MACA.No.2262 OF 2015(E)

# IN THE HIGH COURT OF KERALA AT ERNAKULAM ## PRESENT THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. TUESDAY, THE 09TH DAY OF MARCH 2021 / 18TH PHALGUNA, 1942 ## MACA.No.2262 OF 2015(E) AGAINST THE AWARD IN OPMV NO.391/2012 DATED 29-01-2015 ON THE FILE OF THE ADDITIONAL MOTOR ACCIDENTS CLAIMS TRIBUNAL-II, KOTTAYAM ## APPELLANT/PETITIONER: JAMES VARGHESE AGED 44 YEARS S/O. VARGHESE, PUTHENPURACKAL HOUSE, VETTITHURUTHUKARA, CHANGANACHERRY P.O. BY ADVS. SHRI.P.M.JOSHI SMT.SIJI K.PAUL ## RESPONDENT/RESPONDENT NO.3: THE DIVISIONAL MANAGER, SHRIRAM GENERAL INSURANCE CO. LTD. NO.66, IIND FLOOR, THIRUMALAPILLAI ROAD, CITY CENTER COMPLEX, T.NAGAR, CHENNAI-12. R1 BY ADV. SRI.MATHEWS JACOB (SR.) R1 BY ADV. SMT. K.S. SANTHI THIS MOTOR ACCIDENTS CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 09.03.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.A.C.A.No.2262 of 2015 2 ## JUDGMENT ## Dated this the 9th day of March 2021 …. This appeal is filed by the claimant seeking enhancement of compensation awarded by the Tribunal. The claim petition was filed by him seeking compensation for the injuries sustained to him in a motor accident occurred on 28.9.2011. The appellant was driving an autorikshaw and the same was collided with a van insured with the respondent herein. According to the appellant/claimant, he was an autorikshaw driver and was earning an amount of Rs.8,000/- per month. He was aged 44 years. It is discernible from the records that, he has sustained very serious injuries, on account of which he was paralyzed. The Medical Board issued Ext.X1 certificate showing the percentage of disability as 75%. 2. The evidence in this case consists of oral M.A.C.A.No.2262 of 2015 3 evidence of PW1 and documentary evidence of Exts.A1 to A9 from the side of the appellant/petitioner. The disability certificate issued by the Medical Board was marked as Ext.X1. No evidence was adduced from the side of the respondents. 3. After the trial, the Tribunal awarded a total compensation of Rs.15,52,730/- and the respondent/insurer was directed to deposit the said amount with interest at the rate of 8.5% per annum from the date of petition till its realization. Being dissatisfied with the said compensation, this appeal is filed. 4. Heard the learned counsel for the appellant and the learned counsel for the respondent/insurer. 5. One of the main contentions putforward by the learned counsel for the appellant was that, the income taken by the Tribunal is Rs.7,000/- as against the claim of Rs.8,000/-, which is on the M.A.C.A.No.2262 of 2015 4 lower side. Apart from the above, it was contended that, while computing the compensation, future prospects of the petitioner was not taken into account, despite the fact that the injuries sustained by him are very serious in nature leading to almost complete disablement. It was further contended that, being an autorikshaw driver, the functional disability sustained by the appellant is much higher than what is certified in Ext.X1 and, therefore, 100% functional disability should be taken into consideration for the purpose of computing the compensation. 6. In response to the aforesaid contentions, the learned counsel for the Insurance Company contended that, the monthly income and the other assessment made by the Tribunal in connection with the computation of compensation was just and proper and hence no interference is warranted. 7. In this case, there is not much dispute M.A.C.A.No.2262 of 2015 5 with regard to the avocation of the appellant namely ‘autorikshaw driver’. It is discernible from the records that, the accident itself occurred while the appellant was driving an autorikshaw. Going by the principles laid down by the Hon’ble Supreme Court in Ramachandrappa v. Manager, Royal Sundaram alliance Insurance Company Limited [(2011)13 SCC 236] and in Syed Sadiq v. Divisional Manager, United India Insurance Company Limited [(2014)2 SCC 735], the monthly income in this case has to be calculated at Rs.8,000/- which is the monthly income claimed in the claim petition. Considering the above principles of law as settled by the Hon’ble Supreme Court and also the facts and circumstances existing in this case, this Court is of the opinion that, an amount of Rs.8,000/is reasonable and, therefore, it is fixed as such. It is also to be noted that, the injuries have affected the ability of the appellant very M.A.C.A.No.2262 of 2015 6 seriously and, therefore, while computing the compensation