Poulose s/o Paily v. Seby Joseph and United India Insurance Company Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **FRIDAY ,THE 07TH DAY OF SEPTEMBER 2018 / 16TH BHADRA, 1940** **MACA.No. 117 of 2015** **AGAINST THE AWARD IN OPMV 1451/2008 of MACT, IRINJALAKUDA DATED 30-08-2014** ## **APPELLANT/S:** **POULOSE S/O.PAILY, KUDILINGAL VEETTIL HOUSE, NELLAD DESOM, MAZHUVANNUR VILLAGE, MUVATTUPUZHA,ERNAKULAM DISTRICT.** **BY ADV. SRI. V. BINOY RAM** ## **RESPONDENT/S:** **1 SEBY JOSEPH, S/O JOSEPH,CHETTUPUZHAKKARAN HOUSE,FLAT NO.805, SRM ROAD,PACHALAM,ERNAKULAM DISTRICT,PIN-682023. 2 THE MANAGER, UNITED INDIA INSURANCE COMPANY LTD, COCHIN,PIN-11.** **BY ADVS. SRI.GEORGE CHERIAN (SR.) SMT. K.S. SANTHI SMT. LATHA SUSAN CHERIAN** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 07.09.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** - 2 - MACA.117 of 2015 ## **JUDGMENT** **One of the claimants in a common award passed by the Tribunal in two claim petitions is before this Court in appeal, seeking enhancement. Both the injured were travelling in a motor bike, which was hit by a car. The car was insured and the driver-cum-owner as also the Insurance Company were the respondents. The appellant claims enhancement of the compensation.** **2. The appellant was of 38 years of age and was said to be working as an Electrician. The appellant had initially been admitted in a hospital and a wound certificate issued, showing minor injuries. However, later he was admitted to the Christian Medical College, Velloor for treatment for 'left brachial plexus C5 and C6 deep injuries with recovering C7 function'. Before admission to the Velloor Medical College, he was also admitted to the M.O.S.C. Medical College Hospital, Kolencherry; wherein he was treated for seven days. Exhibit A28 is the MRI scan report, showing the denervation changes. Exhibit A29 is the report of nerve conduction study. The Medical Board constituted by the** - 3 - MACA.117 of 2015 **Medical College, Thrissur had issued disability certificate, which was marked as Exhibit A39. In the disability certificate, the disabilities indicated was of traumatic brachial plexopathy of motor neuron of upper left limb affecting the movement of shoulder, elbow, left hand grip and finger movements and he was diagonized as having permanent orthopaedic disability and loss of earning capacity. The former is assessed at 40% for the whole body and earning capacity disability assessed at 60%, since he was an Electrician and had difficulty in the movement of the fingers due to the injuries caused in the accident.** **3. The Tribunal found that there was no evidence** **led insofar as loss of earning capacity or the income before the accident. The Tribunal, hence, adopted an income of Rs.3,500/- per month. The Tribunal also took the disability at 40% as assessed by the Medical Board for the whole body. The learned Counsel appearing for the appellant seeks enhancement, while the learned Standing Counsel for the Insurance Company asserts that there is absolutely no reason for any interference to the** - 4 - MACA.117 of 2015 **compensation awarded.** **4. It is seen from Exhibit A35 that the appellant was a permanent employee of one National Electrical Company, drawing a monthly income of Rs.5,500/- per month. PW1 was examined, through whom the documents were marked. There was no serious challenge by the Insurance Company regarding the salary as seen from Exhibit A13. Hence, there can be no contest raised on the contents of the document at this stage when there is no contest at the trial. The Tribunal was also not correct in having adopted a lesser amount as monthly income as against the income shown in the certificate. In such circumstances, this Court is of the opinion that the monthly income of the appellant has to be adopted at Rs.5,500/- [Rupees five thousand and five hundred].** **5. The next question is on disability. In** _**Raj Kumar v. Ajay Kumar & Another**_ **[(2011) 1 SCC 343] the Hon'ble Supreme Court has held that in deciding the disability, the Tribunals and the Courts have to look at the functional disability. In the present case, the Medical Board has assessed the whole body disability at** - 5 - MACA.117 of 2015 **40%. However, they had specified that the functional disability would be at 60%. Even in cross examination, PW1, the claimant, had submitted that he had suffered a nerve injury on his left hand and there is no feeling in the said hand. This, coupled with the disability certificate, would advance the case of the claimant that he had suffered 60% functional disability. The medical certificate of the Board was also marked through a doctor, PW5, who was a member of the Medical Board. PW5 had deposed that the brachial plexus injuries caused to the claimant was in the scale of 83% and the disability for the whole body is 40%. PW5 specifically deposed that the appellant's left upper limb is functionless and is equivalent to amputation. Under the Workmen's Compensation schedule, the disability is 60% was the categoric statement. There is no serious challenge or contest to the functional disability by the Insurance Company in cross-examination and the witness remained undeterred in cross examination. In such circumstances, on the totality of the facts and the evidence led in the above case as also the decision of the Hon'ble Supreme** - 6 - MACA.117 of 2015 **Court cited herein above, this Court is of the opinion that the functional disability of 60% has to be adopted in the case of the appellant for granting compensation for loss of future earnings.** **6. This Court is of the opinion that the following enhancement can be reasonably allowed from the compensation awarded by the Tribunal. For loss of earnings, keeping the loss to the period of 10 months, the total amount awarded would be Rs.55,000/- [Rs.5,500 x 10] [Fupees fifty five thousand]. For damage to clothing, this Court is of the opinion that the amount has to be enhanced to Rs.1,000/- [Rupees one thousand]. Considering the very grievous injuries and the incapacitation of his left limb, for extra nourishment an amount of Rs.5,000/[Rupees five thousand] as claimed is awarded. Medical expenses as awarded by the Tribunal on the basis of the bills submitted is retained. For personal assistance, the appellant was awarded Rs.1,350/- at the rate of Rs.150/for nine days. Only the hospitalization has been taken into account. In the case of the appellant, there has been three different treatments; one at the initial** - 7 - MACA.117 of 2015 **stage, then at the advanced medical institution at Kolencherry and yet again before Christian Medical College,Velloor. Considering the nature of the injuries, the appellant would have necessarily required personal assistance on all his travels to the various medical institutions. In such circumstances, for personal assistance an amount of Rs.10,000/- [Rupees ten thousand] is granted. On the very same reasoning, the transportation expenses is also enhanced to Rs.10,000/[Rupees ten thousand]. The amount of compensation for pain and suffering as granted by the Tribunal is retained. The loss of amenities is enhanced to Rs.50,000/- [Rupees fifty thousand]. For calculating the compensation for permanent disability, the functional disability at 60% is adopted and so is the salary enhanced to Rs.5,500/-. Adopting the multiplier of 15, the total compensation on that head would be Rs.5,94,000/- [5,500 x 12 x 15 x 60/100] [Rupees five lakhs and ninety four thousand]. Accordingly, the total compensation would be Rs.9,05,610/- [55,000 + 1,000 + 5,000 + 1,30,610 + 10,000 + 10,000 + 50,000 + 50,000 +** MACA.117 of 2015 - 8 - **5,94,000] (Rupees nine lakhs, five thousand, six hundred and ten only). The Insurance Company shall pay the amounts, deducting any already paid, with interest as directed by the Tribunal from the date of application within a period of two months from today.** **The appeal is allowed to the extent indicated above. Parties are left to suffer their respective costs.** **Sd/-** **K.VINOD CHANDRAN JUDGE** Vku/- [ true copy ]