BOSE @ CHANDRABOSE v. THE PRESIDENT KADAPPURAM-MANTHALA F.D.W.C.S.NO:F (R),16/87/CZ, CHAVAKKAD, THRISSUR DISTRICT & ORS

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON** **TUESDAY ,THE 23RD DAY OF OCTOBER 2018 / 1ST KARTHIKA, 1940** ## **MACA.No. 2735 of 2009** **AGAINST THE AWARD IN OPMV 2710/2004 of SPL.COURT FOR EC ACT CASES &MACT,TSR DATED 05-05-2009** ## **APPELLANT/S:** **BOSE @ CHANDRABOSE, S/O.MADHAVAN, CHINMALI HOUSE, THIRUVATHRA P.O., CHAVAKKAD, THRISSUR DISTRICT.** **BY ADV. SRI.T.C.SURESH MENON** ## **RESPONDENT/S:** **1 THE PRESIDENT KADAPPURAM-MANTHALA F.D.W.C.S.NO:F (R),16/87/CZ, CHAVAKKAD, THRISSUR DISTRICT. 2 RAMASUNDARAM, S/O.APPUTTACEN, KADASSERY HOUSE, MANATHALA, CHAVAKKAD, THRISSUR DISTRICT. 3 THE NEW INDIA ASSURANCE CO.LTD., KUNNAMKULAM, THRISSUR DISTRICT. BY ADVS. SMT.M.MEENA JOHN SRI.VIJU THOMAS** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 23.10.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** M.A.C.A.NO.2735/2009 2 ## **J U D G M E N T** The appeal is for enhancement of the compensation awarded by the Tribunal in respect of the injuries sustained by the appellant and the consequences resulted in a road traffic accident. 2. The appellant was riding a motorcycle on 29.07.2004, when he was knocked down by a tempo van owned, driven and insured by respondents 1, 2 and 3 respectively. Based on the documentary evidence adduced before the Tribunal (both the sides having not chosen to adduce any oral evidence), the Tribunal arrived at a finding that the accident was solely because of the negligence on the part of the 2[nd] respondent, driver of the tempo van. 3. The claim petition filed before the Tribunal was sought to be resisted only by the Insurance Company as the respondents 1 and 2 chose to remain _ex parte._ The claimant contended that he was having a monthly income of ₹7,000/- as a fish vendor, but for want of evidence the M.A.C.A.NO.2735/2009 3 Tribunal reckoned the notional income only as 2,000/-.₹ Reckoning the permanent disability as 90%, adopting a multiplier of 17 [based on the age of the applicant as 32 years], a sum of 3,67,200/- was awarded as compensation₹ for disability. Awarding amounts under other different heads, the total compensation payable was fixed as ₹5,20,600/-, which was directed to be satisfied with interest @ 7% per annum by the Insurance Company, since the existence of a valid policy was admitted. 4. The learned counsel for the appellant submits that the monthly income reckoned by the Tribunal is on the lower side, adding that in view of the certified permanent disability of 90%, it should have been reckoned as '100%' for awarding the compensation for disability. The learned counsel appearing for the respondent Insurance Company points out that there is no fault on the part of the Tribunal in reckoning 90% as that alone was certified as reckonable by the duly constituted Medical Board. 5. The injuries sustained by appellant as discussed in paragraph No.9 of the award are given below: M.A.C.A.NO.2735/2009 4 “In col.No.11 of the petition the petitioner has stated that he has sustained “head injury”, injuries to right eye, right eye ball swollen, bleeding from ear”. Ext.P2 is the copy of the wound certificate issued by MES hospital and Ext.A4 is the discharge card issued by the west fort hospital, Thrissur. In this document it is stated that the petitioner was taken to this hospital on 29.07.2004 with fracture right frontal AC fissure, fracture right zygoma, right frontal contusion, pneumocephalus and other injuries.“ 6. The amounts awarded by the Tribunal are as follows: |**Head**|**Amount ( )**<br>**₹**| |---|---| |Loss of earning|6,000/-| |Expense for<br>transportation|2,000/-| |Expense for extra<br>nourishment|3,000/-| |Damages to<br>clothing|500/-| |Expense for<br>treatment|88,900/-| |Expense for|3,000/-| M.A.C.A.NO.2735/2009 5 |bystander|| |---|---| |Compensation for<br>pain and suffering|20,000/-| |Compensation for<br>future treatment|30,000/-| |Compensation for<br>disability|3,67,200/-| |Total|5,20,600/-| 7. After hearing both the sides, considering the fact that the appellant was an able bodied youth of 32 years at the time of the accident and also in view of the fact that the accident was in the year 2004 and further taking note of the future prospects, this Court finds it appropriate to add 50% more and re-fix the monthly income as **₹3,000/-** in the place of 2,000/-, reckoned by the₹ Tribunal. The learned counsel for the Insurance Company submits that, since the age of the appellant was above 30 years, the appropriate multiplier to be adopted is '16' and not '17'. This Court finds some force in this submission. Hence, the appropriate multiplier is refixed as '16' in the place of '17'. 