Jafar A.P. v. National Insurance Company Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM & THE HONOURABLE MRS. JUSTICE SHIRCY V.** **TUESDAY, THE 7TH DAY OF FEBRUARY 2017/18TH MAGHA, 1938** ## **MACA.No. 2685 of 2012 -------------------------** **AGAINST THE AWARD IN OPMV 702/2006 of MACT,KALPETTA DATED 21-05-2010** **APPELLANT/PETITIONER:** ## **------------** **JAFAR.A.P., S/O. ABOOBACKER AGED 24 YEARS, ALIPARAMBIL HOUSE, CHERAMKOLLY, MUTTIL P.O. WAYANAD DISTRICT.** ## **BY ADV. SMT.CELINE JOSEPH** **RESPONDENT/RESPONDENT NO. 3:** **--------------** **NATIONAL INSURANCE COMPANY LTD. KALPANA SHOPPING COMPLEX, KALPTTPA P.O. WAYANAD DDISTRICT. 673 121.** **R1 BY ADV. SRI.AGI JOSEPH R BY SRI.M.A.GEORGE** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 07-02-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **C.K. ABDUL REHIM & SHIRCY V.,JJ.** ## **==============================** ## **M.A.C.A. No. 2685 OF 2012** ## **============================== Dated this the 7[th] day of February, 2017** ## **JUDGMENT** ## **C.K. Abdul Rehim, J.** An youngster aged 18 year, who sufferd serious injuries in a motor vehicle accident which occurred on 22.3.2005, is the appellant herein, challenging the quantum of compensation awarded in OP(MV)No. 702/2006 by the Motor Accidents Claims Tribunal, Kalptta. The negligence on the part of the offending vehicle as well as the liability of the respondent insurance company are not in dispute. The only challenge is with respect to the amount of compensation awarded under the different heads, which is contended as inadequate and unreasonable. 2. Since the Standing Counsel, who entered MACA 2685/2012 2 appearance on behalf of the respondent conceded that the appeal can be disposed of at the time of the admission stage itself, the following judgment is passed. 3. The appellant sustained fracture on the shaft of Humerus on right side, brachial plexus injury on right upper limb, Class II frcture of upper incisor teeth, paralysis of middle ring and little fingers, with partial weakness of rotation at the elbow and wrist on the right side. The details of injuries sustained are evident from Ext.C1 Medicl Certificate issued by the Medical Board attached to the District Hopital, Mananthavady. Evidence is to the effect that he was treated at the Medical College Hospital Kozhikode, initially from 23.2.2005 to 2.4.2005, and then from 9.6.2005 to 14.7.2005. Thereafter he was admittd again on 14.9.2006 and treated till 20.9.2006. Ext.7 and A8 certificates would reveal that he had followd treatment at Baby Memorial Hospital, Kozhikode, wherein motor and MACA 2685/2012 3 sensory nerve conduction studies were done. As per Ext.A8, the advice given to the appellant is that, he needs tendon transfer for shoulder and wrist and the approximate expenses of which was estimated at Rs.75,000/. PW1 gave evidence to the effect that Doctors have advised further surgeries to improve the limb movements as well as for removal of the internal fixation. Ext.C1 would indicate that, there is fracture Humerus united with implant insitu and the shoulder movement is reduced to only 10[0] abduction/flexion. It is also mentioned that there is paralysis of the middle ring and little fingers with partial weakness of rotation at the elbow and wrist, on the right side. Further, it is mentioned that there is partial recovery of brachial plexus palsy, with residual motor deficit. The extent of permanent disability was assessed by the Medical Board at 30%. 4. Learned counsel for the appellnt contended that the MACA 2685/2012 4 notional income of Rs.2500/-per month adopted by the Tribunal is highly insufficient and inadequate. It is pointed out that the appellnt while examined as PW1 had given evidence that he was working as a Painter and was earning Rs.6000/-per month. Of couse, there is no documentary proof regarding the occupation and income of the appellant . However, considering the fact that the appellant is an able bodied youngster at the age of 18 years and that the accident occurred during the year 2005, we are of the opinion that the notional income fixed is highly on the lower side. We are inclined to refix the same at Rs.4000/- per month. Based on the records poduced it is evident that the appellant had continued treatment for quite a long period. Therefore we are inclined to award the loss of earnings for a period of six months. Hence the amount of compensation under that head needs to be refxed at Rs.24000/- (4000x6). This will entile the appellant for an enhncement of MACA 2685/2012 5 Rs.16500/- on that count. It is conceded by counsel on both sides that the correct multiplier which ought to hve been adopted, as per the decision of the Honouable Supreme Court in **Sarla Verma** v. **Delhi Transport Corporation (2010** **(2) KLT 802(SC),** is '18', instead of 16. When the compensation for permanent disability is reworked on the above basis, it will come to Rs.2,59,200/(4000x12x18x30/100). This will entitle the appellant for an enhancement of Rs.1,15,200/-. There is clear evidence adduced through Ext.A8 certificate that the appellant has to undergo further procedures for tendon transfer at the shoulder and wrist. There is also evidence to the effect that the implant insitu need to be removed. Therefore we are of the opinion that the expenses estimated for future treatment at Rs.75000/-, as evidenced from Ext.A8, need to be granted. Hence, we award a sum of Rs.75,000/- towards future treatment, which will entitle the appellant for an MACA 2685/2012 6 enhancement of Rs.50,000/- on that count. Under the head of pain and sufferings, the Tribunal has awarded only a sum of Rs.15,000/-- and no amount was seen granted under the head of loss of amenities, conveniences and enjoyment in life. Considering the prolonged treatment and the permanent disability suffered, we are inclined to grant Rs.25,000/- each under the above heads. This will entitle the appellant for a further enhancement of Rs.35,000/-. We do not find any ground warranting interference with the amounts awarded under other heads. 5. Thus the appellant is entitled for a total enhancement of Rs.2,16,700/-. Therefore the above appeal is hereby allowed by increasing the total amount of compensation awarded by the Tribunal, by a further sum of Rs.2,16,700/-(Rupees two lakh sixteen thousand and seven hundred only). The said amount will carry interest at 7.5% per annum from the date of the claim petition till realisation. MACA 2685/2012 7 The Respondent/ Insurance Company is directed to deposit the amount within a period of two months from the date of receipt of a copy of this judgment. If such deposits is made, the appellant will be at liberty to approach the Tribunal seeking withdrawal, and the Tribunal shall pass appropriate orders thereon. **Sd/-** **C.K. ABDUL REHIM JUDGE** **Sd/-** **SHIRCY V. JUDGE** **ks.** True copy P.S. To Judge