E.K. Aravindan Nair @ Aravindan S/O Ragavanan Nair v Abdul Nazeer, Pavithran K.T.S and The United India Insurance Company 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 29TH DAY OF NOVEMBER 2016/8TH AGRAHAYANA, 1938** **MACA.No. 2236 of 2010 ( ) --------------------------** **AGAINST THE AWARD IN OPMV 1878/2004 of M.A.C.T.,KOZHIKODE DATED 02-04-2009** **APPELLANT/PETITIONER IN OPMV:** **-------------------------------** **E.K.ARAVINDAN NAIR @ ARAVINDAN S/O.RAGHAVAN NAIR, AGED 48 YEARS,MELEDATH(H), CHOOLOOR POST, VIA,CHATHAMANGALAM,CALICUT.** **BY ADVS.SRI.K.M.JAMALUDHEEN SMT.LATHA PRABHAKARAN** ## **RESPONDENTS/RESPONDENTS IN THE OPMV:** **--------------------------------------** **1. ABDUL NAZEER, S/O.MOIDEENKOYA, KALPAKA TRAVEL,NO.19,CORPORATION BLDGS,KALASIPALAYAM, MAIN ROAD, BANGALORE 560001** **2. PAVITHRAN.K.T.S/O.THANKAPPAN AGED 41 YEARS KOTTAPATH HOUSE, KILIYANTHARA,** **3. THE UNITED INDIA INSURANCE COMPANY LTD, BRANCH OFFICE, CHOVVA BRANCH, KALTED JUNCTION, KANNUR-670001.** **R3 BY ADV. SRI.RAJAN P.KALIYATH** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 29-11-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **C.T.RAVIKUMAR & K.P.JYOTHINDRANATH, JJ.** - - - - - - - - - - - - - - - - - - - - - ## **M.A.C.A.No.2236 OF 2010** - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 29[th] day of November, 2016 ## **JUDGMENT** ## Ravikumar, J. The injured petitioner is the appellant. This appeal is preferred against the judgment and award dated 2.4.2009 passed by the Motor Accidents Claims Tribunal, Kozhikode in O.P.(MV)No.1878/2004. As per the said award, the Tribunal assessed a compensation of Rs.2,20,500/- and deducted 10% of the assessed amount and awarded a total compensation of Rs.1,98,450/- with interest @ 7% per annum from the date of petition till realization. It is on being aggrieved by and dis-satisfied with the quantum of compensation granted and also the deduction effected by the Tribunal that this appeal has been preferred seeking enhancement of the compensation. 2. We have heard the learned counsel for the appellant and also the learned counsel appearing for the third respondent Insurance MACA No.2236/2010 2 Company. 3. In view of the absence of dispute regarding the accident, cause of the accident and the liability to indemnify the insured owner of the offending vehicle, we do not think it necessary to issue notice to respondents 1 and 2. Hence issuance of notice to respondents 1 and 2 is dispensed with. In such circumstances, we are proceeding with consideration of the appeal on merits at the admission stage itself. 4. The accident involved in this case is a collision between two buses viz., a KSRTC bus and a private bus. Obviously, the accident occurred while the drivers were negotiating a curve. The Tribunal on consideration of the evidence on record arrived at the finding that it was a head on collision and therefore, the cause of the accident is composite negligence and apportioned the degree of negligence in between the drivers of the vehicles equally. We will firstly consider whether such conclusion arrived at by the Tribunal warrants interference. 5. The fact that the accident occurred while the drivers were negotiating a curve on a public road is not in dispute. The appellant MACA No.2236/2010 3 was the driver of the KSRTC bus involved in the accident. The learned counsel appearing for the appellant contended that Exts.A1 and A3 would reveal that in the crime registered in connection with the accident in question, only the second respondent, the driver of the private bus alone was arrayed as the accused. The question to be considered is whether that by itself could be a reason for interfering with the finding on that question by the Tribunal. As noticed hereinbefore the accident occurred when the vehicles were negotiating a curve. The vehicles involved in this case are two buses. The width of the road at the relevant area as described in Ext.A7 scene mahazar and the aforesaid aspects viz., class of vehicles involved in the accident and the drivers were negotiating a curve would tend us to uphold the finding of the Tribunal that the accident occurred on account of head on collision. These aspects were duly considered by the Tribunal as is evident from the impugned judgment. In the absence of any reason to hold that the Tribunal had appreciated the evidence on record in an utterly perverse manner such finding on facts cannot be interfered with. In such circumstances, we uphold the finding of the Tribunal that head MACA No.2236/2010 4 on collision of the vehicles is the cause of the accident. When head on collision of two vehicles is the cause of the accident, the finding to the effect that the cause of the accident is composite negligence and the consequential apportionment of the degree of negligence in between the drivers of the vehicles equally also call for no interference. In such circumstances, the apportionment of the degree of negligence among the drivers of the vehicles involved in the accident equally, is also upheld. 