New India Assurance Company, Kannur v. Purushothaman T.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM & THE HONOURABLE MRS. JUSTICE SHIRCY V.** **WEDNESDAY, THE 15TH DAY OF FEBRUARY 2017/26TH MAGHA, 1938** **MACA.No. 373 of 2014 ------------------------** **AGAINST THE AWARD IN OPMV 961/2007 of M.A.C.T., THALASSERY DATED 1807-2013** ## **APPELLANT/PETITIONER** **----------------------** **NEW INDIA ASSURANCE COMPANY KANNUR ,REP BY THE DY.MANAGER, REGIONAL OFFICE, KOCHI** **BY ADV. SRI.RAJAN P.KALIYATH** ## **RESPONDENT/RESPONDENTS:** **--------------------------** **PURUSHOTHAMAN.T.** **S/O.RAIRU NAIR, BHARATHI NIVAS, CHEMMARAVAYAL, POST MORAZHA, KANNUR DIST. 670631** **R1 BY ADV. SRI.A.K.SRINIVASAN R1 BY ADV. SRI.A.S.BENOY** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 15-02-2017, ALONG WITH CO. 55/2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **C.K. ABDUL REHIM & SHIRCY V.,JJ.** **============================== M.A.C.A. No.373 of 2014** ## **&** ## **CROSS OBJECTION No. 55 of 2014** **============================== Dated this the 15[th] day of February, 2017** ## **JUDGMENT** ## **C.K. Abdul Rehim, J.** The 3[rd] Respondent before the Tribunal, who was the insurer of the offending vehicle at the time of the accident, is challenging the Award in O.P.(MV)No.961/2007 of the Motor Accidents Claims Tribunal, Thalassery to the extent of assailing the amounts awarded under different heads as excessive. The Respondent in the Appeal, who is the Claimant before the Tribunal, had also filed a Cross Objection seeking enhancement of the compensation MACA 373/14 & CO 55/14 2 awarded. Both in the Appeal as well as in the Cross Objection, there is no dispute against the findings of the Tribunal on the aspects of negligence and liability of the Appellant for payment of the compensation awarded. 2. In the accident the claimant sustained severe injuries like, fracture on the lower third left leg bone (fibula), fracture of left patella, fracture of left femur and fracture of left clavicle with brachial plexus injury on the left. Initially the claimant was taken to A.K.G. Memorial Cooperative Hospital, Mangalore, on the date of the accident, which is on 17.1.2007. He was referred to a higher centre for better management, at the request of the claimant. The above fact is evident from Ext.A7. From Ext.A2 wound certificate and Ext.A8 Discharge Summary it is evident that the claimant was admitted at Unity Health Complex, Mangalore on 17.1.2007 and he was treated there as MACA 373/14 & CO 55/14 3 inpatient till 5.2.2007. The certificate would indicate that surgical procedures were undergone by the claimant at the above Medical Centre. Ext.A9 is the Discharge Summary Certificate issued from the A.J. Hospital and Research Centre, Mangalore, which would indicate that the claimant was admitted there on 12.3.2007 and he had undergone a procedure under general anaesthesia on 17.3.2007 mentioned as “Exploration & Nerotization with XI CRN to suprascupular and Oberlins I & II transfer done under GA on 17.3.2007.” The said document would indicate that the appellant was further consulted at the very same hospital during the year 2008 and 2009. Ext.A10 is yet another Discharge Summary issued by the City Hospital Research & Diagnostic Centre, Mangalore which would indicate that the claimant was admitted there on 3.2.2010 till 13.02.2010 with complaint of non-union, with implant failure. The MACA 373/14 & CO 55/14 4 procedure done is mentioned as “Cut Implant Removal, Retrograde Interlocking Nailing done, Bone Grafting.” 3. From the above said documents it is evident that the claimant had undergone treatment under various hospital during different spells and he was continuing treatment even during February 2010. The inference which could be drawn from the documents as mentioned above is that the claimant had to undergo prolonged treatment for a period of more than three years. There is evidence to the effect that the injuries sustained to the Claimant had resulted in Permanent partial disability, the extent of which was assessed by the Medical Board attached to the District Hospital, Kannur in Ext.X1 Certificate. It would indicate that the claimant had residual weakness, partial sensory and motor. The extent of permanent physical disability was assessed at 28% (body on whole). PW2 is the Orthopaedic MACA 373/14 & CO 55/14 5 Surgeon who was a member of the Medical Board. He testified that, with the weakness on the left side of the body the claimant will experience difficulty to move freely with the left hand and he will not be able to do any manual work. In cross examination he further deposed that there is a complete paralysis on the left hand. It is further deposed that it is very unlikely to recover from the disability. 