Jimmi K. George v. P.C. Chacko, Sabu, The New India Assurance Co. Ltd.

# _IN THE HIGH COURT OF KERALA AT ERNAKULAM_ _PRESENT_ _THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. FRIDAY, THE 26TH DAY OF MARCH 2021 / 5TH CHAITHRA, 1943_ ## _MACA.No.334 OF 2010(J)_ _AGAINST THE AWARD IN OPMV 1280/2005 DATED 23-06-2009 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, IRINJALAKUDA_ ## _APPELLANT/S:_ _JIMMI K. GEORGE, @ JIMMI, S/O.GEORGE, KARIPPAI HOUSE, ANTHRAKKANPADAM DESOM, PARIYARAM VILLAGE, MOTHIRAKKANNI.PO, MUKUNDAPURAM TALUK,, THRISSUR DISTRICT._ _BY ADVS. SRI.P.V.BABY SRI.A.N.SANTHOSH_ ## _RESPONDENT/S:_ _1 P.C.CHACKO, PUTHANPURACKAL HOUSE, ERUMATHALA, ALUVA. 2 SABU, S/O.SUKUMARAN, VELLOOKKARA HOUSE, KALAYIPPADY.PO, KOTTAYAM DISTRICT. 3 THE NEW INDIA ASSURANCE CO.LTD., ALWAYE._ _R1 BY ADV.SMT.T.C.SOWMIAVATHY_ _THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 26.03.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:_ _M.A.C.A.No.334/2010_ _2_ ## **JUDGMENT** ## **Dated this the 26[th] day of March, 2021** This is an appeal filed by the petitioner in O.P. (MV).No.1280 of 2005 on the file of the Motor Accidents Claims Tribunal, Irinjalakkuda. The claim petition was filed by him seeking compensation for the injuries sustained to him in a motor accident occurred on 03.07.05. The appellant was aged 25 years old and was working as an accountant at the time of accident. Monthly income claimed by him is Rs.4,000/-. It is contended by him that, due to the injuries, he sustained permanent disablement which affected not only his earning capacity, but also his physical ability to pursue his daily needs of life. The Medical Board has issued a certificate mentioning the permanent disability suffered by him as 75%. In the above circumstances, the appellant sought for a total compensation of Rs.7,00,000/-. 2. The 3[rd] respondent Insurance Company filed a written statement admitting the coverage of policy in respect of the vehicle, but disputed the liability on various grounds. _M.A.C.A.No.334/2010_ _3_ The quantum of compensation claimed was also disputed by them. 3. Evidence in this case consists of Ext.A1 to A14 from the side of the appellants. No evidence was adduced from the side of respondents. After the trial, the Tribunal passed an award allowing a total compensation of Rs.4,50,000/- and being the insurer, the 3[rd] respondent Insurance Company was directed to deposit the said amount along with interest at the rate of 7% per annum. This appeal is filed by them seeking enhancement of the said compensation. 4. Heard the learned counsel for the appellant and the learned counsel for the 3[rd] respondent Insurance Company. 5. During the pendency of this appeal, as per order dated 02.12.2019, this Court directed the Superintendent of Medical College, Thrissur to constitute a Medical Board to assess the permanent disability and also the functional disability of the appellant caused due to the injuries sustained in the motor accident. Consequent to the said order, the appellant made himself available before the Medical Board so _M.A.C.A.No.334/2010_ _4_ constituted. After examination, the Medical Board had made available a disability certificate dated 01.01.2020. The same forms part of the records and the said Medical Certificate is marked as Ext.C1. Going through the contents of the said Medical Certificate, it is seen that, the permanent disability is certified as 80%. Since, the said Medical Certificate was issued in pursuance to a direction of this Court for assessing his physical disability and functional disability, it has to be treated that the Medical Board had taken into consideration both the said aspects while issuing the said certificate. Therefore, the aforesaid percentage of disability can be accepted and for the purpose of computing compensation for permanent disablement, the same can be taken as 80%. 