Sreekuttan C.A. @ Kuttan vs The New India Assurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE S.SIRI JAGAN & THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** **WEDNESDAY, THE 7TH DAY OF AUGUST 2013/16TH SRAVANA, 1935** **MACA.No. 846 of 2010 ( )** **------------------------AGAINST THE AWARD IN OPMV 973/2006 of M.A.C.T.,PERUMBAVOOR DATED 06-01-2010** **APPELLANT(S)/PETITIONER IN OPMV 973/06:** **----------------------------------------------------------------------------** **SREEKUTTAN C.A. @ KUTTAN, S/O. LATE AYYAPPAN, CHINNATHUPALAM, WEST DESOM ALUVA-683 103, ERNAKULAM DISTRICT.** **BY ADVS.SRI.V.K.GOPALAKRISHNA PILLAI SRI.GOPAKUMAR G. (ALUVA)** **RESPONDENT(S)/RES. NO.3 IN OPMV 973/06** **----------------------------------------------------------------------** **THE NEW INDIA ASSURANCE CO. LTD., VARIKODAN BUILDINGS, NILAMBOOR ROAD, MANJERY MALAPPURAM.** **BY ADV. SRI.M.RAJAGOPALAN** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 07-08-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** S.SIRI JAGAN & K.RAMAKRISHNAN, JJ. ================== M.A.C.A.No. 846 of 2010 ================== Dated this the 7[th] day of August, 2013 J U D G M E N T ## K.Ramakrishnan, J.: The claimant in O.P.(M.V).No. 973/2006 on the file of the Motor Accidents Claims Tribunal, Perumbavoor, is the appellant herein. 2. The appellant preferred the claim petition before the Tribunal for compensation for the injuries and consequential disability sustained by him on account of rash and negligent driving of the vehicle by the 1[st] respondent, owned by the 2[nd] respondent and insured with the 3[rd] respondent. After considering the evidence on record, the Tribunal found that the accident occurred due to rash and negligent driving of the vehicle by the 1[st] respondent and awarded a total compensation of ` 3,87,912/- on various heads as follows: |12/-|on various heads as follows:||| |---|---|---|---| ||Head of claim||Amount<br>awarded<br>`| |1|Loss of earnings||18,000.00| |2|Treatment expenses||121,822.00| |3|Transportation expenses||1,000.00| |4|Pain and sufferings||20,000.00| |5|Loss of amenities||15,000.00| |6|Extra nourishment||3,500.00| |7|Attendant's charges||7,500.00| |8|Damage to clothings 7 other articles||250.00| |9|Disfiguration||5,000.00| |10|Disability||195,840.00| ||Total||387,912.00| m.a.c.a.846/10 - : 2 :- Dissatisfied with the quantum of compensation awarded by the Tribunal, the claimant has come to this Court with the above appeal. 3. Heard the learned counsel for the appellant and the learned Standing Counsel for the insurance company. 4. The learned counsel for the appellant submitted that the appellant was aged 33 years and was working as driver of tipper lorry and getting more than ` 10,000/- per month. But the Tribunal has taken only ` 3,000/- per month, which is very low. Further, part of his foot was amputated on account of the injuries and he is permanently disabled from carrying on his avocation as a driver and the Tribunal ought to have taken the occupational disability as 100% instead of 34% assessed by the medical board. The Tribunal has deducted ` 35,100/- being the amounts paid to various doctors as part of the treatment, which is also unsustainable in law and the appellant is entitled to that amount as well. The amounts awarded under the heads, pain and suffering, loss of earning and loss of amenities in life are also less. So, according to him, the appellant is entitled to enhancement on all heads. 5. On the other hand, the learned Standing Counsel for m.a.c.a.846/10 - : 3 :- the insurance company submitted that the Tribunal has considered all the aspects and rightly assessed the compensation and the amount awarded is just and proper and no interference is called for at the hands of this Court. 6. We have considered the rival contentions of both parties. 7. It was in a way admitted that the appellant was working as a driver. But he had not produced document to prove his income as claimed by him. So under the circumstances, the Tribunal was perfectly justified in fixing the notional income as ` 3,000/- per month and it cannot be said to be low, in the year 2005. The appellant has sustained following injuries and undergone treatment as detailed in the award as follows: “1. Pain left leg, left ankle, left foot etc. X-ray showed both bone fracture to left leg and fracture P1 little finger (L). Ext.A4 is the discharge summary issued from that hospital. From the discharge summary it is understood that the petitioner was treated as inpatient in that hospital from 14.9.2005 to 20.9.2005. The X-ray and other investigation showed compound fracture to both bones of left leg and heel pad avulsion left leg. Ext.A7 is the discharge summary issued from Specialists' Hospital, Ernakulam. The discharge summary would show that the petitioner was treated as inpatient in that hospital for the period from 21.9.2005 to 30.11.2005 and operations were done on 22.9.2005, 26.9.2005, 13.10.2005, 17.10.2005, 9.11.2005 and 18.11.2005. The diagnosis was open fracture both bones left leg with heel pad avulsion, fracture calcaneum (L) and comminuted segmental fracture left radius. The clinical findings are grossly infected wound left foot exposing the calcaneum and entire plantar structures. He has got abscess in the dorsum of the foot and PTA and ATA not palpable. Toes were is chaemic. Wound was debrided and external fixator was readjusted. The pus drained from the dorsum. Multiple debridement was done to clean up the wound and trans metatarsal amputation was done. m.a.c.a.846/10 - : 4 :- Wound was left open. The defect was in heel region and planter region and dorsum of the foot. Right LD muscle muscle harvested and insetting was done. Muscle flap was covered with SSG. Donar site repaired.” The medical board has assessed the disability as 34%. The doctor who issued the certificate was examined as PW2 and the Tribunal has accepted that disability. It was admitted by PW1 that his driving licence was renewed after the accident. But, according to him, it was done at the discretion of the licensing authority and it was obtained by his brother. But that cannot be accepted as such to come to the conclusion that he has been permanently disabled or totally disabled from carrying on his avocation as a driver. Part of his foot was amputated. It may have some impact on his driving capacity. Further, in the decision reported in **Raj Kumar v. Ajay Kumar** , 2011(1) KLT 620, relied on by the counsel for the appellant, it has been held that the functional disability suffered by a injured has to be correlated with his occupation and on that basis, the Tribunal has to assess the occupational disability. So, considering these aspects, it cannot be said that he was permanently disabled for doing his avocation as a driver. But 34% disability taken by the Tribunal appears to be on lower level and we are enhancing the same to 40%. If 40% occupational disability is taken, then the m.a.c.a.846/10 - : 5 :- appellant will be entitled to get an amount of ` 2,30,400/- (` 3000 x 12 x 16 x 40%) instead of ` 1,95,840/- awarded by the Tribunal. Thereby, he will be entitled to get an additional amount of ` 34,560/- under that head. Considering the nature of treatment undergone, the Tribunal has taken only six months for assessing the compensation under the head, loss of earning. That appears to be on the lower side and we take nine months for the purpose of assessing loss of earning during the period of treatment and thereby, he will be entitled to get ` 27,000/- instead of ` 18,000/awarded by the Tribunal under that head. He had undergone several operations for the injuries sustained. So he was continuously undergoing treatment for three months and the treatment continued even thereafter. So considering these facts, the amount awarded under the head, pain and sufferings, also appears to be on the lower side and we enhance the same to ` 30,000/- instead of ` 20,000/- awarded by the Tribunal. The Tribunal has awarded ` 15,000/- under the head, loss of amenities and ` 5,000/- under the head, disfiguration. The petitioner was aged only 33 years at the time of accident. He will have to be with these difficulties for the remaining period of his life. The amputation has caused disfigurement to his leg as well. m.a.c.a.846/10 - : 6 :- So considering these aspects, we feel that under the head, loss of amenities and disfigurement, an amount of ` 50,000/- can be awarded instead of ` 20,000/- awarded by the Tribunal. It is true that the Tribunal has deducted ` 35,100/- and also ` 1,295/- from the medical bills produced. ` 1,295/- was deducted as these amounts were deducted by the hospital authorities as free charges. So he is not entitled to get that amount under the head, medical expenses. The bills issued by individual doctors for huge amounts have not been accounted properly by the appellant by adducing proper evidence. In one of the discharge bills issued by the hospital authorities operation charges, anesthesia charges, surgery charges etc. were added. There is no document produced by the petitioner to prove that during the period covered by the receipts issued by the doctors, he had undergone any treatment as inpatient in that hospital. So under the circumstances and in the absence of convincing evidence adduced on the side of the appellant regarding these aspects, we do not find any fault on the part of the Tribunal in disregarding these bills and awarding only the balance amount covered by other bills under the head, medical expenses. We do not find any reason to interfere with other amounts awarded by the Tribunal m.a.c.a.846/10 - : 7 :- as it appears to be just and proper. In all, the appellant is entitled to get an additional compensation of ` 83,560/- over and above the compensation awarded by the Tribunal, which the respondent insurance company is liable to pay with 9% interest from the date of petition till payment. Two months' time is granted to the insurance company to deposit this amount as well. With the above modification of the impugned award of the Tribunal, this appeal is disposed of. Sd/S.SIRI JAGAN, JUDGE sdk+ Sd/K.RAMAKRISHNAN, JUDGE ///True copy/// P.A. To Judge.