GOPALAN @ GOPALAKRISHNAN v. K.RAMAKRISHNAN, Vindokumar P.N., and M/S UNITED INDIA INSURANCE CO. LTD.

MACA.No.1215/2013 1 # _IN THE HIGH COURT OF KERALA AT ERNAKULAM_ ## _PRESENT_ _THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A._ _WEDNESDAY, THE 21[ST] DAY OF FEBRUARY 2024 / 2ND PHALGUNA,_ ## _1945_ ## _MACA NO.1215 OF 2013_ _AGAINST THE ORDER/JUDGMENT OPMV 2230/2005 OF MOTOR ACCIDENT CLAIMS TRIBUNAL & SPECIAL COURT FOR E.C. ACT CASES,_ ## _THRISSUR_ ## _APPELLANT/PETITIONER:_ _GOPALAN @ GOPALAKRISHNAN, AGED 55 YEARS, VETTAKULATHIL HOUSE, PANJAL VILLAGE, DESOM CHERUTHURUTHY - VIA., THRISSUR DISTRICT._ _BY ADV.SRI.P.V.CHANDRA MOHAN_ ## _RESPONDENTS/RESPONDENTS:_ _1 K.RAMAKRISHNAN, PUTHIYAVEEDU, PRAKASH NILAYAM, VI/497, MULLOORKARA PO, THRISSUR DISTRICT, 680 583. 2 VINDOKUMAR P.N. S/O.NARAYANAN, PARAPPUR HOUSE, ATTOOR P.O, THRISSUR DISTRICT-680 583. 3 M/S.UNITED INDIA INSURANCE CO. LTD. DIVISONAL OFFICE, PARK HOUSE, ROUND NORTH, THRISSUR 680 001. BY ADV.SMT.P.A.REZIYA_ _THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 21.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:_ MACA.No.1215/2013 2 ## **JUDGMENT** The appellant was the petitioner in O.P.(MV). No.2230 of 2005 on the file of the Motor Accidents Claims Tribunal, Thrissur. The said claim petition was submitted by the appellant seeking compensation for the injuries sustained to him in a motor accident that occurred on 26.11.2004. 2. The accident occurred when the scooter on which the appellant was pillion riding, was hit by a car bearing registration No.KL8/A-2461, driven by the 2[nd] respondent. The said vehicle was owned by the 1[st] respondent and insured with the 3[rd] respondent. The appellant was a coolie in a quarry with a monthly income of Rs.3,500/-. He was 47 years old at the time of the accident. According to him, due to the accident, he sustained very serious injuries and it resulted in serious physical disablement which prevented him from continuing his avocation as a coolie. The claim petition was submitted in such circumstances. 3. The 3[rd] respondent alone contested the matter by filing a written statement wherein, they admitted the coverage of policy for the car. However, they denied the negligence on the part of the 2[nd] respondent and the quantum of compensation was also disputed by them. MACA.No.1215/2013 3 4. The said claim petition was tried along with O.P.(MV). No.2231 of 2005, which was filed by the rider of the scooter seeking compensation for the injuries sustained in the accident. The evidence in these claim petitions consists of Exts.A1 to A17 and the case sheet was produced as Ext.X1. After the trial, the Tribunal came to the conclusion that the accident occurred due to negligence on the part of the driver of the car and being the insurer, the 3[rd] respondent was held liable to pay the compensation. The quantum of compensation was fixed as Rs.3,83,400/- and the said amount was directed to be deposited by the 3[rd] respondent with interest at the rate of 8% from the date of petition till realization. This appeal is submitted by the appellant in such circumstances seeking enhancement of compensation. 5. Heard Sri.P.V.Chandramohan, learned counsel for the appellant and Smt.P.A.Reziya, learned counsel for the 3[rd] respondent. 6. The learned counsel for the appellant points out that the amount awarded by the Tribunal under various heads, particularly under the head of disability was grossly inadequate. On the other hand, the learned counsel for the 3[rd] respondent opposes the said contention by highlighting that a reasonable compensation has been awarded and no interference is MACA.No.1215/2013 required. 4 7. I have carefully gone through the records. As regards the contention of the learned counsel with respect to the inadequacy of compensation for disability, I find some force. For assessing the compensation, the Tribunal accepted the monthly income as Rs.3,000/-, whereas the claim in this regard was Rs.3,500/-. Considering the fact that this is an accident which occurred in the year 2004, under no circumstances, the claim of Rs.3,500/- as the monthly income can be treated as unreasonable. Therefore, I find that the monthly income in this case can be accepted as Rs.3,500/- as claimed in the claim petition. 8. The next element to be considered is the percentage of disability. Ext.A6 is the certificate issued by the Medical Board, wherein his percentage of disability was certified as 45%. Ext.A10 is yet another disability certificate produced by him, wherein the disability is shown as 38%. In paragraph No.9 of the award, the detailed description of the injuries suffered by the appellant and the consequences of the same are referred to. It was noticed that, he suffered fracture lower end of the right femur and, lacerated wound lower 1.3[rd] right. The appellant was produced before the Tribunal and on examination, it was noticed by the Tribunal that the appellant cannot fold his legs. MACA.No.1215/2013 5 He had undergone six surgical operations on his thigh and the bone of the hip joint was also removed. He can move around only in a wheelchair. He is physically incapacitated and unable to carry out any avocation. However, despite noticing such serious injuries and disabilities, the Tribunal fixed the percentage of disability as 30%. The specific contention raised by the learned counsel for the appellant in this regard is that, this is a fit case in which the functional disability at a higher rate should have been taken by the Tribunal. It was pointed out that, despite the fact that the appellant became incapacitated to do any other employment, instead of taking the functional disability at