Krishna Kumar s/o Hari Rajan v. Babykutty Abraham and Oriental Insurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. THURSDAY, THE 15[TH] DAY OF FEBRUARY 2024 / 26TH MAGHA, 1945 MACA NO. 1455 OF 2013** **AGAINST THE AWARD DATED 07.09.2012 IN OP(MV) No.1397/2009 OF** ## **MOTOR ACCIDENT CLAIMS TRIBUNAL, KOLLAM** ## **APPELLANT/PETITIONER:** **KRISHNA KUMAR S/O.HARI RAJAN, SANTHA BHAVANAM, VENKULAM, EDAVA, THIRUVANANTHAPURAM-695 311.** **BY ADVS. SRI.M.RAJENDRAN NAIR SMT.TISSY ROSE K CHERIYAN** ## **RESPONDENTS/RESPONDENTS IN O.P:** - **1 BABYKUTTY ABRAHAM S/O.ABRAHAM, PATTOORVILA, NADAVILAKARA P.O., THEVALAKKARA, KOLLAM DISTRICT-690 524.** **2 THE BRANCH MANAGER ORIENTAL INSURANCE CO. LTD, AMARJYOTHY COMPLEX, KADAPPAKKADA, KOLLAM-691 008.** **BY ADVS. SRI.R.RAGHUNANDANAN SRI.P.JACOB MATHEW SRI.MATHEWS JACOB SR.** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 15.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** M.A.C.A No. 1455 of 2013 2 ## **JUDGMENT** The appellant was the petitioner in O.P.(MV). No.1397/2009 on the files of the Motor Accident Claims Tribunal, Kollam. The said claim petition was submitted by him seeking compensation for the injuries sustained in a motor accident that occurred on 31.07.2008. 2. The appellant sustained injuries when the motorcycle on which he was travelling, was hit by a Maruthi car driven by the 1st respondent in a rash and negligent manner. The 1st respondent himself was the owner of the said vehicle and it was insured with the 2nd respondent. Immediately after the accident, he was taken to Royal Hospital, Chathannoor and later, referred to Medical College Hospital, Thiruvananthapuram. Later, he underwent treatment in various hospitals including KIMS Hospital. He was 23 years old at the time of the accident and was working as a J.C.B driver with a monthly income of Rs.8,000/-. The appellant sustained very serious injuries in the accident, which resulted in physical disablement, compelling him not to pursue the employment in which he was engaged. The claim petition was submitted in such circumstances. M.A.C.A No. 1455 of 2013 3 3. The 1st respondent filed a written statement denying negligence on his part. The 2nd respondent filed a written statement admitting the coverage of policy for the car but they contended that the accident occurred due to the rash and negligent driving of the appellant himself. They also raised a contention of violation of policy conditions as well. The quantum of compensation was also disputed by them. 4. To substantiate the contentions, the appellant got himself examined as PW1 and as documentary evidence Exts.A1 to A25 were marked. The disability certificate issued by the Medical Board was marked as Ext.C1. After examining the materials produced on record, the Tribunal arrived at the finding that the accident occurred due to the negligence of the 1st respondent and being the insurer, the liability to pay the compensation was imposed upon the 2nd respondent. The quantum of compensation was fixed as Rs.16,02,000/- and the said amount was directed to be deposited by the 2nd respondent with interest at the rate of 9% per annum from the date of petition till realization with proportionate costs. This appeal is M.A.C.A No. 1455 of 2013 4 submitted by the appellant in such circumstances as being dissatisfied with the quantum of compensation. 5. Heard Sri.M.Rajendran Nair, the learned counsel appearing for the appellant and Sri.Mathews Jacob, the learned Senior Counsel appearing for the 2nd respondent. 6. The only question that arises for consideration is whether any enhancement of compensation is warranted or not. The first contention raised by the learned counsel for the appellant in this regard was with respect to the amount determined by the Tribunal towards the compensation for disability and consequential loss of earning capacity. It was pointed out that in Ext.C1, 45.50% of disability was certified and the nature of injuries as well as the disabilities described in the medical records would indicate that he suffered paraplegia and is unable to move around on his own, without the help of others. The chances of continuing in his employment are completely lost. He is deprived of his monthly income and the capacity to earn from any employment. Therefore, it was pointed out that this is a case in which functional disability ought to be taken, which was not done by the Tribunal. M.A.C.A No. 1455 of 2013 5 7. Even though the learned counsel for the 2nd respondent opposes the said contention, on careful scrutiny of the records, I find force in the contention of the learned counsel for the appellant. In the wound certificate itself, the injuries noted are as follows: “Patient semi conscious Lacerated wound