Muraleedharan Nair v. Ashkar K.H. and Ors. (MACA No. 291 of 2016)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. WEDNESDAY, THE 7[TH] DAY OF FEBRUARY 2024 / 18TH MAGHA, 1945** **MACA NO. 291 OF 2016** **AGAINST THE AWARD DATED 24.12.2014 IN OP(MV) No.1784/2012 OF** **MOTOR ACCIDENT CLAIMS TRIBUNAL, ERNAKULAM** ## **APPELLANT/PETITIONER:** MURALEEDHARAN NAIR AGED 43 YEARS, S/O.SUKUMARAN NAIR, ANANDU BHAVAN, VEKKIKONAM KARA, MANIKANTESWARAM P.O., PEROORKADA VILLAGE, THIRUVANANTHAPURAM-695013. BY ADVS. SRI.MATHEWS K.PHILIP SMT.MINISHA K DAS ## **RESPONDENTS/RESPONDENTS:** 1 ASHKAR K.H. S/O.HAMSA, KUZHIPARAMBIL HOUSE, EDACHIRA, THENGODU P.O., THRIKKAKARA VILLAGE, ERNAKULAM DISTRICT-682030. 2 HAMSA K.K. KUZHIPARAMBIL HOUSE, THENGODU P.O., THRIKKAKARA VILLAGE, ERNAKULAM-682030. 3 THE MANAGER ICICI LOMBARD GENERAL INSURANCE COMPANY LIMITED, KANNANKERI ESTATE, SHANMUGHAML ROAD, ERNAKULAM, KOCHI-682031. BY ADVS. SRI.T.H.ABDUL AZEEZ jacob mathew p SRI.R.AJITH KUMAR 12884 SRI. AJMAL V. A. **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 07.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** M.A.C.A No. 291 of 2016 2 ## **JUDGMENT** The appellant was the petitioner in OP(MV) No.1784/2012 on the files of the Motor Accidents Claims Tribunal, Ernakulam. The said claim petition was submitted by him seeking compensation for the injuries sustained in a motor accident that occurred on 27.05.2012. 2. According to the appellant, the accident occurred when the motorcycle ridden by him, was hit by a car bearing registration No. KL 7- BS 6268 driven by the 1st respondent in a rash and negligent manner. The 2nd respondent was the owner of the said car and it was insured with the 3rd respondent. The appellant was 42 years old and was working as a Supervisor in a solid waste processing plant in Brahmapuram, with a monthly income of Rs.20,000/-. Consequent to the accident, serious injuries were sustained to him, and as a result of the same, he is completely bedridden. The claim petition was submitted in such circumstances. 3. The 3rd respondent/insurer filed a written statement admitting the existence of a valid policy for the car. However, they denied negligence on the part of the 1st respondent in driving the M.A.C.A No. 291 of 2016 3 car, and according to them, the accident occurred due to the negligence of the appellant himself. The quantum of compensation was also disputed by them. 4. The evidence in this case consists of Exts. A1 to A20 from the side of the appellant and the disability certificate issued by the Medical Board of Govt. T. D. Medical College, Alappuzha, was marked as Ext.C1. 5. After appreciating the materials placed on record, the Tribunal found that the accident occurred due to the negligence of the 1st respondent in driving the car, and being the insurer, the liability to pay the compensation was imposed upon the 3rd respondent. The quantum of compensation was fixed as Rs.14,95,990/- and the said amount was directed to be deposited with interest at the rate of 8% per annum from the date of petition till realization, with proportionate cost. This appeal is submitted by the appellant in such circumstances, being disatisfied with the compensation awarded by the Tribunal. 6. Heard Sri. T. Manasi, learned counsel appearing for the appellant and Sri.P.Jacob Mathew, learned counsel appearing for the 3rd respondent. M.A.C.A No. 291 of 2016 4 7. The learned counsel for the appellant contends that the amount awarded by the Tribunal was grossly inadequate, as the physical condition of the appellant was not properly appreciated, and the monthly income accepted by the Tribunal was also on the lower side. The learned counsel for the 3rd respondent pointed out that a reasonable amount has been awarded as compensation, and no interference is warranted. 8. I have carefully gone through the records. As per Ext.C1, the Disability Certificate issued by the Medical Board, the percentage of disability of the appellant was certified as 87%. Ext.A9, A11, A13, A14, and A16 indicate the pathetic physical condition of the appellant. The said documents would show the inpatient treatment availed by the appellant on various occasions. Consequent to the head injury sustained by the appellant, he had recurrent seizures as well. As per the Ext.A9 certificate issued by the Doctor, he requires another surgery to replace the bone flap, but the said surgical procedure could not be performed in view of the fact that the same could be conducted only when the seizures are well controlled. On a careful consideration of the materials placed on record, it is very clear that he is completely bedridden. M.A.C.A No. 291 of 2016 5 The injuries suffered by the appellant includes head injury; Acute left subdural hematoma, cerebral oedema left temporal and parietal contusion, fracture right parietal undisplaced fracture right zygomatic bone. Thus, after considering all the relevant aspects and the percentage of disability as certified in Ext.C1, it is evident that the appellant is unable to pursue any kind of employment, and he requires assistance of another person for his basic needs. Therefore, as rightly contended by the learned counsel for the appellant, this is a case in which 100% disability ought to be taken for the purpose of assessing the compensation. The physical condition of the appellant, as is discernible from the medical records produced in this case, would fortify the said contention, and therefore, I deem it appropriate to take the functional disability of the appellant as 100%. 