Wilson P. Kurian v. George Mathew P.M. and Mathew P.A. and New India Assurance Company Limited

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR** **& THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **FRIDAY, THE 28TH DAY OF JULY 2017/6TH SRAVANA, 1939** ## **MACA.No. 869 of 2014** ## **------------------------** **AGAINST THE JUDGMENT IN OP(MV).1379/2010 of M.A.C.T.,ERNAKULAM DATED 22-11-2013** ## **APPELLANT/PETITIONER:-:** ## **---------------------** **WILSON P KURIAN, AGED 45 YEARS S/O.KURIAN, PENATTU HOUSE, THEKKINETH NIRAPPATH CHOTTANIKKARA P.O., KANAYANNOOR VILLAGE KANAYANNOOR TALUK, ERNAKULAM DISTRICT.** **BY ADVS.SRI.MATHEWS K.PHILIP SMT.T.MANASY** ## **RESPONDENTS/RESPONDENTS:-:** **----------------------------** **1. GEORGE MATHEW P.M., S/O.MATHEW P.A., PATHAPPILLY HOUSE, VENNALA P.O. EDAPPALLY SOUTH VILLAGE, ERNAKULAM, KOCHI - 30.** **2. MATHEW P.A., PATHAPPILLY HOUSE, VENNALA P.O. EDAPPALLY, ERNAKULAM, KOCHI - 30.** **3. NEW INDIA ASSURANCE COMPANY LIMITED, 2ND FLOOR, YASORAM VICTORIA TOWERS, BANERJI ROAD KOCHI.** **R3 BY ADV. SRI.P M M.NAJEEB KHAN** - **BY SRI.A.A.ZIYAD RAHMAN** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 28-07-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **ami/** ## **C.T. RAVIKUMAR & ANIL K. NARENDRAN, JJ. ----------------------------------------------M.A.C.A.No.869 of 2014 ----------------------------------------------Dated this the 28[th] day of July, 2017** ## **JUDGMENT** ## **ANIL K. NARENDRAN, J** . This appeal arises out of the award passed by the Motor Accidents Claims Tribunal, Ernakulam, dated 22.11.2013 in O.P.(MV) No.1379/2010, a claim petition filed under Section 166 of the Motor Vehicles Act, 1988, claiming compensation for the injuries sustained by the appellant/claimant in a motor accident which occurred on 28.5.2010 while he was riding a motorcycle bearing registration No.KL07/BG-2162. When the motorcycle reached the place of accident, it was hit by another motorcycle bearing registration No.KL-07/BC-5011 ridden and owned by respondents 1 and 2 respectively and insured with the 3[rd] respondent. As a result of the accident, he sustained serious injuries. Alleging that the accident occurred due to the rash and negligent riding of motorcycle bearing registration No.KL-07/BC-5011 by the 1[st] respondent rider, claim petition was filed before the Tribunal claiming a total compensation of Rs.2,50,000/-, under different heads. Later the total claim was enhanced to Rs.4,25,000/-. 2. Before the Tribunal Exts.A1 to A16 were marked on the side of the appellant. The respondents have not chosen to adduce any M.A.C.A.No.869 of 2014 :-2-: oral or documentary evidence. Ext.C1 is the disability certificate issued by the Standing Disability Assessment Board at the Medical College Hospital, Kottayam. 3. After considering the materials on record, the Tribunal arrived at a conclusion that the accident occurred due to the rash and negligent riding of motorcycle bearing registration No.KL-07/BC-5011 by the 1[st] respondent rider. Since the said vehicle was covered by valid insurance, the 3[rd] respondent insurer was held liable to indemnify the 2[nd] respondent owner. Under different heads, the Tribunal awarded a total compensation of Rs.1,44,120/- and directed the 3[rd] respondent insurer to deposit the said amount before the Tribunal, together with interest at the rate of 8% per annum from the date of petition till realisation, with proportionate costs. 4. Dissatisfied with the quantum of compensation awarded by the Tribunal under different heads, the appellant/claimant is before this Court in this appeal. 5. We heard arguments. 6. The sole issue that arises for consideration in this appeal is as to whether the appellant/claimant is entitled for enhancement of compensation awarded by the Tribunal under different heads. 