MANOJ v. SATHEESH KUMAR S/O GOVINDAN NAIR; K. RAJENDRAN; ORIENTAL INSURANCE CO. LTD.

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** # **`THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. MONDAY, THE 27[TH] DAY OF NOVEMBER 2023/6TH AGRAHAYANA, 1945`** ## **`MACA NO. 2583 OF 2015`** ``` OPMV 44/2005 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, ``` ## **`MAVELIKKARA`** ## **`APPELLANT/PETITIONER:`** ``` MANOJ, S/O.MADHAVAN, VIJAYA BHAVANAM, AYLKKADU MURI, CHEPPAD VILLAGE. BY ADVS. SRI.NIRMAL V NAIR A.D.DIVYA ``` ## **`RESPONDENTS/RESPONDENTS:`** - `1 SATHEESH KUMAR S/O.GOVINDAN NAIR, TC 2435, 6TH ROAD, HOUSE NO.610 PRASANTH NAGAR HOUSING COLONY, CHERUVAKKAL VILLAGE, THIRUVANANTHAPURAM.` - `2 K.RAJENDRAN MADATHILA HOUSE, ALAKUNNAM, PEYAD, TRIVANDRUM.` - `3 THE ORIENTAL INSURANCE CO. LTD. KAYAMKULAM BRANCH, KAYAMKULAM. BY ADVS. SRI.GEORGE CHERIAN SR. SMT.LATHA SUSAN CHERIAN SMT.K.S.SANTHI` ## **`THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR`** ## **`ADMISSION ON 27.11.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:`** M.A.C.A. No.2583/2015 : 2 : ## JUDGMENT The appellant is the petitioner in OP(MV) No.44/2005 on the files of the Motor Accident Claims Tribunal, Mavelikkara. 2. The said claim petition was submitted by him seeking compensation for the injuries sustained to him in a motor accident that occurred on 18.06.2004. According to him, the accident occurred when the appellant was travelling as a pillion rider on a motorcycle bearing registration No.KL-01-K-5752 ridden by the 1[st] respondent and when it reached near Parayankulam junction on Kayakulam public road, the 1[st] respondent applied sudden brake in a negligent manner. Due to the impact, the appellant was thrown away from the motorcycle. He sustained serious injuries and he was taken to Medical Mission Hospital, Pandalam and from there, he was referred to Medical College Hospital, Kottayam. According to him, he was 30 years old at the time of the accident and was working as a Medical Representative with a monthly income of Rs.5,000/-. The claim petition was submitted, seeking a total compensation of Rs.11,66,000/-. The 2[nd] respondent was the owner of the motorcycle and the 3[rd] respondent was its insurer. M.A.C.A. No.2583/2015 : 3 : 3. The 3[rd] respondent filed a written statement admitting the existence of a valid insurance policy for the said vehicle but it was pointed out that since the appellant was a pillion rider they are not liable to pay the compensation. They disputed the negligence as well. 4. The evidence in this case consists of oral testimony of PW1 and Exts.A1 to A18 from the side of the appellant. The disability certificate of the appellant was produced as Ext.X1. 5. After the trial, the tribunal came to the conclusion that the accident occurred due to negligence on the part of the 1[st] respondent and being the insurer of the said vehicle, the 3[rd] respondent was held liable to pay the compensation. The quantum of compensation was fixed as Rs.14,93,858/- and the 3[rd] respondent was directed to deposit the said amount along with interest at the rate of 9% per annum from the date of petition till realisation with proportionate costs. This appeal is submitted by the appellants, being dissatisfied with the quantum of compensation. 6. Heard Smt. A.D. Divya, the learned counsel appearing for the appellant and Smt. Latha Susan Cherian, the learned M.A.C.A. No.2583/2015 : 4 : counsel appearing for the 3[rd] respondent insurance company. 7. The learned counsel for the appellant would contend that, the amount fixed by the tribunal as compensation for disability is inadequate and requires reconsideration. On the other hand, the learned counsel appearing for the 3[rd] respondent would oppose the said contention by pointing out that, reasonable amount was awarded by the tribunal and no interference is warranted. 8. After considering the materials placed on record, I find that the percentage of disability taken by the tribunal is on the lower side. Of course, it is true that, as per Ext.X1 disability certificate, the percentage of disability certified was 60%, taking note of the physical condition of the appellant. The same was accepted by the tribunal as well. However, the specific case of the appellant is that, considering the nature of the injuries, the functional disability ought to have been taken. In Ext.X1, it was specifically mentioned that the appellant has an inability to use both lower limbs due to weakness, loss of sensations below D9 level, and bladder and bowel paralysis. It is also mentioned that, there is Grade zero motor power in both lower limbs, sensations M.A.C.A. No.2583/2015 : 5 : absent