8. With regard to the reckoning extent of permanent disability, Ext.X1 medical report issued by the Medical M.A.C.A.NO.2735/2009 6 Board is relevant. Relevant portion of the said certificate is extracted below: “History of R.T.A on 29.07.2004 had fracture ® frontal, (R) Zygoma and Femur (R) forntal lobe contusion and pneumocephalus. Treated at Westfort Hospital. Present Neurological deficits: Higher Mental functions: Has mild to moderate frontal loby dysfunction in the form of impairment of working memory, mild impairment in calculation and apathy. 2.Cranial Nerve deficits: Patient has (R) optic atrophy-post tramatic (R) pupil dilated, not reacting. Motor deficits: Severe spasticity (L) upper and lower limbs (L) sided hemiplegia with upper limb grade 2-3/L.power and lower limb grade 4/5 power. Needs one person support for walking. Patient also has bladder symptoms in the form of hesitancy of micturation. The following findings in the Right eye shows partial ptosis with right divergent squint of more than 45[o ] and M.A.C.A.NO.2735/2009 7 restricted extraocular movements with sparing of abduction and intortion suggestive of partial third nerve palsy. Right pupil was dilated and not reacting to light (direct and consensual). His vision in the right eye is 6/60 NIP and colour vision derective and fundus examination shows features of primary optic atrophy. Left eye is normal. He has permanent visual disability of 30% (thirty percentage) due to optic atrophy right eye.” 9. There is no dispute that the loss of earning capacity was assessed by the competent Medical Board as 90%, with 30% loss of vision. Then the question is what could be the income which can be generated by the appellant with the remaining 10% capacity, which can only be answered in the 'negative'. A person who is having 90% permanent disability will not be in a postilion to do any work and to earn a living of his own. In such circumstances, this Court accepts the submission made by the learned counsel for the appellant that the permanent disability has to be reckoned as '100%' to workout the M.A.C.A.NO.2735/2009 8 compensation. Going by the dictum laid down in **National Insurance Company v. Pranay Sethi and others [2017 (5) KHC 350]** future prospects to an extent of 40% can be added to the monthly income, in view of the age factor. Thus, the disability compensation can be re-fixed as **4,200 (3,000 + 40%) x 12 x 16 x 100/100 = 8,06,400/-.₹** After deducting 3,67,200/- awarded by the Tribunal, the₹ balance payable comes to **₹4,39,200/-.** It is awarded accordingly. No amount has been awarded by the Tribunal towards loss of amenities and enjoyment in life. Since the appellant was of 32 years at the time of accident, it would only be appropriate if a sum of **₹50,000/-** is awarded under this head and hence it is awarded. The learned counsel for the appellant submits that the left side of the appellant is completely paralysed and is having much restriction of movements. A notional sum of **₹25,000/-** is awarded for care and support. Thus, the total additional compensation payable comes to **₹5,14,200/- (Rupees five lakhs fourteen thousand and two hundred),** which requires to be satisfied with interest @ 7.5% per annum from the date of claim petition, till M.A.C.A.NO.2735/2009 9 satisfaction. Since the policy is admitted, this Court directs the 3[rd] respondent Insurance Company to deposit the amount due within six weeks from the date of receipt of a copy of this judgment. Appeal stands disposed of. **Sd/-** **P.R.RAMACHANDRA MENON** DG **JUDGE**