summary issued to the petitioner, containing the details of M.A.C.A.402/2009 4 the treatment. He was diagnosed as a case crush injury over the right leg and thigh and fracture of femur with vascular injury, hyper tension and as part of treatment amputation of the right leg above the knee was done. Amputation was required because the wounds were grossly contaminated, the muscles were ruptured badly, and in spite of effective treatment the petitioner's condition deteriorated. As there was partial necrosis of skin and muscles over the posterior aspect of the stump revision amputation was done on 15.01.2004.” 4. The petitioner was also hospitalised for a total of 57 days and had suffered amputation of his right leg above the knee. The petitioner had also procured a disability certificate as produced at Ext.A7, which found the disability at 55%. The Tribunal however, adopted 60% as functional disability, considering the amputation effected as also the rates prescribed under the Workmen's Compensation Act. The appellant claims that he being a structural welder there is 100% functional disability, in so far as he would not be able to climb to carry on the welding operations from a hight. However, it has to be noticed that the appellant could not offer any proof of M.A.C.A.402/2009 5 his qualification to prove his capacity to carry on a skilled employment. Moreover he had obtained an artificial limb and he is now mobile on the said artificial limb. Compensation was granted for the expenses in procuring the said artificial limb. In such circumstances, it cannot be said that there is 100% functional disability and this Court is convinced that the disability has to be fixed at 60% as adopted by the Tribunal. Petitioner was aged 44 years and the multiplier applied was 15. However, going by the dictum laid down by the Honourable Supreme Court of India in **Sarla Varma v. Delhi Transport Corporation [2010 (2) KLT 802 (SC)]** , the multiplier to be adopted for injured aged between 41 to 45 is 14. Considering the amputation there should also be an addition of 25% to the monthly income for future prospects, the petitioner being not employed regularly. 5. The appellant also claims compensation for changing the artificial limb once in two or three years. The Honourable Supreme Court in **Nagappa v. Gurudayal Singh [2003 (1) KLT 115 (SC)]** has found so in paragraph 28, which is extracted herein below: “28. In this view of the matter, in our M.A.C.A.402/2009 6 view, it would be difficult to hold that for future medical expenses which are required to be incurred by a victim, fresh award could be passed. However, for such medical treatment, court has to arrive at a reasonable estimate on the basis of the evidence brought on record. In the present case, it has been pointed out that for replacing the artificial leg every two to three years, appellant would be required to have some sort of operation and also change the artificial leg. At that time, the estimated expenses for this were Rs.18,000/- and the High Court has awarded the said amount. For change of artificial leg every two or three years no compensation is awarded. Considering this aspect, if Rs. one lac is awarded as an additional compensation, appellant would be in a position to meet the said expenses from the interest of the said amount. Equally it is true that the said amount is required to be properly invested on long term basis so that recurring medical expenses could be met. This principle is established in _General Manager, Kerala State Road Transport Corporation, Trivandrum v. Susamma Thomas (Mrs.) and Ors._ (1994 (1) KIT 67 : (1994) 2 SCC 176) and this Court held (in para 23) thus:- M.A.C.A.402/2009 7 The Extract is not relevant since it was with reference to the guidelines for deposit in case of death.” 6. In the present case also the appellant has spend ₹15,000/- for the purpose of procuring an artificial limb. Hence following the precedent in **Nagappa's case** _**(supra)**_ an amount of 1,00,000/- has to be granted for₹ that. Though a deposit would have been proper for that amount, considering the long pendency of the appeal from 2009 and the accident itself having occurred in 2004, a fixed deposit at this stage would defeat the spirit of compensation. 7. In such circumstance, also taking into consideration the binding declaration in **National** **Insurance Company Limited. v. Pranay Sethi & Ors. [(2017)** **5 KHC 350 (SC)]** the following compensation is awarded. |**Sl.**<br>**No**|**Head of claim**|**Amount award**<br>**by the**<br>**Tribunal**<br>**₹**|**Total amount**<br>**after**<br>**enhancement**<br>**in appeal**<br>**₹**| |---|---|---|---| |1.|Conpensation for<br>disability|2,16,000/-|5,67,000/-<br>(5625 x 12 x<br>14 x 60/100)| |2.|Medical bills|1, 29,500/-|1,29,500/-| |3.|Extra<br>nourishment|00|10,000/-| M.A.C.A.402/2009 8 |4.|Transportation<br>expenses|2,000/-|2,000/-| |---|---|---|---| |4.|Bystander<br>expenses|5,700/-|11,400/-<br>(57 x 200)| |5.|Loss of income|20,000/-|20,000/-| |6.|Pain<br>and<br>suffering|30,000/-|50,000/-| |7.|Loss<br>of<br>amenities|30,000/-|50,000/-| |8.|Replacement of<br>artificial limb|00|1,00,000/-| ||**TOTAL**|**4,33,200/-**|**9,39,900/-**| 8. Hence, the total compensation awarded would be **₹9,39,900/-.** The amount awarded as above, after deducting what has already been paid, shall be paid within two months from the date of receipt of a certified copy of this judgment with costs and interest as directed by the Tribunal. The above appeal is allowed. No order on costs in appeal. DG **Sd/K.VINOD CHANDRAN JUDGE**