Shaji Xavier v. Santhi Kannan and Ors.

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MRS. JUSTICE MARY JOSEPH ``` ``` THURSDAY, THE 24[TH] DAY OF NOVEMBER 2022 / 3RD AGRAHAYANA, 1944 MACA NO. 554 OF 2014 ``` ``` AGAINST THE AWARD DATED 31.10.20125 IN O.P(M.V) NO.163/2007 OF ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL, ALAPPUZHA ``` ## **`APPELLANT/PETITIONER:`** ``` SHAJI XAVIER, AGED 48 YEARS, S/O. LATE XAVIOUR, MANACKALSERY HOUSE, CHATHANADU, SANATHANAM WARD-PO, ALAPPUZHA. BY ADVS.SRI.A.T.ANILKUMAR SMT.V.SHYLAJA ``` ## **`RESPONDENTS/RESPONDENTS:`** ``` 1MRS.SANTHI KANNAN, W/O.KANNAN, M/S.ABHIRAMI INDUSTRIES, VADATHOTTUNKAL, KUTHIRAPANTHY WARD, THIRUVAMPADY.P.O., ALAPPUZHA. 2ROY.P.B., S/O. BOBY, ARACKAL HOUSE, VADACKAL WARD, ALAPPUZHA, PIN 688 001. 3BRANCH MANAGER NATIONAL INSURANCE COMPANY LIMITED, REP. NEAR IRON BRIDGE, ALAPPUZHA, PIN 688 001. BY ADV R3 BY SRI.A.A.MOHAMMED NAZIR ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON ``` ``` 24.11.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` M.A.C.A.No.554 of 2014 ``` ``` 2 ``` ## **JUDGMENT** ## **Dated this the 24[th] day of November, 2022** This appeal is filed against an award passed by Additional Motor Accidents Claims Tribunal, Alappuzha (for short ‘the Tribunal’) on 31.10.2012 in O.P.(M.V) No.163/2007. The appellant is the petitioner before the Tribunal. For the sake of convenience, the parties to this appeal will hereinafter be referred to as the petitioner and respondents 1 to 3 in accordance with their status in the Original Petition. The Original Petition was filed alongwith O.P.(MV) No.162 of 2007 and a common award was passed. 2. By the impugned award, the Tribunal had awarded a sum of Rs.3,39,596/- as compensation. Contending that the quantum awarded by the Tribunal is disproportionate and inadequate to the sufferings of the petitioner , the appeal on hand is filed by the petitioner. As per the averments of the petitioner in ``` M.A.C.A.No.554 of 2014 ``` ``` 3 ``` the Original Petition filed before the Tribunal, he was aged 48 years and was working as Proprietor-cum-Manager of a Cold Storage earning Rs.75,000/- as monthly income. 3. According to him, at about 01.00 pm on 25.05.2006, he met with a motor accident. He was riding a motorcycle bearing Registration No.KL-04/U-5697 through AlappuzhaChanganacherry road and at the eastern side of Pooppally Junction, Nedumudy, the motorcycle was dashed by a Bolero Car bearing Registration No.KL-04/Q-1999 and thereby he sustained serious injuries. He was treated at Medical College Hospital, Alappuzha and later at Lakeshore Hospital, Ernakulam. A petition was filed seeking Rs.20,00,000/- as compensation from the owner, driver and insurer of the car arrayed as respondents 1 to 3. 4. The second respondent though entered appearance in the above Original Petition did not contest it and accordingly was set _ex parte_ . First respondent filed vakalath but did not file any written statement. The third respondent filed written statement ``` M.A.C.A.No.554 of 2014 ``` ``` 4 ``` admitting insurance coverage for the offending vehicle at the relevant time of accident. The age, occupation and monthly income of the petitioner were disputed. The sum claimed as compensation was contended as exorbitant. The negligence on the side of the second respondent was also disputed. 5. Before the Tribunal, evidence was adduced by the petitioner by examining himself as PW1. The doctors who had assessed his orthopedic and neurological disability were also examined as PWs.2 and 3. Exts.A1 to A21 were also marked in evidence in the Original Petition. No evidence was let in by the third respondent. The Tribunal on appreciation of evidence adduced by the petitioner found that the motor accident in question was occurred due to the rash and negligent driving of the Bolero Car by its driver, who is the second respondent in the Original Petition. The Tribunal has also arrived at a sum of Rs.3,39,596/- as compensation payable to the petitioner and directed the third respondent, insurer to deposit the same with interest at the rate of 7.5% per annum from the date on which the ``` M.A.C.A.No.554 of 2014 ``` ``` 5 ``` Original Petition was filed, till the date of realisation alongwith costs. The petitioner is highly aggrieved by the quantum of compensation awarded by the Tribunal and therefore, preferred the appeal on hand. 6. It is contended by Smt.V.Shylaja, the learned counsel for the appellant that the Tribunal failed to award compensation for loss of earnings and extra nourishment. According to her, the compensation awarded towards pain and suffering is disproportionate to the