higher rates than the physical disability certified in Ext.A10, the Tribunal scaled down the percentage of disability to 30%, which is not correct. After carefully going through the records, I find that the said contention is acceptable. The certificate of the Medical Board record and the observations made by the Tribunal after physically examining the conditions of the appellant, would indicate that the appellant suffered very serious disability which precluded him from pursuing his avocation as a coolie. He is depending the wheelchair for his movements as well. Therefore, it is a fact that this is a case in which the functional disability ought to be taken into consideration. The learned counsel for the appellant placed MACA.No.1215/2013 6 reliance upon the decision rendered by the Honourable Supreme Court in **Chandramma v. Manager, Regional Office, NCC Limited [AIR 2023 SCC 21],** wherein considering the nature of injuries sustained by the victim in that case, the percentage of functional disability was taken as 100%, even though the physical disability was 20%. Of course, it is true that the functional disability has to be reckoned by taking note of the impact of the disability upon the avocation of the victim. In **Syed Sadiq v. Divisional Manager, United India Insurance Co.[2014 (2) SCC 735],** the Honourable Supreme Court was pleased to take the functional disability as 85% in respect of a person who suffered physical disability of 45%. When all the aforesaid aspects are taken into consideration, I am of the view that, facts of this case would justify taking the functional disability of 85%, and not 100% as claimed by the appellant, as he did not sustain any neurological disability and the disabilities are confined to orthopedic disabilities only. 9. Since I have already assessed the functional disability as 85%, which would certainly prevent him from pursuing his employment as a coolie or any other employment where physical exertion is required, future prospects also should be taken into account while assessing the compensation. As he was aged 47, the addition to be made is 25%. Thus, while MACA.No.1215/2013 7 re-assessing the compensation with the above criteria, compensation for disability would come to Rs.5,80,125/[(3500+25%) x 12 x 13 x 85/100]. The amount already allowed by the Tribunal under this head is Rs.1,40,400/- and thus, the additional compensation comes to Rs.4,39,725/-. 10. Consequent to the revision of monthly income, the appellant is entitled to an additional compensation under the head loss of earnings. The amount awarded by the Tribunal under the said head is for one year. The said period appears to be reasonable and accordingly, a further sum of Rs.6,000/- is awarded under the said head. The Tribunal awarded an amount of Rs.25,000/- as compensation for pain and suffering, which appears to be inadequate under the peculiar circumstances of the case. It is to be noted that, consequent to the injuries sustained, he had undergone in-patient treatment for 225 days in eight spells. He had undergone six surgical procedures. Injuries resulted in serious disablement and I have already assessed the functional disability arising from the same as 85%. When all the aforesaid aspects are taken into consideration, the appellant requires substantial enhancement under the head of pain and suffering. In the facts and circumstances of the case, I deem it appropriate to fix the additional amount as Rs.40,000/-. MACA.No.1215/2013 8 11. Similarly, the appellant had sustained very serious injuries as referred to above and the disability to the extent of 85%. He has to live with that disabilities for the remaining life. The same would seriously affect the quality of his life and he has to depend upon others for his day-to-day activities as well. Therefore, I am of the view that a further sum of Rs.40,000/- is to be granted towards the loss of amenities in addition to Rs.25,000/- already awarded by the Tribunal. 12. The learned counsel further points out that, he requires some additional amount towards future treatment expenses and future bystander expenses. The tribunal has already recognized such a claim and granted compensation to the tune of Rs.25,000/-. This appears to be on the lower side. Therefore, a further sum of Rs.50,000/- is awarded under the said head. Thus, the total additional compensation would come to Rs.5,75,725/- [439725+6000+40000+40000+50000] In the result, this appeal is allowed. Award dated 30.10.2012 passed by the Motor Accidents Claims Tribunal, Thrissur in O.P(MV).No.2230 of 2005 is hereby modified by granting an additional compensation of Rs.5,75,725/- [Rupees five lakhs seventy-five thousand seven hundred and twenty-five only] and the said amount shall be deposited by the 3rd respondent with interest at the rate as ordered by the Tribunal MACA.No.1215/2013 9 within a period of three months from the date of receipt of a copy of this judgment. However, it is clarified that, as the delay of 59 days in filing the appeal was condoned subject to the condition that the appellant shall not be entitled to interest for the said period, the 3rd respondent shall be at liberty to exclude the said period while computing the interest. It is further ordered that the claimant shall furnish the details of the PAN Card, AADHAR Card and Bank details to enable the Insurance Company to make the deposit as ordered above, within a period of one month from the date of receipt of a copy of this judgment. In case, he fails to furnish the said details, it shall be open for the Insurance Company to deposit the said amount before the Tribunal. Sd/- **ZIYAD RAHMAN A.A. JUDGE** DG/23.2.24