Robin v. Rajan Babu and The National Insurance Company Ltd. (MACA.No.503 of 2007)

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON & THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN FRIDAY, THE 26TH DAY OF FEBRUARY 2016/7TH PHALGUNA, 1937 MACA.No. 503 of 2007 ( ) ------------------------- AGAINST THE AWARD IN OPMV 587/2003 of MACT, THODUPUZHA DATED 24-04-2006 ## APPELLANT/PETITIONER : ------------------------------------------------------------------ ROBIN, S/O.JOSEPH, KALAPPARAMBIL HOUSE, PEZHUMKANDAM KARA, KANCHIYAR P.O. AYYAPPANCOVIL VILLAGE. BY ADVS.SRI.MATHEW JOHN (K) SRI.SUJESH MENON V.B. RESPONDENTS : ---------------------------- ## 1. RAJAN BABU, S/O.MATHEW, - KUNNEL MOTOR, MARAMON, KOZHENCHERRY PATHANAMTHITTA DT. 2. THE NATIONAL INSURANCE COMPANY LTD., REPRESENTED BY ITS DIVISIONAL MANAGER THRIPPOONITHARA. R2 BY ADV. SRI.JOE KALLIATH THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 26-02-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: AV ## **P.R.RAMACHANDRA MENON & ANIL K.NARENDRAN, JJ.** ## **--------------------------------------M.A.C.A.No.503 of 2007 --------------------------------------------------Dated this the 26[th] day of February, 2016.** ## **J U D G M E N T** ## P.R.Ramachandra Menon, J. The appeal is for enhancement of the compensation awarded by the Tribunal in respect of injuries, pursuant to a road traffic accident occurred on 31.03.2003. 2. The factual position revealed from the proceedings is that, the claimant was riding a motor cycle bearing No.KL-6B/4608 and while so, when he reached the place of occurrence, a bus bearing No.KL-3D/5243 proceeding from the opposite direction, hit on the motorcycle, causing serious injuries to the claimant, which led to the claim petition filed by him before the Tribunal seeking to compensate the loss. 3. The matter was contested by the 2[nd] respondent. The nature of contention raised by the respondent Insurance Company was mainly on quantum/negligence. 4. The evidence adduced before the Tribunal consists of documents marked as Exts.A1 to A18 and the oral testimony of the witness examined as PW1. 5. Based on the relevant materials on record, the Tribunal arrived at a finding that the accident was occurred solely because of M.A.C.A.No.503 of 2007 2 the negligence on the part of the driver of the bus and proceeded to fix the compensation accordingly. 6. Coming to the quantum of compensation payable, the case projected by the claimant before the Tribunal is that, the injured was working as a salesman with a monthly income of 4,250/-.₹ Referring to serious consequences resulted because of the injury, a total sum of 2,00,000/- was claimed. But the Tribunal observed₹ that, the income was not properly proved and accordingly, only ₹2,500/- was reckoned as monthly income for working out the compensation towards disability. Awarding amounts under different heads, total compensation was fixed as 91,756/-, which was₹ directed to be satisfied with interest @ 6% per annum. The liability was accordingly mulcted upon the shoulders of the 2[nd] respondent, correctness of which is the subject matter of challenge in this appeal. 7. Heard the learned counsel for the appellant as well as the learned counsel for the respondent Insurance Company. 8. The amounts awarded by the Tribunal under different heads as given in paragraph 15 are as follows : |1.|Loss of earning|:|7,500/-| |---|---|---|---| |2.|Transportation expenses|:|4,000/-| |3.|Extra nourishment|:|2,000/-| |4.|Bye-stander expenses|:|3,000/-| |5.|Treatment expenses|:|6,296/-| M.A.C.A.No.503 of 2007 3 **==> picture [300 x 75] intentionally omitted <==** 9. The main grievance of the appellant as put forth by the learned counsel for the appellant is that, despite certifying the extent of disability as 20% by the Medical Board vide Ext.A16, the same has been quite abruptly reduced by the Tribunal by re-fixing the same as 12%. Simultaneously, the monthly income which was certified to an extent of 3,747/- as borne by Ext.A17, was reduced₹ by Tribunal and fixed the same only at a notional level of 2,000/-.₹ The amounts awarded by the Tribunal under many of the heads are on the lower side and require to be enhanced, submits the learned counsel. 10. Heard the learned counsel for the Insurance Company as well, who points out that different extents of disability were pointed out in different documents as referred to by the Tribunal in paragraph 11. It is pointed out that as per Ext.P14, the disability assessed was 7%, whereas as in Ext.A15, the disability assessed in respect of the Orthopedic faculty is 18%. The Medical Board assessed the disability as 20% as per Ext.A16 and it was in the said circumstance that, the Tribunal sought to re-fix the same as 12%, which does not require any interference, submits the learned counsel. M.A.C.A.No.503 of 2007 4 11. As mentioned already, the injuries sustained and the consequences resulted are quite serious, the particulars of which as given in paragraph 11 of the Award are reproduced hereunder for convenience of reference : _“There was an extra dural haematoma and therefore, he was treated for one and a half months at the Medical College. It is also reported that the injured had complaint of eye strain (left). Pupillary reaction was reported sluggish when compared with right eye. Ext.A6 is the discharge card issued from the Medical College Hospital, Kottayam. The extra parietal haematoma was evacuated. C.T.Scan was repeated which reveals small extra parietal conclusion in the left parietal region. Fracture of right clavicle and fracture of femoval condyle of left leg was also reported. The injured was provided with AK.........oast on 9.4.03. The clavicular brace was removed on 12.5.03. Ext.A7 is a medical certificate issued from the Department of Neuro surgeory of Medical College Hospital, Kottayam. From the medical certificate it is revealed that the injured was