BIJU, S/O KUMARAN vs THE MANAGER, NEW INDIA ASSURANCE CO. LTD.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE N.NAGARESH** **TUESDAY,THE 08TH DAY OF SEPTEMBER 2020/17TH BHADRA,1942** ## **MACA.No.2202 OF 2016(E)** **AGAINST THE AWARD DATED 31-03-2016 IN** **OP(MV)684/2013 OF MOTOR ACCIDENT CLAIMS TRIBUNAL,PALA** ## **APPELLANT/PETITIONER:** **BIJU,S/O. KUMARAN, AREECKAL HOUSE, POONJAR SOUTH KARA & VILLAGE.** **BY ADVS. SRI.MATHEW JOHN (K) SRI.DOMSON J.VATTAKUZHY** ## **RESPONDENTS:** |**1**|**VINEETH K.R.,S/O RAJU K.K.,(DELETED)***| |---|---| ||**KIZHAKKEVALLIKUNNEL HOUSE,**| ||**KUDAYATHOOR POST, KOLAPRA,**| ||**THODUPUZHA, PIN-685 590.**| |**2**|**VIJAYAN,S/O.VELAYUDHAN,(DELETED)***| ||**KALIYATHU HOUSE, KOLLAPADY POST,**| ||**KOTHAMANGALAM -686 691.**| **RESPONDENTS 1 AND 2 ARE DELTED FROM PARTY ARRAY AS PER ORDER DATED 06.07.2020 IN I.A.NO.3/2020 IN MACA 2202/2016. 3 THE MANAGER,NEW INDIA ASSURANCE CO. LTD.,MADAPPARAMBIL CHAMBERS, MOOVATTUPUZHA BRANCH, PIN-686 661.** ## **R3 BY ADV. THOMAS MATHEW NELLIMOOTTIL** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 26-08-2020, THE COURT ON 08-09-2020 DELIVERED THE FOLLOWING:** MACA No.2202/2016 : 2 : ## **N. NAGARESH, J.** ````````````````````````````````````````````````````````````` ## M.A.C.A. No.2202 of 2016 ````````````````````````````````````````````````````````````` _Dated this the 8[th] day of September, 2020_ ## **J U D G M E N T** ~ ~ ~ ~ ~ ~ ~ ~ ~ The appellant, who is the petitioner in OP(MV) No.684/2013 on the files of the Motor Accidents Claims Tribunal, Pala, is in appeal invoking Section 173 of the Motor Vehicles Act, 1988, aggrieved by the Award dated 31.03.2016 of the Tribunal. 2. In his OP(MV), the appellant stated that on 6.02.2013, when the appellant was travelling on a motorcycle through Thodupuzha – Erattupetta Road, a motorcycle bearing No.KL–07AE–8122 hit the motorcycle of the appellant at Muttom Junction. The offending motorcycle was ridden by the first respondent in OP(MV). The said vehicle MACA No.2202/2016 : 3 : was driven in a rash and negligent manner. As a result of the accident, the appellant sustained serious injuries. The appellant initially claimed 5,64,000/- as compensation which₹ was later enhanced to 12,43,000/-. ₹ 3. The rider of the offending motorcycle and the owner thereof remained _ex-parte_ . The respondent-insurer alone contested the petition. In the written statement, the respondent stated that the appellant is colluding with the rider of the offending motorcycle. The amount claimed as compensation is highly excessive. No disability has been caused to the appellant due to the injuries from the accident. The appellant had no job or income. The accident occurred due to the negligence of the appellant. The insurer, however, admitted policy coverage in respect of the offending vehicle. 4. The appellant produced Exts.A1 to A11 documents and examined himself as PW1. Ext.X1 Disability Certificate was marked as court exhibit. 5. On appreciation of evidence, the Tribunal found that the accident occurred due to the rash and negligent MACA No.2202/2016 : 4 : driving of the first respondent in OP(MV). The Tribunal found that there is no evidence whatsoever in respect of the negligence of the appellant. 6. The Tribunal found that the appellant was a timber worker and the appellant’s monthly income should be taken as ₹9,000/-. On consideration of the injuries and the treatments and surgeries undergone by the appellant, the Tribunal awarded compensation of 9,89,350/- under various₹ heads, as indicated below:- |**Part I**|**Amount claimed (in**`**)**|**Amount awarded (in**`**)**| |---|---|---| |Loss of earnings|90,000|54,000| |||(9,000 x 6 months)| |Transport to Hospital|15,000|6,000| |Extra-nourishment|3,000|4,000| |Damages to clothing|2,000|Not entitled| |Treatment expenses|6,00,000|2,98,500| |Bystander Expenses|8,000|6,250| |||(250 x 25 days)| |Compensation for dis-figuration|50,000|Not entitled| |**Part II**||| |Pain & suffering|75,000|75,000| |Permanent disability|3,00,000|3,45,600| |||(9,000 x 12 x 16 x| |||20/100)| |Loss of amenities|1,00,000|1,00,000| |Future treatment expenses|Nil|1,00,000| |**Total**|`12**,43,000/-**|`9**,89,350/-**| MACA No.2202/2016 : 5 : The Tribunal also ordered to pay interest at the rate of 9% per annum on the compensation amount from the date of petition till the date of payment. It is aggrieved by the said Award passed by the Tribunal under Section 166 of the Motor Vehicles Act that the appellant is before this Court. 