Cheriya s/o Anthony v. N.A Haneefa Naduvath House and Manager New India Assurance Co. Ltd.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE T.R.RAMACHANDRAN NAIR & THE HONOURABLE SMT. JUSTICE P.V.ASHA FRIDAY, THE 7TH DAY OF NOVEMBER 2014/16TH KARTHIKA, 1936 MACA.No. 1681 of 2014 () ------------------------- AGAINST THE AWARD IN OPMV 503/2009 of MACT, IRINJALAKUDA DATED 14-03-2014 APPELLANT(S)/PETITIONER: -----------------------CHERIYA, S/O.ANTHONY, KALATHINGAL HOUSE, MURIYAD DESOM & VILLAGE, MUKUNDAPURAM TALUK THRISSUR DISTRICT. BY ADV. SRI.P.V.BABY RESPONDENT(S)/RESPONDENTS: -------------------------- 1. N.A HANEEFA NADUVATH HOUSE, KARIKKATHODI VELLIKULANGARA P.O - 680 693. 2. MANAGER NEW INDIA ASSURANCE CO. LTD, IRINJALAKUDA - 680 121. R2 BY ADV. SRI.JOHN JOSEPH VETTIKAD R2 BY ADV. SRI.C.JOSEPH JOHNY R BY SRI.A.A.ZIYAD RAHMAN THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 07-11-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **T.R.RAMACHANDRAN NAIR & P.V ASHA, JJ. ----------------------------------------------------M.A.C.A No.1681 of 2014-D ---------------------------------------------------Dated this the 7[th] day of November, 2014** ## **JUDGMENT** ## Ramachandran Nair, J. This appeal is filed by the claimant in O.P(MV) No.503/2009. On the date of the accident namely, 20.11.2007, he was aged 54 years. He was riding a motor cycle having Reg.No.KL-8/G 8957 through Nellayi-Irinjalakuda public road. At a place called Muriyad Pandaran Moola the offending vehicle namely a van with registration No.KL-8/Q 2169 hit the motor cycle and he was thrown off from the motorcycle whereby he sustained serious injuries. 2. He was taken to St.James Hospital, Chalakkudy from which he was referred to Jubilee Mission Hospital, Thrissur. 3. As per the award of the Motor Accident Claims Tribunal, a total sum of Rs.2,71,890/- has been granted with interest @ 7.5% per annum. Out of the said amount, an amount of Rs.70,180/- represents the medical expense. 2 ## **M.A.C.A No.1681 of 2014-D** 4. The learned counsel for the appellant submitted that he was treated as an inpatient for a period of 55 days on 4 occasions and altogether his treatment extended to one year. 5. It is further submitted that the Tribunal committed grave error in taking permanent disability as 10% in spite of production of disability certificate Ext.A7 which shows 21.23% whole body disability and 42.26% lower limb disability. PW2 is a doctor who was examined to support the same. It is submitted that he was a farmer and a coolie worker and now because of the permanent disability sustained by him, and the disfigurement, he will not be able to do manual work. It is submitted that the compensation awarded on different heads is also inadequate. 6. The learned counsel for the Insurance Company submitted that the assessment made by the Tribunal is just and proper. 7. We have gone through the disability certificate Ext.A7 which shows that he has sustained the following injuries: “1) Crush avulsion of right foot; - 2) Compound fracture dislocation right ankle joint; 3) Fracture calcaneus right; - 4) Rupture of Flexor Hallucis Longus (FHL) 3 **M.A.C.A No.1681 of 2014-D** and Tibialis Posterior (TP) muscles; - 5) Vascular injury with transection of - posterior tibial artery below ankle joint; 6) Fracture right frontal bone.” After the treatment was over, on clinical and radiological examination, he is having the following disabilities: (a) Malunited fracture of right calcaneus; (b) Osteo-arthritic changes in right ankle joint due to trauma; (c) Dermatitis at grafted site of right ankle with severe ugly disfiguration; (d) Partial ankylosis of right ankle joint and subtalar joint with only jog of movements of dorsi flexion of right ankle, plantar flexion, inversion and eversion of right foot and flexion and extension of right lateral 4 toes and 70% limitation of flexion and extension of right big toe with fixed flexion deformity of right ankle; (e) He can't walk without chapel; (f) Weakness of plantar flexion and dorsiflexion and inversion and eversion of right ankle joint of 90% and flexion and extension of lateral 4 toes of 90% and big toe of 70% each with wasting of calf muscle of right leg; (g) External deviation of the right foot; (h) Pain on movements of right ankle and foot and tenderness at fracture site; (i) Sensory