Rehuman v. Jayaprasad and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE T.R.RAMACHANDRAN NAIR & THE HONOURABLE SMT. JUSTICE P.V.ASHA WEDNESDAY, THE 17TH DAY OF DECEMBER 2014/26TH AGRAHAYANA, 1936 MACA.No. 2249 of 2008 ( ) -------------------------- AGAINST THE AWARD IN OPMV 731/2003 of M.A.C.T.,PUNALUR DATED 25-03-2008 APPELLANT(S)/PETITIONER: ---------------------------------------------- REHUMAN, S/O.PEERUKKANNU,CHARUVILA PUTHEN VEEDU, THALACHIRA, KOTTARAKKARA KOLLAM. BY ADV. SRI.ANCHAL C.VIJAYAN RESPONDENT(S)/RESPONDENTS: ---------------------------------------------------- 1. JAYAPRASAD, S/O.CHELLAPPAN PILLAI, ELAVUMMOOTTIL VEEDU, ELAMADU.P.O, ELAMADU KOTTARAKKARA. 2. NOUSHAD, S/O.HAMSA RAWTHER, BISMILLA HOUSE, THENGINCODE, THALACHIRA CHAKKUVARAKKAL, VILLAGE. 3. THE BRANCH MANAGER, NATIONAL INSURANCE CO., LTD, DIVISIONAL OFFICE KOLLAM. 4. THE MANAGING DIRECTOR, K.S.R.T.C, THIRUVANANTHAPURAM. 5. SADANANDAN, S/O.PADMANABHAN, MANJAMATTATHIL, THOTTAM BHAGAM, PIRAVOM VILLAGE ERNAKULAM. R,R3 BY ADV. SRI.JOE KALLIATH RR4 BY ADV. SRI.JOY GEORGE, SC, K.S.R.T.C. R2 BY ADV. SRI.KRISHNA LAL THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 17-12-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **T.R.RAMACHANDRAN NAIR & P.V. ASHA, JJ.** **- - - - - - - - - - - - - - - - - - - - - - - - - -** ## **M.A.C.A.NO.2249 OF 2008** **- - - - - - - - - - - - - - - - - - - - - - - - - -** ## **DATED THIS THE 17TH DAY OF DECEMBER, 2014** ## **JUDGMENT** ## Asha J. Appellant met with an accident on 3.7.2003 while he was travelling as a pillion rider on a motor cycle. He was knocked down by a KSRTC bus. He sustained very severe injuries and was immediately taken to **a hospital** . Thereafter he was taken to Medical College Hospital, Thiruvananthapuram and was treated there as an inpatient. Ext.A7 wound certificate shows that he sustained fracture of both bones of right leg, right hip flexed, external movements limited and tenderness and also fracture of pelvis. Ext.A8 discharge certificate shows that he sustained type III compound fracture both bones right leg with fracture acetabulum ® with central dislocation. It also shows that after he was admitted in the hospital on 3.7.2003, he underwent treatment by CMR, lateral and lower femoral traction and he was discharged on 1.8.2003. He was again admitted in the hospital on 6.12.2004 and was discharged on 5.1.2005, as can be seen from Ext.A8(a) discharge certificate. In between, he has been recurrently undergoing treatment as MACANo. 2249/2013 -2- outpatient as, can be seen from Ext.A9. Ext.A10 is the C.T. Scan report and Ext.A11 is the treatment certificate. When he was discharged on 5.1.2005, he was advised to take rest for three months. It is seen that he was bedridden with skin traction, plaster cast, etc, from 3.7.2003 to April, 2004. From Ext.A12 disability certificate, it is seen that his permanent partial disability is assessed at 28%. The injuries, treatment and disability are recorded in Ext.A12 as shown below: “ He sustained type III compound fracture of both bones of right leg with fracture of right acetabulum and central dislocation of hip. He was treated by closed manipulative reduction, lateral and femoral traction and lower femoral traction, closed manipulative reduction and POP slab on right lower limb. He was discharged on 1/8/03. Plaster removed on 18/12/03 Gradual mobilization started on 12/2/04. He was re-admitted on 6/12/04 with persistent dislocation of right hip. Open reduction and trans-fixation with Steinman pin done. He was discharged with above knee skin traction on 5/1/05. Pin removed on ½/05. Gradual weight bearing started on 12/4/05. At the time of examination on 30/5/06, he has the following features There is persistent dislocation of right hip with secondary osteoarthritis of right hip. There is painful ankylosis of right hip. MACANo. 2249/2013 -3- Flextion of right hip limited to 80 degrees. Abduction of hip limited to 15 degrees. External rotation limited to 15 degrees. Internal rotation limited to 5 degrees. The fracture of both bones of right leg has malunited with overriding and shortening, there is step at fracture site. Partial ankylosis of right knee with flexion limited to 90 degrees. Dorsiflexion of right ankle limited by 10 degrees. Shortening of 2 inches of right lower limb with 2 cm shortening of thigh segment and 3 cm shortening of leg segment. Gross wasting with 8 cm wasting of right thigh and 3cm wasting of right calf. Patient walks with limp with support. Pain on walking. Not able to walk fast. Not able to climb stairs. Not able to squat. Patient still needs analgesics for pain relief. Oedema on leg on walking. The disability is assessed as below: 1. Pain and mental trauma 2. Temporary disability of 100% for a period of one year and nine months from the date of inquiry Permanent partial disability of 28% (Twenty eight percent) as per Mc Bride's scale” Thus, it can be seen from the above that the disability incurred by the appellant is very serious and affects his future prospects in his career as well as life apart from earning capacity. 2. Claim petition was filed seeking compensation to the tune of Rs.2 MACANo. 2249/2013 -4- Lakhs. It was claimed that the appellant was aged 24 years at the time of accident and was getting a sum of Rs.3,000/- per month from the business in spices. The Tribunal passed an award granting compensation to the tune of Rs.1,40,333/-. Learned counsel for the appellant submits that the amount awarded under various heads are thoroughly inadequate. 