7. Advocate Mathew John, learned counsel appearing for the appellant, argued that the injuries suffered by the appellant are serious and severe. The appellant had to be hospitalised for 25 days in Kolenchery Medical College. Though the Board assessed the disability of the appellant as 28%, the Tribunal took only 20% as disability. The appellant was a headload worker/timber worker. The appellant’s avocation demanded a high degree of physical fitness and effort. Because of the injuries and consequential disability suffered by the appellant, he is not in a position to continue his avocation. In fact, the functional disability of the appellant is 100%. This crucial fact was omitted to be considered by the Tribunal, it is contended. MACA No.2202/2016 : 6 : 8. Even after the Award of the Tribunal, the appellant had to continue his treatment spending a large amount of money. The appellant produced Annexures-1 to 110 and Annexures-111 to 119 as additional documents to show the additional medical expenditure. 9. The learned counsel for the appellant pointed out that what was suffered by the appellant was neuro injury and that he had to be kept on ventilator for sometime. The appellant had sought for 2 lakhs towards future surgeries.₹ The Tribunal only granted 1 lakh. The appellant, due to his₹ injuries, could not work for a long time thereafter and even now. The Tribunal, however, took only a period of six months for calculating compensation for loss of earning. The appellant ought to have granted compensation for loss of earnings at least for a period of one year. 10. The learned counsel for the appellant further argued that the Tribunal committed a grave error in fixing the notional income of the appellant as 9,000/- whereas the₹ appellant had claimed 10,000/- as his monthly income. The₹ MACA No.2202/2016 : 7 : appellant had suffered substantial disfiguration as can be seen from Ext.A11. However, the Tribunal did not grant any amount towards compensation for disfiguration. Similarly, the compensation of ₹75,000/- awarded by the Tribunal towards pain and suffering is very much on a lower side, contended the learned counsel for the appellant. 11. The learned Standing Counsel appearing for the respondent-insurer strongly opposed any enhancement in the compensation amount. The learned Standing Counsel pointed out that the original claim of the appellant was only for an amount of 5,64,000/-. The appellant amended the₹ OP(MV) and enhanced the claim to ₹12,43,000/-. The Tribunal awarded ₹9,89,350/-. The Tribunal awarded compensation liberally taking note of all aspects of the case. 12. The learned Standing Counsel for the respondent further pointed out that the appellant claimed only 6,000/-₹ as the monthly income initially. However, the said claim was amended and subsequently the appellant claimed that he was having 10,000/- as monthly income. The amendment to₹ MACA No.2202/2016 : 8 : income of the appellant is not _bona fide_ . The appeal filed by the appellant is therefore without any merit and it is only to be dismissed, contended the learned counsel for the respondent. 13. I have heard the arguments of the learned counsel for the appellant and the learned Standing Counsel appearing for the respondent. 14. To decide the compensation amount due to the appellant, it is necessary to assess the monthly income of the appellant. The appellant in his OP(MV) claimed that he is a timber worker. Though in the OP(MV) the appellant claimed his monthly income as ₹6,000/-, it was later amended as 10,000/-. There is no proof as regards the₹ income of appellant, he being worker in unorganised sector. The Hon'ble Apex Court has held in the judgment in _**Syed Sadiq and others v. Divisional Manager, United India Insurance Co. Ltd.