Mohammed Sali v. Sreeraj and The New India Assurance 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 THURSDAY, THE 23RD DAY OF JUNE 2016/2ND ASHADHA, 1938 MACA.No. 1564 of 2011 ( ) -------------------------AGAINST THE AWARD IN OPMV 721/2005 of M.A.C.T.,PUNALUR DATED 08-06-2011 APPELLANT(S)/PETITIONER: ----------------------- MOHAMMED SALI, S/O.SHARAFUDEEN AGED 35 YEARS, SHAJI VILASOM, MALOOR P.O., KARIMPALLOOR, PATHANAPURAM. ## BY ADV. SRI.MANOJ RAMASWAMY RESPONDENT(S):RESPONDENTS ----------------------------------- ## 1. SREERAJ, S/O.THYAGARAJAN RAJ BHAVAN, KARIMPALLOOR, PATTAZHY, PIN-691 552. 2. THE NEW INDIA ASSURANCE CO.LTD., KOTTARAKKARA, PIN-691 506. R2 BY ADV. SMT.P.K.SANTHAMMA BY SRI.A.A.ZIYAD RAHMAN THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 23-06-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.A.C.A.1564/2011 ## APPENDIX EXT.X2: DISABILITY CERTIFICATE DATED 18.12.2013 BEARING NO.MRI 5930/13 ISSUED BY THE SUPERINTENDENT, A.A.RAHIM MEMORIAL DISTRICT HOSPITAL, KOLLAM. //TRUE COPY// P.A.TO JUDGE ## **C.T. RAVIKUMAR** ## **&** ## **K. P. JYOTHINDRANATH, JJ.** **========================== M.A.C.A. No.1564 OF 2011 ==========================** Dated this the 23[rd] day of June, 2016 ## **JUDGMENT** _Ravikumar, J._ This appeal is directed against the judgment and award dated 8.6.2011 passed by the Motor Accidents Claims Tribunal, Punalur in O.P.(MV).No.721/2005. The petitioner therein is the appellant. He filed the claim petition seeking compensation for the injuries sustained by him in an accident that occurred on 19.5.2005 at about 2.30 p.m, under section 166 of the Motor Vehicles Act, 1988. On that fateful day, he was riding his motor cycle bearing Reg.No.KL02V/3140 through Chengilathu-Pathanapuram Road. When he reached near Assemblies of God Church at Chengilathu, the offending vehicle which is a jeep bearing Reg.No.KL-2F/8157 driven by the second respondent, came from the opposite direction and dashed **M.A.C.A.1564/2011** 2 against his motor cycle. The appellant sustained injuries. He was initially taken to St.Joseph Hospital, Pathanapuram and from there, he was referred to Medical College Hospital, Thiruvananthapuram. He had been an inpatient there for a period of 156 days. In the accident, he sustained the following injuries:- 1. Puncture wound on the lateral aspect of ® thigh. 2. Multiple wounds bilateral lower extreets. 3. Fracture femur right and left (segmented comminuted fracture ® femur). 4. Medical collateral injury ® knee. 5. Lacerated wound 10 cm scalp frontal region inter locking nailing ® femur on 31.5.2005. K-nailing and bone grafting of (L) femur on 7.6.05. 6. Head injury. It is in the said circumstances that he filed the above mentioned claim petition seeking a total compensation of `15,01,000/-. 2.To substantiate his claim, the appellant got examined Dr.Shibu John Varkey as PW1 and his wife Smt. Mini D as PW2, besides getting marked Ext.A1 to A35. On the side of the respondents, there **M.A.C.A.1564/2011** 3 was no oral or documentary evidence. Ext.X1 is a court document which is the certified copy of the case diary from St.Thomas Hospital, Chethipuzha. 3.On evaluation of the evidence on record and the contentions raised, the Tribunal granted `5,11,890/- as compensation with interest @ 7.5% per annum from the date of the petition till realisation along with cost of `10,000/-. It is seeking enhancement of the compensation granted as per the impugned award that the captioned appeal has been preferred. 4.We have heard the learned counsel for the appellant as also the learned counsel for the second respondent-insurance company. 5.From the rival contentions as also the evidence on record, it is obvious that the accident, insurance coverage of the offending vehicle and the cause of the accident as the negligence from the part of the **M.A.C.A.1564/2011** 4 first respondent, the owner-cum-driver of the offending vehicle, are not in dispute. Virtually, notice to the first respondent was dispensed with as per order dated 17.11.2011. Therefore, in this appeal, we are bound to consider only the question whether or not the appellant is entitled to get enhanced compensation. 6.The learned counsel for the appellant contended that the Tribunal disregarded the specific averments in the claim petition to the effect that the appellant was working in the Sulthanate of Oman and he was earning `20,000/- per month and fixed a very low monthly income notionally, at `3,000/-. It is the submission of the appellant that erroneous fixation of the monthly income for the purpose of calculating the permanent disability incurred by the appellant resulted in denial of just compensation and that though the applicant had 100% loss of earning power, the Tribunal took percentage of disability for that purpose only as 25% as certified under Ext.A17 for the purpose of calculating compensation for permanent disability. It is the further **M.A.C.A.1564/2011** 5 submission that despite the fact that he had been an inpatient for a period of 156 days, the Tribunal had granted only meager amounts under the heads 'extra nourishment' and 'bystanders expenses'. The learned counsel for the appellant contended that taking note of the nature of the disability incurred by the appellant, the Tribunal ought to have granted compensation for loss of amenities though it was not specifically claimed. 