Joju @ Joji v. Sreekumar P.B. and Oriental Insurance Co. Ltd.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE S.SIRI JAGAN & THE HONOURABLE MR. JUSTICE BABU MATHEW P.JOSEPH WEDNESDAY, THE 27TH DAY OF MARCH 2013/6TH CHAITHRA 1935 MACA.No. 104 of 2005 ( ) ------------------------- AGAINST THE JUDGMENT IN OPMV.1358/1998 of MACT, IRINJALAKUDA. APPELLANT/PETITIONER:: ---------------------------------- JOJU @ JOJI, S/O. RAPPAI, ANJALI HOUSE, ELINJIPRA P.O., MUKUNDAPURAM TALUK THRISSUR DISTRICT. BY ADVS.SRI.P.V.BABY SRI.A.N.SANTHOSH RESPONDENTs/RSPONDENTS 4,6 & 7 IN OP(MV) ---------------------------- * 1. SREEKUMAR. P.B., KANNAMPUZHA HOUSE, KHANNANAGAR P.O. 2. MANAGER, ORIENTAL INSURANCE CO., KODUNGALLORE. * 3. JACOB, S/O. ANTONY, KANNAMPUZHA HOUSE, NEAR KAPPOOCHI ASRAMAM, ELINJIPRA. * RESPONDENT NO.1 AND RESPONDENT NO.3 ARE DELETED FROM THE PARTY ARRAY AT THE RISK OF THE APELLANT AS PER ORDER DATED 4.3.2013 IN I.A.553/13 IN MACA.104/05. R2 BY ADV. SRI.VPK.PANICKER THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 27-03-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **S. SIRI JAGAN & BABU MATHEW P. JOSEPH, JJ.** -----------------------------------------------------------M.A.C.A. No. 104 of 2005 ------------------------------------------------------------Dated this the 27[th] day of March, 2013 ## **JUDGMENT** ## Siri Jagan, J. The appellant is the injured in a motor accident caused by the negligent driving of a vehicle driven by the 1[st] respondent, owned by the 3[rd] respondent and insured with the 2[nd] respondent (respondents 1 and 3 have subsequently been deleted from the party array). Claiming compensation for the injuries and consequent disabilities sustained by the appellant on account of the accident, he filed O.P.(MV) No.1358 of 1998 before the Motor Accidents Claims Tribunal, Irinjalakkuda. After finding negligence on the part of the driver of the offending vehicle, the Tribunal awarded compensation under various heads as follows: 2 [M.A.C.A.No.104/2005] |Head|Amount awarded| |---|---| |Loss of earnings for one<br>month|Rs.1500| |Transportation expenses|Rs. 250| |Extra-nourishment<br>and<br>attendant charges|Rs. 1900| |Medical Bills|Rs.43418| |Pain and suffering|Rs. 4000| |Loss of amenities in life|Rs. 2000| |Compensation<br>for<br>loss<br>earning power|Rs.15300<br>(1500x12x5x17/100)| |Total|Rs.68,368/-| Dissatisfied with the quantum of compensation awarded by the Tribunal, the appellant has filed this appeal seeking enhanced compensation. 2. The appellant submits that the accident was on 23.2.1998 and the appellant was 25 years old at the time of accident. He was a painter by profession. According to him, he was earning Rs.4500/- per month, but the Tribunal arbitrarily fixed the monthly income only as Rs.1500/-, which is on the lower side. It is further submitted that the appellant was hospitalised for 49 days, which is proved by Ext.A6 discharge summary. But, the Tribunal has 3 [M.A.C.A.No.104/2005] mistakenly taken it as 19 days. It is further submitted that considering the injuries suffered by the appellant and the disabilities sustained by him, the compensation amounts for pain and suffering and loss of amenities in life are ridiculously low. The further submission of the appellant is that although a disability certificate was produced, which was proved by the doctor, who issued the same certifying 20% disability, the Tribunal has arbitrarily adopted the percentage of disability only 5%, for the purpose of calculating the compensation for loss of earning power. The appellant would contend that the entire 20% should have been adopted for calculating the compensation for loss of earning power. It is also submitted that the Tribunal has taken the multiplier as 17 whereas as per the decision of the Supreme Court in **Sarla Varma** v. **Delhi Transport Corporation** [2010(2) KLT 802 (SC)], the multiplier for a 25 year old man is 18. The appellant, therefore, seeks enhancement of compensation under all the above heads. 