K. SUSEENDRAN NAIR v. A. MOIDEEN KUNJU NESW FOOD PRODUCTS RAMANKULANGARA; AROGYARAJ; THE NATIONAL INSURANCE CO. LTD., Divisional Office, Thiruvananthapuram

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE T.R.RAMACHANDRAN NAIR & THE HONOURABLE SMT. JUSTICE P.V.ASHA** **MONDAY, THE 8TH DAY OF DECEMBER 2014/17TH AGRAHAYANA, 1936** **MACA.No. 700 of 2007 ( ) -------------------------** ## **AGAINST THE AWARD IN OPMV 873/2000 of MACT,TRIVANDRUM** ## **APPELLANT/APPLICANT:** **----------------------------------------------------------------** **K.SUSEENDRAN NAIR, S/O LATE KUTTAN PILLAI, ELLUVILA MELEPUTHEN VEEDU, THEVIKONAM PERUKAVU P.O., THIRUVANANTHAPURAM.** **BY ADV. SRI.R.T.PRADEEP** ## **RESPONDENTS/RESPONDENTS:** **----------------------------** **1. A.MOIDEEN KUNJU NESW FOOD PRODUCTS RAMANKULANGARA, KOLLAM.(DELETED)** **2. AROGYARAJ, S/O.RETHA SWAMI, TC. 6/500(1) CHERUPUSHPA BHAVAN NEAR ARAPPURA JUNCTION, VATTIYOORKAVU THIRUVANANTHAPURAM.** **3. THE NATIONAL INSURANCE CO.LTD., DIVISIONAL OFFICE, THIRUVANANTHAPURAM.** **RESPONDENT NO.1 IS DELETED FROM THE PARTY ARRAY AT THE RISK OF THE APPELLANT VIDE ORDER DATED 21.11.2013 IN I.A.NO.3098/2013.** **R3 BY ADV. SRI.MATHEWS JACOB (SR.) R3 BY ADV. SRI.P.JACOB MATHEW** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 08-12-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **T.R.RAMACHANDRAN NAIR & P.V.ASHA, JJ.** - - - - - - - - - - - - - - - - - - - - - ## **M.A.C.A.No.700 OF 2007** - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 8[th] day of December, 2014 ## **JUDGMENT** ## Asha, J. The appellant met with an accident on 20-09-1999 while riding as a pillion rider in a motor cycle when he was knocked down by a tempo van. He sustained very severe injuries and was immediately admitted to Medical College Hospital, Thiruvananthapuram and was discharged on 2.10.1999. He sustained fracture of right tibia with pulmonary embolism. He had developed chest pain and dyspnoea. He was kept in ventilator for five days. He was admitted in the Military Hospital from 19.10.1999 to 30.11.1999 and from 2.12.1999 to 28.1.2000. Thereafter he was admitted in Sri Hari Arya Vaidyasala hospital on 27.6.2000 and was undergoing treatment in Santhigiri Hospital thereafter from 11.7.2000 to 19.7.2000. The appellant says that he was compelled to avail sick leave for several days on account of the injuries 2. The appellant was working as a Havildar in the Army MACA No.700/2007 2 earning salary of ` 7,000/- per month. He was aged 30 years old at the time of the accident. On account of the injuries he was medically de-categorised to CEE(D) with effect from 17/02/2000. Thereafter, he was placed in medical category BEE(P) with effect from 17.8.2000 and thereafter he was down graded to low medical category with a further order that he will not be eligible for further promotion. 3. The claim petition was filed before the MACT, Thiruvananthapuram seeking compensation to the tune of ` 4 lakhs. Tribunal passed an award for a sum of ` 59,000/- . 4. Sr. R.T. Pradeep, the learned counsel for the appellant submits that the compensation awarded under various heads are thoroughly inadequate. It is also submitted that the appellant lost promotion on account of the injury. In addition to that, his prospects for getting re-employment in his capacity as an ex-serviceman after retirement was also permanently lost on account of the injuries. The Tribunal did not take into account all these aspects, it is submitted. His permanent disability was assessed as 10% and the Tribunal awarded very meagre amount towards permanent partial disability as well as MACA No.700/2007 3 loss of amenities. 5. The learned Senior Counsel Sri. Mathews Jacob vehemently opposed the claim for enhancement, relying on the judgment of the Hon'ble Supreme Court in Raj Kumar Vs. Ajay Kumar [2011(1) KLT 620(SC). The contention is that the Tribunal has already granted sufficient compensation, even though it was found that the appellant continued in employment with full pay. 6. It is seen that a sum of ` 11,826/- was claimed towards medical bills in respect of Ayurvedic treatment as per Ext.A16 medical bills. A sum of ` 2,750/- was claimed towards transportation charges as per Ext.A15 taxi receipt. The Tribunal did not grant any amount towards the charges for Ayurvedic treatment. A sum of ` 1000/- alone was allowed towards medical and incidental expenses and a sum of ` 2,000/- was awarded towards transportation expenses. 7. As per the disability certificate Ext.A10 issued by the Professor of Orthopaedics, Medical College Hospital, it was certified that he had fracture of both bones of right leg with shortening by ½ inch and excessive callus at fracture site. It was also found that he had MACA No.700/2007 4 partial ankylosis, while the disability was assessed at 10%. The Tribunal at the same time found that being a military personnel, he did not suffer any loss of earnings, as he was granted sick leave as well as full pay. Reckoning the disability at 8% as against the 10% certified, he was awarded a sum of ` 15,360/- towards permanent partial disability taking the income @ ` 2000/- per month . The Tribunal further granted a sum of ` 15,000/- towards pain and suffering. 