P.V. Relwin John v. Xavier Michael, Michael Prasanth K.S., The National Insurance Company Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN** **MONDAY, THE 27[TH] DAY OF JUNE 2022 / 6TH ASHADHA, 1944** **MACA NO. 3297 OF 2014** **AGAINST THE AWARD DATED 30.11.2010 IN OP(MV)NO.2554/2003 OF** ## **MOTOR ACCIDENT CLAIMS TRIBUNAL, ERNAKULAM** ## **APPELLANT/PETITIONER :** **P.V.RELWIN JOHN, AGED 30 YEARS, S/O.VINCENT, POLLAYIL HOUSE, NORTH OF CHURCH, MANASSERY, MUNDAMVELI P.O., COCHIN-682 507.** **BY ADVS. SRI.RAHUL SASI SMT.NEETHU PREM** ## **RESPONDENTS/RESPONDENTS :** **1 XAVIER MICHAEL, S/O.MICHAEL, VACHAKKAL HOUSE, MANASSERY, MUNDAMVELI P.O., COCHIN-682507, NOW RESIDING AT VAKKACHAL HOUSE, NEAR KURISUPARA, CHILAVANNOOR, KADAVANTHARA P.O., COCHIN-682020. 2 MICHAEL PRASANTH K.S., S/O.SIMON, KOOTUNGAL HOUSE, NORTH OF POLICE STATION, KANNAMALI P.O., COCHIN-682 008. 3 THE NATIONAL INSURANCE COMPANY LTD., REPRESENTED BY ITS REGIONAL MANAGER, REGIONAL OFFICE, MUTHOOT TOWERS, M.G.ROAD, COCHIN-682 035. R3 BY SRI.THOMAS MATHEW NELLIMOOTTIL, STANDING COUNSEL** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 27.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA No.3297 of 2014 **==> picture [46 x 8] intentionally omitted <==** ## **MACA No.3297 of 2014** ## **-----------------------------------------------** ## **J U D G M E N T** This appeal arises out of award dated 30.11.2010 in O.P.(MV)No.2554 of 2003 on the file of the Additional Motor Accidents Claims Tribunal, Ernakulam. The appellant herein is the petitioner before the Tribunal. Respondents herein are the respondents before the Tribunal. 2. Heard the learned counsel for the appellant, the learned Standing Counsel appearing for the third respondent/the National Insurance Company Ltd. 3. Brief facts of the case are as follows; The allegation of the appellant is that on MACA No.3297 of 2014 **==> picture [46 x 8] intentionally omitted <==** 15.06.2003 at about 1.30 p.m. near Chullikkal St.Antony's Kurisupura, while the appellant was riding the motorcycle bearing Registration No.KL-7/AK 2707 from south to north through the Sando Gopalam road, a Maruti Car bearing Registration No.KL-7/AK 2471 driven by the second respondent in rash and negligent manner came from the opposite direction rammed on the motorcycle and thrown the appellant on hard surfaced road and thereby inflicting severe injuries to the appellant. 4. R1 and R2 not filed written statement. R3 filed written statement disputing the accident and negligence alleged against the second respondent. At the same time, quantum of compensation under various heads was strongly disputed. 5. It was contended that the accident was the contribution of negligence on the part of the motorcycle MACA No.3297 of 2014 **==> picture [46 x 8] intentionally omitted <==** rider, while admitting policy to the Maruti Car bearing Registration No.KL-7/AK 2471. 6. The Tribunal tried two cases together viz., O.P.(MV)Nos.2554 of 2003 and 2563 of 2003. The Tribunal marked Exts.A1 to A12 series on the side of the appellant and Exts.A13 to A18 marked as regards the other claimant. No evidence let in by the respondents. Thereafter, as against claim of Rs.3,50,000/-, Rs.2,90,847/- was granted by the Tribunal in this case along with interest at the rate of 7.5%. 7. While challenging impugned award, the learned counsel for the appellant would submit that 30% disability assessed by the Medical Board as per Ext.A11, photocopy of standing disability assessment including psychiatry disability also and therefore, disability shall be fixed at higher percentage. On perusal of Ext.A11, 30% disability was assessed as permanent disability. The MACA No.3297 of 2014 **==> picture [46 x 8] intentionally omitted <==** certificate in the printed form shows four types of disabilities viz., Orthopaedics/ENT/Psychiatry/Ophthalmic handicapped. Out of which, Orthopaedics and ENT were scored off. According to the learned counsel for the appellant, the case of the appellant includes psychiatric disability also. On a mere perusal Ext.A11 certificate issued, it would go to show that there was no Psychiatrist in the Medical Board who issued Ext.A11. Orthopaedic Surgeon, ENT Surgeon and Neuro Surgeon were the persons who examined the appellant and fixed the disability. Therefore, prima facie it appears that Ext.A11 does not show any psychiatric disability. The learned counsel for the appellant argued that Ext.A6 certificate issued on 15.07.2009, there is reference that “patient was on regular OPD follow up and psychiatry follow up for post traumatic behaviour problems.” The learned counsel for the appellant given emphasis to Ext.A11 MACA No.3297 of 2014 ..6.. to assert the point that the appellant had psychiatric issues. 