6. The learned counsel for the appellant pointed out that the monthly income taken by the Tribunal is only Rs.1,800/-, even though the claim was for Rs.4,000/-. Considering the fact that, the accident occurred in the year 2005, even in the absence of any evidence, taking the monthly income as Rs.4,000/- is reasonable. Therefore, this Court is of the view that Rs.4,000/- can be fixed as monthly income of the _M.A.C.A.No.334/2010_ _5_ appellant. As it is evident from Ext.C1 that he sustained 80% disability, he is entitled for compensation under the head of loss of earning capacity by taking into account the future prospects as well. Going by the principles laid down by the Hon'ble Supreme Court in **National Insurance Company v. Pranay Sethi [2017(4) KLT 662]** , the addition which has to be made towards future prospectus is 40%. It was also pointed out by the learned counsel for the appellant that the multiplier adopted by the Tribunal is only 17 and going by the multiplier fixed by the Hon'ble Supreme Court in Sarla Verma, the proper multiplier in this case is 18. This is a sustainable contention, and it is accepted by fixing the multiplier as 18. Thus, re-working the compensation with the above revised criteria, the amount of compensation payable under the head of permanent disability shall be Rs.9,67,680/- (5600 x 12 x 18 x 80%). An amount of Rs.2,75,400/- is already granted by the Tribunal and therefore, after deducting the said amount, the amount receivable by the appellant additionally shall be Rs.6,93,280/-. The learned counsel for the appellant further pointed out that the amounts awarded under the head of loss _M.A.C.A.No.334/2010_ _6_ of amenities and pain and suffering are also on lower side. It was pointed out by him that the Tribunal made certain observations regarding the nature of injuries and disability caused on account of the same, at paragraph No.6 of the award in the manner as follows: "6. Issue No.2:- The Ext.A4 wound certificate issued from the St.James Hospital, Chalakudy shows that the petitioner was brought there with tenderness over the lumbar spine and investigations were advised. Ext.A5 discharge card shows that he was initially in the hospital as inpatient for 19 days, and he was diagnosed as a case of wedge compression fracture of L1 vertebra with paraparesis. For the second time he was admitted on 19-8-2005 for further treatment and he continued as inpatient for 11 days. He was again admitted in the hospital on 28-09-2005, and at that time he continued there for 32 days as inpatient. The 2[nd] discharge card shows that on 25-08-2006 the petitioner was admitted for the forth time for further treatment, and he continued there as inpatient for seven days. Ext.A6 prescriptions and also the discharge cards will show that the petitioner had continued effective treatment for some time. Exts.A7 and A8 are scan reports. Ext.A9 is a medical certificate issued from life care clinic at Ernakulam, _M.A.C.A.No.334/2010_ _7_ certifying that the petitioner had undergone treatment there for neurorehabilitation of spinal cord injury and traumatic paraplegia sustained in the accident. It is certified that the petitioner has weakness of both the lower extremity, loss of trunk balance, loss of sensation in both lover extremity, loss of bladder control, bowel control and also loss of sexual functions. It is further certified that the petitioner will requires continuous rehabilitation care, and that he is dependent on others for his daily activities in life. Of course it was noticed directly by the court that the petitioner is in fact a case of paraplegia, and this Court is inclined to accept the Ext.A11 disability certificate issued by the Medical Board attached to the Medical College Hospital, Thrissur, certifying 75% permanent disability. The disabilities noted by the Board of doctors are paraplegia due to spinal cord injury and also loss of bowel and bladder control. The disability certificate also shows that the normal sexual functions are also not possible due to the disability. In view of the facts noticed by the court that the petitioner is in fact paraplegic the entire 75% permanent disability certified by the Medical Board under Ext.A11 is accepted by the court for granting disability compensation." 