Dileep v. Oriental Insurance Co. Ltd.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH TUESDAY, THE 9TH DAY OF AUGUST 2016/18TH SRAVANA, 1938 MACA.No. 2231 of 2011 () ------------------------AGAINST THE AWARD IN OPMV 1938/2006 of M.A.C.T., ERNAKULAM DATED 20-07-2011 APPELLANT(S):PETITIONER IN O.P.(MV).1938/2006 --------------------------------------------------------- DILEEP S/O.VIDHYATHARAN, AGED 36 YEARS, AIKKULATH HOUSE, NEELESWARAM P.O., KALADY VIA, ERNAKULAM DISTRICT. BY ADVS.SRI.REJI GEORGE SMT.ANUPAMA JOHNY SMT.JAISY MATHEW RESPONDENT(S):RESPONDENT NO.3 IN O.P(MV).1938/2006 ------------------------------------------------------------------- THE ORIENTAL INSURANCE CO.LTD BRANCH OFFICE, POST BOX NO.50, ELENJIKAL PLAZA CHURCH VIEW JUNCTION, KOTHAMANGALAM-6 BY ADV. SRI.A.R.GEORGE ADV.SRI.GEORGE CHERIAN (THIRUVALLA) THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 09-08-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **C.T. RAVIKUMAR** ## **& K.P.JYOTHINDRANATH, JJ.** **========================== M.A.C.A. No.2231 OF 2011 ==========================** Dated this the 9[th] day of August, 2016 ## **JUDGMENT** _Ravikumar, J._ The injured-petitioner comes up in appeal on being aggrieved by and dissatisfied with the quantum of compensation granted by the Motor Accidents Claims Tribunal, Perumbavoor in O.P.(MV).No.1938 of 2006. The appellant sustained severe injuries in a motor vehicle accident that occurred on 11.6.2006. On that day, he was riding his motor cycle bearing Reg.No.KL-7/AZ-9327. When he reached in front of NSS School, Kurumassery, the offending vehicle viz., a Mazda lorry bearing Reg.No.KL-4/A-423 driven by the second respondent dashed against his motor cycle. Consequently, he sustained grievous injuries. Immediately, he was taken to **M.A.C.A.2231/2011** 2 Karothukuzhi Hospital, Aluva and from there, he was referred to Amritha Institute of Medical Sciences and Research Centre, Edappally. He remained there as an inpatient for 16 days initially. Thereafter, he had different spells of hospitalisation and altogether he had been an inpatient for 88 days. The injuries sustained in the accident resulted in permanent disability. 2.Before the Tribunal, the appellant got examined Dr.Reji Varghese and Dr.Noushad as PWs 1 and 2 besides getting marked Exts.A1 and A2. On the side of the respondents, no oral evidence was adduced and certified photocopy of the policy was got marked as Ext.B1. Ext.X1 is the disability certificate issued by the medical board constituted at Medical College Hospital, Kottayam. On evaluating the evidence on record and appreciating the rival contentions, the Tribunal passed the impugned award for a total compensation of `7,98,807/- with interest @ 8% per annum from the date of the petition till realisation. It is in the said circumstances that **M.A.C.A.2231/2011** 3 the captioned appeal has been filed seeking enhancement of the quantum of compensation awarded. 3.We have heard the learned counsel for the appellant and also the learned counsel for the respondent. 4.Evidently, the sole question to be considered in this appeal is whether or not the appellant is entitled to get enhancement of compensation as claimed as the accident and the liability to indemnify the insured-owner are in dispute. The main grievances of the appellant are regarding the fixation of monthly income as also the assessment of permanent disability by the Tribunal, for the purpose of calculating compensation for permanent disability. The learned counsel for the appellant contended that the Tribunal disregarding the averments in the claim petition that the appellant was a Carpenter and was earning `7,000/- per month, fixed the monthly income of the appellant as `3,000/- for calculation purpose. It is the contention that **M.A.C.A.2231/2011** 4 though the Tribunal took the entire percentage of permanent disability certified under Ext.X1, the Tribunal failed to appreciate the contention that it caused 100% functional disability and to assess it accordingly. It is the further submission that the Tribunal had also granted only meagre sums under the heads 'pain and suffering', 'bystanders expenses', 'extra nourishment', 'transportation expenses' etc. According to the petitioner, an upward modification of the