M.A.C.A. Nos. 1079 & 1199 of 2008

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR** **& THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH** **MONDAY, THE 24TH DAY OF OCTOBER 2016/2ND KARTHIKA, 1938** **MACA.No. 1079 of 2008 ( ) --------------------------** ## **AGAINST THE AWARD IN OPMV 1044/2000 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, PALAKKAD DATED 24-08-2007** ## **APPELLANT/PETITIONER:** **---------------------------------** **VENUGOPALAN NAIR, S/O.NARAYANAN NAIR, PAINI ERATH HOUSE, PADINJATTAM KOZHUVAL, NILESWAR POST, KASARAGOD DISTRICT.** **BY ADVS.SRI.O.RAMACHANDRAN NAMBIAR SRI.GEEN T.MATHEW** ## **RESPONDENTS/RESPONDENTS:** - **--------------------------------------** **1. LINDA SUNNY, 16-7, MATHURA ROAD, FARIDABAD.** ## **2. VASU, S/O. AYYAPPAN,** **PAYAPPAT HOUSE, MATTOM VIA,, ALUR POST, THRISSUR.** ## **3. THE ORIENTAL INSURANCE COMPANY,** **IIND FLOOR, J.B. BUILDING, ROUND WEST, THRISSUR.** ## **4. THE ORIENTAL INSURANCE COMPANY LTD., SHOBHA, TSM COMPLEX, R.S. ROAD, PALAKKAD.** ## **R3 & R4 BY SMT. K.S. SHANTI** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 24-10-2016, ALONG WITH MACA. 1199/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **SHG/** ## **C.T. RAVIKUMAR & K.P. JYOTHINDRANATH, JJ.** **- - - - - - - - - - - - - - - - - - - - - - - M.A.C.A.Nos.1079 & 1199 of 2008 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 24[th] day of October, 2016** ## **J U D G M E N T** ## **Ravikumar, J.** The above appeals arise from the common judgment dated 24.8.2007 in O.P.(M.V.)Nos.1044/2000 and 1262/2010, passed by the Motor Accidents Claims Tribunal, Palakkad. In fact the former appeal has been preferred against the judgment and award in O.P.(M.V.)No.1044/2000 and the latter appeal has been preferred against the judgment and award in O.P.(M.V.)No.1262/2000. The appellants were passengers in a car bearing registration No.TN.04/6658 when it met with an accident on 5.2.1999. The car in which they were travelling was hit by a lorry bearing registration No.HR-38 8628 at about 6.20 p.m. On sustaining the grievous injuries both of them were immediately taken to District Hospital, Palakkad and subsequently shifted to K.G. Hospital, Coimbatore. Both of them had to remain in the hospital as inpatient for a considerably long period and they had incurred disability M.A.C.A.Nos.1079 & 1199 of 2008 2 owing to the injuries sustained. It is in the said circumstances that the above mentioned claim petitions were filed. As per the award in O.P.(M.V.)No.1044/2000 the Tribunal granted a total compensation of Rs.4,35,780/with interest at the rate of 7.5% per annum from the date of petition till realisation along with a cost of Rs.1,000/-. In O.P.(M.V.)No.1262/2000 the Tribunal granted a total compensation of Rs.5,19,150/- with interest at the rate of 7.5% per annum from the date of petition till realisation along with a cost of Rs.1,000/-. It is seeking enhancement of the quantum of compensation that the captioned appeals have been preferred. 2. The fact that the appellants had sustained injuries in the motor vehicle accident involving the aforementioned vehicles, the accident occurred due to the negligence of the driver of the aforementioned lorry and the insurance coverage of the said offending vehicle at the time of the accident were not in dispute. In such circumstances, we are called upon to consider only the claim of the appellants M.A.C.A.Nos.1079 & 1199 of 2008 3 for enhanced compensation. We will firstly consider the claim for enhancement in MACA 1079/2008. ## **MACA No.1079/2008** : 3. The petitioner was an employee in Elgi Trend India Ltd., Coimbatore. The Tribunal fixed his annual income for the purpose of calculation as Rs.2,27,652/relying on Ext.A13 salary certificate. There is no dispute regarding the annual income. The Tribunal adopted the multiplier as '15'. Admittedly at the time of the accident the appellant was aged 42 years. In such circumstances the contention of the learned counsel for the respondent Insurance Company is that the Tribunal ought have taken the multiplier as '14' instead of 15. In the light of the schedule given in the decision in **Sarla Varma v. Delhi Transport Corporation [2010 (2) KLT 802 (SC)** for the age group 41 to 45, the multiplier applicable is 14. In such circumstances, the learned counsel for the Insurance Company is justified in taking up an objection regarding the adoption of multiplier. Therefore instead of the multiplier as M.A.C.A.Nos.1079 & 1199 of 2008 4 15 the Tribunal ought to have taken the multiplier as 14. In the accident the appellant sustained the following injuries going by Exts.A10 and A11 wound certificates and Ext.X2 discharge summary card: 1. Open fracture (R) femur. 2. Lacerated wound scalp 3x2cm 3. Sutured wound 7cm over the forehead 4. Multiple lacerations on the lateral wall of right axills 5. Lacerated wound over the right eye brow. 6. Swelling a deformity right arm with right wrist drop 7. Punctured wound over the lateral aspect of the right thigh with swelling and deformity of right thigh 8. Swelling over right ankle 9. Fracture 3,4,5,6,7 ribs right side with haemothorax 10. Left vocal cord paralysis 11. Fracture right humerus with right radial nerve paralysis 12. Intertrochanteric fracture right femur with fracture shaft of right femur. 