George Jacob v. E.P. Hadidasan, C. Rajan and National Insurance Co. Ltd.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON & THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN MONDAY, THE 4TH DAY OF JANUARY 2016/14TH POUSHA, 1937 MACA.No. 2403 of 2010 ( ) -------------------------- AGAINST THE AWARD IN OPMV 1036/2006 of PRINCIPAL MOTOR ACCIDENT CLAIMS TRIBUNAL, KOZHIKODE DATED 22-09-2009 APPELLANT/PETITIONER: ------------------------------------ GEORGE JACOB AGED 42 YEARS, `GREENLAND', CHELAVOOR AMSOM DESOM , KOZHIKODE. BY ADVS.SRI.K.M.FIROZ SMT.M.SHAJNA ## RESPONDENTS/RESPONDENTS: --------------------------------------------- 1. E.P.HADRIDASAN S/O.DAMODARAN NAIR, AGED 47 YEARS KIZHAKKE EDATHUMPOYILILL, REC (NIT) P.O., CALICUT. 2. MR.C.RAJAN, S/O.APPU NAIR, CHENNOTH HOUSE, REC (NIT) P.O. KOZHIKODE. 3. NATIONAL INSURANCE CO.LTD., DIVISIONAL OFFICER-II, NOOR COMPLEX, MAVOOR ROAD CALICUT-4. R3 BY ADV. SRI.LAL GEORGE THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 04-01-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **P.R.RAMACHANDRA MENON & ANIL K.NARENDRAN, JJ. -------------------------------------------------M.A.C.A.No.2403 OF 2010** **-------------------------------------------------DATED THIS THE 4[th] DAY OF JANUARY, 2016** ## **JUDGMENT** ## **ANIL K.NARENDRAN, J** . The appellant is the claimant in OP (MV)No.1036/2006 on the file of the Principal Motor Accident Claims Tribunal, Kozhikode, an application filed under Section 166 of the Motor Vehicles Act claiming compensation for the injuries sustained in a motor accident occurred on 21.2.2004. The appellant was driving a motor car bearing registration No.KL-11/F-4136 from Kozhikode to Chelavoor. When it reached Pallithazham, a tipper lorry bearing registration No.KL-11/R-2220 driven, owned and insured by respondents 1 to 3 came in a rash and negligent manner and hit the car. The appellant sustained serious injuries and he had undergone inpatient treatment for nearly 70 days, during different spells. Claiming a total compensation fo 10 lakhs under different heads, the appellant₹ filed claim petition before the Tribunal. 2. Before the Tribunal, Exts.A1 to A8 were marked on the side of the appellant. The respondents have not chosen to adduce M.A.C.A.No.2403/10 -2- any oral or documentary evidence. 3. Based on the materials on record, the Tribunal came to the conclusion that the accident occurred due to the rash and negligent driving of the lorry by the 1[st] respondent driver. Since the offending lorry was covered by an insurance policy issued by the 3[rd] respondent insurer, the Tribunal held that the said respondent is liable to pay the amount of compensation payable to the appellant. Under different heads, the Tribunal awarded a total compensation of 1,25,766/-. ₹ 4. Inadequacy of the compensation awarded by the Tribunal under different heads is the subject matter of this appeal. 5. We heard arguments of the learned counsel for the appellant and also the learned counsel appearing for the 3[rd] respondent insurer. 6. From the pleadings and materials on record, it is seen that at the time of accident, the appellant was aged 38 years. In the accident, the appellant sustained comminuted fracture of the shaft of right femur, contusion back of right thigh, deep laceration on the right cheek extending to the right upper eyelid M.A.C.A.No.2403/10 -3- and deep laceration on the right supra orbital region, which is evident from Ext.A3 wound certificate. The details of the treatment undergone by the appellant are disclosed in Exts.A4 and A5 discharge cards, as per which, he was initially admitted at Baby Memorial Hospital and since fact embolism was suspected, he was shifted to Intensive Care Unit. Subsequently, he was discharged after a surgery. Thereafter he was admitted again for removal of implants, which was unsuccessful. Later, as borne out from Ext.A4 discharge card, the appellant was admitted in Fathima Hospital on 11.8.2004 with old comminuted fracture right femur and non-union of the same. He underwent re-nailing and bone grafting and discharged on 21.9.2004. He was again taken to the hospital 14.3.2005 and discharged on 23.3.2005 due to loss of consciousness and fall. 7. Towards medical expenses, the appellant produced Ext.A8 series of medical bills for a sum of 1,38,142/-. After₹ verifying the medical bills on record, the Tribunal found that the medical bills to the tune of 50,076.90 is not admissible. After₹ deducting the aforesaid sum, the Tribunal awarded 87,766/-₹ towards treatment expenses. In the absence of any reliable M.A.C.A.No.2403/10 -4- materials, we find absolutely no grounds to grant any enhancement under this head. 8. The appellant contended that at the time of accident, he was working as a Personal Loan Executive in City Financial, Kozhikode, drawing a monthly salary of 15,000/-. However, the₹ appellant has not chosen to produce any reliable material in order to substantiate his claim regarding monthly income. However, considering the fact that the accident occurred on 21.2.2004 and at the time of accident the appellant