BIJU @ VIJU P.POULOSE v. C.R.PRINIL and others (MACA No.1914 of 2008)

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE A. BADHARUDEEN MONDAY, THE 22[ND] DAY OF NOVEMBER 2021 / 1ST AGRAHAYANA, ``` ## **`1943`** ## **`MACA NO. 1914 OF 2008`** ``` AGAINST THE AWARD IN O.P.(MV) NO.2171/2000 OF SPECIAL COURT FOR EC ACT CASES & MOTOR ACCIDENT CLAIMS TRIBUNAL, ``` ## **`THRISSUR`** ## **`APPELLANT/PETITIONER:`** ``` BIJU @ VIJU P.POULOSE, ``` ``` S/O PAULOSE, PAYYAPPILLY HOUSE,, KAVANADU P.O., MALA, THRISSUR. ``` ``` BY ADV SRI.T.C.SURESH MENON ``` ## **`RESPONDENTS/RESPONDENTS/ADDL.RESPONDENTS:`** - `1 C.R.PRINIL S/O.RAGHAVAN CHERAI HOUSE, KATTAKAMPAL P.O., THRISSUR.` - `2 BAIJU, S/O.PUSHPAKARAN, MALANTHARA HOUSE, PUTHENVELIKKARA, THRISSUR.` - `3 THE NATIONAL INSURANCE COMPANY LTD., IRINJALAKUDA, THRISSUR.` - `4 LAIJU S/O.PUSHPAKARAN, MALANTHARA HOUSE, PANACHA, PUTHENVELIKKARA.` - `5 SUDHAKARAN, S/O.VELAPPAN, VAZHAPALLY HOUSE, MANGAD, PONKULAM,, THRISSUR.` - `6 C.H.SALIM, S/O.HASSAN, CHELIKANDATHIL HOUSE, PAZHAKKAPPILLY, MOOVATTUPUZHA, ERNAKULAM DISTRICT.` - `7 THE ORIENTAL INSURANCE COMPANY LTD. BRANCH OFFICE, MOOVATTUPUZHA, ERNAKULAM DIST.` 2 ## **`M.A.C.A No.1914 of 2008`** ## `*ADDL.R8 THE SUPERINTENDENT,` ``` GOVERNMENT MEDICAL COLLEGE HOSPITAL,THRISSUR ``` ``` *IS SUO MOTU IMPLEADED AS ADDL. 8TH RESPONDENT AS PER ORDER DATED 21/1/2019 IN MACA 1914/08. ``` ``` BY ADVS. SMT.K.S.SANTHI,SC SRI.GEORGE CHERIAN THIRUVALLA SRI.LAL GEORGE SRI.O.D.SIVADAS SMT.SHYNIMOL.V.O, GOVT.PLEADER ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 22.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` M.A.C.A No.1914 of 2008 ``` 3 ## **`‘CR’`** ## **`JUDGMENT`** ``` Judgment in O.P(M.V) No.2171/2000 on the file of Motor Accidents Claims Tribunal, Thrissur is under challenge in this appeal, as opted by the original petitioner before the Tribunal. ``` ``` 2.Respondents before the Tribunal are the respondents herein. ``` ``` 3.Brief facts of the case: ``` ``` It is specifically contended by the appellant that on 13.06.2000 at about 7:30 p.m. while he was riding a scooter bearing registration no.KCF 3214 through the public road at Judgemukku kavala, an autorickshaw driven by the 4[th]respondent bearing registration no.KL8/3348 driven by the 4[th] respondent in a rash and negligent manner, ``` ``` M.A.C.A No.1914 of 2008 ``` 4 ``` dashed him down and in consequence thereof, he sustained serious injuries and disability. Accordingly, the appellant filed application under Section 166 of Motor Vehicles Act claiming compensation to the tune of Rs.10 lakh. ``` ``` 4.Respondents 1, 2 and 5 were set ex- parte by the Tribunal. ``` ``` 5.Petition against the 6[th] respondent was dismissed by the Tribunal. ``` ``` 6.The 3[rd] respondent, the insurer of the authorickshaw, filed written statement. The negligence and the quantum of compensation on various heads were disputed while admitting policy to the autorickshaw involved in the accident. Right of recovery was claimed on alleging violation of policy conditions, namely, absence of valid driving licence to ``` 5 ## **`M.A.C.A No.1914 of 2008`** ``` the driver of the autorickshaw. ``` ``` 7.The 7[th] respondent, the insurer of the motor vehicle, also filed written statement and disputed the accident as well as the liability while admitting policy. ``` ``` 8.Tribunal tried the matter after examining PW1 and marking Exts.A1 to A20 on the side of the appellant. Exts.B1 to B5 marked on the side of contesting respondents. Ext.X1 also marked. After appreciating the evidence in toto, the Tribunal granted Rs.5,88,950/- as compensation with interest at the rate of 7% per annum. ``` ``` 9.While canvassing increase under various heads, it is submitted by the learned counsel for the appellant, who has been fully laid up and has been living with assistance of bystander, that in order to assess disability ``` ## **`M.A.C.A No.1914 of 2008`** 6 ``` of the