** [(2014) 2 SCC 735]_ that in the absence of proof of income of a self employed person, 6,500/- can₹ be taken as monthly income in the year 2008. Considering MACA No.2202/2016 : 9 : the increase in the rate of wages/income year by year, such wages/ income can be fixed as 9,000/- in the year 2013, the₹ year of accident in this case. Therefore, fixing of monthly income of the appellant as 9,000/- by the Tribunal cannot₹ be found fault with. 15. The prime grievance of the appellant is regarding award of a much lower amount towards compensation for permanent disability. The appellant has been granted ₹3,45,600/as compensation for permanent disability considering 20% as the disability. Ext.X1 Medical Certificate issued by the Standing Disability Assessment Board of the Government Medical College Hospital, Kottayam would show that the appellant is suffering from 28% disability. The said certificate would show that his disability is orthopaedic as well as neurological. Ext.X1 would show that the appellant has been suffering from post traumatic seizure and is suffering from infrequent seizures even subsequently. Such seizures occurred while he was working as a Filler in petrol pump and while going for lunch. This would show not only MACA No.2202/2016 : 10 : that the appellant cannot engage himself in his earlier job of timber worker but also he cannot even work as Filler in petrol pump, which job requires comparatively lower physical exertion. 16. The findings of the Tribunal as regards injury sustained by the appellant, are as follows:- “Contusion forehead and right parietal area, lacerated wound 3x1 cm on the right eye, oedema upper eyelid, contusion right cheek, lacerated wound 3x0.5 cm on the left cheek, oedema of left upper eyelid. Ext.A6 and 7 are the two treatment certificates issued to the petitioner from Kolencherry Medical College. It is noted that the petitioner was admitted on 06.02.2013 with alleged history of RTA. He had right frontal compound fracture, right temporal bone fracture, right frontotemporal EDH, right frontal contusion with pneumocephalus, fracture of left first rib and consolidation of both lungs. He was treated in the hospital and discharged on 03.03.2013. He is continuing treatments as outpatient. Ext.A7 is the certificate issued to the petitioner showing the very same injuries. It is also stated that he requires another surgery cranioplasty at the earliest. The approximate cost will be around `2,00,000/-. Ext.A8 is another certificate issued from the I.H.M. Hospital, Bharananganam stating that the petitioner has suffered an attack of fits. He was admitted on 09.06.2015 and discharged on 10.06.2015. Ext.A11 is a photograph of the petitioner which shows that there is a depression on his forehead.” MACA No.2202/2016 : 11 : The Tribunal, after noting the above injuries, did not properly read Ext.X1 Disability Certificate. 17. The Apex Court in the judgment in _**Raj Kumar v. Ajay Kumar and another** [(2011) 1 SCC 343]_ has held that the Tribunal should not assess functional disability of claimants merely based on medical certificates. The Tribunal, after considering medical certificates and other material evidence on record, has to come to its own finding regarding functional disability of a claimant. In the present Award, such consideration is lacking. 18. Apart from the injuries noted by the Tribunal and findings contained in Ext.X1 Disability Certificate, there are other materials also available on record to arrive at a reasonable and proper conclusion on functional disability. It is seen from Ext.A10 that after the accident in February 2013, the appellant could not do his regular work as timber worker. As PW1, the appellant has deposed that he suffered frontal compound fracture and consolidation of both lungs. The right side of the skull of the appellant as been broken. MACA No.2202/2016 : 12 : There is damage to his brain. The appellant has been suffering from frequent seizures even while travelling. He had even fallen due to such seizures. 