injuries sustained by the petitioner in the motor accident. It is further contended by the learned counsel that the monthly income was fixed by the Tribunal as Rs.3,000/on a notional basis and it being meager is liable to be interfered with. According to her, the petitioner himself mounted the box to depose as PW1 and has spoken precisely about his occupation and monthly income. It is further contended by the learned counsel that the employer of the petitioner had issued a certificate, certifying his monthly income and that is also brought on record in evidence as Ext.A15. ``` M.A.C.A.No.554 of 2014 ``` ``` 6 ``` 7. According to the learned counsel, eventhough evidence was adduced in the above manner, the Tribunal discarded those and fixed the monthly income notionally as Rs.3,000/- and on it’s basis calculated the compensation. 8. It is contended that by Exts.A10 and A11 certificates, he had established his neurological as well as orthopedic disability following the injuries sustained in the motor accident. According to her, the doctors who had issued Exts. A10 and A11 were also examined as PWs 2 and 3. PWs 2 and 3 have also deposed categorically about the disability resulted to the petitioner from the injuries sustained in the motor accident. But, the Tribunal discarded those evidence and arrived at Rs.75,000/- as the compensation for the functional disability of the petitioner on a lumpsum basis. It is pointed out that, by opting to award a lumpsum as compensation the Tribunal has also deviated from the multiplier method of assessment of compensation for disability normally followed by it. According ``` M.A.C.A.No.554 of 2014 ``` ``` 7 ``` to the learned counsel the petitioner had disfiguration of his left elbow on account of the injuries sustained in the motor accident and that aspect was neglected by the Tribunal, while arriving at the compensation payable. 9. Shri.A.A.Mohammed Nazir, the learned counsel for the third respondent contended that notional fixation was adopted by the Tribunal in a context where the petitioner failed to establish his occupation and monthly income by cogent evidence. According to him Ext.A15 certificate is produced but it does not tally with the pleadings raised by the petitioner in the Original Petition seeking compensation. The learned counsel has pointed out that in the Original Petition the petitioner claimed as conducting a Cold Storage abroad and earning Rs.75,000/monthly. But not even the passport possessed by the petitioner was produced and marked in evidence to establish the said claims. In that context, the Tribunal is contended as justified in fixing the monthly income on a notional basis. ``` M.A.C.A.No.554 of 2014 ``` ``` 8 ``` 10. The learned counsel has also pointed out that against claims for compensation raised as Rs.40,000/- and Rs.65,000/the Tribunal confined awarding Rs.10,000/- and Rs.50,000/respectively towards pain and suffering and continuing physical ailments and loss of amenities of life and therefore is unjustified. Since excessive sum stands awarded by the Tribunal as compensation under the latter head, this Court finds it appropriate to grant Rs.40,000/- out of Rs.60,000/- (total sum) as compensation for pain and suffering and Rs.20,000/- towards the latter head. 11. This Court has gone through the certificates assessing the permanent disability of the petitioner stand marked in evidence as Exts.A10 and A11. The Doctors who had issued those were examined as PW2 and PW3. In Ext.A10, 16% was assessed as the neurological disability of the petitioner for his forgetfulness, easily getting angry, dizziness, mild (left) LMN facial palsy and the risk of post traumatic epilepsy. In Ext.A11, the Orthopaedic disability was assessed by an Orthopeadic ``` M.A.C.A.No.554 of 2014 ``` ``` 9 ``` Surgeon as 12% for malunited fracture, chronic pain, limitation of terminal fixation of left elbow by 10 decree and secondary osteoarthritis of elbow. 12. Ext.A11 certificate was issued on 20.11.2011 but, solely based on examination of the petitioner clinically. But, the discharge summary of the petitioner marked in evidence by him as Ext.A7, itself reports that, the fracture of clavicle was malunited. The accident was occurred in the year 2006 and Ext.A11 certificate was issued after 5 years. Complaints of chronic chest pain was found raised by the petitioner and it was reported as a reason for assessment of disability in Ext.A11 by PW2. It is pertinent to note that not even a complaint of chest pain was raised by the petitioner prior to raising such a complaint to PW2 and not even a medical consultation was done for that. Other reasons stated in Ext.A11 for assessment of disability being reasonable, are relied on. 13. Forgetfulness, easily getting angry and dizziness were the reasons stated to have been based by the doctor for ``` M.A.C.A.No.554 of 2014 ``` ``` 10 ``` assessment of neurological disability and issuance of Ext.A10 certificate. Petitioner has no case that he had abandoned his job after sustaining injuries in the motor accident. 