compensation is required under the aforesaid heads, as well. 5.The learned counsel for the respondent submitted that the appellant had not adduced any evidence before the Tribunal to establish his income and occupation and therefore, the Tribunal had no option but to fix the monthly income notionally for calculation purpose. It is further submitted that since the entire percentage of disability certified under Ext.X1 was taken into account by the Tribunal, the appellant is not justified in raising further grievance regarding assessment of permanent disability for calculation purpose. **M.A.C.A.2231/2011** 5 It is also submitted that a bare perusal of the schedule of compensation given in the impugned award would reveal that adequate compensation was granted by the Tribunal under all heads. Hence, it is submitted by the learned counsel that no interference is warranted. 6.True that in the claim petition, the appellant contended that he was a Carpenter by profession and was earning `7,000/- per month. However, the appellant had failed to establish the said contentions. When that be the position, the Tribunal cannot be found fault with, in fixing the monthly income notionally for calculation purpose. Still the question to be considered is whether the fixation of the monthly income as `3,000/- notionally for calculation purpose invites any interference. While deciding the said question, certain aspects have to be taken into account. The accident occurred on 11.6.2006 and on date of the accident the appellant was aged 31 years. The Tribunal had not taken into account the future prospects. True that the **M.A.C.A.2231/2011** 6 appellant had not established that he was having any stable employment. Taking into account all such aspects and taking into account the fact that even in the case of a coolie who met with an accident in the year 2004, the Hon'ble Apex Court fixed the monthly income as `4,500/- [ **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Ltd.** [ **(2011) 13 SCC 236]** , we are inclined to take the monthly income of the appellant as `5,000/-. It is fixed accordingly. As regards the grievance of the appellant regarding assessment of permanent disability, evidently, the entire percentage of disability was taken into account by the Tribunal for calculating compensation for the disability. The appellant got examined Dr.Reji Varghese and Dr.Noushad respectively as PWs 1 and 2. It is to be noted that taking into account the nature of the job and the injuries, the medical board which was constituted at Medical College Hospital, Kottayam in which PWs 1 and 2 were members assessed the permanent disability of the appellant as 70%. The Tribunal also found that the evidence on record would reveal that after **M.A.C.A.2231/2011** 7 Ayurvedic treatment, the condition of the appellant has improved. Taking into account all such aspects and the nature of the injuries noted for the purpose of fixing the permanent disability as is evident from Ext.X1, we do not think it proper to interfere with the assessment of permanent disability made by the Tribunal for calculation purpose. As noticed hereinbefore, taking note of the oral testimonies of PWs 1 and 2, the Tribunal took the entire percentage of disability certified under Ext.X1. Therefore, a re-assessment of compensation for permanent disability is required only by substituting monthly income as `5000/-. Towards compensation for disability, the Tribunal granted an amount of `4,03,200/-. On substituting the monthly income as `5,000/- and following the same formula, the amount thereunder would become `6,72,000/-. After deducting the amount already granted by the Tribunal under that head i.e., `4,03,200/-, the appellant would be entitled to get an amount of `2,68,800/- additionally. It is awarded. **M.A.C.A.2231/2011** 8 7.In view of the re-fixation of the monthly income as `5,000/-, the appellant is entitled to get proportionate enhancement of compensation under the head 'loss of earning'. The Tribunal took the period of loss of earning as 12 months. In such circumstances, for the said period, at the rate of `5,000/- per month, the appellant would be entitled to get an additional amount of `24,000/-. It is granted. 