MACA No. 1044 of 2014 — Thankachan v. Philip Joseph, David Joseph and The Oriental Insurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN** **FRIDAY, THE 2[ND] DAY OF SEPTEMBER 2022 / 11TH BHADRA, 1944** **MACA NO. 1044 OF 2014** **AGAINST THE AWARD IN O.P(MV) No.345/2011 DATED 18.1.2014 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, KOTTAYAM** ## **APPELLANT/PETITIONER:** THANKACHAN, KOCHUPARAMBIL HOUSE, MADAKKUMOODU P.O., CHANGANACHERRY. BY ADVS. SRI.M.DINESH SRI.K.N.GOVINDANKUTTY MENON ## **RESPONDENTS/RESPONDENTS:** 1 PHILIP JOSEPH, KANNAMKALATH HOUSE, NEDUNGADAPPALLY P.O., CHANGANACHERRY-686 101. 2 DAVID JOSEPH, KANNANKULATH HOUSE, NEDUNGADAPALLY KARA, KARUKACHAL-686 540. 3 THE ORIENTAL INSURANCE CO.LTD., KOTTAYAM-686 001. BY ADVS. DR.ELIZABETH VARKEY SRI.JITHIN SAJI ISAAC SMT.K.S.SANTHI, SC THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 02.09.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **M.A.C.A No.1044 of 2014** 2 ## **JUDGMENT** This is an appeal filed under Section 173 of the Motor Vehicles Act, challenging the award dated 18.01.2014 in O.P.(M.V) No.345/2011 on the file of the Motor Accidents Claims Tribunal, Kottayam, at the instance of the appellant. 2. Respondents herein are the respondents before the Tribunal. 3. Heard the learned counsel for the appellant as well as the learned Standing Counsel for the Insurance Company. 4. Brief facts of the case: The appellant, who was a pedestrian on the road alleged to have sustained injuries when he was hit down by a motorcycle bearing regisration No.KL-33B-6053 ridden by the 2[nd] respondent in a rash and negligent manner, at 8:30 a.m on 06.11.2010. In consequence, the appellant ## **M.A.C.A No.1044 of 2014** 3 sustained injuries and he underwent treatment. On the above facts, an application under Section 166 of Motor Vehicles Act was preferred by the appellant before the M.A.C.T, Kottayam claiming compensation to the tune of Rs.1,50,000/- from respondents 1 to 3. 5. The 1[st] and 2[nd] respondents were set ex- parte by the Tribunal. 6. The 3[rd] respondent, Insurance Company filed written statement disputing the accident and negligence while admitting policy. Quantum of compensation also was disputed. **==> picture [388 x 13] intentionally omitted <==** evidence marked as Exts.A1 to A17, granted Rs.1,18,500/- with 8.5% interest. Ext.X1 disability certificate also marked. 8. The learned counsel for the appellant would submit that the compensation granted by the Tribunal is inadequate, since, the monthly income and the disability accepted by the **M.A.C.A No.1044 of 2014** 4 Tribunal are on lower side and the same require re-consideration. He submitted that the appellant sustained severe head injury and, therefore, 45% disability assessed as per Ext.X1 should have been considered by the Tribunal and the Tribunal is not justified in accepting only 5% disability. Similarly, it is argued that the monthly income fixed by the Tribunal at Rs.5,000/- is also on lower side, in a case where the appellant claimed the same at Rs.10,000/- being an agriculturist. 9. The learned Standing Counsel for the insurer vehemently opposed the disability assessed as per Ext.X1 on the ground that the disability certificate does not show that 45% disability was assessed as a result of accidental injury. According to the learned Standing Counsel, Spondylosis is the reason for assessing 45% disability and the same has no nexus with the accidental injuries to accept the 5 ## **M.A.C.A No.1044 of 2014** same as such. However, he conceded that the following the ratio in _**Ramachandrappa v.**_ _**Manager, Royal Sundaram Alliance Insurance Company Ltd.**_ : **(2011) 13 SCC 236,** Rs.7,500/- can be accepted in this case. 10. In the matter of income, it is an admitted fact that no evidence adduced to prove the same. Therefore, following the ratio in _**Ramachandrappa's**_ case (supra), Rs.7,500/- is fixed as the monthly income. 