7% disability was found assessed for the above reasons and it is difficult for a man having those difficulties to attend his job and in the absence of any evidence of abandoning of job by the petitioner this Court is not inclined to take 7% as the neurological disability of the petitioner. The second reason stated in Ext.A10 is mild left LMN facial palsy and the disability assessed is 4%. During the course of treatment itself, the petitioner had LMN facial palsy and that is reported in the medical documents issued in his favour. The third reason was the risk of post traumatic epilepsy. It is indicated from the materials on record that the petitioner had episodes of epilepsy during hospitalization itself. Therefore, recurrence of it cannot be ruled out. But treatment records are not forthcoming in evidence to show that during the interregnum period the petitioner had availed outpatient treatment for epilepsy. In the light of the above discussion, this Court finds ``` M.A.C.A.No.554 of 2014 ``` ``` 11 ``` justification in taking 12% as the whole body disability of the petitioner on account of Orthopedic as well as Neurological disability. 14. This Court has noticed from the pleadings of the petitioner in the Original Petition seeking compensation that he was the Business-Proprietor-cum-Manager of a Cold storage which deals with all items of food stuffs, meats and fish at Manama, Bahrain. Against column meant for furnishing the particulars of the employer of the petitioner in the Original Petition, the petitioner had mentioned :- - “Self employed in the Business- Proprietor-cum-Manager of a Cold storage shop which deals with all items of food stuffs, meats and fish at Manama, Bahrain titled as Farhana Cold Store, P.O.Box :54252, Manama, Kingdom of Bahrain”. 15. Therefore, as per the claim of the petitioner itself he was doing business in Cold storage on his own. He was examined as PW1 and in the examination, the specific stand of PW1 was that he was doing business alongwith a friend of him. Ext.A15 certificate is also got marked in evidence which was ``` M.A.C.A.No.554 of 2014 ``` ``` 12 ``` issued by the Manager of Farhana Cold Store. Moreover, the signatory of Ext.A15 is found to have introduced himself as sponsor of the petitioner. These aspects are liable to create some doubts on the claim of the petitioner regarding his job and income. Therefore, this Court is not inclined to rely on the oral evidence of PW1 and Ext.A15 for taking a view that the petitioner was doing business in Cold storage at Bahrain on his own. Another aspect liable to be taken as basis for discarding the version of PW1 was that he failed to produce the passport possessed by him during the period, despite the undertaking made during cross examination to produce it. Therefore, his claim that he was working abroad and doing business there are liable to be discarded. 16. In _**Valsamma v. Binu Jose**_ [2014 (1) KLT 10], the decision relied on by the learned counsel for the third respondent, the standards to be applied while assessing the income of a person who is not permanently employed in a foreign country was discussed with and that is extracted ``` M.A.C.A.No.554 of 2014 ``` ``` 13 ``` ## hereunder:- “It may be mentioned here that employment in gulf countries is not certain and it is likely to be terminated at any time. So, under such circumstances, it cannot be said that it is a permanent employment as in a government service there. If he is a permanent employee there, then that can be taken as a permanent income and that may be useful to assess the compensation payable to the dependents of the victim on that basis. In the case of a non-permanent employment with uncertainty regarding continuance, it is not safe to rely on that income for the purpose of assessing compensation under the head ‘loss of dependency’. So, in such circumstance, we will have to assess the income of the person, in the context of Indian standards, taking the probable income which he may have fetched if he was working in India during the relevant time and the income which he was alleged to have been earning in a Gulf Country where the employment of such nature is not permanent and is likely to be terminated at the whims and fancies of the sponsor cannot be relied upon”. 