MACA No. 1356 of 2014

`MACA NO. 1356 OF 2014` 1 ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. ``` ``` TUESDAY, THE 17[TH] DAY OF OCTOBER 2023 / 25TH ASWINA, 1945 ``` ## **`MACA NO. 1356 OF 2014`** ``` AGAINST THE AWARD DATED 07.01.2014 IN OP(MV)NO.1089/2009 OF ``` ## **`MOTOR ACCIDENT CLAIMS TRIBUNAL, IRINJALAKUDA`** ## **`APPELLANTS / PETITIONERS:`** ``` 1GEORGE (DIED) S/O.ARUMUKHAN,PUTHUKKAD VETTIVILA HOUSE,KODAKKARA VILLAGE & PO,MUKUNDAPURAM TALUK,THRISSUR DISTRICT. ADDL.A2SANTHA GEORGE, AGED 56 YEARS W/O LATE GEORGE, PUTHUKKAD VETTIVILA HOUSE, KODAKKARA VILLAGE AND P.O, MUKUNDAPURAM TALUK,THRISSUR DISTRICT. ADDL.A3KAVITHA GEORGE, AGED 28 YEARS D/O LATE GEORGE, PUTHUKKAD VETTIVILA HOUSE, KODAKKARA VILLAGE AND P.O, MUKUNDAPURAM TALUK,THRISSUR DISTRICT. ADDL A4SALEESHMON, S/O LATE GEORGE, PUTHUKKAD VETTIVILA HOUSE, KODAKKARA VILLAGE AND P.O, MUKUNDAPURAM TALUK,THRISSUR DISTRICT. ( ADDL.APPELLANTS 2 TO 4 ARE IMPLEADED AS THE LEGAL HIERS OF DECEASED APPELLANT AS PER ORDER DATED 09/11/2018 IN IA.NO.01/2018 ). ``` ``` BY ADV P.V.BABY ``` ## **`RESPONDENTS / RESPONDENTS:`** ``` 1ARCHANA, W/O.VIJAYAKUMARAN NAIR,762/10,RAMA VILASAM,SASTHAMKONAM.P.O,KEEZHAROOR, ARIYANCODE,TRIVANDRUM-695001. ``` - `2 VIJAYAKUMARN NAIR, S/O.RAMAN PILLAI,762/10,RAMA VILASAM,SASTHAMKONAM.P.O,KEEZHAROOR, ARIYANCODE,TRIVANDRUM-695001.` - `3 THE ORIENTAL INSURANCE CO.LTD, PADMASREE,NEAR KSRTC BUS STAND,NEYYATTINKARA.P.O,TRIVANDRUM-695121. SRI.G.SUDHEER FOR R1 AND R2 SRI.P.V.JYOTHI PRASAD ADVB.SRI.JACOB MATHEW FOR R3` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 17.10.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` `MACA NO. 1356 OF 2014` 2 ## ZIYAD RAHMAN, A.A, J ## M.A.C.A No. 1356 of 2014 th Dated this the 17 day of October, 2023 ## JUDGMENT This appeal was initially filed by the petitioner in O.P.(MV). No.1089 of 2009 on the file of the Motor Accidents Claims Tribunal, Irinjalakuda. During the pendency of this appeal, the original appellant died, and consequently, additional appellants 2 to 4, the legal heirs of the deceased appellant, were impleaded. 2. The said claim petition was submitted by the claimant (deceased) seeking compensation for the injuries sustained in a motor accident that occurred on 21.02.2009 when a car bearing registration No.KL-3/B 8620, driven by the 2nd respondent, hit him. The said vehicle was owned by the 1[st] respondent and insured with the 3[rd] respondent. Immediately after the accident, he was taken to St.James Hospital, Chalakudy and was treated there as in-patient. The claimant was aged 54 years at the time of the accident, and he was a manual labourer with a monthly income of Rs.7,500/-. It was contended that the injuries sustained by him resulted in `MACA NO. 1356 OF 2014` 3 physical disablement, which was certified as 20% by the Doctor. The claim petition was submitted in such circumstances seeking a compensation of Rs.5,60,000/. 3. The 1[st] and 2[nd] respondent filed a joint written statement admitting the ownership of the 1[st] respondent over the said vehicle. However, they contended that the 2[nd] respondent drove the vehicle without a valid driving license and badge. The vehicle was also covered with a valid insurance Policy issued by the 3rd respondent. They disputed the quantum of compensation also. The 3[rd] respondent Insurance Company filed a written statement admitting the coverage of the Policy in respect of the vehicle, but it was contended that the 2[nd] respondent was driving the vehicle without any valid driving license. They also disputed the quantum of compensation as well. 4. The evidence in this case consists of oral testimony of PW1, the Doctor who examined the claimant, and Ext.A1 to A7 as documentary evidence from the side of the appellants. No evidence was adduced from the side of the respondents. After the trial, the Tribunal concluded that the accident occurred due to negligence on the part of the 2[nd] respondent. `MACA NO. 1356 OF 2014` 4 Being the insurer of the said vehicle, the 3[rd] respondent was held liable to pay the compensation at the first instance. However, as it was found that the 2[nd] respondent was not duly licensed at the time of the accident, the Tribunal found violation of the policy conditions and it was ordered that the 3[rd] respondent shall be at liberty to recover the compensation, after satisfying the award, from 1[st] and 2[nd] respondents. The quantum of compensation was fixed as Rs.82,881/-, and the said amount was directed to be deposited by the 3[rd] respondent Insurance Company with interest at the rate of 7.5% per annum from the date of petition till realisation, subject to their right of recovery. This appeal is submitted by the appellants in such circumstances, seeking enhancement of compensation. 