11.Coming to disability, as per Ext.X1, 45% was assessed by the Medical Board assessing standing disability. The certificate is not exhaustive as to whether the disability assessed was in relation to accidental injuries. In this context, it is necessary to refer the treatment records to ascertain, whether the disability to the tune of 45% shown in Ext.X1 is having any nexus with the accidental injuries. Ext.A5 is the copy of wound certificate. The same would **M.A.C.A No.1044 of 2014** 6 suggest that initially the appellant was having nasal bleeding + head injury and he was advised to have X-ray LS spine/TL spine along with CT brain. Ext.A10 is the CT Scan examination of brain showing acute thin left tentorial surface, no mass effect and small focal SAH in the right anterior inter hemispheric fissure. The second scan report is dated 09.11.2010. In the said certificate, the following diagnosis seen stated: _Spondylotic changes in the cervical spine._ _Focal posterior disc bulge noted at C34 level, along with prominent posterior osteophytes causing compression on thecal sac and spinal cord. Mild right foraminal narrowing also noted._ _Diffuse posterior bulge noted at C4-5 and C5-6 levels with indentation on thecal sac. Reduced disc height and mild diffuse annular bulge noted at C67 level with minimal indentation on thecal sac._ _Hyperintense signal areas noted in the cervical spinal cord at C3-4 and C4-5 levels, suggestive of contusion/edema._ **==> picture [388 x 13] intentionally omitted <==** 15.11.2010, 'normal study' of brain is the final **M.A.C.A No.1044 of 2014** 7 diagonosis. It is true that the appellant was treated for 12 days from 06.11.2010 to 17.11.2010 for subdural hemmorhage left tentorium. On review also, could be noticed from the O.P. Card attached with the discharge card. If reliance is given to Ext.A8 CT Scan report dated 15.11.2010, brain study is normal. 13. It may be true that the appellant might have other discomforts and the assessment of disability at 45% may be for the said reasons and the same could not be gathered from Ext.X1. This is the context in which the Tribunal refused to accept 45% disability and reduced the same to 5% disability. 14. In this case, as per the treatment records read along with the CT Scan study, it could not be held that the accidental injuries would contribute 45% disability assessed in Ext.X1. Considering the head injury and the corresponding treatment, I am inclined to accept ## **M.A.C.A No.1044 of 2014** **==> picture [7 x 9] intentionally omitted <==** 15% disability in this case. Therefore, the 'loss of disability income' is recalculated as follows: 7,500x12x9x15% = 1,21,500/- Out of which, Rs.27,000/- was granted by the Tribunal. Thus, **Rs.94,500/-** more is granted under the head 'loss of disability income'. **==> picture [388 x 13] intentionally omitted <==** Rs.15,000/- under the head 'pain and sufferings' and Rs.10,000/- under the head 'loss of amenities'. The learned counsel for the appellant sought increase on those heads considering head injury. 16. The learned Standing Counsel for the insurer opposed grant of increase under these heads, on the submission that reasonable amounts were granted under these heads by the Tribunal. 17. Having considered head injury and the consequential treatment, I am inclined to grant **Rs.7,000/-** more under the head 'pain and ## **M.A.C.A No.1044 of 2014** 9 sufferings' and **Rs.10,000/-** under the head 'loss of amenities'. 18. In the result, this appeal is allowed. It is held that the appellant is entitled to get Rs.2,30,000/- as compensation out of which Rs.1,18,500/- was granted by the Tribunal and the balance amount of **Rs.1,11,500/-** (Rupees One Lakh Eleven Thousand Five Hundred Only) is granted as enhanced compensation with the same rate of interest awarded by the Tribunal, payable by the 3[rd] respondent, Insurance Company from the date of petition till the date of deposit or realisation. 19. The appellants valued the claim at Rs.1,50,000/-. In view of grant of Rs.80,000/in excess of the claim, the appellants are bound to deposit Rs.800/- as additional court fee. The 3[rd] respondent, Insurance Company is directed to deposit Rs.800/- as additional court fee by a separate cheque in favour of M.A.C.T., Kottayam. ## **M.A.C.A No.1044 of 2014** **==> picture [13 x 9] intentionally omitted <==** The Insurance Company is directed to deposit the amount in the name of the appellant within two months from today. On deposit, the appellant is entitled to release the same. Sd/- ## **A.BADHARUDEEN, JUDGE.** ww