Santosh v. M.L. Paul and Nagaraj M and National Insurance Co. Ltd.

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. ``` ``` MONDAY, THE 5[TH] DAY OF FEBRUARY 2024 / 16TH MAGHA, 1945 ``` ## **`MACA NO.1403 OF 2013`** ``` FROM AWARD DATED 04.01.2013 IN O.P.(MV)NO.2150/2005 OF MOTOR ``` ## **`ACCIDENT CLAIMS TRIBUNAL, THRISSUR`** ## **`APPELLANT/PETITIONER:`** ``` SANTHOSH AGED 36 YEARS S/O.BALAN, PULIKKAPARAMBIL HOUSE, PONNUKKARA P.O., PUTHUR, THRISSUR DISTRICT ``` ``` BY ADV SRI.P.V.CHANDRA MOHAN ``` ## **`RESPONDENTS/RESPONDENTS:`** ``` 1M.L.PAUL PROP.FURNI FARU, KURIACHIRA, THRISSUR, PIN- 680 006 2NAGARAJ.M S/O.MANAPARAN, SREE RAM ESTATE, ATTAPADI, PALAKKAD DISTRICT, PIN-678 556 3M/S.NATIONAL INSURANCE CO.LTD. DIVISIONAL OFFICE, KOLLANNUR BUILDING, ROUND EAST, THRISSUR, PIN-680 001. ``` ``` BY ADV SRI.P.M.M.NAJEEB KHAN – R3 ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 05.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA NO.1403 OF 2013 ``` ``` 2 ``` ## **`JUDGMENT`** The appellant was the petitioner in O.P.(M.V.) No.2150/2005 on the files of the Motor Accident Claims Tribunal, Thrissur. The said claim petition was submitted by him, seeking compensation for the injuries sustained to him in a motor accident that occurred on 21.01.2005. According to him, the accident occurred when the motorcycle ridden by him was hit by a tempo van driven by the 2[nd] respondent in the claim petition. The said vehicle was owned by the 1[st] respondent and it was insured with the 3[rd] respondent. The appellant was a cleaner in a bus and was aged 28 years at the time of the accident. The monthly income claimed was Rs.4,500/-. According to him, he sustained very serious injuries in the accident and it resulted in physical disablement as well. The claim petition was submitted in such circumstances. 2. The 3[rd] respondent resisted the claim petition by contending that, the accident occurred due to the negligence on the part of the appellant himself. However, they admitted the coverage of policy for the tempo van. They further contended that the 2[nd] respondent was not having driving license for driving light ``` MACA NO.1403 OF 2013 ``` ``` 3 ``` vehicle at the relevant time. The quantum of compensation was also disputed by them. 3. The evidence in this case consists of oral testimony of PW1, the appellant himself and as documentary evidence Exts.A1 to A8 were marked. The Medical Board report was marked as Ext.X1. No evidence was adduced by respondents. 4. After the trial, the Tribunal found that the accident occurred due to the negligence on the part of the 2[nd] respondent in driving the tempo van and the 3[rd] respondent, being the insurer of the said vehicle was held liable to pay compensation. The quantum of compensation was fixed as Rs.2,24,200/- and the said amount was directed to be deposited by the 3[rd] respondent with interest at the rate of 8% per annum from the date of petition till realisation with proportionate cost. This appeal is submitted by the appellant in such circumstances seeking enhancement of compensation. 5. Heard Sri.P.V. Chandramohan, learned counsel appearing for the appellant and Sri.P.M.M. Najeeb Khan, learned ``` MACA NO.1403 OF 2013 ``` ``` 4 ``` counsel appearing for the 3[rd] respondent. 6. The learned counsel for the appellant contends that the amounts awarded by the Tribunal under various heads, particularly under the head of disability, were grossly inadequate. The learned counsel brought the attention of this Court to the prolonged treatment the appellant had availed, consequent to the injuries, which included hospitalization of 64 days in five spells and various surgical procedures which he had undergone. It was further pointed out that the Medical Board itself found the percentage of disability to be 9%. But the Tribunal accepted only 8%. It is also the case of the learned counsel for the appellant that the monthly income taken by the Tribunal was only Rs.3,000/- as against the claim of Rs.4,500/-. 7. After considering all the relevant aspects, I find some force in the contention put forward by the learned counsel for the appellant. As regards the monthly income, as rightly pointed out by the learned counsel for the appellant, the amount of Rs.3,000/accepted by the Tribunal appears to be on the lower side considering the fact that the accident occurred in the year 2005. It ``` MACA NO.1403 OF 2013 ``` ``` 5 ``` is to be noted in this regard that, in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Co.Ltd** [(2011) 13 SCC 236], the honourable Supreme Court was pleased to take the monthly income of an ordinary worker even without any evidence as Rs.4,500/- for the year 2004. Therefore, under no circumstances the monthly income of Rs.4,500/- claimed by the appellant could be treated as unreasonable. Therefore, the said amount can be accepted and it is ordered accordingly. 