4. We take note of the fact that the Tribunal had awarded compensation under the head of medical expenses as per the bills submitted. The transportation expenses was also granted in accordance with the documents produced. The Tribunal awarded a sum of Rs.9200/- towards bystanders expenses which also seems to be reasonable. The amounts granted under the heads of extra nourishment and damage to clothing and articles also needs no interference. MACA 373/14 & CO 55/14 6 5. The claimant was aged 54 years at the time of the accident. He claimed that at the time of accident he was working as Accounts Manager in a Private Company in Kannur named 'Weaves & Weaves' and was earning an amount of Rs.4500/- per month. Despite such a contention, the claimant failed to produce any document with respect to his avocation at the time of the accident or to prove the income derived by him out of such employment. Therefore the Tribunal adopted notional income of Rs.4,000/- per month, considering his experience and educational qualifications. Learned counsel for the Cross Objector contended that, the Tribunal ought to have adopted the income of Rs.4500/- as claimed, taking into consideration of the vast experience and educational qualifications proved through various documents. We take note of the fact that the claimant had studied upto B.A degree as evident from MACA 373/14 & CO 55/14 7 Ext.A17. There is evidence to show that he had passed English Typewriting Junior as revealed from Ext.A18 certificate issued by the Karnataka Secondary Educational Examination Board. From Ext.A20 certificate it is evident that he had passed the examination in Computer Accounting and MS Office during the year 1998. Ext.A19 certificate would indicate that he had worked in a firm at Bangalore from 1977 to 1979. Ext.A21 is the Employment Certificate issued by the firm in Saudi Arabia, which would indicate that he was appointed as a Secretary in the Company at a salary of 1850 Saudi Riyals, during October 1983. From the documentary evidence produced it is clear that the claimant is an educated person having special qualification in Typewriting and Computer handling. Therefore we are of the opinion that despite non-production of any documentary evidence with respect to the present occupation, the MACA 373/14 & CO 55/14 8 Tribunal ought to have accepted the claim that the claimant was earning a sum of Rs.4500/- per month at the time of the accident. 6. Counsel for the Cross Objector raised vehement contentions assailing the computation of compensation under the head of permanent disability, contending that the Tribunal failed in considering the functional disability of the claimant. As already discussed, the claimant was successful in proving through Ext.X1 and oral testimony of PW2 that the injuries had resulted in causing partial Permanent Disability. Evidence is to the effect that his left upper limb is totally paralised. There is also evidence to show that there is residual disability due to the injuries sustained on the leg. The question to be considered is as to whether the partial permanent disability has in any manner affected his earning capacity. In other words, whether the claimant will be MACA 373/14 & CO 55/14 9 precluded from continuing with his job, is the question to be considered. 7. Learned counsel had produced certain medical literature for our perusal enumerating the details of brachial plexus injuries. It is mentioned that brachial plexus is a network of nerves that originate in the neck region and branch off to form most of the other nerves that control movement and sensation in the upper limbs including the shoulder, arm, forearm, and hand. It further says that brachial plexus injuries may result in paralysis of some or all of the muscles of the shoulder and upper limb. Therefore we are inclined to accept the evidence that the clavicle fracture and the fracture of left patella and fracture of left thigh bone and the injuries sustained on the left limb of the claimant had resulted in causing permanent disability which includes total paralysis to his left limb. MACA 373/14 & CO 55/14 10 8. Considering the fact that the claimant was working as an Accountant, Secretary etc. and also considering his proficiency in clerical and accounting works using computer, we are of the opinion that the disability might have affected the appellant in continuation of his occupation, which he was avocated at the time of the accident. The Hon'ble Supreme Court in **Raj Kumar v. Ajay Kumar [ (2011) 1 SCC 343]** observed that, in a case where the left hand of a claimant is amputated, the permanent physical or functional disablement may be assessed around 60%. If the claimant was a driver or a carpenter, the actual loss of earning capacity may virtually be 100% since he is neither able to drive nor to do carpentry. On the other hand, if the claimant was a clerk in Government service, the loss of his left hand may not result in loss of employment and he may still be continued as a clerk as he could perform his clerical MACA 373/14 & CO 55/14 11 functions, and in that event the loss of earning capacity will not be 100% as in the case of a driver or carpenter, nor 60% which is the actual physical disability, but far less. 9. Learned Standing Counsel appearing for the appellant Insurance Company contended that, there is absolutely no proof adduced by the claimant with respect to his employment and occupation. It is further contended that there is no evidence adduced to show that the claimant had lost his job due to the permanent disability suffered. Nonetheless there is evidence on the above aspects, the fact remains that one of the upper limbs of the claimant was totally paralysed. Considering his educational and skilled qualifications, it is definite that he could not perform accounting and other secretarial works utilising the aid of computer or typewriter. Hence we are of the considered opinion that, the permanent physical disability which is MACA 373/14 & CO 55/14 12 assessed as 28% whole body, will be affecting his occupation and the functional disability would definitely be more than the whole body disability assessed. 