P. Govindankutty v. National Insurance Co. Ltd.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN WEDNESDAY, THE 12TH DAY OF JULY 2017 / 21ST ASHADHA, 1939 MACA.No. 1454 of 2007 AGAINST THE AWARD IN OPMV NO.468/2001 OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, THALASSERY DATED 03-01-2007 ## APPELLANT/PETITIONER:- P. GOVINDANKUTTY S/O.KUNHIRAMAN NAIR PARAMMAL HOUSE, P.O. KARIYAD, KANNUR DISTRICT. BY ADV.SRI.GRASHIOUS KURIAKOSE ## RESPONDENT/RESPONDENT NO.3:- NATIONAL INSURANCE CO. LTD. KANNUR. BY ADV. SRI. LAL GEORGE THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 12-07-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sp **C.T. RAVIKUMAR & ANIL K. NARENDRAN, JJ. ---------------------------------------** **M.A.C.A. No.1454 of 2007 --------------------------------------Dated this the 12[th] day of July, 2017** ## **JUDGMENT** This appeal is filed against the award dated 03.01.2007 in OP(MV) No.468 of 201 passed by the Motor Accidents claims Tribunal, Thalassery. The injured petitioner filed this appeal seeking enhancement of the quantum of compensation granted thereunder. He filed the claim petition under Section 166 of the Motor Vehicles Act seeking a compensation of Rupees Four lakhs for the injuries sustained by him in the motor vehicle accident occurred on 26.06.2000, which resulted in permanent disability. He was then a foot passenger. He was knocked down by the car bearing registration No.KL-7T-6789. On sustaining injuries, he was immediately taken to Indira Co-operative Hospital, Thalassery and from there he was referred to Medical College Hospital, Kozhikode. Before the Tribunal, he got himself _M.A.C.A. No.1454 of 2007_ **2** examined as PW1 besides getting marked A1 to A8. On the side of the respondent one Raman Nambiar and Anandan were examined respectively as RW1 & RW2 and Exts.B1 to B3 were marked. Ext.X1 is the Disability Certificate. The Tribunal, on evaluation of the evidence on record and appreciating the rival contentions, passed the impugned award for an amount of Rs.1,28,150/- with interest @7% per annum from the date of the petition till realisation. It is in the said circumstances that this appeal has been preferred, seeking enhancement of the quantum of compensation. 2. We have heard the learned counsel for the appellant and also the learned counsel appearing for the respondent. 3. It is submitted before us that there is no dispute regarding the cause of the accident as also the liability of the respondent to indemnify the insured owner of the offending vehicle. In such circumstances, the question is whether the grounds raised by the appellant for substantiating his claim for enhancement of compensation could be sustained and the enhancement of compensation is liable to be granted. The main grievance of the appellant is with respect to the assessment of _M.A.C.A. No.1454 of 2007_ **3** permanent disability as also the notional fixation of the monthly income by the Tribunal, for calculating compensation for permanent disability. Ext.A2 Discharge Certificate would reveal that he sustained multiple fracture on skull, on face bone and also on left clavicle. The injuries are grievous in nature. Ext.X1 is the Disability Certificate issued by a duly constituted Medical Board. It is certified thereunder that the injuries resulted in the accident - Post Traumatic Epilepsy- and its percentage was assessed as 50. The grievance of the appellant is that though as per Ext.X1 the extent of permanent disability was assessed as 50%, the Tribunal had taken only 10% as permanent disability, for calculating compensation. The learned Senior Counsel for the appellant submitted that a bare perusal of the impugned judgment would reveal that no sustainable reason has been assigned in the judgment for effecting such deduction or in other words, for declaring to accept the entire extent of permanent disability certified under Ext.X1. There can be no doubt with respect to the position that when the extent of disability was assessed by a duly constituted Medical Board, it could be accepted even without examining any members of the Board. _M.A.C.A. No.1454 of 2007_ **4** Such opinion can have the value only of an expert evidence and therefore, it cannot be said that it should be blindly accepted. But, at the same time when the assessment of disability was made by a duly constituted Board, the extent of disability could be reduced only after assigning proper and sustainable reasons. The Tribunal had assigned the following reason for not accepting entire percentage of disability:- “ _It is not mentioned that the disability assessed is whole body disability or not_ ”. The nature of the disability certified thereunder itself would reveal that it could not have been said that the disability affecting only a particular limb. It is post traumatic epilepsy. The traumatic epilepsy is epilepsy caused by trauma to the brain. The meaning of trauma is a physical injury or wound caused by external force or violence. There is no dispute with regard to the position