Kunjumon S/O Kandru v. P.K. Sunilkumar, The New India Assurance Co. Ltd. & Bajaj Auto Finance Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH** **WEDNESDAY, THE 25TH DAY OF MAY 2016/4TH JYAISHTA, 1938** **MACA.No. 1736 of 2011 ( ) --------------------------** ## **AGAINST THE AWARD IN OP(MV) 2950/2002 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, THRISSUR DATED 26-05-2011** ## **APPELLANT/PETITIONER:** **-----------------------** **KUNJUMON, S/O. KANDU, “SREYAS”, 435/E, CHEMBOORKAVU P.O., THRISSUR DISTRICT.** ## **BY ADV. SRI.P.V.CHANDRA MOHAN** ## **RESPONDENTS/RESPONDENTS:** **--------------------------** **1. P.K.SUNILKUMAR, S/O. P.K. KUNJUMON PANANGAYIL (“SREYAS”), HOUSE, CHEMBOORKAVU P.O., THRISSUR DISTRICT.** **2. THE NEW INDIA ASSURANCE CO.LTD., BRANCH OFFICE, 1ST FLOOR, UDYOG BHAVAN,, SHIVAJI NAGAR, PUNA.** ## **3. MANAGER, BAJAJ AUTO FINANCE LTD.,** **P.O.PUNKUNNAM, THRISSUR.** **R2(B/O) BY ADV. SRI. ZIYAD RAHMAN BY ADVS. SRI.KKM.SHERIF SRI.LAL K.JOSEPH** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 25-05-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **SHG/** ## **C.T. RAVIKUMAR & K.P. JYOTHINDRANATH, JJ.** **- - - - - - - - - - - - - - - - - - - - - - - M.A.C.A.No.1736 of 2011** **- - - - - - - - - - - - - - - - - - - - - - - Dated this the 25[th] day of May, 2016** ## **J U D G M E N T** ## **K.P. Jyothindranath, J.** The appellant is the claimant in O.P.(M.V.) No.2950/2002 on the file of the Motor Accidents Claims Tribunal, Thrissur. The challenge is against the quantum of compensation awarded. The facts relevant for consideration of this appeal is as follows: The appellant herein was a pillion rider on a motorcycle bearing registration No.KL-8/N-4184. The said vehicle capsized and the appellant herein sustained grievous injuries. The allegation is that the accident occurred due to the negligence of the rider of the bike. He made a claim for compensation before the Tribunal for an amount of Rs.5,04,500/-. After considering the evidence and the materials, the Tribunal awarded a total compensation of Rs.2,50,800/-. Aggrieved by the said award, this appeal is preferred. 2. When the appeal came up for hearing, the learned M.A.C.A.No.1736 of 2011 2 counsel appearing for the appellant submitted before me that the appellant was the Assistant Manager of the Central Warehousing Corporation. He was aged 56 years and it is also submitted before us that even though a disability certificate showing a disability of 25.97% was produced before the Tribunal, the Tribunal considered only 20% of disability. It is the submission that the Doctor was examined as PW1 before the court and he was also subjected to crossexamination. Nothing was brought out to discredit the Doctor. Under such circumstances, the Tribunal should have taken the whole percentage assessed by the Doctor. 3. The second point argued before us is that permanent disability caused to the appellant. It is also the fact that he was at that point of time employed and was drawing a total salary of Rs.17,184/-. It is also brought out that it was a pensionable employment. But the Tribunal took only Rs.2,500/- as notional income for assessing loss due to disability in future. It is also brought to our notice that a multiplier of 8 is seen taken by the Tribunal. As per M.A.C.A.No.1736 of 2011 3 the dictum laid down by **Sarla Varma v. Delhi Transport Corporation [2010 (2) KLT 802 (SC)** , it can be seen that at least a multiplier of 9 should have been taken. Another aspect brought to our notice by the learned counsel is that even though permanent disability is therein, no separate amount is seen awarded towards loss of amenities, disfiguration, discomfort and inconvenience. Only a consolidated sum of Rs.40,000/-, on all these heads, is seen awarded by the Tribunal. On that aspect also the Tribunal erred,it is contended. 4. The next point argued before us is regarding the future medical expenses. It is the submission of the learned counsel before us that the doctor who examined the appellant categorically advised that the petitioner requires ilizarov surgery for hypertrophic non-union of right leg. Thus, the petitioner is entitled for a compensation of Rs.1,25,000/- towards future treatment, as expenses for the same assessed by the Orthopedic Surgeon of R.V. Clinic & Hospital. Thus, the counsel for the appellant submitted M.A.C.A.No.1736 of 2011 4 before us that the total compensation awarded is on a lower side and as such just compensation has to be awarded. 