3. We heard learned counsel for the insurance company also who opposed the claim for enhancement. 4. It is seen that the monthly income reckoned by the Tribunal is very low. It is seen that the appellant was examined as P.W.1 and he has deposed that he was earning a monthly income of Rs.3,000/-. Therefore, we do not find any reason to disbelieve this version, in the absence of any evidence to the contrary. Therefore, we re-fix the compensation under the head of loss of earnings as well as loss of earning capacity reckoning the monthly income at Rs.3,000/-. The Tribunal has awarded a sum of Rs.4,000/- only towards loss of earnings for the period from 3/7/2003 to April, 2005. Therefore, we award compensation towards loss of earnings for the said period at the rate of Rs.3,000/- which will come to Rs.66,000/-. Regarding compensation towards loss of earning capacity, the Tribunal has reckoned MACANo. 2249/2013 -5- the multiplier as 17. In the case of a person aged 24, the proper multiplier is 18, as held by the Apex Court in **Sarla Verma v. Delhi Transport Corporation** (2010 (2) KLT 802 - SC). Therefore, we adopt the multiplier as 18. Similarly, from the nature of disabilities incurred by him as explained above, it is clear that the appellant is unable to stand, squat, walk, climb,etc properly, even with the help of external support, on account of the dislocation of his hips and malunited bones of his shortened legs and this seriously affects to carry on his business or to undertake any other activity. In such circumstances, we are of the considered view that the functional disability has to be assessed as 50% for the purpose of compensation. Therefore, we reckon the disability factor as 50%. Accordingly, the compensation towards loss of earning capacity will be Rs.3,24,000/- (3000 x 12 x 18 x 50/100). The Tribunal awarded a sum of Rs. 7500/- only towards compensation for pain and suffering. Having regard to the grievous nature of injuries sustained with number of fractures on his limbs, hips, etc, the number of surgeries undergone and the prolonged prolonged treatment which continues, we find it necessary to enhance the compensation under this head to Rs.2 lakhs. It is seen that the appellant was undergoing MACANo. 2249/2013 -6- inpatient treatment for a period of 58 days. The Tribunal awarded a sum of Rs.2,900/- towards bystander's expenses. In addition to the 58 days treatment as inpatient, it is seen that the appellant has been under traction and under POP cast for a long period, when an attendant was essential for him. We, therefore fix the amount under the head bystander's expenses as Rs.15,000/-. It is seen that the appellant had to undertake a lot of visits for his treatment, from hospital towards his residence, for which he has incurred heavy expenses. We, therefore, award a sum of Rs.15,000/- towards transportation charges. Towards loss of amenities and enjoyment in life, we award a sum of Rs.50,000/-. Therefore, the total compensation will be modified as follows: |**_Sl.No._**|**_Head of claim_**|**_Amount_**<br>**_awarded by_**<br>**_the Tribunal_**<br>**_(Rs)_**|**_Amount_**<br>**_modified by_**<br>**_this Court_**<br>**_(Rs)_**| |---|---|---|---| |1|Permanent disability|114240|324000 (3000<br>x 12 x 18 x<br>50/100)| |2|Transport to hospital|750|15000| |3|Extra nourishment|750|750| |4|Damage to clothing|400|400| |5|Medical expenses|9793|50000| |6|By-stander expenses|2900|15000| |7|Pain and suffering|7500|200000| MACANo. 2249/2013 -7- |**_Sl.No._**|**_Head of claim_**|**_Amount_**<br>**_awarded by_**<br>**_the Tribunal_**<br>**_(Rs)_**|**_Amount_**<br>**_modified by_**<br>**_this Court_**<br>**_(Rs)_**| |---|---|---|---| |8|Partial loss of earnings|4000|66000 (3000<br>x 22 months)| |9|Loss of enjoyment and<br>amenities in life||50000| ||Total||721150| (Rupees Seven Lakhs twentyone thousand one hundred and fifty only) 5. The Tribunal has found that the insurance company is not liable to compensate the appellant since he was a pillion rider and saying that pillion rider is not covered by the policy. But the Apex Court in **National Insurance Company Limited v. Balakrishnan and another** {(2013) 1 SCC 731}, held that when the policy is comprehensive/package policy, insurance company is liable to compensate the injured even in a motor accident involving pillion riders. In the present case, it is seen that the policy in question is a package policy. The learned counsel for the insurance company does not dispute this fact. Therefore, that part of the findings in the award, which absolves the insurance company from indemnifying the owner of the offending vehicle, is vacated. The entire amount of compensation will carry interest at the rate of MACANo. 2249/2013 -8- 9% per annum instead of 7.5% awarded by the Tribunal. Therefore there will be a direction to the insurance company to deposit the entire amount of compensation before the Tribunal, within a period of three months. The appellant shall remit th deficit court fee towards enhanced compensation and the enhanced amount shall be disbursed only after it is remitted. The appeal is allowed as above. No costs. **(T.R.RAMACHANDRAN NAIR, JUDGE)** **(P.V. ASHA, JUDGE)** **kav/**