7.On the other hand, the learned counsel for the second respondent contended that the Tribunal cannot be found fault with, in taking the monthly income of the appellant notionally for the purpose of computing compensation for permanent disability incurred by him in the accident as the appellant had failed to establish his occupation and income. Since the accident occurred in the year 2005, according to the learned counsel for the second respondent, it can only be said that the Tribunal had correctly fixed the monthly income @ `3,000/-. It is also contended that going by Ext.A17, 25% disability alone was **M.A.C.A.1564/2011** 6 assessed and the evidence of PW1 who issued Ext.A17 would only support the same and hence, it cannot be said that the Tribunal went wrong in assessing the compensation for permanent disability. The multiplier was correctly taken into account with reference to the age of the appellant, it is contended. In short, no appellate interference is called for. 8.We will firstly consider whether the grievance of the appellant regarding fixation of the monthly income by the Tribunal invites interference. Though the learned counsel for the appellant stated the age of the appellant as 35 years, no evidence was let in to prove his date of birth. There is nothing on record to arrive at a finding as to whether the appellant had crossed the age of 35 years. Therefore, it can only be taken that he had crossed the age of 35 years and the Tribunal erred in taking the multiplicand as 16 and instead, the multiplicand ought to have been taken only as 15. It is also to be noted that despite the specific assertion regarding the occupation and **M.A.C.A.1564/2011** 7 income as aforementioned, the appellant had failed to adduce any evidence to establish his occupation and income. In such circumstances, we do not find any reason to hold that the Tribunal went wrong in fixing the monthly income of the appellant notionally. Still, the question to be decided is whether the fixation of monthly income invites interference. As noticed hereinbefore, the Tribunal took the monthly income only as `3,000/-. The appellant was aged only 35 years at the time of the accident and the accident occurred on 19.5.2005. In the contextual situation, the decision of the Hon'ble Apex Court in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Ltd.** [ **(2011) 13 SCC 236]** assumes relevance. In that case, in respect of an accident occurred to a coolie in the year 2004, the Hon'ble Apex Court fixed the monthly income notionally as `4500/-. Taking into account all such aspects, we are of the view that the monthly income fixed by the Tribunal for calculation purpose at `3,000/- requires upward modification and it is only just and proper to take the same as `4,500/-. **M.A.C.A.1564/2011** 8 9.Now, the question to be looked into is whether the grievance raised by the appellant regarding assessment of permanent disability is sustainable. In that context, it is to be noted that this Court, as per order dated 2.12.2013, directed the Superintendent of the District Hospital, Kollam to constitute a medical board and examine the appellant to ascertain whether he suffered any permanent disability on account of the accident that occurred on 19.5.2005 and if so, whether it had resulted in loss of his earning capacity. The extent of loss of earning capacity also has to be assessed in case, he did suffer the same. Consequently, the Superintendent of District Hospital, Kollam constituted a medical board and the appellant was examined by the said Board. The disability certificate prepared pursuant to the said direction is forwarded to this Court bearing No.MRI 5930/13 dated 18.12.13. It is marked as Ext.X2. A perusal of Ext.X2 disability certificate would reveal the following aspects:- No active movements both lower limbs, Hip and Knee, Abnormal movements both thigh-non union shaft of femur. **M.A.C.A.1564/2011** 9 **-** assive movements **Right knee** p Flexion -with normal Extension-within in normal **Left knee-** passive movements Flexion only up to 20 degree **Right Knee** passive movements within normal limits **- Left Hip** passive movements Flexion -only up to 40 degree Extension -full Abduction -Limited for the last 30 degree Aduction -Limited for the last 30 degree **Left Knee -** passive movements Extension -full Flexion -Nil Left Ankle -with normal limited Patient is unable to walk, unable to stand, unable to sit up from the lying position. Patient cannot lift both his lower limbs due to the non union of both femur. **The accident has resulted in complete loss of his earning capacity. Patient needs support by another person even for his primary needs- he is totally bedridden.** ## X-ray both femur shows:- 1. Frank nonunion of shaft of both femur with overriding of fracture fragments. 2. Fracture end shows sclerotic changes suggestive of nonunion. **M.A.C.A.1564/2011** 10 The degree of permanent disability with reference to both of his lower limbs is assessed as 70% (Seventy percentage) 10.In the light of the certification under Ext.X2, we are inclined to consider as to what should be the compensation payable to the appellant towards loss of earning capacity instead of the compensation for permanent disability. True that an injured-claimant cannot be granted compensation for permanent disability and then, for loss of earning power. In other words, compensation can be given only under one of the said heads. In **Raj Kumar v. Ajay Kumar [2011 (1) KLT 620]** , the manner in which permanent disability on actual earning capacity should be ascertained has been dealt with by the Hon'ble Apex Court. True that in this case, the medical board certified the permanent disability of the appellant as 70%. But at the same time, the actual fact that the nature of the permanent disability