3. On the other hand, learned counsel for the Insurance Company would contend that in the absence of any reliable evidence adduced by the appellant, except his own interested 4 [M.A.C.A.No.104/2005] version, the Tribunal was right in fixing Rs.1500/- as the notional income. He also supports the assessment of compensation under variouis heads. He would submit that insofar as the disability certificate is not by a medical board and the doctor who issued the disability certificate is only a Neuro Surgeon, he could not have assessed the disability of the appellant in respect of all the faculties of the appellant. Therefore, the Tribunal has fixed the percentage of disability as 5% after seeing the appellant, which cannot be faulted, is the contention of the counsel for the insurance company 4. We have considered the rival contentions in detail. We are of opinion that the monthly income of the appellant should have been fixed at Rs.2000/- instead of Rs.1500/-. We find from Ext.A6 discharge certificate that the appellant was admitted in the hospital on 22.3.1998 and was discharged only on 11.5.1998. Therefore, we are inclined to grant the appellant loss of earnings for two months which will come to Rs.4000/- as against Rs.1500/- awarded by the Tribunal. Therefore, the appellant would be entitled to additional compensation of Rs.2500/- under this head. The disability certificate issued by the 5 [M.A.C.A.No.104/2005] ## doctor reads thus: “This is to certify that I have examined Joju @ Joji, aged 25 years, S/o.Rappai, AnJiIy House, elinjipra P.O., Thrissur District, to assess the disabilities sustained in a road traffic accident occurred on 22.3.1998. He was admitted in Medical Trust Hospital, Ernakulam [IP No.560462] and discharged on 11.5.1998. At the time of admission the following injuries were noted as per the Wound Certificate and Discharge Summaries: - (1) Head injury-Extra axial tentorial hematoma left side. - (2) Contusion bilateral frontal and parietal regions. - (3) Sub Arachnoid Hemorrhage and cerebral edema. - (4) Avulsion injury left ear lobe. - (5) Lacerated wound right little and ring fingers. He was managed conservatively. Follow up treatment from Medical College Hospital Thrissur OP No.62051. Today I have examined Joju @ Joji and fund the following disabilities: - (a) He is now on anti-convulsant medication which may have to be continued for a long time. - (b) He has occasional headache and vertigo. - (c) Occasional loss of memory. - (d) He is prone to epilepsy. He has sustained 20% permanent partial disability as a result of the above injuries.” The same contains the injuries suffered by him. The injuries 6 [M.A.C.A.No.104/2005] noted are very serious injuries. Therefore, we are of opinion that the compensation for pain and suffering is ridiculously low. We enhance it to Rs.15,000/- granting the appellant Rs.11,000 more under that head. 5. The disability certificate certainly certifies 20% disability. The doctor has proved the same. But, still as pointed out by learned counsel for the Insurance company, a Neurosurgeon could not have with any amount of certainty fixed disability in respect of all the faculties of the appellant. But, still 5% adopted by the Tribunal is on the lower side. We are inclined to fix it at 15%. Likewise, the Tribunal has adopted multiplier only as 17 which should have been 18 as per the decision of the Supreme Court in **Sarla Varma's** case (supra). Calculated on that basis, the appellant would be entitled to Rs.49,500/- as the compensation for loss of earning capacity (2000x12x15x18/100). Because of the disability suffered by him he would seriously incur loss of amenities and enjoyment in life. Therefore, we enhance the compensation under that head to Rs.20,000/- giving an enhancement of Rs.18,000/-. The disability certificate shows that the appellant is on anti-convulsent medication which may have 7 [M.A.C.A.No.104/2005] to be continued for a long time. That means, the appellant might have to incur medical expenses in future also. We fix compensation for the same at Rs.5500/-. Added together, the appellant will be entitled to additional compensation of Rs.86,500/- over and above what has been awarded by the Tribunal. This amount except Rs.5500/- granted for future medical expenses, would carry interest at the rate of 9% per annum from the date of claim petition till the date of payment. The 2[nd] respondent Insurance company is directed to deposit that amount also within two months. The appeal is disposed of as above. **Sd/S. SIRI JAGAN, JUDGE.** **Sd/-** **BABU MATHEW P. JOSEPH, JUDGE.** krs. // True Copy // P.S. to Judge.