17. Therefore, as the dictum indicates the income a person claims to be not permanently employed in a foreign country, has to be fixed based on the Indian standards by taking the probable income which he may have fetched had he been employed in India at the relevant time. ``` M.A.C.A.No.554 of 2014 ``` ``` 14 ``` 18. In the backdrop of the above settled position, this Court finds every justification in fixing the monthly income on a notional basis. The motor accident in question being occurred in the year 2006, Rs.5,500/- is found appropriate and that is fixed as the monthly income of the petitioner. The medical documents on record would reveal that the petitioner was admitted at the hospital with head injury, posterior dislocation of left elbow and fracture shaft of left clavicle with fracture of right 1[st] rib and contusion of the lungs on the right upper zone. The dislocation of left elbow was reduced and immobilized with POP slab. Fracture shaft of left clavicle was immobilized with clavicle brace. He was discharged on 07.06.2006 with advice to follow up regularly as per the advice of the Neuro Surgeon. 19. It is noticed that he had a further review but treatment was not availed thereafter. Craniotomy was done to evacuate EDH and ICD insertion was done for hemothorax. Though the learned counsel for the petitioner has pointed out that the petitioner was unconscious for 10 days, it is not found ``` M.A.C.A.No.554 of 2014 ``` ``` 15 ``` reported by any medical documents marked in evidence. It is found that the petitioner had inpatient treatment only for 14 days. Taking into account of the nature of the injuries sustained by the petitioner and duration and procedures of treatment, this Court finds it appropriate to award Rs.4,000/- as compensation under the head bystander expenses. Rs.1,400/- stands awarded by the Tribunal when adjusted in the sum now arrived at, the petitioner will get Rs.2,600/- as additional compensation. As compensation towards extra nourishment, this Court is inclined to grant Rs.3,000/-. Under the head loss of earning, this Court is inclined to award Rs.33,000/- (Rs.5,500 x 6 months) as additional compensation. 20. Under the head damages to clothing, Rs.350/- being the sum stands awarded by the Tribunal, this Court is inclined to grant Rs.650/- more. Towards transportation expenses, this Court is inclined to grant Rs.4,000/-. Rs.2,000/- stands already awarded by the Tribunal when adjusted, the petitioner will get Rs.2,000/- as additional compensation. Rs.50,000/- stands ``` M.A.C.A.No.554 of 2014 ``` ``` 16 ``` awarded under the head loss of amenities and enjoyments in life being excess this Court finds it appropriate to adjust the sum to compensation stands awarded under the head pain and suffering and loss of amenities and inconveniences. 21. This Court has decided to take 12% as the whole body disability of the petitioner. The age of the petitioner stands proved by the copy of the driving licence marked by the petitioner in evidence as Ext.A16. Eventhough it is a photocopy, it got marked in evidence without any objection being raised by the respondent. The date of birth was 12.11.1957. The accident being occurred on 25.05.2006, the petitioner can be taken to have reached 48 years at the relevant time of accident. 13 is the multiplier applicable to that age. The compensation for permanent disability when re-assessed with Rs.5,500/- as the monthly income, 13 as the multiplier and 12% as the whole body disability of the petitioner, Rs.1,02,960/- (Rs.5,500/- x 12 x 13x 12%) is arrived at. The Tribunal without adopting the multiplier method of calculation fixed a lumpsum of Rs.75,000/- as the ``` M.A.C.A.No.554 of 2014 ``` ``` 17 ``` compensation payable. When the said sum is adjusted, the petitioner will get Rs.27,960/- as additional compensation. 22. In the above manner of reassessment of compensation, the petitioner will get Rs.69,210/- (Rupees Sixty Nine Thousand Two Hundred and Ten Only), as additional compensation, which would carry interest @ 7.5% per annum from the date of filing of the Original Petition till the date of realisation. The third respondent shall deposit the aforesaid sum with interest fixed on it and also the sum stands originally awarded by the Tribunal by the impugned award with interest fixed thereon (if not already paid), within a period of two months from the date of receipt of a certified copy of this judgment. The appeal having been filed with a delay of 347 days, the third respondent is exonerated from paying interest for that period. MACA stands allowed accordingly. Sd/- **MARY JOSEPH** **JUDGE** SMA