10. Learned Standing Counsel contended that the Tribunal went erred in applying the multiplier of 11, when it had granted compensation for loss of earning for a period of 18 months. As already observed, there is evidence to the effect that the claimant had continued treatment for more than three years. Therefore, the loss of earnings computed for a period of 18 months is reasonable. Moreover, for assessing compensation on account of permanent disability, the multiplier need to be adopted based on the age of the victim at the time of the accident. Therefore we are not persuaded to accept the plea for reducing the multiplier, because of the fact that loss of earning was granted for a period of 18 months. Based on the above findings, we are MACA 373/14 & CO 55/14 13 inclined to fix functional disability which had resulted out of the permanent physical disability of the claimant, at 50%. Thus the compensation on account of disability need to be refixed at Rs.2,97,000/- (4500x12x11x50%). This will entitle the Cross Objector to get an enhancement of Rs.1,49,160/- on that count. Consequently to the refixation of notional income at Rs.4500/- the amount awarded under the head of loss of earning need to be reworked as Rs.81,000/-, thereby entitling the Cross Objector for an addition of Rs.9,000/-. 11. One of the main attack by the Appellant is on the excessiveness of the amount of Rs.3 lakhs awarded towards pain and sufferings. It is contended that the amount is exorbitant and unconventional. So also it is argued that the amount of Rs.1,50,000/- awarded towards loss of amenities is excessive and unrealistic. Per contra, learned counsel for MACA 373/14 & CO 55/14 14 the Cross Objector contended that, considering the prolonged treatment at four or five hospitals for a continuous period of more than three years and also considering the fact that the claimant is still undergoing treatment and physiotherapy, the amount awarded under the above said heads are only just an reasonable. We take note of the fact that the compensation under the heads of pain and sufferings as well as under the loss of amenities and enjoyment in life, are conventional heads wherein there are no strict methods of computation available. Normally the Tribunals are awarding reasonable amounts based on a conservative and conventional assessment. We find merit in the contention raised by the Appellant that the amounts granted under the head of pain and sufferings is on the higher side. We are inclined to reduce the said amount to Rs.1,00,000/-. But, with respect to loss of amenities and MACA 373/14 & CO 55/14 15 enjoyment in life, it is to be considered that the claimant had lost function of one of his upper limb and he has to continue with the said deformity life long. Therefore we are not inclined to make any interference with respect to the sum of Rs.1,50,000/- awarded under that head. 12. Learned counsel for the Cross Objector contended that the documents would reveal that the claimant has to continue medical treatment and physiotherapy. It is pointed out that the Tribunal has not awarded any amount towards expenses of future treatment. In this regard we are inclined to grant a sum of Rs.50,000/- considering the gravity of the injury and the history of continued treatment undergone by the claimant. Thus the total amount of Rs.4,50,000/awarded under the heads of pain and sufferings and loss of amenities is refixed at Rs.2,50,000/- and an addition of Rs.50,000/- is granted towards expenses for future MACA 373/14 & CO 55/14 16 treatment. Thus the total amount under those heads is refixed at Rs.3,00,000/- (Rupees three lakhs only) and there will be a reduction of Rs.1,50,000/-. Thus the total compensation for which the claimant is eligible is refixed at Rs. 12,39,300/- (1231140 - 150000 + 158160/-). 13. Learned counsel for the Cross Objector contended that the Tribunal went erred in limiting the compensation at Rs.12 lakhs based on the total claim made before the Tribunal. It is trite law by this time that the Tribunal can award compensation of any amount exceeding the claim, if it is found just and reasonable to be awarded. Therefore we are inclined to fix the total compensation for which the appellant is entitled as Rs.12,39,300/- itself. The said amount will carry interest as ordered by the Tribunal in the impugned award. 14. Hence the above Appeal and the Cross Objection MACA 373/14 & CO 55/14 17 are hereby disposed of by refixing the total compensation for which the claimant is entitled as Rs.12,39,300/- (Rupees twelve lakhs thirty nine thousand and three hundred only) along with interest at 9% per annum from the date of petition till realisation. The appellant Insurance Company will deposit the amount, less the amount already paid if any, within a period of two months. On such deposit, the appellant will be at liberty to approach the Tribunal seeking withdrawal of the amount. If any such application is filed, the Tribunal shall pass appropriate orders considering the question of permitting withdrawal, without any further delay. **Sd/C.K. ABDUL REHIM JUDGE** **ks True copy** Sd/- **SHIRCY V. JUDGE** MACA 373/14 & CO 55/14 18 MACA 373/14 & CO 55/14 19 MACA 373/14 & CO 55/14 20