treated as IP for a period from 31.03.03 till 11.4.03 and that during the said period he had undergone craniotomy and evacuation of EDH. Ext.A8 is the report of the C.T.Scan of head, wherein midline shift of 0.2cm towards left was noted. Haematomas were reported clearing and the brain oedema was reported resolving. Ext.A9 is another discharge summary of the injured issued from St.John's Hospital, Kattappana wherein the fracture was reported as united. The injured was advised to do exercises for getting_ M.A.C.A.No.503 of 2007 5 _relieved of post immobilisation stiffness. Ext.A10 is a prescription of Dr.S.Pushkala of the Department of Neuro Surgery, Medical College Hospital, Kottayam. Ext.A14 is a certificate wherein the permanent disability of the injured was assessed as 7%. Ext.A15 is a medical certificate issued by the Senior Lecturer in Orthopaedics, wherein the permanent disability was assessed as 18% on the ground of wasting of the left leg and thigh muscles and restriction of left knee flexion by 110 degree. It is also reported that there was an upward bowing of the left knee by 25 degree, shortening of left leg by one inch and mal-union of left clavicle fracture in angulation with excessive callus. Ext.A16 is the certificate issued by the Medical Board functioning at the Taluk Head Quarters Hospital, Thodupuzha, wherein the degree of disability assessed was 20 degree, on the grounds of wasting of left leg and thigh muscles with restriction of knee flexion upto 110 degree, shortening of left leg by one inch, mal-union of right clavicle fracture and post traumatic head ache.”_ 12. The learned counsel for the appellant points out that, the actual extent of disability, has been assessed by the Medical Board consisting of a team of doctors, as 20%. As such, it was no more open for the Tribunal to have it reduced to 12%, more so when the Tribunal did not have the requisite knowledge, expertise or competence to have pursued any such exercise. Reliance is also sought to be placed on the decision rendered by the Apex Court reported in _**Raj Kumar v. Ajay Kumar [2011 (1) KLT 620]**_ . We M.A.C.A.No.503 of 2007 6 find considerable force in the said submission and we find it appropriate to fix the extent of disability as 20%, as fixed by the Medical Board. 13. It is true that, the salary of the appellant/claimant was certified as 3,747/- vide Ext.A17 and the Tribunal has reckoned₹ only 2,000/- as the notional income, awarding the compensation for₹ disability, adopting a multiplier of 17. The question is whether the said course is correct or not. The fact that the appellant/claimant was continuing in the job after a short gap of 70 days, pursuant to the accident, is conceded by the appellant/claimant as taken note off by the Tribunal in paragraph 14. The appellant/claimant when examined as PW1 conceded that, he was continuing in his job and as such, there was no loss in the salary, which was being obtained by him by virtue of his employment. It is true that the salary certificate was not properly proved and the same was marked, subject to proof, based on the objection raised by the Insurance Company. A copy of the said certificate is placed for perusal before this Court. The said certificate has been issued by a Co-operative Society registered under the relevant provisions of law and as such, the establishment being a Co-operative Society and control is being exercised by the statutory authorities (unlike in the case of private establishments), there need not be any doubt with regard to the salary certified in the said document. But since the M.A.C.A.No.503 of 2007 7 appellant/claimant was continuing in employment without any deduction in the salary, the disability certified by the Medical Board will be having relevance with regard to his earning capacity, only after the retirement. This being the position, the probable salary which he could have earned on the date of retirement is the matter which has to be considered. At the same time, on effecting such calculation, it is being awarded now, well in advance, with interest to be paid and as such, balance has to be struck as to the appropriate multiplicant. Taking note of the entire facts and circumstances, we find it appropriate to reckon 4,000/- as his₹ notional income to work out the compensation towards disability after retirement and we adopt multiplier of '9' so as to fix the same (that is after the probable date of retirement). On effecting calculation as above, the amount comes to 86,400/- (₹ ₹4,000x 12x20/100x9). The compensation awarded by the Tribunal is only ₹48,960/-. After deducting the same, the balance payable comes to **₹ 37,440/-.** 14. Over and above the payment of compensation towards disability, there cannot be a doubt to the fact that the appellant/ claimant is entitled to get compensation for loss of amenities as well. Absolutely no amount has been awarded by the Tribunal towards loss of amenities and enjoyment in life. Considering the nature and extent of injuries and the ordeal undergone by the M.A.C.A.No.503 of 2007 8 claimant, we find it appropriate to award a sum of **₹ 25,000/-** under this head. We find it appropriate to award a further sum of **₹ 2,500/-** towards loss of earning, so as to make the total as ₹10,000/-. 15. Thus, the total balance compensation payable comes to **₹ 64,940/-** (Rupees Sixty four thousand nine hundred and forty only), which requires to be satisfied with interest at the rate of 9% per annum from the date of petition filed before the Tribunal, till realisation. Since the policy is admitted, we direct the respondent Insurance Company to satisfy the due amount at the earliest and at any rate, within a period of one month from the date of receipt of a certified copy of this judgment. The appeal stands allowed to the above extent. Sd/- **P.R.RAMACHANDRA MENON** **JUDGE** Sd/- **ANIL K.NARENDRAN JUDGE** AV /True Copy/ P.A to Judge