appellant, the appellant was referred to the medical board by this Court two times. However, even in the final disability assessment, as per special medical board report dated 09.09.2021, the disability was assessed as 84.16%. ``` ``` 10.It is submitted by the learned counsel for the appellant that in a recent decision in Jithendran v. The New India Assurance Co. Ltd and another[Civil Appeal No.6494/2021 dated 27.10.2021], the Honourable Supreme Court considered a similar case where it was found that though the disability of the appellant in the said case was assessed as 69%, 100% should have been the disability. Thus the learned counsel for the appellant canvassed 100% functional disability in the case also. Reading Jithendran’s case (supra), it has been ``` 7 ## **`M.A.C.A No.1914 of 2008`** ``` specifically observed in paragraph 16 as under: ``` ``` “16. As noted earlier, the impact on the earning capacity for the claimant by virtue of his 69% disability must not be measured as a proportionate loss of his earning capacity. The earning life for the appellant is over and as such his incomeloss has to be quantified as 100%. There is no other way to assess the earning loss since the appellant is incapacitated for life and is confined to home. In such circumstances, his loss of earning capacity must be fixed at 100%. xxx” ``` ``` Again in paragraph 12, it has been ``` ## `observed as under:` ``` “12. The Courts should strive to provide a realistic recompense having regard to the realities of life, both in terms of assessment of the extent of disabilities and its impact including the income generatingcapacityofthe claimant. In cases of similar ``` ## **`M.A.C.A No.1914 of 2008`** 8 ``` nature, wherein the claimant is sufferingseverecognitive dysfunctionandrestricted mobility, the Courts should be mindful of the fact that even though the physical disability is assessed at 69%, the functional disability is 100% in so far as claimant'slossofearning capacity is concerned.” ``` ``` 11.It was held further that the claimant would require the assistance of a bystander/attendant for all his movements. Therefore, he should be granted a reasonable sum under the head bystander/attendant expenses also. ``` ``` 12.On perusal of the medical documents available in this case inclusive of the last one issued by the special medical board, it is noted that the total permanent whole body disability is 84.16%. However, under the head ‘clinical psychologist evaluation’ it is ``` 9 ## **`M.A.C.A No.1914 of 2008`** ## `narrated as under:` ``` “He had history of RTA on 13/06/2000, which was treated at Elite Mission Hospital, Thrissur. He came on a trolley, accompanied by his two brothers. He was co- operative for assessment. But his visualimpairmentandmotor disability interfered in formal Psychological assessment. He also became playful during assessment. He had significant deficits in recentandremotememory. Instructions had to be given multiple times, Indicative of inadequatecomprehension.Not amenable for formal Psychological assessment.” ``` ``` 13.When evaluating the physical condition of the appellant herein, he in fact is incapable of doing anything by himself and he is totally laid up and in the medical report itself, it was stated that he was taken before the doctors on a trolley, accompanied by his two brothers. The appellant herein also is ``` ## **`M.A.C.A No.1914 of 2008`** **==> picture [13 x 9] intentionally omitted <==** ``` incapacitated and is confined to home. Further he has been living with assistance of bystanders. That be so, following the ratio in Jithendran’s case (supra), the functional disability of the appellant herein also to be fixed at 100% and the disability income should be re-calculated on its basis. Further, the attendant/bystander expenses granted in the Jithendran’s case (supra) also shall be given to the appellant herein. ``` ``` 14.While canvassing enhancement under