blunting of lateral 4 toes of right foot.” The disability has been assessed in the following manner: “(a) Mobility component - ROM 8%, strength 8% Total = 15.39% (b) Stability component = 30% **M.A.C.A No.1681 of 2014-D** 4 (Total= 30+(15.39+60/90) = 30+10.26 = 40.26% (c) Osteoarthritis = 2.00% Total for right lower limb = 42.26% He is assessed to have a permanent disability for right lower limb as 42.26% and for whole body as 21.23% as per National Guidelines.” Further it is reported as follows: “His right lower limb had sustained multiple fractures and has become tiotally unfit for working as a farmer or a coolie worker. Complete and permanent loss of the use of right lower limb shall be deemed to be the equivalent of the loss of that limb. By profession he was an agriculturist and a coolie worker as stated by him. Due to the severe injuries and its resultant disabilities, he was incapacitated to do the work of a farmer or as a coolie worker. The permanent disabilities sustained by him and its resulted disabilities have incapacitated him for all work which he was capable of performing at the time of accident. So his loss of earning capacity is considered as 80%.” 8. In the light of the above report, it is clear that he will not be able to effectively work as a farmer or a coolie worker. The opinion reflected in Ext.A7 is that there is complete and permanent loss of the use of right lower limb. 9. Therefore, the reasoning adopted by the Tribunal in para.9 that the permanent disability or the loss of earning power 5 **M.A.C.A No.1681 of 2014-D** stated by PW2 cannot be taken as such for the purpose of compensation is not correct. Therefore the whole body disability will have to be calculated as 21.23%. Regarding the monthly income also, although he had claimed Rs.5,000/-, it is submitted that, the Tribunal has only adopted Rs.3,500/-. The learned counsel submitted that even in respect of a coolie worker, going by the decision of the Apex Court in **Syed Sadiq v. Divisional Manager** [AIR 2014 SC 1052] para.8), Rs.4,500/- can be a reasonable amount. The same is reasonable and we adopt the same. As far as the amount awarded towards pain and suffering, loss of earning power, bystander's expenses and loss of earning power, it requires a modification. No amount has been granted towards disfiguration. The Tribunal has awarded the compensation in the following manner: |**_Sl.No._**|**_Head of claim_**|**_Amt._**| |---|---|---| |1|Loss of earnings|Rs. 42,000.00| |2|Transportation expenses|Rs. 14,260.00| |3|Damage to clothings|Rs. 500.00| |4|Extra nourishment|Rs. 500.00| |5|By-stander's expenses|Rs. 8,250.00| |6|Medical & Miscellaneous|Rs. 70,180.00| 6 **M.A.C.A No.1681 of 2014-D** |**_Sl.No._**|**_Head of claim_**|**_Amt._**| |---|---|---| |7|Pain and suffering|Rs. 40,000.00| |8|Permanent disability|Rs. 46,200.00| |9|Loss of earning power|Rs. 10,000.00| |10|Loss of amenities|Rs. 40,000.00| ||**Total**|**Rs.2,71,890.00**| ## 10. We refix the compensation as follows: |**_Sl.No._**|**_Head of claim_**|**_Amt._**| |---|---|---| |1|Loss of earnings(12 X 4500)|Rs. 54,000.00| |2|Transportation expenses|Rs. 14,260.00| |3|Damage to clothings|Rs. 500.00| |4|Extra nourishment|Rs. 500.00| |5|By-stander's expenses(55 X 200)|Rs. 11,000.00| |6|Medical & Miscellaneous|Rs. 70,180.00| |7|Pain and suffering|Rs. 50,000.00| |8|Permanent disability (4500 X 12 X 11<br>X 21.23/100)|Rs.1,26,106.20| |9|Loss of earning power|Rs. 30,000.00| |10|Loss of amenities|Rs. 40,000.00| |11|Disfiguration|Rs. 25,000.00| ||**Total**|**Rs.4,21,546.20**| 11. As regards the interest also, going by the decision of the Apex Court in **[Supei Dei (Smt.) & Ors. v. National Insurance Co. Ltd. And Anr.** [(2009) 4 SCC 513], 9% interest 7 **M.A.C.A No.1681 of 2014-D** can be granted. Accordingly we modify the award of the Tribunal and the appeal is allowed to that extent. The Insurance Company will deposit the award amount of Rs.4,21,546.20/- [rounded off to Rs.4,21,546/- (Rupees Four lakhs twenty one thousand five hundred fourty six only)] refixed by this Court (less the amount if any already deposited) before the Tribunal within a period of three months and on such deposit being made, the claimant can withdraw the amount. No costs. _Sd/-_ _**T.R.RAMACHANDRAN NAIR Judge**_ _Sd/-_ _**P.V.ASHA Judge**_ rtr/ /true copy/ P.S to Judge