6. The main grievance of the appellant is regarding the assessment of disability compensation. Evidently, the Tribunal applied split multiplier. The Tribunal identified the multiplier as 15 taking note of the age of the appellant at the time of the accident and admittedly, he was then aged 43 years. At this juncture, the learned counsel appearing for the third respondent Insurance Company contended that going by the schedule given in the decision of the Hon'ble Apex Court in **Sarla Verma v. Delhi Transport Corporation [ 2010(2) KLT 802(SC)** ], the multiplier applicable with reference to the age of the appellant is 14. There is substance in the said contention in view of the schedule given MACA No.2236/2010 5 in Sarla Varma's case. As noticed hereinbefore the appellant was working as a driver in KSRTC. He was left with about 13 years of service at the time of the accident. After the accident going by the extent of permanent disability incurred in the accident, he was found not fit to continue as a driver under the Corporation and consequently he was de-categorized. Taking into consideration Ext.A5 salary certificate, the Tribunal found that after the accident, there was a reduction in his gross salary by Rs.1,500/- in consequence of his de-categorisation. 7. We have gone though the assessment of disability compensation by the Tribunal as revealed from paragraphs 12 to 14. It would reveal that the Tribunal assessed the disability compensation for a period of 13 years taking the monthly income as Rs.1,500/- and applying the multiplier as 13. Obviously, in view of the fact that the appellant had succeeded in proving the extent of disability incurred in the accident by producing Ext.C1, 25% was taken as the permanent disability. For assessing the post-retirement disability compensation, the Tribunal adopted the multiplier as 2. Evidently, for the post- MACA No.2236/2010 6 retirement period, the income was taken as Rs.2,000/-. The manner in which the disability compensation was assessed by the Tribunal and in the absence of cogent evidence with respect to the actual income of the appellant at the time of the accident and also taking note of the fact that the accident had not resulted in termination of service of the appellant from the Corporation, we are of the considered view that it is not feasible to consider and grant compensation under the head loss of earning power and it would only be just and proper to grant compensation to the appellant for the permanent disability incurred by him in the accident. True that pursuant to the accident and incurring of permanent disability the appellant was de-categorised and resultantly, there occurred some deduction in his monthly emoluments. Still, the fact is that he continued in the employment under the Corporation. The details available would not justify grant of compensation for loss of earning power and we are of the view that it is only proper to consider the compensation for permanent disability in the case on hand. As noticed hereinbefore, the appellant had produced Ext.A5 salary certificate. Going by the same, his salary is Rs.5304/-. True that he got MACA No.2236/2010 7 a contention that he was actually earning more than Rs.5304/- at the time of the accident. But at the same time, there is absence of any evidence regarding the exact salary which was being drawn by him at the time of the accident. In such circumstances, in the light of Ext.A5, we are inclined to take the monthly income only at Rs.5,304/- for calculation purpose. As noticed hereinbefore, there is no dispute regarding the extent of permanent disability incurred by the appellant in the accident. Going by Ext.C1 it is 25%. We have already found force in the contention of the learned counsel for the insurance company that the multiplier applicable with reference to the age of the appellant at the time of the accident is 14 and not '15' in the light of the decision in **Sarla Verma's** case ( supra). Therefore, the compensation payable for permanent disability has to be assessed by taking into account the aforesaid relevant factors. On such assessment, the appellant would be entitled to get a compensation of Rs.2,22,768/( 5304 x 12 x 14 x 25%) under that head. 8. As regards medical treatment expenses, to establish the expenses incurred for therefor, evidently the appellant had produced MACA No.2236/2010 8 medical bills. The evidence on record would reveal that the medical bills produced by the appellant were got marked by the Tribunal. At the same time, in the appendix, the said marking is not reflected though the factum of production of medical bills before the Tribunal is evident from the impugned judgment itself. It is discernible from paragraph 12 that the total amount covered by the medical bills produced by the appellant is Rs.2,97,655/-. While considering the amount granted by the Tribunal towards medical expenses, the Tribunal made an observation as hereunder : “----- petitioner has chosen to avail treatment from a private hospital from where exaggerated medical bills could be expected” ( emphasis supplied) 9. There is no specific finding by the Tribunal that in the case on hand, the appellant had produced medical bills which are nothing but exaggerated medical bills. The Tribunal found that going by the medical bills produced by the appellant, the amount is Rs.2,97,655/-. On a careful examination of the medical bills, it is found that an MACA No.2236/2010 9 amount of Rs.15,000/- is inadmissible as expenses incurred as it is an advance bill cannot be granted. Therefore, the said amount has to be deducted from the total amount covered by the medical bills. On going through the bills produced we do not find any reason or justification to uphold rejection of claim of medical expenses based on the aforesaid presumption and according to us, except the bill for Rs.15,000/- the bills for the balance amount revealing the medical expenditure, are to be accepted and acted upon. Therefore, towards medical expenses, we are inclined to award a sum of Rs.2,82,655/-. 