Prabheesh v. K.N. Biju, National Insurance Company Ltd., and K.V. Usmankoya

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE T.R.RAMACHANDRAN NAIR & THE HONOURABLE SMT. JUSTICE P.V.ASHA FRIDAY, THE 19TH DAY OF SEPTEMBER 2014/28TH BHADRA, 1936 MACA.No. 1767 of 2011 ( ) -------------------------- AGAINST THE AWARD IN OPMV 1636/2005 of PRINCIPAL M.A.C.T.,KOZHIKODE DATED 29-07-2011 APPELLANT(S): ------------------------ PRABHEESH, S/O. KRISHNAN, EANTHINGAL P.O. PERUMUGHAM, KOZHIIKODE DISTRICT. BY ADVS.SRI.AVM.SALAHUDIN SMT.P.Y.SHEHEERA RESPONDENT(S): ---------------------------- 1. K.N. BIJU, S/O. SUKUMARAN, KALLITTA NADAKKAL (H), PO PERAMBRA, KOZHIKODE 673 525. 2. NATIONAL INSURANCE COMPANY LTD., 2ND FLOOR, NOOR COMPLEX, P.B. NO.811, MAVOOR ROAD, KOZHIKODE DT.673001. 3. K.V. USMANKOYA, S/O. ABDULLAKOYA K.V., KOYAPPURATH HOUSE, P.O.G.A. COLLEGE, KOZHIKKODE 673 001. R,R2(B/O) BY ADV. SRI. M.A.GEORGE R,R2 BY ADV. SRI.RAJAN P.KALIYATH THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 19-09-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **T.R.RAMACHANDRAN NAIR & P.V. ASHA, JJ.** **- - - - - - - - - - - - - - - - - - - - - - - - - -** ## **M.A.C.A. No.1767 OF 2011** **- - - - - - - - - - - - - - - - - - - - - - - - - -** ## **DATED THIS THE 19th DAY OF SEPTEMBER, 2014** ## **JUDGMENT** ## Ramachandran Nair, J. This appeal is filed by the claimant in a motor vehicle accident. The accident was occurred while he was riding a motorcycle on the crucial date, viz. on 21.5.2005. When he reached in front of Binoy Marbles, a mini lorry came from the opposite side and hit the motorcycle. He was immediately taken to MIMS Hospital, Kozhikode and threated there. He was later taken to Medical College Hospital, Kozhikode for better treatment. The total amount claimed is Rs.20 lakhs, but court fee was paid for Rs.10 lakhs, it is submitted. He was aged 23 at the time of accident and now he is a paraplegic patient. 2. Shri A.V.M. Salahudeen, learned counsel for the appellant submitted that going by the evidence, the appellant was a motor mechanic at the time of accident and Ext.A6 salary certificate was produced showing the monthly salary of the appellant as Rs.6,000/- which was not accepted by the Tribunal and the monthly income fixed is Rs.3,000/- only. It is submitted MACA No.1767/2011 -2- that going by the decisions of the Apex Court, especially in **Sanjay Kumar v. Ashok Kumar** (2014 (2) KLT (Suppl.) 10 - SC), increase in wages in future can also be considered and therefore a reasonable multiplicand had to be fixed. 3. It is also submitted that the amounts awarded towards pain and suffering, transport to hospital and by-standers expenses and loss of amenities are also considerably less. 4. The injuries sustained by the appellant, going by paragraph 11 of the award, are the following: “Fracture lateral femoral condyle lateral tibial condyle and fracture head of fibula ®, fracture tibia upper third ®, fracture radius-gallazi compression fracture D4-D3 spine, fracture L1 spine, fracture ulnar styloid(R), fracture 3[rd] 4[th] metacarpal bone(R), fracture P1 5[th] finger, multiple injuries all over body.” Therefore, he has sustained a fracture to the L1 spine also which has resulted in the appellant being a paraplegic patient now. Ext.A3 is the discharge card which shows that he was admitted to hospital on 22.5.2005 and discharged on 19.7.2005 after surgery on 9.6.2005. Ext.A4 is the MRI report of dorsal spine noting compression fracture of D3 causing almost MACA No.1767/2011 -3- complete transaction of the cord. Ext.A5 series is the discharge summary issued by Sahai Spinal Injuries Rehabilitation Centre, Coimbatore. He was later admitted to the Medical College Hospital, Kozhikode on 9.2.2006 and discharged on 18.3.2006 and Ext.A8 is the discharge summary. Ext.X1 is the case records received from the Medical College Hospital showing that he was admitted on 22.5.2005 and discharged on 9.6.2005. 5. The permanent disability shown is 90%, going by Ext.C1 certificate. It is found by the Tribunal that he is totally invalid and is not able to do any work due to the disability suffered. Accordingly, the Tribunal took the disability as 100% because of the continued disability, in the light of the principles stated by the Apex Court in **Raj Kumar v. Ajay Kumar** (2011 (1) KLT 620 - SC). 6. The question is whether Ext.A6 should have been accepted by the Tribunal. Ext.A6 is issued by Abishek Motors, Kozhikode stating that the appellant was working as Motor Mechanic on a monthly salary of Rs.6,000/-. It is submitted by the learned counsel for the appellant that none of the respondents had seriously disputed his avocation in life. 7. It is submitted that the accident occurred in the year 2005 and MACA No.1767/2011 -4- hence the salary claimed is reasonable. Even though the Tribunal has taken Rs.3,000/- as the monthly income, for the future prospects of increase in wages no amount has been added. He was a young Motor Mechanic, aged only 23. Being a skilled worker the prospects of earning more income cannot at all be ruled out also. In that view of the matter, we will be justified in taking at least Rs.5,000/- as the monthly income of the appellant. 