9. The next aspect is the monthly income to be taken. Even though an amount of Rs.20,000 was claimed as the monthly income, the Tribunal accepted the same as Rs.5,000/-. The accident, in this case, occurred in the year 2012. To substantiate the monthly income, the appellant places reliance upon Ext.A18 to A20 certificates. Ext.A18, certificate was issued by M/s POABS M.A.C.A No. 291 of 2016 6 Envirotech, wherein it is mentioned that he has been working in the Municipal Solid Waste Treatment Plant since June 2000. The said certificate was issued on 15.12.2006. Ext.A19 was issued by Socio-Economic Unit Foundation wherein it is certified that the appellant was working with them as the Supervisor cum Mechanic in the Solid Waste Management Plant of the Corporation from 01.11.2006 to 28.06.2008. Ext. A20 is yet another certificate issued by M/s Environ Green in which it is mentioned that the appellant was working as a supervisor and plant in charge of their solid waste processing plant, and he was on loss of pay leave with effect from 27.05.2012. It was also stated therein that he was drawing an amount of Rs.40,000/- as monthly pay, including allowances. Even though the aforesaid documents were produced on record, neither the person who issued the said certificates nor the person in connection with the said establishment was examined to prove the same. However, with regard to the employment of the appellant, there may not be any serious disputes, even though the monthly salary shown in Ext.A20 cannot be accepted as such. The Tribunal took the monthly income as Rs.5,000/- in the absence of any evidence which appears to be M.A.C.A No. 291 of 2016 7 on the lower side under any circumstances. It is to be noted in this regard that even if the monthly income is calculated on the basis of the method of computation of the same, as per the principles laid down by the Honourable Supreme Court in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Ltd. [(2011) 13 SCC 236] and Syed Sadiq & Ors. v. Divisional Manager, United India Insurance Company Ltd. [2014 (2) SCC 735],** for an accident occurred in the year 2012, the same could be reasonably fixed as Rs.8,500/-. 10. However, in this case, the records referred to above would indicate that he had been working as a supervisor in the waste-treated plant of various establishments since 2000, and the accident occurred in 2012. Considering the fact that he was working in the very same field for a reasonably longer period, certainly, he would be getting a higher salary than what is being paid to other unskilled employees. In such circumstances, I am of the view that, taking note of the experience he had in the particular field in which he was working, a slightly higher monthly income than ordinary taken in respect of unskilled workers could be taken. In the facts and circumstances of the case, I deem it M.A.C.A No. 291 of 2016 8 appropriate to fix it as Rs. 11,000/-. The appellant was aged 42 years, and hence, an addition of 25% towards future prospects could be granted, particularly since this is a case of 100% functional disability. The multiplier applicable is '14'. Thus, while reassessing the compensation for physical disability with the above criteria, the amount of compensation would come to Rs.23,10,000/- [(11,000 +25%) x 12 x 14]. The amount already awarded by the Tribunal under this head is Rs.7,30,800/- and thus the additional compensation would come to Rs.15,79,200/-. 11. The learned counsel for the 3rd respondent pointed out that the Tribunal awarded compensation for loss of earnings for a period of one year, which was not warranted, particularly since the compensation for disability was awarded by taking the physical disability as 100%. The learned counsel placed reliance upon in **Raj Kumar vs. Ajay Kumar & Another [2011 (1) SCC 343],** wherein it was held that when compensation for disability is calculated taking the percentage of disability more than 50%, it is not necessary to grant compensation for loss of earnings and in such cases, only notional amount needs to be granted. However, in this case, even if that contention is accepted there cannot be M.A.C.A No. 291 of 2016 9 any actual reduction because of the fact that the Tribunal did not award any compensation for loss of amenities. The appellant sustained the injuries and serious