VELAYUDHAN v. N. RAJENDRAN and THE ORIENTAL INSURANCE CO. LTD.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE T.R.RAMACHANDRAN NAIR** **& THE HONOURABLE SMT. JUSTICE P.V.ASHA** **TUESDAY, THE 16TH DAY OF SEPTEMBER 2014/25TH BHADRA, 1936** **MACA.No. 1827 of 2009 ( ) --------------------------** **AGAINST THE AWARD IN OPMV 1862/2004 of MACT, IRINJALAKUDA DATED 25-02-2009** **APPELLANT/PETITIONER IN OPMV:** **-------------------------------------** **VELAYUDHAN, S/O. MADATHIL PALLI, MARATHOMPALLIKKARA DESOM, KODAKARA VILLAGE AND, P.O. MUKUNDAPURAM TALUK, THRISSUR DISTRICT.** **BY ADVS.SRI.P.V.BABY** **SRI.A.N.SANTHOSH** **RESPONDENTS/RESPONDENTS IN OP(MV):** **----------------------------------------** **1. N.RAJENDRAN, S/O. K.P.S.NARAYANAN, RAJALAKSHMI NILAYAM, MANALITHARA P.O., WADAKKANCHERRY THRISSUR.( DELETED)** **NEDUMPARAMBIL HOUSE, VELLIKULAM ROAD, CHALAKUDY.** **3. THE ORIENTAL INSURANCE CO. LTD.BO.2.KDN SHOPPING COMPLEX, OPPOSITE THIRUVANBADY TEMPLE SHORNUR ROAD, THRISSUR.** *** RESPONDENT NO.1 IS DELETED FROM THE PARTY ARRAY AT THE RISK OF THE APPELLANT VIDE ORDER DATED 3.12.2013 IN I.A.NO.3216/2013.** **BY ADV. SRI.M.JACOB MURICKAN** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 16-09-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **T.R.RAMACHANDRAN NAIR & P.V.ASHA, JJ.** - - - - - - - - - - - - - - - - - - - - - ## **M.A.C.A.No.1827 OF 2009** - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 16[th] day of September, 2014 ## **JUDGMENT** ## Ramachandran Nair, J. The claimant before the Tribunal below is the appellant herein. He is aggrieved by the amount of compensation awarded. As against the total claim amount of Rs.3,76,500/-, the Tribunal awarded an amount of Rs.94,150/-. Going by the facts of the case, he has sustained injuries in an accident which occurred on 23.9.2004. While he was walking along the side of the road, he was hit down by a motor cycle bearing Reg.No. KL-8/P 2082 which was driven by the second respondent. 2. We heard the learned counsel on both sides. 3. The learned counsel for the appellant submitted mainly that the monthly income fixed as against the claim of Rs.4,500/- at Rs.2,000/- is too low. The appellant is a daily labourer and he was able bodied also. He was aged 47 years at the time of the accident. It is M.A.C.A.No.1827/2009 2 submitted that in the light of the decision of the Apex Court reported in **Syed Sadiq v. Divisional Manager, United India Insurance Company ( AIR 2014 SC 1052)** , the amount claimed namely Rs.4,500/- is only reasonable. There is every likelihood of future increase in the wages even though he was in unorganised sector going by the dictum laid down in that decision. It is also submitted that pursuant to the order passed by this Court in this appeal, the Medical Board examined the appellant and the Medical Report has been furnished before this Court. It is submitted that the direction was issued by this Court since the Tribunal did not properly advert to Ext.A5 disability certificate wherein the disability certified is on a permanent basis at 24.26%, whereas in the certificate now issued and made available to this Court, the disability assessed is 29.76%. It is therefore submitted that the same can safely be accepted. 4. With regard to the compensation awarded towards pain and suffering, loss of amenities and incidental expenses of the bystander, the learned counsel submits that the Tribunal has not assessed the amount of compensation correctly and therefore reasonable M.A.C.A.No.1827/2009 3 enhancement is required on all these heads. 5. We have considered the various aspects emerging in this case. The appellant was aged only 47 at the time of accident. The finding by the Tribunal was that the accident occurred due to the rash and negligent driving on the part of the second respondent. 