Babu @ Kantararaj Kunju Akkara House v. George Antony & Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE T.R.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH THURSDAY, THE 6TH DAY OF AUGUST 2015/15TH SRAVANA, 1937 MACA.No. 195 of 2008 ( ) ------------------------- AGAINST THE AWARD IN OPMV 2149/2002 of M.A.C.T.,PERUMBAVOOR DATED 1209-2007 APPELLANT(S)/PETITIONER:: ------------------------------------------------ BABU @ KANTARAJ KUNJU AKKARA HOUSE, MATTOOR, NEAR SREE SANKARA COLLEGE KALADY. BY ADV. SRI.K.K.MOHAMED RAVUF RESPONDENT(S)/RESPONDENTS:: ------------------------------------------------------ 1. GEORGE ANTONY M/S.G.K.GRANITES, KIZHAKKAMBALAM. 2. M.M.VARGHESE, S/O.MARKOSE, MADATTUKUDI HOUSE, CHITTANAD KARA, KIZHAKKAMBALAM. 3. THE ORIENTAL INSURANCE CO. LTD., DIVISIONAL OFFICE, MUVATTUPUZHA 686 073. R BY ADV.GEORGE CHERIAN (SR )ADV.K.S.,SANTHI THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 06-08-2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **T.R. RAMACHANDRAN NAIR & K.P. JYOTHINDRANATH, JJ.** **- - - - - - - - - - - - - - - - - - - - - - - - -** ## **M.A.C.A.No.195 OF 2008** **- - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 6[th] day of August, 2015** ## **JUDGMENT** ## **Jyothindranath, J.** This appeal is preferred by the claimant in O.P.(MV) No.2149/2002 on the file of the Motor Accidents Claims Tribunal, Perumbavoor. The facts are as stated below: 2. The appellant was travelling in a lorry bearing Reg. No.KL7Y 8100 from Thunkur to Bangalore through the ThunkurDoddaballapura road. When the said lorry reached at Tulapore, it hit against a banyan tree. In that accident, the appellant sustained very severe injuries. Alleging negligence on the side of the driver of the lorry, a compensation claim was moved before the Tribunal. After appreciating the evidence, the Tribunal awarded a total sum of Rs.4,61,770/-. Aggrieved by the quantum of compensation, this appeal is preferred. MACA 195/2008 2 3. When the appeal came up for hearing, learned counsel for the appellant submitted before us that this is a case where the appellant is having quadriplegia due to the injuries. It is the submission that even though a disability certificate was produced to show that he was having whole body disability of 70%, his actual functional disability is 100%. It is the submission that the Tribunal only considered the physical disability of the appellant. The appellant is not in a position to do any work. It is the further submission that the appellant was travelling in the lorry as a person who was accompanying the goods. It is the submission that he was a headload worker and as such his income will be more than Rs.6,000/- per month. The Tribunal only considered Rs.2,000/- per month. It is the further submission that when a person is disabled by quadriplegia, it is an indication that a lifelong bystander will be necessary. Apart from that, there will be other illness like bed sore, which will necessitate future treatment. It is the further submission that when a person is having more than 70% disability, it is an indication that his amenities also will be affected. It is also the MACA 195/2008 3 submission that the appellant was aged only 43 years at the time of accident. It is the further submission made by the learned counsel for the appellant that the accident occurred in Karnataka State. As such he had incurred transportation expenses, as the further treatment was done at Medical Trust Hospital, Ernakulam. It is also submitted before us that the Tribunal was having opportunity to see the appellant in the year 2007. It is the submission that at any rate, the compensation is to be refixed on all counts. 3. Learned counsel for the insurance company submitted before us that the accident occurred in the year 2002. At that point of time, a headload worker will be having only an income of Rs.2,000/-, especially in Karnataka State. It is also submitted before us that considering an income of Rs.2,000/- and a multiplier of 17, the compensation assessed. As per the decision of the Apex Court in **Sarla Verma v. Delhi Transport Corporation** (2010 (2) KLT 802 - SC), the multiplier available will be only 14. It is also submitted before us that on all counts, reasonable amounts were awarded by the Tribunal and MACA 195/2008 4 an interference by this Court is not warranted. 