IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE T.R.RAMACHANDRAN NAIR & THE HONOURABLE SMT. JUSTICE P.V.ASHA MONDAY, THE 1ST DAY OF DECEMBER 2014/10TH AGRAHAYANA, 1936 MACA.No. 1831 of 2014 () -------------------------
AGAINST THE AWARD IN OPMV 169/2009 of MACT, IRINJALAKUDA DATED 31-03-2014 APPELLANT(S)/PETITIONER: ---------------------------------------------MR.SABULAL AGED 20 YEARS UNCONSCIOUS AND MENTALLY IMBALANCED PERSON REP.BY THE NEXT FRIEND AND NATURAL GUARDIAN BY HIS FATHER MR.BABU S/O.VASU, THAYATTUPARAMBIL HOUSE, MENON BAZAR DESOM AZHIKODE VILLAGE PO, KODUNGALLUR TALUK THRISSUR DISTRICT. BY ADV. SRI.V.BINOY RAM RESPONDENT(S):RESPONDENTS ----------------------------
1. ELDHO T. RAJU S/O.RAJU, THOTTAMKARA HOUSE, 3/660 SOUTH PARAVOOR POP, UDAYAMPEROOR, THRIPUNIHURA ERNAKULAM DISTRICT, PIN 683 513. 2. MR.SAJITH SALIM S/O.SALIM, PADINJARAYATTOM HOUSE THALAYOLAPARAMBU DESOM, VAIKOM, VADAZYAR VILLAGE KOTTAYAM DISTRICT . 3. THE MANAGER NATIONAL INSURANCE CO.LTD., IST FLOOR PULIMOOTTIL SHOPPING ARCADE, THODUPUZHA, IDUKKI PIN 685 584. R3 BY ADV. SRI.S.K.AJAY KUMAR THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 01-12-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
## **T.R.RAMACHANDRAN NAIR & P.V. ASHA, JJ.**
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## **M.A.C.A. No.1831 OF 2014**
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## **DATED THIS THE 1ST DAY OF DECEMBER, 2014**
## **JUDGMENT**
## Ramachandran Nair, J.
The appeal is filed by the claimant who is represented by his father. This is a case where pursuant to the brain damage the injured has become a vegetable with 100% functional disability as well as 75% permanent disability, that also at the young age of 20.
2. Going by the details of the accident, it can be seen that it occurred on 26.9.2008 at about 5.15 p.m. when the appellant was riding his motor cycle bearing registration No.KL-9/D 2664 through Athirapilly-Chalakudy public road, a tourist bus having registration No.KL-39/A 6001 which was coming from the opposite direction, hit against the motor cycle. Himself and the pillion riders sustained injury.
3. The Tribunal found negligence on the part of the driver of the offending bus. Before this Court, learned counsel for the appellant submitted that even though the appellant was a mason and getting a monthly income of Rs.6,000/-, only a sum of Rs.3,500/- has been accepted by the
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Tribunal. It is submitted that a serious head injury has been caused to the appellant resulting in brain damage. There is 75% whole body disability and the loss of earning power is 100% as evident from Ext.A15.
4. The father of the injured was examined as P.W.1 and P.W.2 is one of the members of the Medical Board who submitted that the appellant has become almost a vegetable.
5. As regards the monthly income of the appellant, only Rs.6,000/was claimed. He was working as a mason and even if 25 days of work is available on an average, the amount claimed is less than Rs.300/- per day which is only reasonable, in the light of the wage structure in such fields in this State which is a matter of common knowledge. What the Tribunal has done is to take Rs.3,500/- as the monthly income with addition of 50% for future prospects. Rather than adopting the said method, we feel that the amount of Rs.6,000/- can be taken as monthly income for the purpose of assessing the compensation. We find from paragraph 7 of the award that the appellant has suffered the following serious injuries:
“Diffuse brain oedema, contusion in the middle of brain, contusion in thalamus, fracture ® mixilla, fracture ® zygoma, fracture greater wing of ® sphenoid crossing the midline, fracture ® temporal
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bone, fracture root of ® orbit, fracture lateral wall of (L) sphenoid, fracture greater wing of (L) sphenoid, fracture (L) temporal bone, fracture ® parietal bone, post traumatic encephelopathy, spastic quadriplegia, SAH process cephalus, vertical incision from below to supra stirnal notch.”
Ext.A10 is the medical bill and Ext.A13 is the medical certificate. Exts.A16 and 17 are the treatment certificates.
