Kumar Behera v. United India Insurance Co. Ltd.

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MRS. JUSTICE MARY JOSEPH MONDAY, THE 20[TH] DAY OF NOVEMBER 2023 / 29TH KARTHIKA, 1945 MACA NO. 3698 OF 2022 ``` ``` AGAINST THE AWARD DATED 30.04.2022 IN O.P(M.V) NO.1167 OF 2019 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, PALAKKAD ``` ``` APPELLANT/PETITIONER: ``` ``` KUMAR BEHERA, AGED 24 YEARS S/O.DOBA BEHERA, BIPILINGI, BUPILINGI, CHATRAPUR, GANGAM, ODISHA- 761 026 BY ADV.SRI.BABY MATHEW ``` ## **`RESPONDENT/3RD RESPONDENT:`** ``` UNITED INDIA INSURANCE CO.LTD, REP BY BRANCH MANAGER, I G TOWERS, NEAR BUS STAND, NEMMARA P O, PALAKKAD DISTRICT, KERALA-678508. (INSURER OF BUS BEARING REG. NO.KL/49/4300) POLICY NO 1012043117P11672691, VALID FROM 21/02/2018 TO 20/02/2019) COMMUNICATION ADDRESS UNTIED INDIA INSURANCE COMPANY LTD, DIVISIONAL OFFICE, 3RD FLOOR, MALABAR FORT BUILDING, OLD KANDATH COMPLEX, G B ROAD, PALAKKAD - 678001 BY ADV. SMT.DEEPA GEORGE SRI.P.K.MANOJ KUMAR ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR HEARING ON 20.11.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` M.A.C.A.No.3698 of 2022 ``` ``` 2 ``` ## **JUDGMENT** ## **Dated this the 20[th] day of November, 2023** The appeal on hand is originated from an award passed by Motor Accidents Claims Tribunal, Palakkad (for short ‘the Tribunal’) on 30.04.2022 in O.P.(M.V) No.1167/2019. The appellant is the petitioner before the Tribunal. 2. For the sake of convenience, the parties to this appeal will hereinafter be referred to as the petitioner and respondent No.3 in accordance with their status in the above Original Petition. 3. As per the claim of the petitioner in the above Original Petition, he met with a motor accident at 2.30 p.m on 10.01.2019, when the Bus bearing Registration No.KL-09-V-3020 in which he was travelling from Palakkad to Nemmara was hit by a Bus bearing Registration No.KL-49-4300 driven by the 2[nd] ``` M.A.C.A.No.3698 of 2022 ``` ``` 3 ``` respondent in a rash and negligent manner near Thottingal railway crossing gate, Palakkad. He sustained serious injuries. Alleging that the motor accident was occurred due to the rash and negligent driving by the 2[nd] respondent and raising a claim for ₹30,00,000/- as compensation, the above Original Petition was filed before the Tribunal. The driver, the registered owner and the insurer of the Bus bearing Registration No.KL-49-4300 were arrayed as respondents 1 to 3 in the above Original Petition. 4. Petitioner adduced only documentary evidence before the Tribunal, which consists of Exts.A1 to A25. Respondent did not adduce any evidence. On appreciation of the entire evidence, the Tribunal found that the motor accident in question was occurred due to the rash and negligent driving of the Bus bearing Registration No.KL-49-4300 by the 2[nd] respondent. The ``` M.A.C.A.No.3698 of 2022 ``` ``` 4 ``` Tribunal also found from the medical documents marked in evidence as Exts.A10, A11, A12 and A13 that the petitioner had sustained serious injuries in the motor accident. It arrived at a sum of ₹19,36,380/- rounded off to ₹19,36,400/- as the compensation payable to the petitioners and the 3[rd] respondent was directed to deposit the same in favour of the petitioner alongwith interest at the rate of 7.5% per annum from the date of filing of the Original Petition till the date of realisation and proportionate costs. Aggrieved by the quantum of compensation stood awarded by the Tribunal, petitioner is now before this Court in the appeal on hand. 5. The learned counsel for the petitioner contended that the compensation stood awarded by the Tribunal towards disability is inadequate. According to him, petitioner has successfully established the serious injuries sustained by him in the motor accident, various ``` M.A.C.A.No.3698 of 2022 ``` ``` 5 ``` surgical procedures undergone by him as part of the treatment and also the difficulties faced by him in the motor accident. According to him, petitioner has also established the period of his inpatient treatment. Despite all these aspects stood established before the Tribunal, only a meagre sum was awarded by it as compensation towards permanent disability. According to the learned counsel, a certificate was marked in evidence as Ext.A20 where his permanent disability was certified as 63.33%. According to him, the Tribunal has taken only 40% instead of 63.33% for calculation of compensation for permanent disability and that consideration is not substantiated by reasons. 