for disability, future prospects should also be taken into account. As he is aged 44 at the time of accident, 25% of the monthly income can be taken as the addition to be made towards future prospects. The next aspect is relating to the functional disability of the appellant. Admittedly, the appellant is an autorikshaw driver. It is also discernible from the observations contained in the award at page 11 thereof that, the appellant was brought to the Tribunal in an ambulance and he is paralyzed. It is also observed by the Tribunal that, the 3[rd] respondent has not made any objection to the certificate issued by the Medical Board. The learned counsel for the appellant placed reliance upon an unreported judgment of this Court in M.A.C.A.No.2101 of 2015 to contend that, the functional disability can be taken at higher rate than the percentage of physical disability M.A.C.A.No.2262 of 2015 7 assessed by the Medical Board in appropriate cases. In the said judgment, this Court relied upon various judgments rendered by the Hon’ble Supeme Court including the judgments reported in Mithun Subramanian v. Nidhish Eldo Joseph and another [2017(3)KHC 710] and Raj Kumar v. Ajay Kumar [2011(1) KLT 620(SC)]. In the light of the principles laid down by the Hon’ble Supreme Court in the aforesaid judgments, this Court is of the opinion that, taking into account the serious nature of disability suffered by the appellant and the serious consequences emanating from the same, the functional disability has to be taken at a higher rate than the percentage of physical disability certified by the Medical Board. Since the avocation of the appellant involves physical activities, the nature of injuries will cause very serious impact on his earning capacity. In the above circumstances, some enhancement is required to be made under the head of functional M.A.C.A.No.2262 of 2015 8 disability and taking into account of the inputs available on record, this Court is of the view that, 85% can be taken as functional disability for the purpose of computing the compensation. Accordingly, the compensation for disability is assessed as Rs.14,28,000/- [Rs.(8000+2000)x12x14x85/100]. The amount awarded by the Tribunal in this head is Rs.8,82,000/-. If that be so, the claimant is entitled to an additional compensation of Rs.5,46,000/- in this head. 8. Consequent to the revision of monthly income, the appellant will be entitled for a further sum of Rs.12,000/- under the head of loss of income and it is awarded as such. 9. The learned counsel for the appellant further contended that, the amount awarded towards bystander expenses, compensation for loss of amenities are on lower side. Apart from the above, no amount has been granted for future M.A.C.A.No.2262 of 2015 9 treatment, despite the fact that, the injuries sustained by the appellant is very serious in nature. On going through the award, it is seen that, the amount awarded under the head of bystander expenses was Rs.41,000/- which was calculated at the rate of Rs.200 per day for 205 days which is the period of hospitalization. Taking into account of the fact that, the appellant is paralyzed, some amount has to be given for bystander expenses even after the period of hospitalization. Considering the nature of injuries, it is also evident that, the appellant may require some amount towards future treatment as well. Similarly, the impact of the injuries upon the standard of life of the appellant is very higher and, therefore, it is reasonable that, some additional amount has to be granted under the head of loss of amenities as well even though an amount of Rs.50,000/- is already granted under the said head. Taking into M.A.C.A.No.2262 of 2015 10 account of the three heads mentioned above, this Court is of the opinion that, a further sum of Rs.75,000/- can be granted in addition to the amount already awarded in those heads. In the above circumstances, in addition to the amount already granted by the Tribunal, a further sum of Rs.6,33,000/- [Rs.5,46,000+12,000+75,000] is awarded and the respondent/Insurance Company is directed to deposit the said amount along with interest at the same rate and costs as awarded by the Tribunal. The additional amount with interest and cost as mentioned above shall be deposited by the respondent/Insurance Company within a period of three months from the date of receipt of a copy of this judgment. This appeal is disposed of as above. ## **Sd/-** ## **ZIYAD RAHMAN A.A.** ## **JUDGE** pkk