C.K. Subramanniyan v. Abdul Samad and Muhammed P.V. and The United India Insurance Co. Ltd.

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE A. BADHARUDEEN ``` ``` FRIDAY, THE 22[ND] DAY OF JULY 2022 / 31ST ASHADHA, 1944 ``` ``` MACA NO. 1670 OF 2012 ``` # **`AGAINST THE AWARD IN OPMV 1263/2007 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, MANJERI`** ## **`APPELLANT/PETITIONER:`** ``` C.K.SUBRAMANNIYAN S/O.UNNIKUTTY, CHOLAKKAL HOUSE, CHEMPAKUTHU, EDAVANNA P.O., MALAPPURAM DISTRICT. BY ADV SRI.P.VENUGOPAL (1086/92) ``` ## **`RESPONDENTS/RESPONDENTS:`** |**`1`**|**`ABDUL SAMAD`**| |---|---| ||**`S/O.MOIDEEN, KOZHIKKARUVATTIL HOUSE,`**| ||**`KOOTTILANGADI P.O., MALAPPURAM DISTRICT, PIN-676506.`**| |**`2`**|**`MUHAMMED P.V. S/O.UMMER`**| ||**`PALAMPADIYAN HOUSE, VEMMARKOTTIL,`**| ||**`KOOTTILANGADI P.O., MOTTAMMAL,`**| ||**`MALAPPURAM DISTRICT, PIN-676506.`**| |**`3`**|**`THE UNITED INDIA INSURANCE CO. LTD.`**| ||**`KILIYAMANNIL PLAZA COMPLEX, UP HILL P.O.,`**| ||**`MALAPPURAM DISTRICT, PIN-676505.`**| ||**`BY ADV SRI.S.ARUN RAJ`**| ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 22.07.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA NO. 1670 OF 2012 ``` ``` 2 ``` ## **JUDGMENT** This appeal arises out of award in O.P.(MV). No.1263/2007 dated 27.02.2012 on the files of the Motor Accidents Claims Tribunal, Manjeri. The petitioner is the appellant herein and the respondents are the respondents before the Tribunal. 2. Heard the learned counsel for the appellant and the learned counsel for the Insurance Company. 3. The summary of the case before the Tribunal is as follows: The appellant, who sustained injuries in a motor accident occurred on 26.06.2007 at about 4.50 p.m., while he was travelling on his motorcycle and when he was hit down by pick up van bearing registration No. KL 9B 2509 driven by the first respondent in a rash and negligent manner, had approached the Tribunal and canvassed compensation to the tune of Rs.2,70,000/-. ``` MACA NO. 1670 OF 2012 ``` ``` 3 ``` 4. R1 and R2 appeared through their counsel, but did not defend the proceedings. 5. The third respondent filed written statement and admitted the insurance coverage to the offending vehicle. Negligence as well as quantum of compensation disputed. 6. The Tribunal recorded evidence and marked Exts.A1 to A7 series on the part of the appellant. Ext.B1 marked on the side of the respondents. Ext.X1 Medical Board certificate also got marked. 7. While impeaching the correctness of the award under challenge, the learned counsel for the appellant submitted that though the medical Board assessed 22.4% disability, the Tribunal not granted any amount under the said head though it is established by evidence that the appellant sustained severe head injury led to 20% cognitive impairment and 3% disability otherwise. 8. According to the learned counsel for the appellant, the Tribunal given emphasis to the affidavit filed ``` MACA NO. 1670 OF 2012 ``` ## **`4`** by the appellant before the Tribunal to hold that the appellant did not have any cognitive impairment since it was averred in the affidavit that the appellant, who was on continuous treatment, had improved his physical condition much. 9. He also submitted that even though 20% cognitive impairment is there, then also it could not be held without support of sufficient evidence that the person is incapable of managing himself and the affidavit in this regard alone shall not be decisive in holding that he did not have any cognitive impairment as a result of the accident. 10. The learned counsel for the Insurance Company vehemently opposed grant of disability as stated in Ext.X1 on the ground that, initially, the appellant who filed the original petition through the next friend, claiming himself as a mentally disabled person, subsequently filed affidavit expressing willingness to conduct the case by himself and ## **`MACA NO. 1670 OF 2012`** ``` 5 ``` thereby he had given a go bye to his cognitive impairment. 