various heads, the learned counsel for the appellant pointed out that the Tribunal fixed Rs.2,500/- as the monthly income of the appellant for assessing disability though it has been specifically claimed in the petition that he was doing the job of computer programming and curtain designing as self ``` 11 ## **`M.A.C.A No.1914 of 2008`** ``` employed and was earning Rs.4,000/- per month. Exts.A12 and A13 certificates are pin pointed to substantiate this contention. ``` ``` 15.Rebutting this argument, it is fervently argued by the learned counsel for the Insurance Company that on perusal of Exts.A12 and A13 would show that these are short term courses underwent by the appellant for doing ‘Network Centered Computing’. Then also, the actual income of the appellant not at all established in this case. Therefore, by applying the ratio inRamachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Ltd. : (2011) 13 SCC 236,the income fixed by the Tribunal at Rs.2,500/- is correct in this case where the accident was on 13.06.2020 and the learned counsel pressed to confine the monthly income at Rs.2,500/-. ``` ## **`M.A.C.A No.1914 of 2008`** 12 ``` 16.Going by the certificates showing the qualification of the appellant to do the job of Network Centered Computing, though short term courses, I am of the view that Rs.3,000/- per month can be fixed as the monthly income as canvassed by the learned counsel for the appellant in this matter to fix the ‘loss of disability income’. The age and multiplier applied by the Tribunal is not in dispute. ``` ``` 17.This is a case, where this Court fixed 100% functional disability and the medical board fixed 84.16% disability. Therefore, 40% addition to the income also to be made following the ratio in the decision reported inPappu Deo Yadav v. Naresh Kumar and Others : 2020 KHC 6547. Therefore, the ‘loss of disability income’ required to be re- calculated thus, ``` 13 ## **`M.A.C.A No.1914 of 2008`** ``` 3,000+40%= 4,200x12x18 = 9,07,200/- ``` ``` Out of which, Rs.3,78,000/- was granted by the Tribunal. Thus, the appellant is entitled to the balance ofRs.5,29,200/- more under the head of 'loss of disability income'. ``` ``` 18.Going by the decision in Jithendran’s case (supra), the Honourable Apex Court considered Rs.5,000/- for the purpose of calculating bystander/attendant expenses where dealing with a similar case of this nature following the ratio in the decision reported in Kajal v. Jagdish Chand and Others : (2020) 4 SCC 413. The accident in Jithendran’s case (supra) was in the year 2001. In this decision the Apex Court noticed that the claimant would require the assistance of a bystander/ attendant. In the case on hand also, the ``` ## **`M.A.C.A No.1914 of 2008`** **==> picture [13 x 9] intentionally omitted <==** ``` appellant would require the said assistance and he is fully laid up. Therefore, applying ‘18’ as multiplier, 60,000x18 = 10,80,000/- is awarded under the head bystander/attendant expenses. ``` ``` 19.It is submitted by the learned counsel for the appellant that no amount under the head ‘loss of amenities’ was granted in this particular case, though the 70% disability was considered by the Tribunal. This submission appears to be convincing though the learned counsel for the contesting respondents formally opposed this claim on the submission that reasonable amounts under other heads already been awarded in this matter. However, it appears that in a case of this nature, ‘loss of amenities’ must also be granted. In Jithendran’s case (supra), the High Court when ``` ## **`M.A.C.A No.1914 of 2008`** 15 ``` considered the appeal enhanced the amount of compensation under the head ‘loss of amenities’ to Rs.70,000/- and the same as such was virtually confirmed by the Apex Court also. Therefore, Rs.70,000/- more is granted under the head ‘loss of amenities’. Therefore, the total enhanced compensation would come to Rs.16,79,200/- ``` ``` 