13. Fracture medial malleolus right ankle with fracture shaft of right tibia. 4. The Tribunal considered Ext.A12 which is the M.A.C.A.Nos.1079 & 1199 of 2008 5 disability certificate produced by the appellant. In Ext.A12 the disability of the appellant was assessed as 40%. However admittedly the doctor who issued the same was not examined before the Tribunal. Ext.X8 is the disability certificate issued by a duly constituted Medical Board. As per Ext.X8 the percentage of disability of the appellant incurred due to the injury sustained in the accident was assessed as 20% and the Tribunal took only 10% for calculation purpose. A close scrutiny of the impugned judgment would reveal that the Tribunal had not assigned any specific reason for discarding the disability assessed by the Medical Board. When the disability of a person who sustained injuries in an accident was assessed by a duly constituted Medical Board the disability assessed thereunder need not be disbelieved in the absence of specific reasons to be assigned. On a careful scrutiny of the impugned judgment, it is evident that it lacks any specific reasons for discarding the assessment of percentage of disability certified under Ext.X8. Taking note of the nature M.A.C.A.Nos.1079 & 1199 of 2008 6 of the injuries sustained in the accident and the reasons for assessing 20% disability recorded in Ext.X8 and also taking into account the absence of reasons for reducing the percentage of disability, we are of the view that there is no justification in limiting the disability only to 10% for calculation purpose. A perusal of Ext.X8 would reveal that the Medical Board assessed permanent disability of 20% mainly due to the residual deficiency of lung function on right side, partial ankylosis right shoulders, numbness in right hand, partial anklyosis of right hip joint with inability to squat and sit cross leg. In such circumstances when there is residual deficiency of lung function and taking into account the other factors which constrained the Medical Board to assess the permanent disability at 20%, we do not find any reason at all for doubting the correctness of the assessment made by the Medical Board and consequently, for reducing the percentage of disability assessed and certified as per Ext.X8. In other words, we do not find any reason to sustain the finding of the Tribunal that only 10% M.A.C.A.Nos.1079 & 1199 of 2008 7 disability need be considered for calculation purpose. In such circumstances, the permanent disability of the appellant due to the injuries sustained in the accident has to be taken as 20% as certified under Ext.X8. In the light of the fact that we have modified the multiplier and taken it as '14' instead of '15' and taken the percentage of disability as 20 instead of '10' a reassessment of the compensation payable for permanent disability has to be made. On such reassessment the appellant will be entitled to get an amount of Rs.6,37,425/-. The Tribunal has already granted an amount of Rs.3,41,478/- under that head. In such circumstances, the appellant would be entitled to get an amount of Rs.2,95,947/- additionally under that head. It is granted. The nature of the injuries sustained by the appellant and the percentage of disability and the nature of disability compelled us to hold that the appellant is entitled to get enhancement of compensation under the heads future expenses and loss of amenities. While considering the loss of amenities, in view of the nature of the injuries, we are M.A.C.A.Nos.1079 & 1199 of 2008 8 also of the view that the aftermath of the injuries would definitely shorten longevity of the life of the appellant. In such circumstances, we are inclined to grant Rs.50,000/each under the head 'future expenses' and the combined heads of 'loss of amenities' and 'shortening of longevity of life'. Towards extra nourishment, taking into account the fact that the appellant had been an inpatient for a period of 72 days we are inclined to grant Rs.5,000/- more. The nature of the injuries referred hereinbefore undoubtedly go to show that the appellant had to suffer enormous pain due to the injuries. In such circumstances, we are inclined to grant Rs.15,000/- towards pain and suffering. Towards loss of earnings, the Tribunal took only three months period. For that purpose, the monthly income of the appellant was taken as Rs.18,971/-. In view of the nature of the injuries and the treatment underwent and especially taking note of the fact that he had to undergo 5 major surgeries, we are of the view that the period reckoned by the Tribunal for the aforesaid purpose is too short. He must not have been able M.A.C.A.Nos.1079 & 1199 of 2008 9 to earn anything for a period of six months. In such circumstances, taking the monthly income as fixed by the Tribunal but taking the period of loss of earnings as six months the appellant would be entitled to get an amount of Rs.56,913/- additionally. In the light of the enhancement made by us, the appellant is entitled to get an additional amount of Rs.4,72,860/- which is rounded off to Rs.4,73,000/- (Four lakhs seventy three thousand only). It is granted. ## **MACA No.1199/2008** : 5. The appellant in this case was the other passenger who sustained injuries in the aforementioned accident. He was also working in the very same company in which the appellant