Chandramohan Pillai v. C. Vidyadharan, Raveendranathan Nair and The Oriental Insurance Co. Ltd.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE A.M.BABU FRIDAY, THE 23RD DAY OF FEBRUARY 2018 / 4TH PHALGUNA, 1939 OP(MV) 1349/2008 of MACT,PATHANAMTHITTA DATED 05-04-2014 APPELLANT/PETITIONER CHANDRAMOHAN PILLAI, KUTTOOR HOUSE, KUNNAMTHANAM PO, KUNNAMTHANAM VILLAGE, MALLAPPALLY TALUK BY ADVS.SRI.T.K.KOSHY SRI.ABE RAJAN SRI.SABU I.KOSHY RESPONDENTS/RESPONDENTS 1 TO 3 1. C.VIDHYADHARAN, S/O CHELLAPPAN, GURU BHAVAN, CHENGAROORCHIRA, KUNNAMTHANAM PO, MALLAPPALLY, PIN- 689 581 2. RAVEENDRANATHAN NAIR, PLACHERIL HOUSE, MANTHANAM PO, KUNNAMTHANAM, MALLAPPALLY, PIN - 689 581 3. THE BRANCH MANAGER, THE ORIENTAL INSURANCE CO.LTD., BRANCH OFFICE, RAJESWARY COMPLEX, PERUNNAI, CHANGANASSERY,PIN-686 101 R3 BY ADV. SRI.MATHEWS JACOB (SR.) R3 BY ADV. SRI.P.JACOB MATHEW BY SMT.K.S.SANTHI THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 23-02-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **A.M.BABU, J.** - - - - - - - - - - - - - - ## M.A.C.A.2395 of 2014 - - - - - - - - - - - - - - - - Dated : 23[rd] February, 2018 - - - - - - - - - - - - - - - - - - - - - - - - ## **JUDGMENT** - 1.Appellant sustained injuries in a road accident. He calculated his entitlement for compensation at Rs 18,00,250/-, but limited it to Rs 6,00,250/-. He was awarded a compensation of Rs 5,65,393/- by the motor accidents claims tribunal. He appeals to get the compensation enhanced. - 2.It was at 9.45 pm on 28.8.2008 the accident. The appellant who was riding on his motor cycle was knocked down by a car. The car bore registration No.KL 5 1575. The car was driven by the 1[st] respondent. He drove it in a rash and negligent manner. The 2[nd] respondent was the owner of the car. It was insured with the 3[rd] respondent. The appellant sustained serious injuries in the accident. The above are facts either admitted or proved. - 3.Heard Sri.T.K.Koshy, the learned counsel for the **MACA.2395/2014** 2 appellant and Sri.Mathews Jacob, the learned senior counsel for the 3[rd] respondent. 4.The appellant did sustain severe head injuries. The injuries were multiple traumatic cerebral contusions, subarachnoid and subdural hemorrhage, ACF floor fracture extending through optic canal, traumatic optic neuropathy, fracture of 6[th] right rib et cetera. He was managed as an inpatient in two different hospitals for a total period of 16 days. He was assessed to have a permanent disability of 80%. The assessment was made by the medical board attached to the general hospital, Pathanamthitta. Ext A11 is the disability certificate issued by the medical board. The tribunal reduced the percentage of disability to 70. For doing so, the tribunal did not state any reason whatsoever. The appellant was brought before the tribunal. The tribunal stated at paragraph 8 of its award that the appellant was led to the court room by his wife. The tribunal noticed that the appellant was incapable of moving about without the **MACA.2395/2014** 3 support of others. Ext A11 shows that the appellant had bilateral visual pathway disfunction. It recites that he had sustained fracture also. It is thus in evidence that the appellant lost the sight of one of his eyes completely. It is also in evidence that the vision of his other eye is too feeble. Such was the unfortunate condition of the appellant after the accident. He was a bus conductor. Ext A1 FI statement given by the appellant shows that he disclosed on the very first opportunity that he was a bus conductor. Therefore there is nothing to disbelieve the said version of his. The matters discussed above lead to a conclusion that the appellant is unable to do the job of a bus conductor any more. I am also satisfied that he is more or less unfit to do any work. In these circumstances the tribunal was not justified in reducing the percentage of disability from 80 to 70. The present one is a case where the disability is 100%, functionally. In such a case the compensation should be assessed taking the disability to be 100%. In this connection I place **MACA.2395/2014** 4 reliance on the apex court in Raj Kumar v. Ajay Kumar (2011 ACJ 1) . - 5.The tribunal calculated compensation for loss of earning capacity taking a notional income for the appellant at Rs 3500/- per month. It was indeed on the lower side. The accident was in 2008. The appellant was a bus conductor. Therefore his income in 2008 can be fixed notionally at Rs 7000/- per month. The compensation for permanent disability totals to Rs 10,92,000/- (7000 x 12 x 13). The amount of Rs 3,82,200/- awarded by the tribunal should be deducted. The balance of Rs 7,09,800/- is the enhancement. - 6.The tribunal awarded Rs 20,000/- for pain and sufferings. Considering the injuries sustained by the appellant and the nature of injuries, I find it appropriate to enhance the compensation for pain and sufferings by Rs 10,000/-. - 7.As is discussed by me as well as the tribunal, the **MACA.2395/2014** 5 appellant is unable to move about without the assistance of a helper. That fact was not taken into account by the tribunal. I find it appropriate to award Rs 20,000/- to the appellant considering his necessity to avail of the service of a helper throughout his life. - 8.The tribunal awarded Rs 42,000/- as compensation for loss of earnings for one year. Since compensation is to be awarded to the appellant taking his disability to be 100%, the compensation for loss of earnings for one year awarded by the tribunal should be deducted. - 9.Another head under which the tribunal awarded compensation was loss of amenities. The amount awarded was Rs 50,000/-. In this connection I may refer to Raj Kumar's case (supra). The apex court holds that in cases where disability is taken as 100%, the need to award compensation separately under the head of loss of amenities or loss of expectation of life may disappear. It is also held **MACA.2395/2014** 6 that in such a case only a token or nominal amount may have to be awarded under the head of loss of amenities or loss of expectation of life. I find it appropriate to award only Rs 2000/- under the head of loss of amenities. That means Rs 48,000/- from out of the amount awarded by the tribunal under the said head should be deducted. 10.The total enhancement in compensation to which the appellant is entitled to comes to Rs 6,49,800/(7,09,800 + 10,000 + 20,000 - 42,000 - 48,000). I round it off to Rs 6,50,000/-. 11.The appeal is allowed as follows : The appellant is awarded an enhanced compensation of Rs 6,50,000/- (six lakhs fifty thousand only). The same shall carry interest at the rate of 7.5% per annum from the date of filing of the application before the tribunal to the date of deposit of the enhanced compensation before it. The appellant is entitlement to proportionate costs as well. The enhanced compensation together with interest and 7 ## **MACA.2395/2014** proportionate costs shall be deposited before the tribunal by the 3[rd] respondent within a period of two months from the date of receipt of a copy of this judgment. ## **Sd/-** **A.M.BABU Judge** Mrcs/23.2. /True copy/ Sd/- P.S.To Judge