19. The appellant has sworn that he cannot do any work after the accident and treatment. Going through the medical documents available and the notings of the Medical Board as contained in Ext.X1, this Court is of the considered view that the functional disability of the appellant should be reasonably fixed at least at 75%. The loss of future prospects of the appellant should also be compensated. The appellant was aged 34 years at the time of accident and hence 50% enhancement towards future prospect is to be granted. The notional monthly income should therefore be taken as ₹13,500/-. The compensation for permanent disability of the appellant should therefore be fixed at ₹19,44,000/- (₹13,500 x 12 x 16 x 75/100). The appellant therefore would be held entitled to an additional compensation of **₹15,98,400/-** (₹19,44,000 minus 3,45,600₹ already awarded by the Tribunal). MACA No.2202/2016 : 13 : 20. The learned counsel for the appellant argued that the appellant should be given compensation towards loss of earning for a period of one year. The Tribunal has given compensation for loss of earning for a period of six months. As this Court is granting disability benefits to the extent of 75%, this Court is of the opinion that no enhancement is required in compensation for loss of earnings. 21. This Court finds that since the accident occurred in the year 2013, the amount of compensation awarded towards extra nourishment is just and proper. The Tribunal has awarded treatment expenses of 2,98,500 based on the₹ bills produced by the appellant. The Tribunal has also awarded bystander expenses at the rate of 250/- for 25₹ days. Therefore, no enhancement is warranted under these heads. 22. The appellant has claimed ₹50,000/- towards compensation for disfigurement, but the Tribunal did not award any amount under this head. Ext.A11 is a photograph of the appellant post accident, which is not disputed. The MACA No.2202/2016 : 14 : photograph would show that there is substantial visible depression on the right forehead of the appellant which is not normal at all, for a normal human being. The appellant had claimed a very reasonable amount of 50,000/- towards₹ compensation for disfigurement. The Tribunal did not grant any amount for the same. In the facts of the case, the appellant is declared entitled to **₹50,000/-** as compensation for disfigurement. 23. The appellant did not claim any amount towards future treatment expenses in the OP(MV). However, the appellant produced Ext.A7 certificate to the effect that the appellant would require another surgery Cranioplasty for which approximate surgery expenditure would be ₹2,00,000/-. The Tribunal, however, awarded only ₹1,00,000/towards future treatment expenses. The Malankara Orthodox Syrian Church Medical College Hospital, Kolenchery which issued Ext.A7, is a reputed hospital in Kerala and ₹2,00,000/- is stated to be only surgery expenses. The appellant will have to incur other MACA No.2202/2016 : 15 : medical expenses also in connection with this surgery. Therefore, it would be only just and proper to award compensation of 2,00,000/- for this surgery, under the head₹ future treatment expenses. The appellant would be thus entitled to an additional compensation of 1,00,000/- towards₹ future surgical expenses. 24. The appellant has produced Bills (Annexures-1 to 110 and Annexures-111 to 119) showing actual medical expenses of 2,70,423/- incurred subsequent to the Award.₹ There is no dispute over the veracity of these bills. The appellant would therefore be entitled to additional compensation of ₹3,70,423/(₹1,00,000 + ₹2,70,423) towards compensation for future medical expenses. 25. Though the learned counsel for the appellant insisted for enhancement of compensation under the head pain and suffering, the Tribunal has granted 75,000/- under₹ this head which is just compensation and hence this Court does not find any reason for enhancement. MACA No.2202/2016 : 16 : In the result, the MACA is partly allowed. The appellant is held entitled to additional compensation of **₹20,18,823/-** under the following heads:- (i) Additional compensation towards permanent ₹ 15,98,400 disability (ii) Additional compensation towards ₹50,000/disfigurement (iii) Additional compensation towards future ₹3,70,423/medical expenses **Total ₹20,18,823/-** The additional compensation towards permanent disability and disfigurement would carry interest @ 9% per annum from the date of filing of OP(MV). The respondent is directed to deposit the amount within a period of three months. Sd/- **N. NAGARESH, JUDGE** aks/04/09/2020