6. The learned counsel contended furthermore that the petitioner is evidenced as lost the use of his right limb totally, but the Tribunal failed to take into account loss of his future prospects while calculating ``` M.A.C.A.No.3698 of 2022 ``` ``` 6 ``` compensation. Therefore, he urged for re-appreciation of evidence and calculation of compensation for disability afresh. According to him, the Tribunal failed to award compensation for discomforts and inconveniences suffered by the petitioner on account of the injuries sustained in the motor accident. 7. The learned counsel for the 3[rd] respondent contended on the contrary that the petitioner is dis-entitled to get compensation towards loss of amenities and enjoyments in life as well as permanent disability. **Raj Kumar v. Ajay Kumar** [2011(1) KLT 620 (SC)] was relied on by her to rest her contention. The learned counsel contended furthermore on the basis of Ext.A20 that the assessment of permanent disability of the petitioner was not by a Medical Board but by an individual Doctor who never treated him. According to her, neither the petitioner nor the Doctor who issued ``` M.A.C.A.No.3698 of 2022 ``` ``` 7 ``` Ext.A20 was examined before the Tribunal and therefore, the Tribunal is justified in taking 40% as petitioner’s disability for calculation of compensation. Thus the award under challenge is sought to be maintained. 8. Ext.A10, Ext.A11, Exts.A12 and A13 respectively are the accident register cum wound certificate and discharge summaries of the petitioner obtained from Elite Mission Hospital, Thrissur, wherefrom, treatment was availed by the petitioner following the motor accident. Petitioner sustained crush injury on his right upper limb, fractures on right middle 3[rd] of humerus, ulna, radius, coronoid, distal radius, metacarpals and proximal phalanx of right little finger. Crush injury sustained by him involve whole of right upper limb. The fracture of right humerus was a closed one. Whereas, fractures of right radius and ulna ``` M.A.C.A.No.3698 of 2022 ``` ``` 8 ``` were exposed. The muscles were crushed, exposed and avulsed from the bone. Distal sensation was present. Sensory blunting was noted in median, radial and ulnar nerve territory of right upper limb. Radial and ulnar artery pulses were detected in doppler study. Finger capillary refill was also present. Right zygoma was also fractured. He had undergone exploration, debridement, repair of muscles and suturing, followed by application of external fixator for humerus, open reduction and internal fixation with plate for distal ulna and radius, application of screws for calcaneum, K-wire fixation for coronoid fracture and for distal radius. Biceps and brachialis of right arm was found cut. Radial nerve was found intact, but contused. Median and ulnar nerve were also intact but contused. Muscles in the forearm was crushed. K-wires were fixed at the site of Proximal phalanx of little finger and 3[rd] metacarpal. Upper eyelid ``` M.A.C.A.No.3698 of 2022 ``` ``` 9 ``` laceration was repaired. Wound debridement and skin grafting were repeated. Skin was harvested from right thigh and placed over raw area and dressings continued. He was treated as in-patient initially from 10.01.2019 till 12.02.2019. He was admitted again at the very same hospital on 19.02.2019 and discharged on 28.02.2019. During that period also, wound debridement, transposition of flap cover, skin grafting and open reduction and internal fixation of humerus with plate and screws were done. At the time of discharge, petitioner was advised to continue medication and dressings from a local hospital on alternate days. He was asked to continue limb elevation and to review on 17.03.2019. 