5. Head Sri.P.V.Baby, learned counsel for the appellants; Sri.G.Sudheer, learned counsel for 1st and 2nd respondents; and Sri.P.Jacob Mathew, learned counsel for the 3[rd] respondent. 6. The main contention put forward by the learned counsel for the appellant is about the inadequacy of the compensation under the head of disability. It was pointed out that the monthly income and the percentage of physical `MACA NO. 1356 OF 2014` 5 disability taken by the Tribunal were unreasonably low; therefore, interference is required. When going to the monthly income, it is to be noticed that even though the amount claimed was Rs.7,500/-, the Tribunal took only a sum of Rs.3,500/-. According to the appellants, the claimant was a manual labourer at the relevant time. Of course, there is no evidence to substantiate the same. However, the only indication as to his employment is the statement in Ext.A1 FIR, wherein the wife of the victim gave the First information statement. In the said statement, he was referred to as manual labourer. As the said statement was recorded immeditaly after the accident, the same can be accepted. Moreover, going by the method of computation of monthly income evolved from the principles laid down by the Honourable Supreme Court in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Co. Ltd.[2011 (13) SCC 236]** and **Syed Sadiq v. Divisional Manager, United India Insurance Co. [2014 (2) SCC 735],** in the absence of any evidence, the monthly income of an ordinary worker can be fixed as Rs.7,000/- in respect of an accident occurred in the year 2009. Therefore, the monthly income in this case is fixed `MACA NO. 1356 OF 2014` 6 as Rs.7,000/-. 7. The next question is relating to the physical disability. The Tribunal has taken the physical disability as 7% even though the Ext.A5 disability certificate was to the effect that he sustained a permanent partial disability of 20%. A specific contention was put forward by the learned counsel by placing reliance upon the disability certificate, which was proved by examining the doctor who issued said certificate as PW1, that this is a case in which the functional disability of the appellant ought to have been taken. It was pointed out that the following disabilities are noticed in the said certificate. “a) Decreased C6-C7 inter vertebral disc space with compression of C6-C7. b) Decreased vertebral height of thoracic vertebra 11. c) Limitation of movements of cervical spine and thoraco lumber spine due to soft tissue fibrosis and adhesion with resultant partial analysis to the inter vertebral joint of 30%. d) Ataxia (Lack of muscle coordination) of all four limbs with rigidity(Hardness and stiffness of muscles) due to the trauma to brain and spinal cord.” 8. The learned counsel specifically highlights the ‘Ataxia’ suffered by the claimant consequent to the injuries sustained. The learned counsel relies on the “Encyclopedia of Disability by Gary L.Alberecht, Volume-I” by Gary L.Alberecht, `MACA NO. 1356 OF 2014` 7 ## wherein the consequences of the Ataxia are mentioned. “The most striking and debilitating effect of damage to the cerebellum is ataxia, which comes from the Greek words a, meaning “without”, and taxis, meaning “order”. Originally, it was a general term for incordination and was applied to a number of different medical disorders including heartbeat and bodily movements. It is now typically used to mean the incordination of movement following damage to the cerebellum…………….” “ Possibly the most common and disabling impairments of cerebellar damage are balance deficits and gait ataxia. Balance abnormalities are characterized by increased postural sway, either excessive or diminished responses to perturbations, poor control of equilibrium during motions of other body parts, and abnormal oscillations of the trunk (titubation). Gait ataxia, or walking in coordination, is often described as a “drunken gait”, with distinctive features including variable foot placement, irregular foot trajectories, a widened stance, a veering path of movement, and poor coordination of the joints of the legs. Thus, walking tends to looks clumsy and unstable. Some people with gait ataxia report that they have been accused of being intoxicated, based on their slurred speech and walking abnormalities. This can lead to social entrancement and inconvenience because they must explain (sometimes in great detail) what their condition is and that they are, indeed not intoxicated……………….” “People with ataxia can have mild to serve motor disorders in these areas but can live long and full lives. However, more often than not, the ataxia impinges on their job, home life and recreation. Many people find that their job is harder to do with ataxia. Ataxic hand movements make handwriting illegible, causing difficulties with typing on the computer. For people with more physically demanding jobs, the balance disorder and walking ataxia can affect `MACA NO. 1356 OF 2014` 8 their work. Often, people find that they have to modify their job or require new training in another area in order to continue working.” 