6. Ext.A3 is the wound certificate, which was issued by St.James Hospital, Chalakkudy. The details of injuries are given therein. The medical report produced before this Court by the Superintendent of Medical College Hospital, Thrissur gives various details. The injuries noted therein are the following : - “1. Type of Open fracture lower 3[rd] of shaft - of (L) femur 2. (Rt) acromio-clavicular dislocation 3. Moderate head injury - E2V2MS PEARL 4. Lacerated wound on (a) (Rt) fronto parietal region with haematoma (b) (u) frontal region (c) Lateral aspect - of (L) thigh (a) pinna of (Rt) ear.” 7. It is clear from the certificate that injuries were treated by M.A.C.A.No.1827/2009 4 closed interlocking nailing using SSPL interlocking nail of the femoral fracture on 24.9.2004 at St.James Hospital, Chalakudy as an inpatient from 23.9.2004 to 5.10.2004 I.P.No.190067 and O.P.No.C 93916. Stiches were removed on 6.11.2004 and X-ray shows fracture union in progress. He was advised non weight bearing crutch walking. It is also seen that he had suffered head injury for which neurology evaluation was done. The percentage of disability on neurology evaluation is given as 23.89%. The Orthopaedic evaluation shows that he sustained Type I open femur (L) in 2004. It is seen that on examination the knee joint movements terminally restricted and there is shortening by 2 cms. Finally the total disability is recorded as follows : “ His Orthopaedic disability according to McBride Scale is around 5% for femur and 3% for Acromio clavicular dislocation. Total 8%. Disability after Neurological evaluation is 23.89%. Disability after Orthopaedic evaluation 8%. Whole body disability calculated using combination formula. M.A.C.A.No.1827/2009 5 - His total disability = 23.89 + 8(90 23.89) = 29.76% **==> picture [16 x 11] intentionally omitted <==** (Twenty nine decimal seven six only) And his loss of earning capacity is 44.64% ( Forty four decimal six four percentage only)” 8. In the light of the above certificate, we will be justified in taking the total disability as 29.76%. The certificate is marked as Annexure I. 9. As far as the monthly income of the appellant is concerned, we find that the amount claimed namely at Rs.4,500/- is only reasonable. It will be only around Rs.150/- per day. He was a manual labourer. In paragraph 8 of the decision of the Apex Court reported in **Syed Sadiq v. Divisional Manager, United India Insurance Company ( AIR 2014 SC 1052)** , a similar case where Rs.4,500/- was claimed as monthly income during 2004, the Apex Court interfered with the order passed by the High Court reducing it to Rs.3,500/- by holding that the statement of monthly earning at Rs.4,500/- can be accepted. Herein also, we find that the claim amount of Rs.4,500/- is only reasonable. 6 M.A.C.A.No.1827/2009 10. In the light of the above and in the light of the fact that he was inpatient in the hospital on three occasions and was advised not to exert much during the period of review also, the compensation can be refixed in the following manner : Partial loss of earning - Rs. 27,000/Pain and suffering - Rs.35,000/Loss of amenities - Rs.20,000/Medical expenses - Rs.45,450/( supported by Ext.A6 bills and vouchers) Transportation - Rs.10,000/Expenses for bystander- Rs.7,100/- Towards permanent disability suffered it will be Rs.2,10,600/adopting the multiplier at 13 and accordingly the total compensation will be Rs.3,55,150/- which will be rounded off to Rs.3,55,000/-. The Tribunal has awarded interest @ 7% per annum from the date of petition. In the light of the decision of the Apex Court in **Supedi v. National Insurance Company Ltd. (2009 (4) SCC 513)** which is followed in **Syed Sadiq v. Divisional Manager, United India Insurance Company ( AIR 2014 SC 1052),** it will be refixed at 9% M.A.C.A.No.1827/2009 7 per annum from the date of application. It is submitted by the learned counsel for the Insurance Company that the amount awarded has already been deposited. Therefore the amount of compensation less the amount already paid will be paid to the appellant within a period of three months by the Insurance Company and the appellant is allowed to withdraw the amount. The appeal is allowed. No costs. ## **T.R.RAMACHANDRAN NAIR, JUDGE** ## **P.V.ASHA, JUDGE** sv. M.A.C.A.No.1827/2009 8