7. The accident is of the year 2010 and at the time of M.A.C.A.No.869 of 2014 :-3-: accident, the appellant was aged 42 years. He claimed a monthly income of Rs.7,500/- as Site Supervisor and in order to substantiate the said claim, he relied on Ext.A14 salary certificate. However, the said document was not proved by examining the employer concerned. The appellant has also not chosen to mount the Box. In the absence of any reliable materials, the Tribunal took the monthly income notionally as Rs.4,000/-, for the purpose of assessing compensation under different heads. ## 8. In **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited [(2011) 13 SCC 236]** , the Apex Court fixed the notional monthly income of a coolie who met with a motor accident in the year 2004 at Rs.4,500/-. In the instant case, the accident is of the year 2010 and at the time of accident, the appellant was an able bodied person aged 42 years. Considering the economic conditions prevailing as on the date of accident, we deem it appropriate to re-fix the monthly income of the appellant notionally at Rs.7,500/-, for the purpose of assessing compensation under different heads, which is the monthly income claimed in the claim petition. 9. The injuries sustained by the appellant, as borne out from Ext.A10 wound certificate and Ext.A11 discharge summary, are as follows; “Brain stem aphasic. Lower cranial paresis which produced M.A.C.A.No.869 of 2014 :-4-: nasal regurgitation.” As a result of the injuries sustained in the accident, the appellant had undergone inpatient treatment for a period of 15 days, as discernible from medical records. In Ext.C1 disability certificate issued by the Standing Disability Assessment Board at Government Medical College Hospital, Kottayam the percentage of neurological permanent disability is noted as 22%. However, the Tribunal held that since the disability falls under mild category, the appellant is entitled to get only half of the compensation awarded for disability. The Tribunal held further that, since the appellant is awarded compensation for disability he is not entitled to get compensation for loss of amenities. 10. The assessment of neurological disability made in Ext.C1 disability certificate reads thus; 1. Dysphasia, cerebellar speech --------------- 10% 2. Gait-Fast walking on level limited, climbing heights difficult --------------------15% 3. Dysgraphia ----------------------------------- 7% Total neurological disability ----------------- 32% (Thirty two percentage). Though the total neurological disability assessed by the Neurosurgeon in Ext.C1 was 32%, considering the nature of disabilities, the Standing Disability Assessment Board fixed the percentage of disability as 22%. M.A.C.A.No.869 of 2014 :-5-: 11. As per the guidelines for evaluation of various disabilities and procedure for certification issued by the Government of India, Ministry of Social Justice and Empowerment, vide Notification No.1618/97-NI.I. dated 1.6.2001, the minimum degree of disability should be 40% in order to become eligible for any concessions/benefits under the provisions of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995. Therefore, it has been specified in Ext.C1 disability certificate that the total neurological permanent disability assessed at 22% belongs to 'mild category'. 12. It is trite law that, functional disability of an accident victim requires determination on the basis of nature of disability in the light of the career or profession which he or she was pursuing in life. Where a victim in a motor accident suffered permanent disability as a result of the injuries sustained in that accident, the assessment of compensation under the head loss of future earnings, would depend upon the effect and impact of such permanent disability on his or her earning capacity. While assessing compensation under the head loss of future earnings, what requires to be assessed by the Tribunal is the effect of the permanent disability on the earning capacity of the injured, and after assessing the loss of earning capacity in terms of a percentage of the income, it has to be quantified in terms of money, to arrive at the M.A.C.A.No.869 of 2014 :-6-: future loss of earnings, by applying the standard multiplier method used to determine loss of dependency. Therefore, merely for the reason that, as per the guidelines issued by the Central Government under the provisions of Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 persons with degree of disability less than 40% (which is the minimum degree of disability in order to become eligible for any concessions/benefits under the provisions of the said Act) belongs to 'mild category', the Tribunal was not justified in holding that the appellant is entitled only for half of the compensation awarded under the head permanent disability. In the result, the appellant will be entitled for the entire compensation under that head, towards loss of future earnings on account of permanent disability, taking the percentage of disability as 22%, as certified in Ext.C1 disability certificate. 