4. The appellant sustained post traumatic C5-6 cord contusion with cervical canal stenosis, type II open fracture left tibia. He was also having a fracture to head of fibula (left). Ext.A5 is the wound certificate issued from Karnataka Medical Department wherein he was initially treated. As per the said document, it can be seen that he was having head injury and injury to right knee, knee joint and left hand over dorsum. He was also having compound fracture to both bones of left leg. Thereafter, he was admitted to Sanjay Gandhi Hospital, Bangalore and treated there. Thereafter, it appears that he was treated at Medical Trust Hospital. Ext.A6 certificate issued by the Medical Trust Hospital also shows that he was having post traumatic C5-6 cord contusion with cervical canal stenosis and type II open fracture to left tibia and fracture to head of left fibula. The process he underwent appears that C3 - 6 open door liminoplasty using (L) 10[th] rib graft by tension bank wiring under GA on 9.7.2002. He was treated as inpatient for more than 200 days. Ext.A9 is the disability certificate MACA 195/2008 5 issued by the Orthopaedic Surgeon attached to St. George Hospital, Muvattupuzha which shows that he was having a disability of 70%. Ext.A9 also contains the observations of the Doctor at the time of examination. In Ext.A9, it is stated as follows: “This is to certify that I have examined Shri Kantharaj Kunju 47 yars, a case of compound fracture Tibia (L) with fracture Head of Fibula, Post Traumatic C5-C6 cord injury with cervical canal stenosis (date of accident on 8.5.02). On 6.9.04, initially treated at Sanjay Gandhi Accident and Research Institute and Victoria Hospital, Bangalore (8.5.02 to 19.6.02) and Medical Trust Hospital, Ernakulam (21.6.02 to 2.9.02) and I am of opinion that he has got the following disabilities: 1. Flexion contractures of both hand and fingers; 2. Flexion contructure on both hip point, knee joint and toe of left FOA. 3. All movements of both upper and lower limbs limited. 4. Patient not able to walk and cannot sit up by himself, sit up with help only possible. 5. Patient in a state of spastic quadriplegia Recent X-Ray of left leg showed evidence of fracture tibia which was united. Certified that I have examined the accident-cum-wound MACA 195/2008 6 certificate and treatment certificates from Sanjay Gandhi Accident and Research Institute and Victoria Hospital, Bangalore and Medical Trust Hospital, Ernakulam before issuing this certificate. I further certify that the percentage of permanent disability comes to 70% (seventy %).” 5. The accident occurred in the year 2002. It is an admitted case that when the accident occurred, the appellant was in the vehicle and the case of the appellant was that he was travelling along with the goods, as a headload worker. Under such circumstances, his occupation need not be doubted. Thus, considering the fact that he is a headload worker, it will be only just and proper to fix the monthly income at Rs.4,000/-. The multiplier available as per the judgment in **Sarla Verma's case** (supra) will be 14. 6. It can be seen that the appellant was a headload worker by profession. When a person is having quadriplegia, it is apparent that he will not be able to do the work of a headload worker much less any other job, in this case. Practically, such a person will be laid up MACA 195/2008 7 ## permanently. ## Thus, the compensation is refixed as follows: |**_Head of claim_**|**_Amount awarded_**| |---|---| |Bystander expenses|200 x150 = 30000| |Treatment expenses|114520| |Loss of earnings|4000 x 6 = 24000| |Transportation|5000| |Pain and suffering|100000| |Loss of amenities|100000| |Damage to clothing|500| |Extra nourishment|10000| |Permanent disability|4000 x 12 x 14 = 672000| |Future treatment|50000| |Expenses<br>for<br>engaging<br>bystander in future|150000| |Total|1256020| The appellant will be entitled for a total compensation of Rs.12,56,020/- which we round off to Rs.12,56,000/-. The enhanced compensation will carry interest at 9% per annum from the date of filing of the petition. The insurance company shall deposit the amount, less the amount already deposited, within a period of three months from the date of receipt of a copy of this judgment. On deposit, the MACA 195/2008 8 Tribunal shall realise the excess court fee required over and above the original claim and the appellant will be entitled for release of the balance amount. 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/**