9. The learned counsel also places reliance upon the notification issued by the Ministry of Social Justice and Empowerment [Department of Empowerment of Persons with Disabilities (Divyangjan)], bearing No S.O;76(E) dated 4.01.2018, and the order bearing File No 16-09/2014-DD-III issued by the Minstry of Social Justice and Empowerment, dated 8.07.2015, which was an Annexure to the said notification, wherein the guidelines to fix the permanent physical impairment consequent to ataxia were formulated. Clause 12.3 of the Annexure 1 to the said notification reads as follows: “ **12.3. Ataxia (Sensory or Cerebellar) Severity of Ataxia % of Permanant Physical Impairment** Mild (Detected on examination) Less than 40% Moderate 40 to 60% Severe More than 60%” The said notification was issued for the assessment of disability under the provisions of the Rights of Persons with Disabilities Act. Therefore, it was contended that the necessary cue could be taken from the same as to the consequences of `MACA NO. 1356 OF 2014` 9 the disability suffered and its impact on the earning capacity of the person concerned. 10. I have carefully gone through the disability certificate, evidence of PW1 and the documents referred to above, which were made available by the learned counsel for the appellant. It is seen from the guidelines formulated by the Government of India that, even with respect to a mild version of ‘Ataxia’, the physical impairment has to be fixed as less than 40%, for moderate impairment, the percentage should be fixed between 40% to 60% and for severe, it has to be above 60%. 11. Besides the same, the learned counsel for the appellant also relies on the Ext.A4 discharge certificate, wherein the Glasgow Como Scale of the claimant was assessed as E1, V1 and M1. It was clarified by placing materials to substantiate the same by the learned counsel for the appellant that E1 is the indicator for eye-opening response, V1 is for best verbal response, and M1 is the motor response. It was explained with the support of the materials that E1, V1 and M1, referred to in the discharge summary, represent the level of response to various aspects mentioned above of the claimant at the time of the discharge. It was also contended that the `MACA NO. 1356 OF 2014` 10 said readings represent a higher degree of the lack of response, and therefore, those are also relevant aspects while considering the physical disability of the claimant and consequential loss of earning power. Thus, it was pointed out that, the claimant being a person engaged as a manual labourer, such a disability would seriously affect his capacity to meet the demands of his job. Therefore, functional disability ought to have been taken by the Tribunal. The reliance was also placed on the decision rendered by the Hon’ble Supreme Court in **Syed Sadik V. Divisional Manager, United India Insurance Company [(2014) 2 SCC 735],** wherein in respect of a person, who was engaged in manual works, the necessity for taking higher percentage towards functional disability was mentioned. After carefully going through the said materials relied on by the learned counsel for the appellant, I find some force in the said contention. Considering the peculiar nature and consequences of the physical disorder, namely, ‘Ataxia’, and the response level as reflected in Ext.A4, it can be safely concluded that the injuries sustained by the claimant have farreaching consequences as far as his ability to perform as a manual labourer. Therefore, this is a fit case in which the `MACA NO. 1356 OF 2014` 11 functional disability ought to have been taken as a criterion for assessing the compensation for disability in the light of the principle laid down by the Hon’ble Supreme Court in **Syed Sadik’s case** . However, as there is nothing on record to indicate the intensity of the Ataxia, I deem it appropriate to take the functional disability by following the guidelines in the Government Notification dated 08.07.2015 as 40% for computation of compensation. 12. While reassessing the compensation for physical disability with monthly income as Rs.7000/- and the functional disability as 40%., the amount would come to Rs.3,69,600/(7000 x 12 x 11 x 40/100). The amount already awarded by the Tribunal is Rs.19,600/-; thus, the additional amount would come to Rs.3,50,000/-. Consequent to the revision of monthly income, the claimant would be entitled to a further sum of Rs.10,500/- under the head of loss of earnings. 