Shaju v. N.D. Varghese and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE J.B.KOSHY** **& THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN** **THURSDAY, THE 16TH OCTOBER 2008 / 24TH ASWINA 1930** **MACA.No. 797 of 2003(Y)** **----------------------OPMV.1199/2001 of MOTOR ACCIDENT CLAIMS TRIBUNAL, IRINJALAKUDA** **....................** ## **APPELLANT/PETITIONER IN O.P.(MV):** **---------------------------------------------------------** **SHAJU, S/O. DEVASSIKUTTY, CHAKKALAKKAL HOUSE, KUTTIKKAD P.O., MUKUNDAPURAMM TALUK, THRISSUR DISTRICT.** **BY ADV. SRI.P.V.BABY SRI.A.N.SANTHOSH** ## **RESPONDENT(S): RESPONDENTS IN O.P.(MV):** **---------------------------------------------------------------------** ## **1. N.D. VARGHESE, NAYATHODAN HOUSE,** - **11/17, KODASSERY, ELINJIPRA P.O.** **2. SAJU. V.R., S/O. RAGHAVAN, VALATH HOUSE, KODASSERY P.O.** **3. MANAGER, UNITED INDIA INSURANCE CO.LTD., SOUTH JUNCTION, CHALAKUDY.** **ADV. SRI.MATHEWS JACOB (SR.) FOR R3** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 16/10/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** _Kss_ ## **J.B. Koshy & K.P.Balachandran, JJ. --------------------------------------** ## **M.A.C.A. No. 797 of 2003** ## **--------------------------------------Dated this the 16th day of October, 2008** ## **Judgment** ## **Koshy,J.** While the appellant was travelling as a passenger in an autorickshaw bearing registration No.KL 8/L 6978 driven by the second respondent, it dashed against a nearby electric post and overturned and, as a result, appellant sustained very serious injuries. He claimed a compensation of Rupees Ten lakhs. The Tribunal awarded only an amount of Rs.3,40,100/- finding that there was valid insurance to the autorickshaw and directed the third respondent insurance company to deposit the amount. The only dispute in this appeal is regarding the quantum of compensation and we are considering that only. 2. According to the appellant, he was a concrete labourer and he was aged 28 at the time of accident. It is the contention that he was getting Rs.6,000/- per month. Income of a construction worker is Rs.250/- per day in Kerala. The Tribunal fixed only Rs.1,500/- as the monthly income. We are of the opinion that minimum wages fixed itself was above Rs.150/- per day. In any 2 **M.A.C.A.No.797/2003** event, we are of the view that at least Rs.2,000/- ought to have been taken as the monthly income. 3. Next point is with regard to the multiplier. The Tribunal has taken 18 as the multiplier taking guidance from the second schedule. It is contended by the claimant that life expectancy has increased and interest rates are going up and, therefore, a higher rate should be fixed. A three-member Bench of the Hon'ble Supreme Court in Supe Dei v. and others v. M/s.National Insurance Company Ltd.and another (JT 2002 (Suppl.1) SC 451), held that the second schedule of the Motor Vehicles Act is framed for the purpose of awarding compensation under section 163-A, but, it serves as a guideline for determination of compensation under section 166 of the Motor Vehicles Act also. In United India Insurance Co. Ltd. v. Patricia Jean Mahajan and others (JT 2002 (5) SC 74), the Apex Court held that unless the multiplicand is very high, multiplier system should be followed for calculating the compensation. In Abati Bezbaruah v. Dy. Director General, Geological Survey of India and another ((2003) 3 SCC 148), it was held that structured formula mentioned in the second schedule should be adopted for calculating compensation in terms of section 166 of the Motor Vehicles Act. Same view was expressed by the 3 ## **M.A.C.A.No.797/2003** Hon'ble Supreme Court in APSRTC v. M. Pentaiah Chary (2007 AIR SCW 5689). There is no exceptional circumstances here. Therefore, we are of the view that the multiplier fixed by the Tribunal needs no interference. 3. Now, with regard to the percentage of disability. As a result of the accident, he was completely bed-ridden. He also produced the medical records. PWs 2 and 3 are the doctors who treated the appellant. PW2 Orthopaedic Surgeon assessed the disability at 75%. Ext.A10 is the disability. PW2 deposed that the patient was permanently incapacitated to move around. There is no chance for improvement even after continued physiotherapy. The grip of his right hand was lost and both legs are paralysed. PW3 Ayurvedic Doctor attached to the Kodakara Government Ayurvedic Hospital deposed that the patient was treated as an inpatient in the hospital from 27.8.2002 to 31.10.2002 for paralysis. As regards the injuries are concerned, the Tribunal has stated the same as follows: "Ext.A5 wound certificate, Exts.A6 and A7 scan reports and Ext.A8 discharge summary proved that the petitioner has sustained following injuries: 1. Depressed fracture of frontal bone bilaterally; 2. Fracture roof of left orbit; 4 **M.A.C.A.No.797/2003** ## 3. Nasal bone fractured; 4. Haematoma in the frontal and ethmoid sinuses; 5. Large central C5/C6 disc herniation with rupture of posterior longitudinal ligaments left laterally causing canal stenosis. Cord edema at this level; 6. Mild central C3/C4 and C6/C7 disc herniation compressing the sac vertebral bodies are normal except for early spondylotic changes at C5/C6 and C6/C7. 