9. An individual Doctor has examined him on 31.03.2021 and issued Ext.A20, certifying his permanent disability as 63.33%. The complaints made ``` M.A.C.A.No.3698 of 2022 ``` ``` 10 ``` to him by the petitioner, the kind of examination conducted and the evaluation made by him following the examination were elaborately discussed by the doctor in the certificate. The reasons based on which the permanent disability of the petitioner was assessed by the Doctor finds corroboration in matters described in the discharge summaries. Therefore, this Court finds justification in taking atleast 60% and calculating compensation for permanent disability on its basis. 10. Petitioner was aged 21 years at the relevant time of the motor accident and claimed to be a manual labourer by occupation. Photographs of the injuries were made available in evidence and it is established therefrom that the right limb of the petitioner has become totally functionless. An extensive ugly scar was also found on his right limb. Being a manual labourer, ``` M.A.C.A.No.3698 of 2022 ``` ``` 11 ``` he may not be able to pursue the occupation, in which he was engaged at the relevant time. He undoubtedly has also to suffer loss of future prospects. Therefore, 40% is liable to be added to the monthly income fixed for the petitioner in consideration of loss of future prospects. 11. ₹12,000/- was fixed by the Tribunal as monthly income on a notional basis. The petitioner failed to adduce any evidence to substantiate his claim of monthly income and therefore, the Tribunal is justified in fixing it notionally. ₹12,000/- being a reasonable sum to be fixed in the year 2019, is maintained. 40%, when added to the monthly income in consideration of loss of future prospects, ₹16,800/(₹12,000/- + 40% of ₹12,000/-) is arrived at. The multiplier adopted by the Tribunal was 18 and it being correct, is maintained. In view of the inclination of this ``` M.A.C.A.No.3698 of 2022 ``` ``` 12 ``` Court to take a modified percentage of disability, the sum payable as compensation thereunder is required to be calculated afresh. Thus, ₹21,77,280/- (₹16,800/- x 12 x 18 x 60/100) is arrived at as the compensation payable. ₹10,36,800/- stood awarded by the Tribunal, when adjusted against the above sum, the petitioner will get ₹11,40,480/- (₹21,77,280/- - ₹10,36,800/-) as additional compensation towards permanent disability. 12. The learned counsel canvassed for deduction of ₹1,00,000/- from the compensation payable, relying on **Raj Kumar** supra. In the said decision, the Tribunal has considered the case of a Government servant and arrived at a finding that compensation for functional disability as well as for loss of amenities and enjoyments in life cannot be granted together. At the same time, the Apex Court has cautioned the Tribunal to take a view depending on the facts and circumstances of each ``` M.A.C.A.No.3698 of 2022 ``` ``` 13 ``` case while granting compensation under the head permanent disability as well as loss of amenities and enjoyments in life. 13. It is noticed that despite the lengthy treatment undergone by the petitioner, the Tribunal considered loss of earning only for six months. That period being inadequate, is modified to 12 months. Compensation when calculated afresh on it’s basis, ₹1,44,000/(₹12,000/- x 12) is payable. ₹72,000/- stood already awarded by the Tribunal when adjusted against, the petitioner will get ₹72,000/- (₹1,44,000/- - ₹72,000/-) as additional compensation. 14. In the above manner of calculation afresh, the petitioner will get ₹12,12,480/- (₹11,40,480/- + ₹72,000/-) (Rupees twelve lakh twelve thousand four hundred and eighty only) as additional compensation, which amount will also carry interest at the rate of 7.5% ``` M.A.C.A.No.3698 of 2022 ``` ``` 14 ``` per annum from the date of filing of the Original Petition till the date of realisation. The appeal having been filed with a delay of 82 days, the insurer is exonerated from paying interest for that period. Sole respondent in the appeal who is the 3[rd] respondent before the Tribunal shall pay the additional compensation alongwith interest accrued on it, within a period of two months from the date on which a certified copy of this judgment is received. The disbursal of the amount shall be in accordance with the guidelines issued by this Court in Circular No.03/2019 dated 06.09.2019. M.A.C.A stands allowed accordingly. Sd/- **MARY JOSEPH JUDGE** NAB