8. The next aspect is the percentage of disability. Ext.X1 is the disability certificate issued by the Medical Board wherein the percentage of disability was certified as 9% as per Mc Bride Scale. The documents would indicate that the appellant sustained an inter-trachantric fracture with an impsilateral fracture shaft of the femur. He was admitted on 21.01.2005 and thigh born implants were fixed and implants for the hip portion to knee portion. On that occasion, he had undergone inpatient treatment for a period of 28 days. Thereafter, on several occasions, he was admitted to hospital for further treatment and on 17.07.2007, it was found that the screws of the implant were seen broken. ``` MACA NO.1403 OF 2013 ``` ``` 6 ``` Therefore, he underwent a surgical procedure for nail removal, and the implants were removed and refixed by conducting a born grafting for the second occasion. Thus, it could be seen that he had undergone inpatient treatment for a total period of 64 days in five spells. The specific contention put forward by the learned counsel for the appellant is that the percentage of disability, which is mentioned as 9% in Ext.X1, is not sufficient because the disability sustained by the appellant resulted in a functional disability which is higher than the same. The learned counsel brought the attention of this Court to the observations made by the Tribunal in the award that the appellant appeared before the Tribunal and the Tribunal noticed that he had some difficulty in walking. He used to walk with the help of a walking stick, and considering the physical condition of the appellant, certainly, a higher percentage of disability than certified in Ext.X1 towards functional disability needs to be taken. After carefully going through the materials placed on records, I am of the view that the said contention as such cannot be discarded. Of course, in Ext.X1, it is mentioned that the femur and trachantric fractures are ``` MACA NO.1403 OF 2013 ``` ``` 7 ``` united with good callus. But at the same time, it is also mentioned therein that the plate has now broken and there are broken screws from the interlocking nail as well. The aforesaid observations would, to some extent, justify the contention put forward by the learned counsel for the appellant and also fortify the observations made by the Tribunal as to the physical incapacity of the appellant when he was brought to the Tribunal. It is not in serious dispute that the appellant was a person working as a cleaner on a bus, and therefore, the nature of disabilities as referred to above will have some impact on his earning capacity. In such circumstances, I am convinced of the fact that a slightly higher percentage of disability than mentioned in Ext.X1 could be taken for considering the functional disability which he suffered consequent to the injuries sustained in the accident. In the facts and circumstances of the case, I deem it appropriate to fix it as 15%. 9. Thus, while reassessing the compensation, with the above revised monthly income and the percentage of disability, the amount of compensation for disability would come to ``` MACA NO.1403 OF 2013 ``` ``` 8 ``` Rs.1,37,700/- (4,500 x 12 x 17 x 15/100). The amount already awarded by the Tribunal under this head is Rs.48,960/- and the balance amount would come to Rs.88,740/-. The next head is compensation for loss of earnings. The Tribunal awarded compensation under this head for a period of one year which appears to be reasonable considering the prolonged treatment which the appellant had availed. Consequent to the revision of monthly income, the appellant would be entitled to some additional amount in this head. Thus, the additional amount is fixed as Rs.18,000/- [(4,500 x 12) – 36,000]. 10. The next head which requires consideration is pain and suffering. The Tribunal awarded an amount of Rs.20,000/under the said head. This is an accident that occurred in the year 2005. The evidence would clearly indicate that the appellant had undergone a prolonged treatment, which included inpatient treatment on five occasions and also had undergone various surgical procedures. The records further indicate that even after his discharge, he was subjected to review on several occasions till 08.02.2008, which is three years after his discharge. In such ``` MACA NO.1403 OF 2013 ``` ``` 9 ``` circumstances, I deem it appropriate to grant a further sum of Rs.20,000/- under the head of pain and suffering. The amount awarded towards loss of amenities and enjoyment of life was Rs.18,000/- and a further sum of Rs.5,000/- was granted towards discomforts. Considering the serious nature of the injuries, the physical disability arising therefrom, and the impact that may have on the quality of the life of the appellant, I deem it appropriate to grant a further sum of Rs.15,000/- under the said head. Thus, the total additional compensation is determined as Rs.1,41,740/-. In the result, this appeal is allowed. The award dated 04.01.2013 passed by the Motor Accident Claims Tribunal, Thrissur in O.P.(M.V.) No.2150/2005 is hereby modified by granting an additional compensation of Rs.1,41,740/- (Rupees one lakh forty one thousand, seven hundred and forty only) and the said amount is directed to be deposited by the 3[rd] respondent with interest at the rate as ordered by the Tribunal and with proportionate costs. The said amount shall be deposited by the 3[rd] respondent within a period of three months from the date of receipt of a copy of this judgment. It is further clarified that the ``` MACA NO.1403 OF 2013 ``` ``` 10 ``` claimant shall furnish the details of the PAN card, Aadhar Card and bank details to enable the Insurance Company to make the deposit as ordered above, within period of two months from the date of receipt of a copy of this judgment. In case, he fails to furnish the said details, it shall be open for the insurance company to deposit the same amount before the Tribunal. ``` Sd/- ZIYAD RAHMAN A.A. JUDGE ``` scs