13. The amount awarded under the head of pain and suffering was Rs.25,000/- and this was sought to be enhanced. However, such enhancement was opposed by the learned counsel appearing for respondents 1 and 2 by relying on the judgment rendered by the Hon’ble Supreme Court in **Oriental** `MACA NO. 1356 OF 2014` 12 ## **Insurance Company Limited Vs. Kahlon (AIR 2021 ICO** **1204).** It was contended by the respondents that, since it is a claim for personal injuries of a person who died, the claim would not survive to the legal heirs; therefore, they cannot pursue the said claim. It is true that in the said decision, it was observed by the Hon’ble Supreme Court that if the petitioner in a case of personal injury dies during the pendency of the appeal, the same cannot be pursued by the legal heirs, as the claim for personal damages may not have survived after the death of injured unrelated to accident or injuries. However, the crucial aspect to be noticed in this regard is that the said legal proposition may not apply to the State of Kerala by virtue of the enactment of the Kerala (Torts Miscellaneous Provisions) Act, 1976. As per Section 2 of the said Act, on the death of any person after the commencement of the Act, all causes of action subsisting against or vested in him shall survive against, or, as the case may be, for the benefit of, his estate. It is also to be noted that the legal proposition that the personal injury claim may not survive to the legal heirs after the death of the victim is based on section 306 of the Indian Succession Act. However, in section 9 of the Kerala (Torts Miscellaneous Provisions) Act, `MACA NO. 1356 OF 2014` 13 1976, which deals with the Repeal of the enactments, it is contemplated that section 306 of the Indian Succession Act, so far as it relates to the right of action in torts, shall cease to apply to the State of Kerala. Therefore, in the light of the statutory provisions as above, the contentions raised by the learned counsel for the first and second respondents that the claim for personal injuries would not survive even after the death of the original claimant is only to be rejected, and it is ordered accordingly. 14. Now, on coming back to the question of enhancement for compensation under the head of pain and suffering, I find that considering the nature of injuries sustained and the consequences thereof, the amount awarded is on the lower side. The facts and circumstances of the case would justify the award of a further amount of Rs.15,000/- under the said head, and it is ordered accordingly. 15. The learned senior counsel for the Insurance Company also raised a contention that, while reassessing the compensation for physical disability, the entire multiplier need not be taken, as evidently he died six years after the accident when the appeal was pending consideration. However, I am not `MACA NO. 1356 OF 2014` 14 inclined to accept the said contention. The moment he suffered the injury in the accident, the cause of action arose for compensation, and the tortfeasors were under the liability to make good the said loss. Therefore, since the right of claim of compensation accrued on the date of the accident, the death of the claimant at a later point of time, cannot have an impact upon the assessment of compensation and such assessment has to be made as per the situation prevailing on the date of accident. The subsequent event not related to the tortious act cannot be a relevant aspect for adjudicating the liability of the tortfeasors. Therefore, I do not find any merit in the said contention. 16. Thus, after considering all the relevant aspects, I find that the appellants are entitled to a compensation of Rs.3,70,500/-, in addition to the amount already awarded by the Tribunal. 17. In the light of the aforesaid finding and observations, the award dated 07.01.2014, in OP(MV)No.1089/2009 passed by the Motor Accidents Claims Tribunal, Inrinjalakuda, is hereby modified by granting an additional compensation of Rs.3,70,500/- and the third respondent-Insurance Company is `MACA NO. 1356 OF 2014` 15 directed to deposit the said amount with interest @ 7.5% per annum from the date of petition till realization, within a period of three months from the date of receipt of a copy of this judgment. After the said deposit, it shall be open for the third respondent-Insurance Company, to recover the said amount from the first and second respondents. This appeal is disposed of accordingly. sd/- ZIYAD RAHMAN, A.A, JUDGE DG/R.AV