Mathai v. Joshy and Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN FRIDAY, THE 14TH DAY OF OCTOBER 2016/22ND ASWINA, 1938 MACA.No. 1020 of 2008 ( ) -------------------------AGAINST THE AWARD IN O.P(M.V)NO.714/2003 of MOTOR ACCIDENTS CLAIMS TRIBUNAL, MUVATTUPUZHA DATED 09-08-2007 ## APPELLANT/PETITIONER: --------------------------- MATHAI, S/O.PAILY, AGED 48 YEARS KIZHAKKE PARAYARU KUZHIYIL HOUSE, EZHAKKARANAD KARA, EZHAKKARANAD NORTH P.O., MANEED VILAGE, MUVATTUPUZHA TALUK, REP. BY HIS WIFE AMMINI MATHAI, AGED 45 YEARS. BY ADV. SRI.S.DILEEP (KALLAR) RESPONDENTS/RESPONDENTS: ----------------------------------- 1. JOSHY, KANNUKUZHY HOUSE, 2/342, EZHAKKARANAD, MUVATTUPUZHA TALUK. 2. ORIENTAL INSURANCE CO.LTD., BRANCH OFFICE, P.B.NO.8, JYOTHI SUPER BAZAR, THODUPUZHA. - ADDL. 3. ALEX CHERIAN, S/O.K.C.CHERIAN, KOTTALIL HOUSE, MEKKADAMBU, MUVATTUPUZHA. - “ 4. UNITED INDIA INSURANCE CO.LTD., MUVATTUPUZHA - “ 5. BENNY, S/O.UTHUPPAN, PULLOTTEL HOUSE, MEKKADAMBU KARA, VALAKAM VILLAGE - R2 BY ADV. SRI.A.R.GEORGE ADDL.R3 & 5 BY ADV. SRI.P.V.ELIAS “ R4 BY ADV. SRI.JOHN JOSEPH VETTIKAD THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 14-10-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **C.T.RAVIKUMAR & DEVAN RAMACHANDRAN, JJ.** ------------------------------------ M.A.C.A.No.1020 of 2008 ------------------------------------Dated 14[th] October, 2016 ## **JUDGMENT** ## **Ravikumar, J.** The injured claimant comes up in appeal seeking enhancement of compensation. The appellant was the petitioner in O.P.(M.V)No.714 of 2003 on the files of the Motor Accidents Claims Tribunal, Muvattupuzha. The claim petition was filed under Section 166 of the Motor Vehicles Act seeking compensation for the injuries sustained by him in a motor vehicle accident. The claim was for ₹ 8,00,000/-. The accident in which the appellant sustained injuries occurred on 17.3.2003. He was a passenger in a Jeep bearing Reg.No.KEH/828. It was travelling from Kolenchery to Ezhakkaranad. When it reached in front of a workshop by the side of the road, it collided with the Lorry bearing Reg.No.KL.7G 6473 which was parked in front of the workshop. The Jeep ramped into the rear side of the said lorry. Consequently, the appellant and the other passengers in the Jeep sustained injuries. The appellant remained as an inpatient for a period of 64 days and Ext.A17 disability certificate would reveal that he is suffering from traumatic paralysis. The X-ray of cervical spine shows M.A.C.A.No.1020/2008 2 traumatic disc herniation at C5-6 with cord contusion. The Tribunal awarded a total compensation of 4,55,050/- as per the impugned₹ award. The petitioner seeks for enhancement of quantum of compensation. 2. The learned counsel for the appellant submitted that the Tribunal went wrong in not taking the disability assessed as per Ext.A17 for the purpose of assessing the functional disability. According to the learned counsel, based on Ext.A17 the functional disability ought to have been assessed as 100% by the Tribunal. True that, in the claim petition the appellant stated his occupation as wood cutter and that was earning 3,500/- per month. The contention of the learned₹ counsel is that despite such averments taken up in the claim petition the Tribunal took only 2,250/- as his monthly income notionally. It is₹ the further contention that the Tribunal granted only meagre sums under the heads `pain and sufferings', `loss of amenities', `bystander's expenses' etc. and therefore, compensation under those heads require upward modification. The learned counsel for the appellant further contended that the Tribunal erred in finding that the cause of the accident is composite negligence and then fixing contributory negligence on the part of the driver of the Jeep as 50%. It is the submission that since the lorry was parked on the right side without M.A.C.A.No.1020/2008 3 lighting the indicators the Tribunal ought to have found that the accident occurred exclusively due to the negligence of the driver of the lorry. It is the alternative contention that at any rate, the Tribunal ought to have found more degree of negligence on the side of the driver of the lorry. Ext.A4 is the scene mahazar prepared in Crime No.92 of 2003 of Puthencruz Police Station registered in connection with the accident in question. Ext.A4 would reveal that the lorry was parked encroaching upon the tarred portion of the road, as well. In such circumstances, merely because the lorry was stationary it could not be said that the driver of the lorry was not negligent. We have no hesitation to hold that parking a lorry on the side of a road in such a manner encroaching upon the tarred portion of the road, where there is a heavy traffic, itself is a reason to hold that the driver of the lorry was negligent to certain extent. But, it is a fact borne out from the records that the jeep in which the appellant was a passenger ramped into the rear side of the said parked lorry. Taking into account the scene mahazar and the discussion of the evidence including the oral evidence of PW1 in the impugned judgment and the reasoning assigned by the Tribunal we do not find any reason to interfere with the finding of the Tribunal that the accident occurred due to the composite negligence and also the consequential apportionment of negligence in between the drivers of both the vehicles