8. In this context, the judgment of the Apex Court in **Rajesh v. Rajbir Singh** (2013 (3) KLT 89 - SC) is relevant for consideration. Therein, the Apex Court was pleased to hold that “under Section 168 of the Motor Vehicles Act, 1988, the Tribunal is competent to award compensation in excess of what is claimed in the application. We extract paragraphs 15 and 19 as extracted in the headnote: “Court should not succumb to niceties or technicalities, in such matters. Attempt of the Court should be to equate, as far as possible, the misery on account of the accident with the compensation so that the injured/the dependents should not face the vagaries of life on account of the discontinuance of the income earned by the victim. Tribunal/Court has a duty, irrespective of the claims made in the MACA No.1767/2011 -5- application, if any, to properly award a just, equitable, fair and reasonable compensation, if necessary, ignoring the claim made in the application for compensation.” 9. In a later decision of the Apex Court in **Sanobanu Nazirbhai Mirza v. Ahmedabad Municipal Transport Service** (2013 (4) KLT SN 89 (C. No.86) SC) also, it has been held that “there is no restriction that compensation could be awarded only up to the amount claimed by the claimant.” 10. Towards transport to hospital, only Rs.2,000/- has been allowed since the said amount has been claimed by the appellant. He was undergoing treatment in different centres, viz. MIMS Hospital, Medical College Hospital as well as in a hospital at Coimbatore. Therefore, we fix an amount of Rs.10,000/- towards transport to hospital in the light of the fact that he could have been taken only by vehicles on hire. Towards extra nourishment only an amount of Rs.3,000/- is seen granted. We fix it as Rs.5,000/-. Towards loss of earnings for six months, the amount will be Rs.30,000/-. The medical expenses granted is Rs.72,370/-. But we are confining the said compensation to the amount already awarded based on MACA No.1767/2011 -6- the bills, viz. Rs.72,370/-. We find that as far as the expenses towards bystander is concerned, reckoning 58 days, the amount granted is only Rs.5,800/-. Instead of Rs.100/- per day, the by-standers expenses can be reasonably taken as Rs.300/- per day and therefore the total amount under the said head will be Rs.17,400/-. As regards compensation towards pain and suffering, the Tribunal has granted only Rs.25,000/-. But in the light of the seriousness of the injuries sustained and treatment undergone by the appellant and the fact that he is a paraplegic patient and the disability continues, we enhance the compensation for pain and suffering to Rs.50,000/- during the period he was in hospital and another sum of Rs.25,000/- is also granted since he is continuing as a paraplegic patient, totalling Rs.75,000/-. 11. Towards loss of amenities in life we fix an amount of Rs.30,000/-. The appellant is entitled for the said amount in the light of the loss of enjoyment in life also. For the continuing permanent disability we grant an amount of Rs.10,08,000/- (Rs.5000/- x 12 x 18). Accordingly, we modify the award as follows: MACA No.1767/2011 -7- |**_Transport to hospital_**|**_Rs. 10,000/-_**| |---|---| |Extra nourishment|Rs. 5,000/-| |Damage to clothing|Rs. 1,000/-| |Loss of earnings|Rs. 30,000/-| |Treatment expenses|Rs. 72,370/-| |Bystanders expense|Rs. 17,400/-| |Pain and suffering|Rs. 75,000/-| |Continuing permanent disability|Rs.10,08,000/-| |Loss of amenities|Rs. 30,000/-| |Total|Rs.12,48,770/-<br>(Rupees Twelve lakhs forty-<br>eight thousand seven hundred<br>and seventyonly)| 12. Learned counsel for the appellant submitted that the appellant will pay court fee for the excess of the amount awarded, since even though he has limited the claim to Rs.10 lakhs, when this Court found that he is entitled to the just compensation, he is liable to pay the same. We are also of the view that since the claimant herein is entitled to be compensated for the injuries suffered and for the continuing permanent disability, viz. 100%, we will not be justified in limiting the total amount to Rs.10 lakhs. 13. Therefore, the appellant will be entitled for a total compensation of Rs.12,48,770/-. The same will carry interest at the rate of 9% from the date of petition till the date of deposit. There will be a direction to the MACA No.1767/2011 -8- second respondent insurance company to deposit the amount less the amount already deposited within three months. The amount can be withdrawn by the claimant. The Tribunal will collect the balance court fee from the claimant before the amount is disbursed . The appeal is allowed as above. No costs. **(T.R.RAMACHANDRAN NAIR, JUDGE)** **(P.V. ASHA, JUDGE)** ## **kav/**