8. In view of this argument, I have gone through the discharge summary issued from the Medical Trust Hospital marked as Ext.A5. In the said certificate, it was stated that the appellant was intubated and ventilated for two days and he was weaned off from ventilatory support gradually. He was given adequate antibiotics, analgesics, antioedema measure. His neurological status gradually improved. Right hemiparesis improved to grade IV. Condition at the time of discharge is stated as patient conscious, he is ambulant with minimal support, able to read, write and communicate with bystanders, takes oral feeds, good bladder and bowel control. Ext.A8 is the CT scan of brain report. Nothing stated in the certificate regarding any psychiatric disorder. It is certified as per Ext.A8 that “posterior fossa shows normal cerebellar MACA No.3297 of 2014 **==> picture [46 x 8] intentionally omitted <==** parenchyma and the fourth ventricle” and also it was observed that no space occupying lesion seen in the brain parenchyma. Thus, it appears that even though in Ext.A6, which is not a document showing the method of treatment or a document of treatment, psychiatric disorder certified therein. As per Exts.A5 and A8, nothing substantiated to find psychiatric disorder. Thus, no convincing evidence before this Court to find that the appellant either consulted or treated by a Psychiatrist for any psychiatric issue. 9. Since it is argued by the learned counsel for the appellant that the appellant is having psychiatric issues, it is relevant to note that the appellant himself had given evidence before the Tribunal, by filing chief affidavit and subjected himself for cross-examination. As such, the procedure followed, while conducting the case itself would go to show that no kind of psychiatric disorder established in MACA No.3297 of 2014 ..8.. any way. No medical records other than Ext.A6 available to see any psychiatric treatment also. Therefore, I am not inclined to consider anything more than 30% assessed by the Tribunal in this case including head injury as I have already observed. 10. In this matter, the appellant claimed Rs.4,500/- as his income as a car mechanic. But the Tribunal fixed the same at Rs.3,000/-. In fact, following the ratio in [(2011) 13 SCC 236], **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Ltd.** , the same would come to Rs.4,000/- and I re-fix the same as such. It is relevant to note that the Tribunal granted loss of earnings for a period of eight months at the rate of Rs.3,000/-. I am inclined to increase the same for a period of ten months at the rate of Rs.4,000/-. The same is recalculated as under; MACA No.3297 of 2014 **==> picture [46 x 8] intentionally omitted <==** 4,000x10=40,000/- Out of which, Rs.24,000/- was granted by the Tribunal. Rs.40,000-24,000= **Rs.16,000/-** more is granted under the head loss of earnings. 11. In this matter, as per Ext.A9, date of birth of the appellant is shown 06.04.1984 and the accident was on 15.06.2003. He completed 19 years of age. The disability income also requires re-calculation by fixing the proper multiplier as '18' as against '16' fixed by the Tribunal, since the appellant is a person in the age group between 15 to 20. Thus, the loss of disability income is re-calculated as under; 4,000x12x18x30%=2,59,200/- Out of which, Rs.1,72,800/-was granted by the Tribunal. Rs.2,59,200-1,72,800= **Rs.86,400/-** more is granted under the head loss of disability income. 12. Under the head pain and sufferings, the MACA No.3297 of 2014 **==> picture [52 x 8] intentionally omitted <==** Tribunal granted Rs.22,000/-. I am inclined to grant **Rs.10,000/-** more under the head pain and sufferings. Similarly, under the head loss of amenities, the Tribunal granted Rs.18,000/-. Considering the injuries and treatment, the same is increased by **Rs.10,000/-** more. In the result, this appeal is allowed. It is ordered that the appellant is entitled to get enhanced compensation to the tune of **Rs.1,22,400/-** (Rupees One lakh Twenty Two Thousand Four Hundred only) at the rate of 7.5% interest granted by the Tribunal from the date of petition till the date of deposit or realisation excluding the period of 1339 days wherein, grant of interest was specifically disallowed by the order in C.M.Application No.3799 of 2014 dated 21.01.2021. It is noticed that court fee for Rs.3,50,000/- alone was paid by the appellant and he is liable to pay court fee for the enhanced compensation to the tune of Rs.63,247/-. MACA No.3297 of 2014 **==> picture [52 x 8] intentionally omitted <==** Therefore, the insurance company is directed to deposit Rs.640/- in the name of M.A.C.T., Ernakulam as additional court fee by a separate cheque and adjust the balance amount in the name of the appellant within two months. Sd/- ## **A.BADHARUDEEN, JUDGE** rkj