was an able bodied person aged 38 years, who was maintaining his own motor car, we deem it appropriate to fix his monthly income notionally at 4,000/-. ₹ 9. Before the Tribunal, the appellant failed to produce any certificate showing disability. This Court by order dated 28.7.2015 in I.A.No.2465/15 referred the appellant before the Medical Board at the Medical College Hospital, Kozhikode. Pursuant to the said order, the appellant was examined by the Medical Board and the certificate of permanent disability issued by the Medical Board is forwarded to this Court along with covering letter dated 22.9.2015 of the Superintendent, Government Medical College Hospital, Calicut. In the disability M.A.C.A.No.2403/10 -5- certificate dated 10.9.2015, the Medical Board assessed a permanent disability of 43%. However, the Medical Board has not assessed the whole body disability. In such circumstances, taking note of the figures in the tabulation sheet attached to the disability certificate and after considering the nature of injuries sustained by the appellant, as borne out from the documents on record, we notionally fix the whole body disability of the appellant at 25% for the purpose of calculating compensation for permanent disability. 10. At the time of accident, the appellant was aged 38 years. After reckoning the notional monthly income of the appellant at 4,000/- and applying the multiplier of '15' and₹ fixing the whole body disability at 25%, the appellant will be entitled for a sum of **₹1,80,000/-** (i.e., 4000x12x15x25/100) as compensation for permanent disability. 11. Towards transportation to hospital, the Tribunal awarded a sum of 750/-. As we have already noticed, the₹ appellant had undergone inpatient treatment at various hospitals, during different spells. Taking into account the facts and circumstances of the case, we deem it appropriate to refix the M.A.C.A.No.2403/10 -6- amount towards transportation to hospital at 5,000/-. Thus, the₹ appellant will be entitled for an additional sum of **₹4,250/-** under this head. 12. Towards loss of earning, the Tribunal awarded only a sum of 6,000/-. Considering the nature of injuries sustained and₹ the treatment the appellant had undergone, as borne out from the materials on record, we deem it appropriate to grant him loss of earning for a period of one year. Therefore, based on the notional monthly income of 4,000/- fixed, the appellant will be₹ entitled for a sum of 48,000/- under this head. After deducting₹ ₹6,000/- awarded by the Tribunal, the additional compensation payable under this head comes to **₹42,000/-** . 13. Towards bystander expenses the Tribunal awarded a sum of 3,000/-. Considering the fact that the appellant had₹ undergone inpatient treatment for a period of 70 days, we deem it appropriate to refix the compensation under this head as ₹7,000/- (100x70). In the result, the appellant will be entitled for an additional compensation of **₹4,000/-** under this head. 14. Towards pain and suffering the Tribunal awarded a sum of 25,000/-. Considering the nature of injuries sustained₹ M.A.C.A.No.2403/10 -7- and the treatment the appellant had undergone, we deem it appropriate to refix the compensation under this head at ₹35,000/-. In the result, the appellant will be entitled for an additional compensation of **₹10,000/-** under this head. 15. Towards loss of amenities, the Tribunal awarded only a meagre sum of 3,000/-. As borne out from the documents on₹ record and also the disability certificate dated 10.9.2015 of the Medical Board, the appellant sustained serious disabilities, resulting loss of amenities. In such circumstances, we deem it appropriate to refix the compensation under this head as ₹25,000/-. In the result, the appellant will be entitled for an additional compensation of **₹22,000/-** under this head. 16. Thus the appellant will be entitled for an additional compensation of **₹2,62,250/-** under different heads. 17. For the amount of compensation, the Tribunal awarded interest @ 7% per annum from the date of petition, till realisation. In **Kaushnuma Begum v. New India Assurance Co. Ltd. (2001 (2) SCC 9),** taking note of the fact that the Nationalised Banks are granting interest at the rate of 9% per annum on fixed deposits for one year, the Apex Court directed M.A.C.A.No.2403/10 -8- that, the compensation amount refixed shall bear interest at the rate of 9% per annum from the date of the claim. Considering the principle laid down in the aforesaid decision, we deem it appropriate to refix the rate of interest for the additional compensation awarded in this appeal at 9% per annum from the date of petition till date of deposit. Since the insurance coverage of the vehicle in question is admitted by the 3[rd] respondent insurer, the said respondent shall deposit the additional compensation awarded in this appeal together with interest before the Tribunal within a period of one month from the date of receipt of a certified copy of this judgment. Sd/- ## **P.R.RAMACHANDRA MENON** , **JUDGE** Sd/- **ANIL K.NARENDRAN, JUDGE** dsn True copy ## P.S. to Judge