20.By the impugned award, right of recovery was granted in favour of the 3[rd] respondent after depositing the amount in the name of the appellant after finding that the 4[th] respondent, the driver of the offending autorickshaw, did not possess a valid driving licence at the time of accident. This finding was not disputed before this Court even though notice was issued to the 1[st] respondent in this appeal also. Therefore, the benefit of ``` ## **`M.A.C.A No.1914 of 2008`** **==> picture [13 x 9] intentionally omitted <==** ``` the said finding shall be given in favour of the Insurance Company, the 3[rd] respondent in relation to the enhanced sum also. ``` ``` 21.A doubt arose what is the amount that is entitled by the Insurance Company after depositing the amount. It is noticed that some of the Tribunals have the view that the amount awarded alone is liable to be reimbursed and the Insurance Company is not entitled to get interest thereof. Here, the insured was directed to pay the compensation after finding violation of policy condition and, therefore, the Insurance Company is entitled to get the entire amount deposited including the subsequent interest @ 9% and the incidental expenses thereof, till the date of realisation or payment. ``` ``` 22.In this result, this appeal is ``` 17 ## **`M.A.C.A No.1914 of 2008`** ``` allowed. It is held that the appellant is entitled to get Rs.22,68,150/- as compensation out of which Rs.5,88,950/- was granted by the Tribunal and the balance amount of Rs.16,79,200/- (Rupees Sixteen Lakh Seventy Nine Thousand Two Hundred Only) is granted as enhanced compensation with the same rate of interest awarded by the Tribunal. ``` ``` 23.The appellant valued the claim at Rs.10,00,000/- and court fee payable is calculated as Rs.9,373/-. In view of grant of Rs.16,79,200/- in excess of the claim, the appellant is bound to deposit Rs.16,792/- as additional court fee. The Insurance Company is directed to deposit Rs.16,792/- as additional court fee by a separate cheque in favour of M.A.C.T. The Insurance Company is directed to deposit the remaining amount in the name of ``` ## **`M.A.C.A No.1914 of 2008`** **==> picture [13 x 9] intentionally omitted <==** ``` the appellant within two months from today. 24.Right of recovery granted in favour of the Insurance Company from the insured by the Tribunal, is maintained and granted in relation to the enhanced sum also, after depositing the same in the name of the appellant with liberty to release the same, on deposit. ``` ``` Thus it is specifically ordered that the Insurance Company is entitled to recover the amount from the insured/owner of the vehicle, inclusive of future interest @ 9% from the date of deposit till the date of realisation or payment and incidental costs incurred thereof. However, it is made clear that the right of recovery granted herein is liable to be revisited by the Tribunal while proceeding with execution proceedings for ``` ``` M.A.C.A No.1914 of 2008 ``` 19 ``` recovery of the amount, if the driver or the owner of the offending vehicle produce effective Driving Licence to the satisfaction of the Tribunal concerned after notice and providing opportunity of hearing to the counsel for the Insurance Company. On satisfying possession of valid and effective driving licence by the driver of the offending vehicle, the Tribunal can record the said fact and ignore the recovery hereby granted and close the execution proceedings without proceeding further to recover the amount in . view of this judgment ``` ``` Sd/- ``` ``` A.BADHARUDEEN, JUDGE. ``` ``` ww ``` 20 ## **`M.A.C.A No.1914 of 2008`** ## **`APPENDIX`** ## `APPELLANT'S ANNEXURES:` ``` ANNEXURE-A ``` ``` TRUECOPYOF THEDISABILITY CERTIFICATE ISSUED BY DR.JYOTHISH.K, ORTHOPEDICIAN,MEDICALCOLLEGE, THRISSUR DATED 3.12.2018. ``` ``` ANNEXURE-BTRUE COPY OF FEW PHOTOGRAPH WHICH DEPICITING THE PRESENT STATE OF THE PETITIONER/APPELLANT. ```