8. The learned counsel for the appellant, relying on the judgment of the Delhi High Court in **Sandeep Mishra Vs Vishal Kumar Yadav & others [2014 ACJ 80]** and **Rekha Jain Vs National Insurance Co. Ltd [(2013) 8 SCC 389]** , seeks enhancement in the quantum of compensation under the head of permanent partial disability, claiming that as the appellant was drawing salary @ `7,000/- per month, after adding future prospects @ 50%, the monthly income @ `105,000/- should have been taken as the notional income and the multiplier of 17 should have been adopted on it, reckoning disability as 10%, for assessing the compensation towards permanent MACA No.700/2007 5 partial disability. According to him the Tribunal was not correct in assessing the compensation taking the notional income of Rs. 2000 and in adopting the multiplier of 8. He also submits that the sum of ` 25,000/- awarded towards compensation for loss of amenities was thoroughly inadequate. 9. On consideration of the rival contentions with reference to the materials on record, we find that the appellant who was working as Havildar happened to be de-categorised medically and to be permanently debarred for promotion at the age of 30 and is compelled to continue in the same post till his retirement, merely on account of the injuries sustained on him in the accident. This affects his opportunities not only for appointment in higher posts while in Army but also for reemployment after his retirement, in his capacity as an ex-serviceman. The accident which resulted in deformities on his leg, with shortening and restricted movements deprives him of the future prospects for reemployment in the absence of physical fitness. Apart from that, it causes serious inconveniences and discomforts in his day to day life. The Tribunal fixed the quantum of compensation towards permanent MACA No.700/2007 6 disability at ` 15360/-, reckoning his notional monthly income @ of `2,000/-, disability at 8% and adopting a multiplier of 7 on the ground that appellant is able to continue in Army without difference in pay till his retirement at the age of 58 and no loss will be caused. We are unable to accept the findings of the Tribunal that there is no loss of earning power till he attains 58 years-the age of retirement, just because he is able to continue in service, on the face of the orders debarring his promotions at the age of 30 years. 10. Even in the judgment supra cited by the Insurance Company, it is held that the compensation awarded should be just. The Apex Court has in several cases including in Manickam v. Metropolitan Transport Corporation Ltd **2013 (3) KLT 248 (SC),** held that in matters of determination of compensation under the Motor Vehicles Act, both the Tribunals and the High Courts are statutorily charged with a responsibility of fixing a just compensation. It was held that the adjudicating authority, has to take note of the sufferings of the injured person which would include his inability to lead a full life, his incapacity to enjoy the normal amenities which he would have enjoyed MACA No.700/2007 7 but for the injuries and his ability to earn as much as he used to earn or could have earned. 11. The agony caused by the retention of an employee in the entry post itself till retirement merely on account of the physical disabilities incurred, which further incapacitates him for reemployment also, permeates throughout his life. Just because appellant was able to continue in service -in the same post- it cannot be said that there was no loss of earnings or in earning capacity. Therefore instead of adopting the multiplier method we find it just and necessary to compensate the appellant by awarding suitable amount towards the permanent disability incurred on him on account of the accident. Therefore towards this, we find it just to award a sum of ` 60,000/-. Similarly, towards loss of amenities and enjoyment of life, we find it necessary to enhance the amount to ` 40,000/-. It is seen that the appellant has lost his promotional avenues and further prospects in employment merely on account of the accident and he was compelled to continue in the very same post since the age of 30 years, which causes any person in service de-moralisation, depression and mental MACA No.700/2007 8 agony. Therefore we find it just and necessary to award a sum of ` 50,000/-under the head of 'loss of promotional avenues and earnings'. The Tribunal has awarded a sum of `15,000/- alone towards pain and sufferings. Having regard to the grievous nature of the injuries and the prolonged treatment undertaken, we find it necessary to enhance the same to ` 35,000/-. Similarly, we find it also necessary to award a sum of ` 10,000/- towards medical expenses for Ayurvedic treatment as against the bill submitted by him for ` 11,286/-. 12. Therefore, the award is modified as follows : |Medical expenses for Ayurvedic treatment -`10,000/-|Medical expenses for Ayurvedic treatment -`10,000/-| |---|---| |Other medical expenses|-`1000/-| |Transportation|-`2000/-| |Pain and suffering|-`35,000/-| |Permanent disability|-`60,000/-| |Loss of amenities and enjoyment of life -`40,000/-|| |Loss of promotional aspects and earning -`50,000/-|| ||----------------| |Total|-`1,98,000/-| ||==========| (Rupees one lakh ninety eight thousand only) MACA No.700/2007 9 13. In the light of the judgment of the Hon'ble Supreme Court in **Supe Dei(Smt.) & Ors. v. National Insurance Co. Ltd. and Anr.** [(2009)4 SCC 513], the appellant will be entitled to interest @ 9% per annum from the date of petition. As per order dated 27.02.2013, this Court has directed that the appellant will not be entitled to interest for a period of 398 days. Therefore, the Insurance Company will not be liable to pay interest for the said period. The appeal is accordingly allowed. **T.R.RAMACHANDRAN NAIR, JUDGE** **P.V.ASHA, JUDGE** sv.