from level of D8, bladder catheterized with loss of sensations and bowel paralysis. Ext.A9 medical certificate shows the appellant had suffered fracture dislocation of D8 and D9 vertebra, resulting in paralysis of both lower limbs. The appellant was a Medical Representative. Since he suffered paralysis of both lower limbs, it would seriously affect his mobility, which is one of the basic requirements for fulfilling the obligations of a Medical Representative. He has to move around, communicate with people, get orders and make the supplies in tune with the said orders. It would be very difficult for a person with such kind of disability to fulfil the said obligations arising from such employment. Therefore, certainly, this is a case in which functional disability ought to be taken. The learned counsel also places reliance upon the decision rendered by the Hon’ble Supreme Court in Syed Sadiq v. Divisional Manager, United India Insurance Company [(2014) 2 SCC 735] wherein as against the physical disability of 60%, the Hon’ble Supreme Court assess the functional disability as 85%. I find some force in the said contention. Therefore, I am of the view that, considering the impact the disability can cause on the employment of the appellant, functional M.A.C.A. No.2583/2015 : 6 : disability should be higher than the physical disability certified in the disability certificate. In the facts and circumstances of the case, I deem it appropriate to fix it as 85%. 9. The learned counsel for the insurance company would point out that the tribunal made 50% of the addition of the monthly income,towards future prospects, which was on the higher side. According to the learned counsel, 50% is contemplated as per National Insurance Company Ltd. v. Pranay Sethi [ 2017(4) KLT 662] only with respect to permanent employees with fixed wages and periodical increments in salary. In this case, apart from the Ext.A16 salary certificate issued by a private company, there is absolutely no evidence to show the permanent nature of the employment and the periodical increments in the said salary. The person who issued Ext.A16 or any other competent person from the establishment where the appellant was working, was also not examined. Therefore, the proper addition to be made was only 40% and not 50% as taken by the tribunal, contends the learned counsel for the insurer. 10. In the light of the observations made by the Honourable Supreme Court in Pranay Sethi ,(supra) the said M.A.C.A. No.2583/2015 : 7 : contention has to be accepted, as, in paragraph 59 of the said judgment, a clear distinction has been made between the persons employed with fixed salary in a permanent job with periodical increments and the other persons. Therefore, I find that the proper addition should have been 40% and it is ordered accordingly. Thus, while revising the compensation, with the functional disability as 85%, with an addition of 40% of monthly income towards future prospects, the compensation for loss of earning power owing to disability would come to Rs.12,13,800/[(5000+40%) x 12x17x85/100]. The amount already awarded by the tribunal under this head is Rs.9,18,000/- and thus the additional compensation receivable by the appellant is Rs.2,95,800/-. 11. Another contention put forward by the learned counsel for the appellant is that, even though he availed inpatient treatment for a period of 153 days, bystander expenses awarded was only for four months which was only very low. It is also to be noted that, even after discharge from the hospital he was apparently bedridden for a considerable period. The fact that the Tribunal granted, compensation for loss of earnings for a period of one M.A.C.A. No.2583/2015 : 8 : year, taking note his prolonged treatment. Therefore, taking note of the said aspects I deem it appropriate to fix the bystander expenses as Rs.25,000/- and thus resulting a further compensation of Rs.13,000/-. The amount awarded under other heads appear to be reasonable and no interference is required. Thus, the additional compensation would come to Rs.3,08,800/(2,95,800+13000). In the light of the aforesaid observations and findings, this appeal is allowed. The award dated 31.01.2015 in OP(MV) No.44/2005 on the files of the Motor Accident Claims Tribunal, Mavelikkara is modified by awarding a further compensation of Rs.3,08,800/- (Rupees three lakhs eight thousand and eight hundred only) which shall be deposited by the 3[rd] respondent along with interest at the rate of 8% per annum, from the date of petition till realisation and proportionate costs within a period of three months from the date of receipt of a copy of this judgment. Sd/ZIYAD RAHMAN A.A. JUDGE ncd