occipital region of skull Patient not able to left both leg Complaints of pain spinal region. Suspected spinal cord injury and head injury” In Ext.A9 discharge card issued by the Medical College hospital, it was L burst fracture with paraplegia (Frankel-B), hip flexon – flicker + and medial malleolus fracture right. It is evident from the records that even after being discharged from Medical College Hospital, he continued treatment in some other hospitals including Amrita Hospital and KIMS Hospital. The total period of hospitalization itself comes to 97 days. In paragraph 15 of the award, the Tribunal observed the physical condition of the appellant when he was brought to the Tribunal. It was noted that he was lifted to the Tribunal in a chair and he is unable to move or walk because of Paraplegia. It was also observed that the said M.A.C.A No. 1455 of 2013 6 disability was caused due to the spinal cord injury which he sustained. He was examined as PW1 and he reiterated the physical conditions as well. Thus when all the aforesaid aspects are taken into consideration, it is evident that he sustained very serious injuries and he is became unfit for any kind of employment where physical exertion is required. Therefore, as rightly pointed out by the learned counsel for the appellant, this is a fit case in which functional disability ought to be taken into account for assessing the compensation for disability and consequential loss of earning capacity. 8. In **Syed Sadiq & Ors. v. Divisional Manager, United India Insurance Company Ltd. [2014 (2) SCC 735],** the Hon'ble Supreme Court was pleased to consider a similar question in respect of the physical disability sustained by a fruit vendor. In that case, also, the physical disability certified by the Doctor was 45% and considering the impact that can cause upon the avocation of the victim therein, the Honourable Supreme Court was pleased to fix the functional disability as 85%. After carefully considering the medical records and the evidence of PW1, I am of the view that the same yardstick as applied by the Honourable M.A.C.A No. 1455 of 2013 7 Supreme Court in **Syed Sadiq's** case (supra) needs to be applied in this case as well. Therefore, I fix the functional disability for the purpose of assessment of compensation as 85%. 9. The next aspect to be considered for determining the compensation for disability is the monthly income. Even though the appellant claimed a monthly income of Rs.8,000/-, the Tribunal accepted it as Rs.6,000/-. The specific case of the appellant is that he was working as a JCB operator in M/s.Abhi Earth Movers and to substantiate the same Ext.A21 salary certificate was produced. The appellant also places reliance upon the Ext.A23 certificate issued by the Institute where the appellant had undergone training for JCB operations. Of course, it is true that as far as the monthly income as certified in Ext.A21 is concerned, the amount was not properly substantiated by examining any person in this regard. However, the fact that the appellant was a JCB operator is not seriously challenged. It is to be noted in this regard that, even if the monthly income is calculated by adopting the method evolved from the principles laid down in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Ltd. [(2011) 13 SCC 236] and** M.A.C.A No. 1455 of 2013 8 **Syed Sadiq's case (supra),** it has to be fixed as Rs.4,500/- for an ordinary worker without any skills for the year 2004. The usual method that is adopted to determine the monthly income for the subsequent years is to make an addition of Rs.5,00/- each from year to year. When that method is adopted, even for an ordinary unskilled employee, the monthly income could be fixed as Rs.6,500/- for the year 2008. Here in this case, there is some evidence to show that he was a qualified JCB operator and therefore, being a skilled employee, a slightly higher monthly income needs to be taken. When the claim of the appellant with regard to the monthly income is considered in that perspective, under no circumstances, the monthly income of Rs.8,000/- could be treated as unreasonable. Accordingly, the said monthly income is accepted. 10. Yet another aspect to be considered is the future prospects. The appellant sustained such serious injuries with a devastating impact on his capacity to earn, at the young age of 23 years. As observed above, the nature of disabilities suffered by him made him unfit for any other employment for which physical exertion is required. Therefore, this is a fit case in which future M.A.C.A No. 1455 of 2013 9 prospects need to be taken into account for assessing the compensation. 