5. The learned counsel appearing for the Insurance Company submitted before us that the Tribunal considered all aspects and as such an interference by this court is not warranted. It is the submission that, it is a fact that, a Central Government Employee will get pension even after retirement. Thus, if the Tribunal considered only Rs.2,500/as notional income, for calculation purpose , it can be seen that no interference on that head is warranted. It is also the submission that if a treatment will cure the non-union, then naturally the permanent disability assessed will be wrong and it cannot be said that the disability now assessed is permanent in nature. It is also the submission that on the head of pecuniary loss actual loss sustained can be compensated. 6. In this case there is no dispute regarding negligence aspect or liability of the Insurance Company. The injury sustained by the appellant/claimant is M.A.C.A.No.1736 of 2011 5 highlighted in paragraph 10 of the lower court award. As per the award, it can be seen that the claimant sustained Type III communited fracture of both bones of right leg lower 3rd. He was originally treated at Medical College Hospital, Thrissur by wound debridement, external fixation and other supportive measures and the procedure includes split skin grafting. When the external fixation was removed, he was put on LL POP cast. Even though the accident occurred on 19.1.2002, the POP cast was removed on 4.4.2002 and he was directed to continue the medication and reviews. On 5.7.2002, it was seen opined as fracture was found uniting and asked to continue the PTB Brace. Opining that there was non-union. Dr. K. Balagopal, Assistant Professor of Orthopaedics of Medical College Hospital, Thrissur assessed his disability as 25.97%. He found that there was shortening and angular deformity, ankle stiffness, knee stiffness, wasting and loss of powers and secondary osteoarthritis and pain. On these findings, doctor assessed the disability. But surely after considering 6 M.A.C.A.No.1736 of 2011 all these aspects, the Tribunal has considered the percentage of disability as 20%. It is a fact that his disability was not assessed by a Medical Board. 7. After going through the records and also considering the fact that the Tribunal will be getting an opportunity to see the petitioner, we are not inclined to interfere with the decision of the Tribunal that, only 20% need be considered for assessing loss due to disability. After going through the heads on which compensation awarded, we feel that a re-assessment/awarding of additional compensation on some heads are necessary. Thus, over and above the compensation already awarded the following amounts are also awarded. On the head of future medical expenses, even though Rs.10,000/- was claimed, no amount is seen granted by the Tribunal. This is a case of nonunion/malunion of fracture of right tibia. Under such circumstances, we feel that it will be only just and proper to grant an additional sum of Rs.10,000/- on this head. The fact that he was working as Senior Assistant Manager in the M.A.C.A.No.1736 of 2011 7 Central Warehousing Corporation is not disputed by the Insurance Company. If that is so, if an amount of Rs.4,000/is considered as his monthly income after retirement, it can be only said that it is an assessment of moderate income that can be generated after retirement by engaging in some occupation by a person who worked as an Assistant Manager in the Central service. This amount will be over and above the pension. That prospect will be affected by the disability caused in the accident. Thus instead of Rs.2,500/it will be only just and proper to consider Rs.4,000/- for assessment of loss of income due to disability after his retirement. The Tribunal took only 8 as the multiplier. As per the decision in **Sarla Varma v. Delhi Transport Corporation [2010 (2) KLT 802 (SC)** it can be seen that a multiplier of 9 will be available. Thus, on this head, the petitioner will be entitled for an additional sum of Rs.38,400/-. No separate amount is seen awarded towards loss of discomfort and inconvenience. It is a fact that the injury is sustained to a person who is aged 56 years. The M.A.C.A.No.1736 of 2011 8 non-union/malunion of the bone will definitely adversely affect his amenities and there will be discomfort and inconvenience. Thus, considering the nature of the injuries sustained, a sum of Rs.20,000/- is awarded on this head. Then the petitioner will be entitled for a sum of Rs.68,400/(Rupees sixty eight thousand and four hundred only) over and above the compensation already awarded by the Tribunal. The amount will carry interest at the rate of 8% per annum from the date of petition. If the amount is not paid within two months from the date of receipt of a copy of this judgment, the amount will carry 9% interest from the date of petition till realization. The Insurance Company shall deposit the amount within two months from the date of receipt of a copy of this judgment. There will be no order as to costs. Sd/- **C.T. RAVIKUMAR JUDGE** Sd/- **K.P. JYOTHINDRANATH JUDGE** //True copy// shg/ P.A. TO JUDGE