6. The Tribunal has assessed the compensation in the following manner:
|**_Sl.No._**|**_Head of claim_**|**_Amount_**<br>**_claimed (Rs)_**|**_Amount awarded_**<br>**_(Rs)_**|
|---|---|---|---|
|1|Loss of earning|1,44,000|21000|
|2|Transportation expenses|50000|3000|
|3|Damage to clothing|10000|500|
|4|Extra nourishment|2,00,000|1000|
|5|By-stander's expenses|2,92,000|12300|
|6|Medical & miscellaneous|2,00,000|36410|
|7|Pain and suffering|3,00,000|50000|
|8|Permanent disability||10000|
|9|Loss of earning power|10,00,000|1008000|
|10|Loss of amenities|1,00,000|50000|
|11|Anticipated<br>medical<br>expenses|1,00,000||
||Total|23,96,000<br>(limited<br>to<br>20,00,000)|1192210|
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It will show that towards compensation for permanent disability, an amount of Rs.10,000/- alone has been granted. Learned counsel for the appellant, relying upon the judgment of the Apex Court in **K. Suresh v. New India Assurance Co. Ltd. and another** (2012 ACJ 2994), submitted that as far as the aspect of permanent disability is concerned, apart from loss of earning capacity, the same is liable to be compensated. It is submitted that the Apex Court has held in many cases that the percentage of loss of earning capacity arising from a permanent disability will be different from the permanent disability.
7. We find from the judgment that their Lordships have held that the amount towards permanent disability and earning power are distinct heads. The Apex Court examined various earlier judgments of the Apex Court and English Courts, and reversed the finding of the High Court, whereby the High Court had taken the view that no compensation can be granted towards permanent disability once compensation is computed for loss of earning power. Ultimately, the Apex Court awarded amounts under separate heads including permanent disability and loss of earning capacity.
8. Herein, what we find from the evidence is that the appellant is now
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leading a life whereby he will have to depend upon another even for his personal needs. He was unmarried at the time of accident and he has lost all the prospects of marriage. P.W.2 has given in detail the percentage of disability by stating that 75% will be the whole body disability. The agony and mental shock of the parents will also have to be noticed.
9. In that view of the matter, the amount of compensation will have to be refixed. Since we are adopting Rs.6,000/- as monthly income, towards partial loss of earnings for six months, we grant a sum of Rs.36,000/-. Towards by-stander's expenses we grant a sum of Rs.20,500/- (250 x 82 days). Towards pain and suffering, the Tribunal has awarded Rs.50,000/-. He had sustained very serious injuries and was hospitalised for a period of 82 days. Apart from the same, his suffering continues and it is life long. Therefore, we will be justified in granting an amount of Rs.2 lakhs towards pain and suffering. As far as permanent disability is concerned also, we find that the whole body disability is 75% with no scope for any future reduction also. Therefore, under the said head, we grant an amount of Rs.2.5 lakhs. As against loss of earning power, we are granting a sum of Rs.12,96,000/(6000 x 12 x 18), since the functional disability is 100%. What we find
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from the state of affairs of the claimant is that he will have to depend upon a by-stander throughout his life. The compensation for loss of amenities and enjoyment in life will have to be considered in the light of the above situation of the claimant also. Therefore, towards loss of amenities, we grant a sum of Rs.1 lakh and towards loss of marriage prospects, we grant a sum of Rs.75,000/-. The total compensation is refixed in the following manner:
|**_Sl.No._**|**_Head of claim_**|**_Amount_**<br>**_claimed (Rs)_**|**_Amount_**<br>**_awarded (Rs)_**|
|---|---|---|---|
|1|Loss of earning|1,44,000|36000|
|2|Transport expenses|50000|3000|
|3|Damage to clothing|10000|500|
|4|Extra nourishment|2,00,000|1000|
|5|By-stander's expenses|2,92,000|20500|
|6|Medical & miscellaneous|2,00,000|36410|
|7|Pain & suffering|3,00,000|200000|
|8|Permanent disability||250000|
|9|Loss of earning power|10,00,000|1296000|
|10|Loss of amenities|1,00,000|100000|
|11|Anticipated<br>medical<br>expenses|1,00,000|--|
|12|Loss of marriageprospects|-|75000|
||Total||2018410|
(Rupees Twenty lakhs, eighteen thousand four hundred and ten only which
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is rounded off to Rupees Twenty lakhs, eighteen thousand and four hundred only)
Accordingly, the appeal is allowed and the appellant is entitled to a total compensation of Rs.20,18,400/-. The insurance company is directed to deposit the entire amount with interest at 9% per annum from the date of petition less the amount already deposited, within three months. The direction issued by the Tribunal for keeping earmarked amounts in Fixed Deposits will stand modified and Fixed Deposit at Rs.5 Lakhs each (for Rs.15 Lakhs) will be made for the number of years specified in the award and the balance amount can be disbursed. Since court fee was paid only for Rs.20 Lakhs, the appellants are directed to remit court fee for the balance amount. No costs.
## **(T.R.RAMACHANDRAN NAIR, JUDGE)**
## **(P.V. ASHA, JUDGE)**
## **kav/**