disability, at comparatively younger age of 42 years. He has to live with that disability for the remainder of his life. Therefore, some compensation ought to have been granted to him under this head. Therefore, as no compensation has been granted under loss of amenities, even though the amount awarded towards loss of earnings appears to be on the higher side, I do not intend to interfere with the same. 12. The next aspect highlighted by the learned counsel for the appellant is the compensation for bystander expenses. As observed above, this is a case in which the appellant suffered 100% disability. Consequent to the head injuries and the other complications that arose due to the injuries sustained in the accident, he is completely bedridden, and he requires the assistance of a third person to look after his day-to-day affairs. Therefore, the learned counsel for the appellant seeks for future bystander expenses **.** The said contention has to be accepted, taking note of the pathetic physical condition of the appellant. In **Kajal v. Jagdish Chand & Ors. [MANU/SC/0126/2020],** the M.A.C.A No. 291 of 2016 10 Honourable Supreme Court was pleased to grant expenses for bystanders at the rate of Rs.5000/- each for two bystanders, taking note of the peculiar facts and circumstances of that case. Therefore, considering the factual situation existing in this case, I deem it appropriate to grant compensation towards the expenses for at least one bystander at the rate of Rs.5,000/-. The said compensation has to be calculated by applying the multiplier of '14' with respect to the age of the appellant. Thus, the compensation under this head would come to Rs.8,40,000/(5,000x12x14). 13. The next aspect relates to the compensation for future treatment. The amount awarded by the Tribunal is Rs.50,000/-. The records would indicate that, even for maintaining the present condition of the appellant, he requires regular treatment and medical consultations. The Tribunal also found that the appellant needs to undergo further surgery to replace the bone flap once the repeated seizures are under control. Thus, the requirement for future medical expenses is evident from the records. In such circumstances, I find that the amount of Rs.50,000/- already M.A.C.A No. 291 of 2016 11 awarded by the Tribunal is not adequate. Therefore, a further sum of Rs.1,00,000/- is awarded. 14. The learned counsel for the 3rd respondent at this juncture pointed out that the Tribunal awarded an amount of Rs.1,00,000/- towards loss of earning power. It was contended that when compensation for disability is calculated at the rate of 100%, the said compensation was not warranted. The said contention is to be accepted, as the compensation for disability at the rate of 100% would take care of the said aspects as well, particularly because the said compensation was calculated, taking note of the future prospects of the appellant as well. In such circumstances, the amount of Rs.1,00,000/- is ordered to be deducted from the amount additionally awarded by this Court towards disability. Thereby, the amount under the said head is Rs.14,79,200/-. Thus, the total additional compensation is determined as Rs.24,19,200/- (14,79200 + 8,40,000 + 1,00,000). In the result, this appeal is allowed. The award dated 24.12.2014 passed by the Motor Accidents Claim Tribunal, Erankulam in O.P.(M.V) No.1784/2012 is hereby modified by granting an additional compensation of Rs.24,19,200/- (Rupees M.A.C.A No. 291 of 2016 12 twenty four lakhs nineteen thousand and two hundred only). Out of the said amount, Rs.14,79,200/- (Rupees fourteen lakhs seventy nine thousand and two hundred only) will carry interest at the rate as ordered by the Tribunal from the date of petition till realisation. The remaining amount of Rs.9,40,000/- (Rupees none lakhs forty thousand only), being the amount towards the expenses incurred after the accident and to be incurred in the future, the interest thereon will be from the date of the award passed by the Tribunal. The said amount shall be deposited by the 3[rd] respondent within a period of three months from the date of receipt of a copy of this judgment. As the delay of 292 days in filing the appeal was condoned by this Court subject to the condition that the appellant shall not be entitled to interest on the enhanced compensation for the said period, the 3[rd] respondent shall be at liberty to exclude the said period while computing the interest on the additional compensation. It is further ordered that, the claimant shall furnish the details of PAN card, Aadhar Card and Bank details to enable the insurance company to make the deposit as ordered above within a period of two months from the receipt of a copy of this judgment. In case, he fails to furnish the said M.A.C.A No. 291 of 2016 13 details, it shall be open for the insurance company to deposit the said amount before the Tribunal. Sd/- **ZIYAD RAHMAN A.A JUDGE** sms/rpk