7. From the above observations and also from Ext.A5 to A11 documents relating to the treatment of the appellant, it is _M.A.C.A.No.334/2010_ _8_ evident that, he sustained very serious injuries and he is not even in a position to pursue his daily routine of life. He is a person aged 25 years only and is unmarried. On account of the injuries, he is deprived of bladder control, bowel control and also loss of sexual functions. These injuries have to be taken very seriously for the purpose of computing the compensation particularly in view of the fact that, this is a case in which the injuries were sustained to a person aged 25 years only. He has a long life ahead and he is compelled to live with all these disabilities wherein all human pleasures are deprived of. In the above circumstances and particularly taking note of the loss of prospects of marriage owing to sexual functions, this Court is of the view that Rs.50,000/- granted by the Tribunal under the head loss of amenities is on lower side. Even though it is an accident occurred in the year 2005, a substantial enhancement is warranted in this case, taking note of the peculiar circumstances existing in this case. As no hard and fast rules are available for computing the same with arithmetical precision, a guess work has to be made for ensuring just compensation. Taking into account the totality of the _M.A.C.A.No.334/2010_ _9_ circumstances and the materials available, this Court is of the view that a further sum of Rs.75,000/- is justifiable and it is awarded as such. Under the head of pain and suffering, the amount awarded is only Rs.20,000/-. Considering the nature of injuries and the serious impact that caused to the appellant, a further amount of Rs.25,000/- can be granted. It is also contended by the learned counsel for the appellant that no amount is awarded under the head of future bystander expenses. It contended by him that even though no amount was actually claimed under this head, on account of the principles laid down by the Hon'ble Supreme Court in **Kajal v. Jagadeesh Chand and others [2020 ACJ 1042],** he is entitled for compensation under this head as well. It was contended by him that in the said case, in respect of the injuries sustained to a 12 years old girl in a motor accident in the year 2007, the Honorable Supreme Court granted future attendant expenses of Rs.21,60,000/-. Said amount was calculated by fixing the attendant expenses at the rate of Rs.10,000/- per month (2 x 5000) and by applying the multiplier of 18. The learned counsel for the appellant _M.A.C.A.No.334/2010_ _10_ submitted that, such a method of computation has to be adopted in this case. It is evident from the records that, the appellant is completely paralyzed and he requires assistance of a person for even his daily pursuits. It is also evident from Ext.C1 Medical Certificate, which is issued very recently, i.e., on 01.01.2020 that, even after 15 years of the accident, the physical condition of the appellant is remaining the same or became more worse. This is a very crucial aspect to be taken into consideration as the said aspect clearly points out the necessity of compensation under the head of future attendant expenses. By taking into account the peculiar facts and circumstances of this case and also the date of accident, this Court is of the view that the attendant expenses can be reasonably fixed at the rate of Rs.12,000/- per annum and the multiplier method can be applied for determining the actual amount to be paid under this head. As it is already found that he is aged 25 years, the proper multiplier is 18. Therefore, the additional compensation which the appellant shall be entitled for towards attendant expenses is Rs.2,16,000/- (12,000 x 18). _M.A.C.A.No.334/2010_ _11_ 8. Thus the additional compensation receivable by the appellant shall be Rs.Rs.10,09,280/- [6,93,280 + 2,16,000 + 75,000 + 25,000]. The said amount shall be deposited by the Insurance Company along with interest and proportionate cost as ordered by the Tribunal within a period of three months from the date of receipt of a copy of this judgment. Appeal is disposed of as above. _Sd/-_ **ZIYAD RAHMAN A.A.** **JUDGE** DG _M.A.C.A.No.334/2010_ _12_ ## _APPENDIX_ _PETITIONER'S/S EXHIBITS:_ _EXHIBIT C1:_ _TRUE COPY OF THE MEDICAL REPORT SUBMITTED BY THE SUPERINTENDENT, MEDICAL COLLEGE HOSPITAL, THRISSUR DATED 03.01.2020._