MADHU S/O. VELU vs THE DIVISIONAL MANAGER NEW INDIA INSURANCE CO. LTD.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH FRIDAY, THE 8TH DAY OF JULY 2016/17TH ASHADHA, 1938 MACA.No. 1999 of 2011 ( ) -------------------------AGAINST THE AWARD IN OPMV 1139/2006 of M.A.C.T., KOLLAM DATED 27-04-2011 APPELLANT(S)/PETITIONER: ------------------------------- MADHU S/O. VELU, THUNDAZHIKATHU VEEDU, ERAVIPURAM P.O., KOLLAM. BY ADV. SRI.PRATHEESH.P RESPONDENT(S)/3RD RESPONDENT: ----------------------------- THE DIVISIONAL MANAGER NEW INDIA INSURANCE CO. LTD., KOLLAM-691 001. BY ADV. SRI. ZIYAD REHMAN BY ADV. SRI.PMM.NAJEEB KHAN BY ADV. SRI.A.A.ZIYAD RAHMAN THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 08-07-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **C.T. RAVIKUMAR** ## **&** ## **K. P. JYOTHINDRANATH, JJ. ========================== M.A.C.A. No.1999 OF 2011 ==========================** Dated this the 8[th] day of July, 2016 ## **JUDGMENT** ## _Jyothindranath, J._ This appeal is preferred challenging the award dated 27.4.20011 made in O.P.(MV).No.1139 of 2006 by the Motor Accidents Claims Tribunal, Kollam. 2.When the appeal came up for hearing, the learned counsel for the appellant submitted before us that here is a case where the appellant sustained very severe head injuries as well as other injuries. The medical board assessed 42% disability. The grievance of the appellant is that even though the disability was assessed as 42%, the Tribunal considered only 35% disability, without showing any reason. **M.A.C.A.1999/2011** 2 It is the submission that even though the appellant-petitioner was working as a salesman by profession and the accident occurred in the year 2005, only a sum of `2,500/- is taken as the monthly income, for calculation of loss due to disability in future. It is the further submission that the overall compensation awarded is on a lower side. Hence, an interference by this Court is warranted. 3.The learned counsel for the insurance company submitted before us that here is a case where the appellant moved a claim petition for `3,00,000/- and the Tribunal awarded a total compensation of `2,84,900/-. It is the further submission that in this case, there are two disability certificates. One disability certificate which is seen produced by the appellant/petitioner shows 40% disability. Surely, the medical board assessed his disability as 42%. It is pertinent to note that the doctor who examined him to assess disability was not examined before the Tribunal. The Tribunal got opportunity to see the appellant-petitioner. Under such circumstances, the assessment of the Tribunal that the appellant sustained only 35% **M.A.C.A.1999/2011** 3 disability need not be disturbed. It is also the submission that the Tribunal awarded a just compensation and an interference by this Court is not warranted. 4.We perused the records. In this case, at the earliest point of time, when the petitioner was seen by the doctor, it was noted as 'comatose, responds to painful stimula' and CT scanning of Brain Plain Study dated 26.12.2005 shows thus:- “Parenchymal contusions involving left upper medulla, left middle cerebellar peduncle and upper pons with minimal midline shift. Tiny hyperdense area in the head of right caudate nucleus. Subarachnoid haemorrhage involving posterior peri mesencephatic and superior cerebellar cisterns probably secondary to dissection from the parenchymal contusion.” It is seen noted fracture involving postero-lateral wall of right maxillary antrum with hemosinus. Ext.A19 disability certificate issued from Medical College Hospital, Thiruvananthapuram shows that there is a disability of 40%. The medical board assessed the disability as 42%. After going through the medical records, it can be **M.A.C.A.1999/2011** 4 seen that emergency tracheostomy was done and artificial breathing was given with ventilator and the appellant was transferred to Neurosurgery ICU. It is also noted therein that he was shifted to ward on 14.1.2006 and discharged on 3.2.2006 with Rhyles tube feeding and bladder catheter with advise for regular following in Neurosurgery O.P. He was reviewed by Professor of Neurosurgery Dr.Anil Kumar P. on 15.6.2006, 8.7.2006 7.8.2006 and 25.8.2007 and he gradually developed Quadriparesis, diminished hearing and slurring of speech and is still on treatment. Thus, the medical board assessed the disability due Ataxia moderate constant as 20%, traumatic neurosis 10%, continence of stool 10%, loss of smell 5% and diminished hearing at ear as 5%. 5.Using the formula available to add these disability factors to bring the disability to the whole body, the medical board arrived at a disability of 42%. After going through the disability certificate, we feel that there is nothing to disbelieve/discard the disability assessed by the medical board. According to us, considering the nature of the injuries, the **M.A.C.A.1999/2011** 5 disability assessed by the medical board is to be accepted. Accordingly, accepting the disability assessed by the medical board, it is assessed as 42%. 6.In this case, the accident occurred in the year 2005. The case of the appellant- petitioner is that he was aged 37 years at the time of the accident. His case is that he was a salesman by profession. Surely, no positive evidence adduced to substantiate his claim except the oral evidence of PW1. Considering the fact that the notional income of a coolie in respect of an accident occurred in the year 2004 was fixed by the Apex Court as `4,500/- in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Ltd.** [ **(2011) 13 SCC 236],** it will only be just and proper to consider `4500/- as the income for the appellant herein also, for calculation purpose. In this case, compensation towards loss of income due to disability was assessed as `1,57,500/-. We re-assess the same by taking `4,500/- as the income and 42%, as disability. Thus, the amount available on this head will be `3,40,200/(4500x12x15x42/100). An amount of `1,57,500/- is already granted **M.A.C.A.1999/2011** 6 by the Tribunal. Thus, the appellant will be entitled for an additional sum of `1,82,700/- on this head. Apart from the same, it can be seen that on the head of loss of earning for six months, a sum of `18,000/- is granted by the Tribunal. When an income of `4,500/- is considered, he will be entitled for an additional sum of `12,000/-. Thus, the appellant will be entitled for an additional compensation of `1,94,700/-. 7.The learned counsel for the insurance company raised a contention that the compensation will come about double the amount claimed by the appellant in the Tribunal. The argument got no legal foundation. At this juncture, we may quote paragraph 19 of the decision of the Apex Court in **Rajesh and others v. Rajbir Singh** ## **and others [(2013) 9 SCC 54]** :- “In a report on accident, there is no question of any reference to any claim for damages, different heads of damages or such other details. It is the duty of the Tribunal to build on that report and award just, equitable, fair and reasonable compensation with reference to the **M.A.C.A.1999/2011** 7 settled principles on assessment of damages. Thus, on that ground also we hold that the Tribunal/Court has a duty, irrespective of the claims made in the Application, if any, to properly award a just, equitable, fair and reasonable compensation, if necessary, ignoring the claim made in the application for compensation.” The additional compensation will bear interest @ 8% from the date of the petition till realisation. The insurance company shall pay the additional compensation within two months of the date of receipt of copy of this judgment. There will be no order as to costs. The Tribunal shall realise the additional court fee, if any, due for the claimant from the amount deposited by the insurance company. **Sd/C.T. RAVIKUMAR (JUDGE)** **Sd/-** **K. P. JYOTHINDRANATH (JUDGE)** **spc/** **M.A.C.A.1999/2011** 8 ## **C.T. RAVIKUMAR, J.** **M.A.C.A.1999/2011** 9 **JUDGMENT September, 2010**