Nizamudheen s/o Koyakutty v. Latha Ramesh, RadhaKrishnan Nair and The Oriental Insurance Company Limited

WEDNESDAY, THE 7TH DAY OF FEBRUARY 2018 / 18TH MAGHA, 1939 AGAINST THE AWARD IN OP(MV) 36/2007 of M.A.C.T.,PERUMBAVOOR DATED 28-12-2013 APPELLANT(S)/APPELLANT/PETITIONER NIZAMUDHEEN S/O.KOYAKUTTY, KEEPURATH HOUSE, MANIKINAR P.O., KOTHAMANGALAM, ERNAKLAM DISTRICT. BY ADV.SRI.K.K.MOHAMED RAVUF RESPONDENT(S): 1. LATHA RAMESH PURATHANAYIL HOUSE, MARAMPILLY P.O., ALUVA, ERNAKULAM DISTRICT-683 107. 2. RADHAKRISHNAN NAIR S/O.SANKARAN NAIR, KOCHUPURAYIL HOUSE, THRIKALATHOOR P.O., ERNAKULAM DISTRICT-683 541. 3. THE OREINTAL INSURANCE COMPANY LIMITED BRANCH OFFICE NO.II, JEWEL ARCADE, LAYAM ROAD, KOCHI-682 011. R3 BY ADV. SMT.REKHA NAIR R1 BY ADV. SRI.B.JAYASANKAR THIS MOTOR ACCIDENTS CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 07-02-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **K.Harilal, J.** ==================================== M.A.C.A.No.1081 of 2014 ==================================== Dated this the 7[th] day of February, 2018. ## **JUDGMENT** 1. The appellant is the petitioner in O.P.(MV) No.36 of 2017, on the files of the Motor Accidents Claims Tribunal, _(hereinafter referred to as 'the Tribunal')_ , Perumbavoor. The said application was filed under Section 166 of the Motor Vehicles Act, 1988, claiming an amount of Rs.5,00,000/- as compensation for the bodily damages suffered by him in a road traffic accident. 2. According to the petitioner, on 13.11.2006, at about 10 am, when he was attempting to board the bus, the 2[nd] respondent, who was the driver of the bus had taken the bus forward in a rash and negligent manner and as a result, he was thrown away from the bus to the road resulting Maca1081/2014 -:2:- injuries to him. According to him, the accident was caused by the rash and negligent driving of the bus, by the 2[nd] respondent. So, respondents 1 and 2 are jointly and severally liable to pay compensation to him and the 3[rd] respondent Insurance Company is liable to indemnify the 1[st] and 2[nd] respondents. Though the 3[rd] respondent Insurance Company resisted the claim and denied the rashness and negligence alleged against the 2[nd] respondent, the Tribunal rejected the said contention and found that the accident was caused by the rash and negligent driving of the bus by the 2[nd] respondent and thereby, the 1[st] and 2[nd] respondents are jointly and severally liable to pay compensation to the petitioner. Since the accident was covered under the Maca1081/2014 ## -:3:- insurance policy, the 3[rd] respondent was held liable to indemnify the 1[st] respondent, by paying compensation to the petitioner. The Tribunal passed the impugned award granting Rs.1,84,384/- with 8% interest to the petitioner, as compensation. The quantum of compensation granted under different heads of claim is challenged in this appeal. 3. Heard the learned counsel for the petitioner and the learned counsel for the 3[rd] respondent, Insurance Company. - 4.According to the learned counsel for the petitioner, the quantum of compensation granted under the heads 'loss of earnings', 'permanent disability', 'transportation to hospital', 'attendant's charges', 'pain and sufferings', Maca1081/2014 ## -:4:- 'loss of amenities' etc. is inadequate and disproportionate with the actual loss and sufferings of the petitioner. It is also contended that the monthly earnings determined by the Tribunal is very low. To Judge - 5.Going by the impugned award, it is seen that `3,500/- is taken as the monthly income of the petitioner. It is not disputed that he was a coolie worker at the time of accident and the accident has occurred in the year 2006. It is true that no reliable evidence has been adduced to prove his exact income as a coolie worker. But in _**Ramachandrappra v. Manager, Royal Sundaram Alliance Insurance Co.Ltd.**_ **[2011 (13) SCC 236]** , the Supreme Court held that in the absence of sufficient evidence to prove the Maca1081/2014 ## -:5:- exact income of the claimant, `3,500/- to `4,500/- can be fixed as the notional income per month in a claim for compensation under the Motor Vehicles Act. In the said decision, the accident was one occurred in the year 2004. In the above view, the quantum of amount fixed as the monthly income of the petitioner is inadequate and the same would stand enhanced and modified to `4,500/-. Consequently, the compensation for loss of earnings would stand enhanced to `18,000/- (4,500 x 4). Enhancement of monthly income would reflect in compensation for permanent disability also. - 6.The learned counsel vehemently contended that the percentage of disability determined by the court below is unsustainable in view of Ext.X1 Maca1081/2014 -:6:- disability certificate. The Tribunal fixed the permanent disability at 10%, but Ext.X1 disability certificate shows 