that the wounds or injuries sustained by the appellant are resulted from the accident. When the extent of permanent disability is certified as 50% and it is due to traumatic epilepsy, we are of the considered view that the reason assigned by the Tribunal for not accepting the extent of disability certified under Ext.X1 cannot be sustained. A traumatic epilepsy must affect the whole body. It _M.A.C.A. No.1454 of 2007_ **5** cannot be said that it is a disability affecting only a particular limb. In such circumstances, a further certification that the whole body was actually unwarranted. Taking into account the fact that such Certificate is issued by a duly constituted Medical Board and that 50% is certified as the extent of disability, we are inclined to accept Ext.X1 and to take the extent of permanent disability as 50%. 4. Now, the question is whether any interference is invited with respect to the fixation of monthly income. At the time of accident, the appellant was aged 34 years. It is specifically averred in the claim petition that he was a coolie and was earning Rs.3,500/- per month. The accident had occurred on 26.06.2000. There can be a little doubt with regard to the position that an injured who claimed his occupation as coolie would not be in a position to adduce any cogent evidence to establish his occupation. In such circumstances, we are of the view that taking into account the aforesaid factors relevant for the purpose of fixing the monthly income the decision of the Hon'ble Apex Court in _**Ramachandrappa v. Royal Sundaram Alliance Insurance Company Limited [(2011) 13 SCC 236]**_ can be taken for _M.A.C.A. No.1454 of 2007_ **6** guidance in the matter of fixation of monthly income. The accident involved in the said decision had occasioned in the year 2004 to a coolie. The Apex Court had fixed his monthly income notionally as Rs.4,500/-. Since the accident in question occurred about 4 years prior to the accident involved in the case on hand we are not inclined to accept the entire claim made by the appellant. However, we are of the view that it is only reasonable to fix the monthly income notionally as Rs.3,000/-. The Tribunal had fixed the multiplier with reference to the age of the injured at the time of the accident. But at the same time, even after noting his age at the time of accident as 34 years, the Tribunal had adopted the multiplier as '17'. The proper multiplier to be adopted to the age group of '31 to 35' is '16'. In such circumstances, with the refixed monthly income, multiplier as also the extent of disability, the compensation payable for permanent disability has to be reassessed. On such reassessment, the compensation payable is Rs.2,88,000/(3000x12x16x50/100). The Tribunal had already granted an amount of Rs.40,800/- under that head. In such circumstances, the appellant is entitled to get an additional compensation of _M.A.C.A. No.1454 of 2007_ **7** Rs.2,47,200/- thereunder. 5. For calculating compensation for loss of earning, the Tribunal had taken the period as six months. We do not find any reason to interfere with the said fixation. However, the appellant is entitled to get a proportionate enhancement in view of the refixation of the monthly income. In such circumstances, he is entitled to get Rs.6,000/- additionally under that head. Despite the fact that the appellant had been an inpatient for a period of 34 days, the Tribunal had taken the period for the purpose of calculating the loss of earning as six months and also taking note of the fact that due to the injuries sustained in the accident, he had incurred permanent disability, the Tribunal had not granted any amount towards loss of amenities. We got no hesitation to hold that the appellant is entitled to get loss of amenities. In the circumstances mentioned hereinbefore, we fix the compensation payable thereunder as Rs.30,000/-. 6. The Tribunal had granted an amount of Rs.3,000/towards expenses for extra nourishment. He had been an inpatient for a period of 34 days. At the rate of Rs.100/- per day for the said period, the appellant would be entitled to get an _M.A.C.A. No.1454 of 2007_ **8** amount of Rs.3,400/- and therefore he is entitled to an amount of Rs.400/- additionally under that head. Despite the persuasive arguments made by the learned counsel for the appellant, we do not find any reason to hold that the appellant is entitled to get enhancement under any other head. In view of the assessment and reassessment made as above, the appellant is entitled to get a total compensation of Rs.2,83,600/-. It is awarded. The said additional compensation will carry interest @8% per annum from the date of petition till realisation. The respondent Insurance Company is directed to deposit the said amount along with interest within a period of two months from the date of receipt of a certified copy of this judgment. The appeal is disposed of as above. No order as to costs. Sd/- ## **C.T. RAVIKUMAR, JUDGE** Sd/- ## **ANIL K. NARENDRAN, JUDGE** //True Copy// P.A. To Judge sp/13/07/17