11. In the light of **National Insurance Company Ltd. v. Pranay Sethi [2017 (4) KLT 662 (SC)],** 40% of the monthly income is to be added for the said purpose, as the appellant was aged 23 years at the time of the accident (even though 25 years was claimed in the claim petition, the date of birth as shown in Ext.A22 driving licence would indicate that he was only 23 years of age at the time of the accident). Thus when compensation for disability is reassessed with the above revised criteria, the amount would come to Rs.20,56,320/- [(8000 + 40%) x 12 x 18 x 85/100]. The amount already awarded by the Tribunal was Rs.5,83,200/- and accordingly, the additional compensation would come to Rs.14,73,120/-. 12. Consequent to the revision of monthly income, the appellant would be entitled to some additional amount under the head of loss of earnings. The compensation awarded by the Tribunal under this head was for 12 months. Considering the nature of injuries, and the period of treatment the appellant had undergone, the said period appears to be reasonable. Thus, a M.A.C.A No. 1455 of 2013 10 further sum of Rs.24,000/- is awarded, since I have already revised the monthly income as Rs.8,000/-. 13. The next aspect to be considered is future treatment. The medical records produced before the Tribunal would clearly indicate that even for maintaining the present physical condition of the appellant, he requires further treatment which includes physiotherapy as well. Therefore, some additional amount is required for the said purpose. Even though the said claim was specifically raised before the Tribunal, the amount awarded was only Rs.2,00,000/-. According to the learned counsel for the appellant, the said amount is inadequate and therefore some enhancement is required. After considering the materials placed on record, I find that some enhancement is necessary. This is particularly because the serious injury and disability were suffered by the appellant at a very young age of 23 years. As observed above, the documents also suggest that he requires physiotherapy for his entire life. In such circumstances, the amount of Rs.2,00,000/- awarded towards future prospects is not at all sufficient. Hence a further sum of Rs.3,00,000/- is awarded under the said head. 11 M.A.C.A No. 1455 of 2013 14. At this juncture, the learned counsel for the 2nd respondent points out that, the Tribunal awarded an amount of Rs.2,91,650/- towards loss of reduction in earning capacity. However, since I have already calculated the compensation for disability and loss of earning capacity by taking note of the functional disability and also the future prospects, compensation under the said head is not warranted. Therefore, the said amount can be deducted and it is ordered accordingly. 15. The learned counsel for the appellant would further point out that no amount is seen awarded towards loss of amenities. Considering the fact that, the appellant sustained such serious injuries and disabilities at a young age of 23 years which would affect the quality of his life, a reasonable amount is to be granted under the said head. In the facts and circumstances of the case, I deem it appropriate to fix it as 75,000/-. Thus, the total compensation determined by the appellant is fixed as Rs.15,80,470/- [Rs.14,73,120 + 24,000 + 3,00,000 + 75,000) – 2,91,650]. In the result, this appeal is allowed. The award dated 07.09.2012 in O.P.(MV). No.1397/2009 passed by the Motor M.A.C.A No. 1455 of 2013 12 Accident Claims Tribunal, Kollam is hereby modified by granting an additional compensation of Rs.15,80,470/- (Rupees fifteen lakh eighty thousand four hundred and seventy only). Out of the said amount, the 2nd respondent shall deposit an amount of Rs.12,80,470/- (Rupees twelve lakhs eighty thousand four hundred and seventy only)with interest at the rate of 8% per annum from the date of petition till realization. The remaining amount of Rs.3,00,000/- (Rupees three lakhs only) which was granted for future prospects shall be recoverable with interest at the rate as referred to above from the date of the award passed by the Tribunal. The appellant shall also be entitled to proportionate costs. However, it is clarified that as the delay of 207 days was condoned by this Court on the condition that the appellant shall not be entitled to claim interest for the said period for additional amount, the 2nd respondent shall be at liberty to exclude the said period while computing the interest on the additional compensation. It is further ordered that the appellant shall furnish the details of PAN card, Aadhar Card and Bank details to enable the insurance company to make the deposit as ordered above within a period of two months from the receipt of a copy of M.A.C.A No. 1455 of 2013 13 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** rpk