in the former appeal was working at the time of the accident. He claimed that his monthly salary was Rs.4,050/-. The Tribunal took the annual income of the appellant as Rs.43,219.80 in terms of Ext.A7 and rounded off it for calculation purpose as Rs.43,220/-. The Tribunal adopted the multiplier for awarding the compensation for M.A.C.A.Nos.1079 & 1199 of 2008 10 disability as 11. He was aged 48 years at the time of the accident. In the light of the schedule given in Sarla Varma's case (supra) with reference to the age of the appellant the multiplier to be adopted is 13. In such circumstances, the multiplier to be adopted in this case is 13 instead of 11 identified by the Tribunal. In the accident the appellant sustained the following injuries in terms of Ext.A4 wound certificate and Ext.A5 discharge card. 1. Bleeding from gums 2. Incisor teeth lost 3. contusion scalp 4. Head injury. Ext.A5 would further show that he had sustained whiplash injury cervical spine with quadriplegia. Going by Ext.X1 disability certificate issued by a duly constituted Medical Board the permanent disability of the appellant is 100%. It is stated in Ext.X1 that the appellant had whiplash injury cervical spine with quadriplegia at the time of the accident and he had permanent disability of 100% due to traumatic M.A.C.A.Nos.1079 & 1199 of 2008 11 quadriplegia with bedsores which the position had not improved with treatment. Thus, evidently he got paralysis of all four limbs. When that is the certification and when there is absolutely no contra evidence available to disbelieve the certification under Ext.X1, we do not find any reason for limiting the permanent disability. A perusal of the impugned judgment would reveal that the Tribunal took only 80% as permanent disability for calculation purpose. But at the same time no reason whatsoever was given for not accepting and acting upon the certification of permanent disability by the Medical Board. Going by the nature of the injuries and the fact that the appellant had paralysis in all four limbs we are of the view that the percentage of permanent disability should be 100%. In such circumstances, based on the modified multiplier and the percentage of permanent disability the compensation due to disability has to be reassessed. On such reassessment, the appellant would entitled to get an amount of Rs.5,61,857/-. The Tribunal had already granted an amount of M.A.C.A.Nos.1079 & 1199 of 2008 12 Rs.3,80,336/- under the head. After deducting the said amount, towards compensation for permanent disability, the appellant would be entitled to get an additional amount of Rs.1,81,521/-. It is granted. Taking note of the fact that even while issuing the disability certificate the Medical Board noted the fact that the appellant had bedsores and also taking note of the fact that there is paralysis on all four extremities we have no doubt that in future the appellant must have to lie on a water-bed. In such circumstances, we are inclined to grant an amount of Rs.50,000/- towards future medical expenses. Towards bystander's expenses the Tribunal granted compensation only reckoning the period of hospitalisation. In view of the fact that the all four extremities of the appellant got paralysed and the permanent disability is 100% it is evident that the appellant has to have lifelong services of a bystander. In such circumstances, we are inclined to grant a consolidated amount of Rs.1,00,000/- under that head. Towards extra nourishment, we are inclined to grant Rs.5,000/- more. M.A.C.A.Nos.1079 & 1199 of 2008 13 Towards pain and suffering, going by the nature of the injuries and their aftermath, as already discussed, we are of the view that the amount granted by the Tribunal is too insufficient and therefore we are inclined to grant an amount of Rs.25,000/- additionally. The nature of the injuries and the discussion as above which would reveal that he became quadriplegic we are of the view that towards loss of amenities an amount of Rs.1,00,000/- has to be granted. Accordingly, it is granted. Though the learned counsel for the appellants vehemently contended that the Tribunal went wrong in not granting the amount covered by the medical bills produced, on considering the reasons assigned by the Tribunal for not taking the amount covered by the entire medical bills, we are of the view that the reason assigned by the Tribunal is well founded and therefore the grievance of the appellants is devoid of any merit. In the light of the assessment and enhancement made by us the appellant would be entitled to get an additional compensation of Rs.4,61,521/-, which is rounded M.A.C.A.Nos.1079 & 1199 of 2008 14 off to Rs.4,61,600/-. It is awarded. 6. The insurer, the Oriental Insurance Company Limited, the common respondent is directed to deposit the amount of additional compensation granted in both the appeals along with interest at the rate of 8% per annum from the date of petition till realisation within a period of three months from the date of receipt of a copy of this judgment. 7. It is made clear that in both the appeals the amount awarded towards future medical expenses will not carry interest. There will be no order as to costs in both these appeals. Sd/- **C.T. RAVIKUMAR** **JUDGE** Sd/- **K.P. JYOTHINDRANATH** **JUDGE** //True copy// ## P.A. TO JUDGE shg/