11. In this case, copy of wound certificate dated 26.06.2007 would suggest that the appellant sustained head injury. The treatment underwent by the appellant could be gathered from Ext.A6, a treatment book produced by the appellant, issued from Medical College Hospital, Calicut. It is diagnosed as per Ext.A6 that the appellant sustained head injury, intra verticular bleed, SAH, hemorrhagic contusion - occipital region left lateral ventricle. He was treated for a period of 21 days from 26.06.2007 to 16.07.2007. Examination of appellant by CT scan of head showed fracture right Zygoma and flat wall right maxillary sinus, lateral wall right orbit. Thus, it appears that the appellant sustained serious head injuries consequent to the accident. In the disability certificate, 3% of the disability shown as post traumatic vertigo and headache. As far as the remaining 20% of the disability assessed was in relation to cognitive impairment. Since ``` MACA NO. 1670 OF 2012 ``` ``` 6 ``` the appellant sustained very serious head injuries as discussed, the Tribunal could not be justified in the matter of negativing the disability income claimed by the appellant in toto. Even if emphasis is given to the affidavit that the appellant filed on 31.01.2012 before the tribunal. Then also, it can be held that he has improvement in his condition subsequently. In view of the above, I am of the view that, in this case, 15% disability can be accepted for the purpose of granting disability income to the appellant. 12. In this matter, the income fixed by the Tribunal is only Rs.3,500/- though the appellant claimed the same at Rs.4,000/-. Since Rs.4,000/- claimed is reasonable, in view of the ratio in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Ltd.** **[(2011) 13 SCC 236],** the same is accepted. In this matter, the Tribunal granted ‘loss of earnings’ for a period of one year at the rate of Rs.3,500/-. Considering the prolonged treatment, the same is re-calculated at the rate of Rs.4,000/- for a period of one year. Thus, the appellant ``` MACA NO. 1670 OF 2012 ``` ``` 7 ``` is entitled to get Rs.48,000/-. Accordingly, **Rs.6,000/-** (48,000 – 42,000) more is granted under the head ‘loss of earnings’. 13. The age of the appellant is not established by convincing documents. However, the medical records would suggest that the same is 35. In view of the matter, ‘16’ is the multiplier following the ratio in **Sarla Verma (Smt) & Ors v. Delhi Transport Corporation & Anr. [2010 (2) KLT 802 (SC)].** Therefore, the disability income is calculated as under: 4000 x 12 x 16 x 15/100 = 1,15,200/- 14. The Tribunal granted Rs.20,000/- under the head ‘pain and sufferings’. Since serious injuries sustained by the appellant, I am inclined to grant **Rs.15,000/-** more under the head ‘pain and sufferings’. Similarly, no amount granted under the head ‘extra nourishment’ and therefore, **Rs.5,000/-** is granted under the head ‘extra nourishment’. As far as other heads are concerned, the Tribunal granted ``` MACA NO. 1670 OF 2012 ``` ``` 8 ``` reasonable compensation. In the result, this appeal stands allowed in part. It is ordered that the appellant is entitled to get Rs.2,30,677/as compensation, out of which Rs.95,477/- was granted by the Tribunal and the balance of **Rs.1,35,200/-** (Rupees one lakh thirty five thousand and two hundred only) is granted as enhanced compensation with the same rate of interest awarded by the Tribunal, payable by the Insurance Company, from the date of petition till the date of deposit or realisation. Insurance Company is directed to deposit the same in the name of the appellant within two months from today. On deposit, the appellant can release the same. ## **Sd/-** ## **A. BADHARUDEEN** **JUDGE** nkr