led to complete loss of earning capacity is discernible from it. Evidently, it is stated in Ext.X2 thus:- **M.A.C.A.1564/2011** 11 ## “Patient needs support by another person even ” - for his primary needs he is totally bedridden. ## (underline supplied) 11.Ext.C2 is not under any kind of challenge. Hence, in the light of the said certification, there can be no doubt at all regarding the fact that the loss of earning capacity of the appellant is 100%. In the light of the discussions as above, the compensation payable for loss of earning capacity has to be assessed. We have already fixed the monthly income of the appellant notionally as `4,500/-. With reference to the age of the appellant, the multiplier applicable was identified by us as 15. We have already assessed the percentage of loss of earning power as 100%. In such circumstances, based on such calculation, the appellant would be entitled to get `8,10,000/(4500x12x15) towards compensation for loss of earning power. While considering the actual amount due to him under that head, two other aspects have to be looked into. Under the head compensation for permanent disability, the Tribunal has already granted an amount of `1,44,000/- and under the head loss of earning, the Tribunal **M.A.C.A.1564/2011** 12 granted `72,000/-. Since we have assessed the loss of earning capacity of the appellant as 100%, the aforesaid amount shall be deducted from `8,10,000/-. In other words, towards the compensation for loss of earning capacity, the appellant is entitled to get an amount of `5,94,000/- additionally. We have already taken note of the nature of the injuries and also the nature of the permanent disability and its impact. In such circumstances, though the appellant had not claimed compensation for loss of amenities, we are of the considered view that this is an eminently fit case where the said aspect has to be considered. The facts and factors which we have already expatiated above constrain us to hold that the appellant would not be able to enjoy his life, as before, any further. It is to be noted that even for attending his primary needs, he needs the help of a bystander. In fact, he is totally bedridden. In such circumstances, we award an amount of `1,00,000/- towards loss of amenities. Towards bystander expenses, the Tribunal granted an amount of `11,700/- virtually taking the period as 156 days @ `75/- per day. We are of the view that **M.A.C.A.1564/2011** 13 taking note of the fact that the accident occurred in the year 2005, the rate fixed by the Tribunal is too low. It ought to have been at least `200/- per day. But at the same time, we are of the view that it cannot be confined to the days of hospitalisation in the light of Ext.X2 disability certificate. Going by the same, the appellant needs such assistance life long. Taking note of such aspects, we think it only proper to grant a consolidated amount and we fix the amount as `1,00,000/-. Since the Tribunal has granted an amount of `11,700/-, after deducting the same the appellant, would be entitled to get `88,300/- under that head. Towards extra nourishment, the Tribunal granted an amount of `7,800/- @ `50 per day for a period of 156 days. The rate fixed by the Tribunal is too low considering the fact that the appellant must had nutritious food during the relevant period. Hence, we are of the view that the appellant is entitled to get `7,800/more under that head. Towards damage to clothing and other articles, `1000/- was claimed. The Tribunal granted only a sum of `500/-. The nature of the injuries sustained by the appellant would go to show **M.A.C.A.1564/2011** 14 that the dresses worn by him at the time of the accident must have been fully damaged. In such circumstances, we are inclined to grant `500/- more under that head. In view of the enhancement/assessment made by us under the aforesaid heads, the appellant is entitled to get a total additional compensation of `7,90,600/-. The said amount will carry interest at 8% from the date of the petition till realisation. The second respondent is directed to deposit the said amount within a period of three months from the date of receipt of a copy of this judgment failing which the amount remaining to be paid will carry interest @ 9% per annum from the date of the petition. In the interest of justice, we are of the view that a further direction is also called for in this case. The second respondent is directed to issue a cheque for `8,00,000/- from out of the amount which is due to the appellant based on this judgment, in the name of the appellant and it shall be deposited, in the same nationalised bank where an account was opened and `2,00,000/- was deposited as fixed deposit pursuant to the directions of the Tribunal, for a period of 10 years and renewable **M.A.C.A.1564/2011** 15 periodically. The appellant shall be at liberty to draw interest periodically from the fixed deposit to meet his future treatment, expenses etc. Needless to say that the balance amount shall be disbursed to the appellant, on deposit, on proper application. At any point of time, if any further release from the amount remaining in deposit is required, it will be open to the appellant to approach the Tribunal and in such eventuality, the Tribunal shall consider such application and shall pass orders thereon. The appeal is allowed as above. There will be no order as to costs. **Sd/C.T. RAVIKUMAR (JUDGE)** **Sd/-** **K. P. JYOTHINDRANATH (JUDGE)** **spc/** **M.A.C.A.1564/2011** 16 **M.A.C.A.1564/2011** 17 ## **C.T. RAVIKUMAR, J.** **JUDGMENT September, 2010** **M.A.C.A.1564/2011** 18