7. Prevertebral soft tissue swelling noted from C2/C3 upto T/2 T3. 8. Fractue clavicle left. In the Elite Mission Hospital he was admitted for treatment on 19.3.2001 and had an inpatient treatment upto 31.3.2001. Ext.A9 is a disability certificate issued by the Neuro Surgeon of the Elite Mission Hospital in 2002 assessing 75% disability to the petitioner. Due to the gravity of the injuries sustained in the accident especially cervical disc prolapse damaging the spinal cord he was unable to walk, because of paralysis of both legs both his hands grip appear weak, rendering him unable to use his hands for normal work. He also has a frontal cosmetic defect." Ext.A10 certificate issued by another Orthopaedic Surgeon also assessed physical disability at 75%. It is noticed that there is paraparesis of upper motor neurone type of both lower limb, weakness of the grip of strength of right hand rendered weakness 5 **M.A.C.A.No.797/2003** of the extension of right wrist and finger. The Tribunal also found that the appellant sustained severe injury to the spinal cord and fracture to the bones on the face and head and his limbs were paralysed. PW2 doctor who proved the certificate stated that he assessed 75% disability because he has normal senses, can speak and the brain functions are normal. Even though his both legs are paralysed and right hand is weak, his left hand is normal. Compensation awarded for the damages caused and for any injuries caused to the motor accident victims. If both legs are paralised and completely bed-ridden and right side is already weak, merely because he can move his left hand, he can speak and brain functions are normal, he will not get any job. There is 100% loss of earning capacity to do any type of job. He has to live with this disability throughout his life. It is worse than death as brain function is normal, he has to sustain with these difficulties at the prime age of 28. In this connection, we also refer to the decision of the Supreme Court in Janardhan v. United India Insurance Co. Ltd. (2008 (2) KLT 995 SC). In that case, the Supreme Court awarded compensation for 100% loss of earning capacity for a tractor driver whose leg was amputated. Even though doctor certified 75% disability, we are of the opinion that he should be granted 6 **M.A.C.A.No.797/2003** compensation for 100% disability and earning power as his earning capacity is completely lost. Therefore, compensation payable for disability and loss of earning capacity will be Rs.2000 x 12 x 18 x 100 = Rs.4,32,000/-. The Tribunal has awarded only 100 Rs.2,10,600/- for disability and loss of earning power. Therefore, additional compensation payable will be Rs.2,21,400/-. 4. It was also found by the Tribunal that appellant is suffering loss of strength stability, sensation and range of movements from the neck level downwards and he has become permanently disabled for the rest of his life unable to move or walk. Only Rs.3,000/- was awarded towards bystanders' expenses. He needs a bystander till the end of his life. It was also found by the Tribunal that he needs continuous medical treatment. For future medical expenses only Rs.15,000/- was awarded. He had to be taken to the hospital by special vehicle occasionally. Only Rs.10,000/- was awarded towards transportation expenses. It is submitted that for getting a bystander at least Rs.3,000/- will be necessary for a month and a life-long bystander will be necessary. Even if Rs.2,000/- per month need be spent, the amount will be very huge and, therefore, it was argued that at least Rupees Two lakhs 7 **M.A.C.A.No.797/2003** should be awarded towards bystanders' expenses. Further, in view of the increase in the cost of medicines and for transportation expenses in getting a doctor, a higher amount should have been awarded. However, considering the total amount granted and interest payable, we are not enhancing any amount under the head bystanders' expenses, future medical expenses or transportation expenses. The additional amount of Rs.2,21,400/- should be deposited by the third respondent insurance company with 7.5% interest from the date of application till its deposit over and above the decreed amount. On deposit of the amount, considering the medical expenses incurred so far, the claimant should be allowed to withdraw Rupees One lakh. The entire balance of the additional amount should be deposited in a nationalised bank in a long term deposit for ten years enabling the appellant to withdraw interest at quarterly rests. Appeal allowed partly. **J.B.Koshy Judge** **K.P.Balachandran Judge** vaa 8 **M.A.C.A.No.797/2003** **J.B. KOSHY AND K.P.Balachandran,JJ.** ------------------------------------M.A.C.A. No.797/2003 ------------------------------------- **Judgment** Date:16th October,2008