involved in the accident. M.A.C.A.No.1020/2008 4 3. After hearing the learned counsel on both sides and perusing the records and also the impugned judgment we are of the view that the appellant is entitled to get enhanced compensation under certain heads. Though the claim of the appellant is that the Tribunal went wrong in not taking 100% as the functional disability based on Ext.A17 we are of the view that the said contention of the appellant cannot be upheld owing to the failure on the part of the appellant to adduce any evidence to establish his occupation. For assessing the functional disability it was incumbent on the appellant to establish his occupation. True that, if it is a case of paraplegia it is not essential to prove the same and it could have been taken that the functional disability of the appellant is 100%. However, what is certified under Ext.A17 is that appellant is suffering from traumatic quadriplegia. True that, there is paralysis on the four limbs, but that is different from paraplegia. In such circumstances, the Tribunal cannot be found fault with in not taking the disability factor for the purpose of assessing the functional disability as 100%. Obviously, the Tribunal accepted the entire percentage of disability viz., 75% certified under Ext.A17 for the purpose of granting compensation for permanent disability. The Tribunal, ignoring the averments regarding the income and occupation, assessed the monthly income notionally as 2,250/-. As noticed₹ M.A.C.A.No.1020/2008 5 hereinbefore, no evidence whatsoever was let in by the appellant to prove his occupation and income. In such circumstances, it cannot be said that the Tribunal went wrong in fixing the monthly income notionally for calculation purpose. But, at the same time, taking note of the year of the accident and the claim of the appellant that he was earning 3,500/- per month we do not find any reason to disbelieve₹ the said claim of the appellant regarding the monthly income especially, in the light of the decision of the Hon'ble Apex Court in _**Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited ((2011) 13 SCC 236)**_ . Accordingly, we are inclined to fix the monthly income of the appellant as 3,500/-₹ for calculation purpose. The learned counsel further contended that the Tribunal went wrong in identifying the multiplier. In the claim petition the age of the appellant was shown as 48 years. The Tribunal identified the multiplier taking the age group as 50 - 55 years. It is to be noted that in Ext.A17 disability certificate the age of the appellant is noted as 40 years. There is nothing on record which would indicate that the appellant at the time of the accident was aged above 50 years and he was then belonged to the age group 50 - 55 years. In such circumstances, we are of the view that the Tribunal ought to have identified the multiplier taking the age group of the appellant as 46 - 50 years which is `13'. Accordingly, the multiplier is taken as `13'. Since M.A.C.A.No.1020/2008 6 we do not find any reason with respect to the assessment of permanent disability for calculation purpose the amount of compensation payable for permanent disability has to be re-assessed with substitution of the multiplicand as also the multiplier, as fixed hereinbefore. The Tribunal has already granted an amount of 2,22,750/- under that head. After₹ deducting the said amount the appellant is entitled to get an amount of ₹ 1,86,750/- (3500 x 12 x 13 x 75/100 - 2,22,750) towards permanent disability. It is awarded. The fact that owing to traumatic paralysis the appellant is bed ridden is evident and the same would undoubtedly reveal the requirement of life long services of a bystander. In such circumstances, we are inclined to fix a consolidated amount towards bystander's expenses which we fix as 1,00,000/-. It is granted.₹ Towards `pain and suffering' taking into account the nature of the injuries and its impact we are of the view that the appellant is entitled to get 25,000/- more. It is granted. The injuries sustained in the₹ accident resulted in traumatic paralysis. In such event, there cannot be any doubt with respect to the fact that the appellant had been deprived of enjoyment of pleasures of life. In such circumstances, we are inclined to grant an amount of 15,000/- more for `loss of amenities'.₹ In view of the re-fixed monthly income the appellant is entitled to get proportionate enhancement towards loss of earning. Accordingly, the appellant is entitled to get an amount of 15,000/-₹ more under that head. M.A.C.A.No.1020/2008 7 4. In the light of the above discussion the appellant is entitled to get an amount of 3,41,750/- additionally. Since we have₹ not interfered with the finding of the Tribunal that the accident occurred due to composite negligence and also the consequential apportionment of the contributory negligence and also liability to pay the compensation by the respondents, the 4[th] respondent is liable to pay 50% of the additional compensation along with interest thereon and the appellant would be entitled to get recovered the balance amount in terms of this judgment from the first respondent, in terms of the impugned judgment. The appeal is allowed as above. There will be no order as to costs. Sd/- **C.T.RAVIKUMAR Judge** Sd/- **DEVAN RAMACHANDRAN Judge** TKS // true copy // P.S. To Judge