8.Towards transportation to hospital, the Tribunal granted an amount of `2,200/-. Taking into account the nature of the injuries and the treatment underwent by the appellant, as is evident from the evidence on record, there cannot be any doubt with respect to the fact that the appellant had several reviews since the initial admission and discharge from the hospital. Taking into account all such aspects, we are inclined to grant an amount of `2,800/- more towards transportation expenses. Towards extra nourishment, the Tribunal granted an amount of `6,000/-. Evidently, the appellant had been an inpatient for a period of 88 days. Taking note of the year of the **M.A.C.A.2231/2011** 9 accident, we are inclined to grant `100/- per day during such period towards extra nourishment. In that view of the matter, the appellant is entitled to get `2,800/- more. It is granted. Towards damage to clothing, the Tribunal granted an amount of `250/-. The nature of the injuries would go to show that the apparels worn by the appellant on the date of the accident must have been damaged. Hence we are inclined to grant `750/- more under that head. 9.While considering the grievances relating awards under the heads 'loss of amenities' and 'future medical expenses', the nature of the injuries sustained by the appellant has to be looked into. In Ext.A5, the following injuries have been noted :- 1. Two lacerated wounds left parietal region of sizes 3 cm. and 4 cm. 2. Abrasion and swelling left supra orbital margin. 3. Abrasion face 4. Loose tooth 5. Contusion neck 6. Abrasion and deformity left II toe 7. Dislocation left toe II at distal inter phalangeal joint **M.A.C.A.2231/2011** 10 8. Weakness both upper and lower limbs. 10.Ext.A8 would reveal that on diagnosis, it is found that he has traumatic IVDP C3-C4, C5-C6 and C6-C7. There was fracture dislocation of D4-D5, C3/4, C5/6 and C6/7. Anterior discectomy and anterior fusion with iliac crest, bone graft and anterior fixation with CSLP under GA were done on 14.06.2006. Posterior instrumentation under GA was also done on 22.6.2006. The medical records would reveal that at the first stage cervical discectomy and fusion of C3-4, C4-5 and C6-7 was done followed by posterior instrumentation of dorsal spine. He was also mobilized to sitting with a cervical collar and spine brace. At the time of discharge, the following findings were noted :- “Power of upper limb shoulder grade 5, elbow flexion Grade 5, extension Grade 3. Both wrist Gr.2 with minimal hand grip 0 power in both lower limbs.” 11.The medical records would further reveal that MRI scan of cervical spine and dorsal spine on 12.06.2006 revealed bifacetal **M.A.C.A.2231/2011** 11 dislocation D4-5 with listhesis, internal gibbus formation, D5 wedge collapse and cord oedema at D4-D6. Secondary canal narrowing secondary to disc bulge C3-4, C4-5, C5-6, C6-7 with cord oedema were also detected. 12.Thus, the nature of the injuries revealed from the aforesaid records together with the fact that owing to such injuries, the appellant had incurred permanent disability to the extent of 70%, we are of the view that the appellant is entitled to get enhancement of compensation under the head 'loss of amenities'. No amount was granted by the Tribunal towards future treatment. As noticed hereinbefore, the appellant had been an inpatient for a period of 88 days and even after his discharge from the hospital, he was not fully recovered. Taking into account all these aspects, we are of the view that the appellant is entitled to get enhanced compensation of `30,000/- under the head loss of amenities and an amount of `30,000/- is granted towards future medical expenses. **M.A.C.A.2231/2011** 12 In the light of the aforesaid discussions, the appellant is entitled to get a total enhanced compensation of `3,59,150/-. It is awarded. The said enhanced amount will carry interest @ 8% per annum from the date of petition till realization. The respondent is directed to deposit the additional compensation along with interest within a period of three months from the date of receipt of a copy of this judgment. There will be no order as to costs. **Sd/C.T. RAVIKUMAR (JUDGE)** **Sd/-** **K.P.JYOTHINDRANATH** **(JUDGE)** **spc/** **M.A.C.A.2231/2011** 13 **C.T. RAVIKUMAR, J.** **M.A.C.A.2231/2011** 14 **JUDGMENT September, 2010**