10. Towards pain and suffering, the Tribunal granted an amount of Rs.20,000/-. The Tribunal also granted Rs.5,000/- each under the heads disfiguration of leg and loss of amenities. While considering the compensation payable under the aforesaid heads, it is only proper to consider the nature of the injuries sustained by the appellant in the accident. Ext.A2 is the wound certificate. Ext.A6 is the discharge summary. They were elaborately dealt with by the Tribunal. Paragraph 12 of the impugned judgment would reveal that the Tribunal had noticed that even after availing plastic microvascular surgery, the leg of MACA No.2236/2010 10 the appellant was not revived to the original or normal condition. The Tribunal observed that skin grafting is a gradual process for which transplantation of skin is required. For restoration of heel pad microvascular surgery is required. After taking into account all such factors, the Tribunal observed thus : “ Anyway on seeing the present condition of the left ( presumably left leg) I find that skin on the heel pad might have lost and for providing protective cover to the exposed heel pad skin grafting was essential.” 11. Evidently, Ext.C1 would reveal that as an impact of the injuries sustained in the accident, the appellant had incurred 25% permanent disability. Taking note of all such factors, we are of the view that though the amount of compensation granted by the Tribunal under the head 'pain and suffering' requires no interference it is required as regards compensation granted by the Tribunal under the heads 'disfiguration' and 'loss of amenities'. 12. Taking into account the nature of the disfigurement, we are MACA No.2236/2010 11 of the view that the appellant has to be granted an amount of Rs.20,000/-towards compensation for disfigurement. The Tribunal had categorically observed that even a life long treatment could not restore the normal condition. Evidently, the Tribunal made such observations after seeing the physical condition of the appellant. In such circumstances, it is evident that the appellant would not be in a position to enjoy the pleasures of life as before and therefore, he is to be compensated adequately. Hence, we are inclined to grant an amount of Rs.30,000/- towards loss of amenities. The nature of the injuries would undoubtedly show that he must have had a number of visits to the hospital. In such circumstances, we are inclined to grant Rs.3,000/under the head transportation expenses. Obviously, the appellant had been an inpatient for a period of 42 days. Taking into account the fact that the accident occurred in the year 2004, we are of the view that the rate of extra nourishment ought to have been Rs.100/- per day and the rate of bystander's expenses ought to have been Rs.150/- per day. However, the Tribunal granted an amount of Rs.8,000/- without specifying the heads under the head 'incidental charges'. In such MACA No.2236/2010 12 circumstances, we are inclined to grant a sum of Rs.4,200/- towards extra nourishment and Rs.6,300/- towards bystander's expenses. Going by the nature of the injuries sustained by the appellant, we are of the considered view that the period of loss of earnings ought to have been three months. In that view of the matter, the appellant is entitled to get Rs.15,912/-. 13. In the light of the discussion as above and the assessment and re-assessment made by us, the appellant would be entitled to get a total compensation of Rs.6,40,835/- . Since we have not interfered with the apportionment of degree of negligence by the Tribunal equally among the drivers of both the vehicles, the appellant being the driver of one of the vehicles involved in the accident, he is entitled to get 50% of the amount assessed as compensation. In such circumstances, he will be entitled to get an amount of Rs.3,02,417/- which is rounded off to Rs.3,02,500/-. As per the impugned award, the Tribunal has already granted an amount of Rs.1,98,450/-. After deducting the said amount, the appellant is entitled to get over and above Rs.1,98,450/-, compensation of MACA No.2236/2010 13 Rs.1,04,050/- and it is awarded. The said amount of additional compensation will carry interest @ 8% per annum from the date of petition till realization. The third respondent insurer is directed to deposit the said amount along with interest thereon within a period of two months from the date of receipt of a copy of this judgment. ## **C.T.RAVIKUMAR, JUDGE** **K.P.JYOTHINDRANATH, JUDGE** sv. 02/12/2016