20% disability. - 7.I have meticulously gone through Ext.X1 disability certificate issued by the medical board. Going by Ext.X1 disability certificate, it is seen that total neurological disability is fixed at 20%. Personal disabilities are; - 1) Left mild facial palsy - 4% 2) Headache, dizziness, forgetfulness and easily getting angry - 11% - 3) Carries risk of post traumatic epilepsy. He is on DPH now - 5%. - 8.Needless to say, the medical board has not - quantified the percentage of permanent whole body disability. It is trite law that the compartmental disability alone cannot be taken Maca1081/2014 ## -:7:- as a multiplier for assessing compensation for permanent disability. In the absence of quantification as to the permanent whole body disability, the Tribunal has taken half of the compartmental disability as permanent whole body disability. This court does not find any reason to interfere with the methodology adopted by the Tribunal, to fix permanent whole body disability in the absence of medical certificate quantifying exact whole body disability. In short, the Tribunal is justified in fixing the percentage of whole body disability at 10%. But, he is entitled to get compensation for permanent disability in accordance with the enhanced monthly income of `4,500/-. So, the petitioner is given `91,800/- Maca1081/2014 ## -:8:- - as compensation for permanent disability (4,500 - x 12 x 17 x 10/100). Additional compensation payable to the petitioner under this head is `20,400/- (91,800 - 71,400) - 9.It has come out in evidence that he was hospitalized and treated as an inpatient for 21 days and the Tribunal has granted `3,000/- as compensation for the same. The accident has occurred in the year 2006 and `150/- is taken as the daily expense of a bystander and the same was granted for 20 days only. He is entitled to get bystander expense for 21 days. So it would stand enhanced to `3,150/-. 10. On a combined reading of Ext.X1 and Ext.A6, it is discernible that, though he was hospitalized for 21 days only as an inpatient, Maca1081/2014 -:9:- he continued treatment after getting discharge from the hospital. This court is of the view that the transportation expenses for continued treatment also should have been taken for granting compensation for transportation to hospital. In the above view, the Tribunal is not justified in granting `500/- only as compensation for transportation to the hospital and the same would stand enhanced to `3,500/-. 11. `25,000/- is given for pain and sufferings and `15,000/- is granted for loss of amenities. Going by Ext.X1 disability certificate, it could be seen that the total permanent neurological disability is at 20% and the disabilities carries risk of post traumatic epilepsy and he is on DPH now. Headache, Maca1081/2014 ## -:10:- dizziness, forgetfulness and easily getting angry are the disabilities precipitated on him when he was examined by the medical board on 18.5.2012. It is to be remembered that the disability was assessed after six years from the date of accident. Therefore, it could be reasonably presumed that even after six years, he is suffering from such disabilities shown in Ext.X1. In the above view, the compensation granted for loss of amenities would stand enhanced to `30,000/-. In view of the long period of treatment as inpatient, the Tribunal is justified in granting `25,000/- as compensation for pain and sufferings. 12. The learned counsel for the appellant/petitioner further contended that no Maca1081/2014 ## -:11:- amount was granted under the heads 'disfiguration' and 'loss of future earnings' and 'loss of marriage prospects'. This court is of the opinion that the Tribunal cannot be justified in discarding the above heads of claim in view of the disabilities shown in Ext.X1 disability certificate. In Ext.X1 it is stated that left mild facial palsy is 4%. Having regard to the said disability, the petitioner is given `15,000/for disfiguration. In view of the disabilities certified by the medical board even after six years, certainly, the disabilities would have affected his marriage prospects, even if he married after the passing of award or after the accident. But, it will not disentitle him to Maca1081/2014 ## -:12:- claim compensation for his marriage prospects. In the above view, `25,000/- is granted as compensation for loss of marriage prospects. Thus, the petitioner is given an additional compensation of `89,550/- [20,400 + 11,000 + 3,000 + 15,000 + 25,000 + 15,000 + 150]. Thus, the total compensation payable to the petitioner is `2,73,934/- (1,84,384 + 89,550). All other findings of the Tribunal will stand undisturbed and operative. Needless to say, the entire amount will carry interest as stipulated by the Tribunal. 13. The M.A.C.A. is allowed to the above extent. Sd/- ## **K.Harilal, Judge** sl. /True copy/ P.S. To Judge