13. Where a victim in a motor accident suffered permanent disability as a result of the injuries sustained in that accident, he or she is entitled for compensation towards loss of future earnings on account of such permanent disability, which falls under the category 'pecuniary damages', which requires to be assessed taking into account the effect of that permanent disability on his or her earning capacity. In addition to the compensation payable as above, the victim is also entitled for M.A.C.A.No.869 of 2014 :-7-: compensation on account of his or her inability to lead a normal life and to enjoy normal amenities, which he or she would have enjoyed but for the injuries. The assessment of a lump sum amount under the head loss of amenities, which falls under the category 'non-pecuniary damages', depends upon the nature of disability suffered by a victim and the effect thereof on such victim leading a normal life and enjoying normal amenities. 14. In the instant case, the compensation awarded by the Tribunal under the head permanent disability, by applying the standard multiplier method, is the compensation towards loss of future earnings on account of such permanent disability. Therefore, the appellant is entitled for assessment of a lump sum amount under the head loss of amenities as well, on account of his inability to lead a normal life and enjoy normal amenities. In the result, the finding in the impugned award that the appellant is not entitled for compensation under the head loss of amenities is set aside. 15. The compensation awarded by the Tribunal under different heads reads thus ; |s reads thus ;||| |---|---|---| |Heads|Amount<br>claimed in .<br>₹|Amount<br>awarded in<br>.<br>₹| |Loss of earnings|20000|20000| ## M.A.C.A.No.869 of 2014 :-8-: |Heads|Amount<br>claimed in .<br>₹|Amount<br>awarded in<br>.<br>₹| |---|---|---| |Transport to hospital and back to home|2000|1000| |Extra nourishment|3000|1000| |Damage to clothes and articles|2000|500| |Attendant expenses|8000|3000| |Medical expenses|50000|19700| |Compensation for pain and sufferings|40000|25000| |Compensation for continuing and<br>permanent/ partial disability|250000|73920| |Compensation for future treatments|25000|0| |Compensation for loss of expectation of<br>life/ amenities and enjoyment in life|25000|0| |Total|425000|144120| |Claimed Rs.4,25,000/-||| 16. Towards 'loss of earning', the Tribunal awarded a sum of Rs.20,000/-, at the rate of Rs.4,000/- for a period of 5 months. Considering the nature of injuries sustained and the treatment the appellant had undergone, as borne out from medical records, loss of earning granted for a period of 5 months requires no interference. However, since we have already re-fixed the monthly income of the appellant notionally at Rs.7,500/-, the compensation under this head is re-worked as Rs.37,500/- (7,500x5), resulting an additional compensation of **Rs.17,500/-** . 17. The Tribunal awarded as sum of Rs.1,000/- under 'extra ## M.A.C.A.No.869 of 2014 :-9-: nourishment' and a further sum of Rs.3,000/- under the head 'attendant expenses'. On account of the injuries sustained in the accident, the appellant had undergone inpatient treatment for a period of 15 days, which is discernible from medical records. Since the accident is of the year 2010, the appellant is entitled for compensation under the head 'extra nourishment' at the rate of Rs.100/- per day and that under the head 'attendant expenses' at the rate of Rs.200/- per day. Therefore, the compensation under the head 'extra nourishment' is re-fixed as Rs.1,500/- (15x100), resulting an additional compensation of **Rs.500/-** . Under the head 'attendant expenses', the appellant has already been adequately compensated by awarding Rs.3,000/-, which requires no enhancement in this appeal. 18. Towards 'damage to clothing', the Tribunal awarded a sum of Rs.500/-. Considering the fact that the accident is of the year 2010, we deem it appropriate to re-fix the compensation payable under this head as Rs.1,000/-, resulting an additional compensation of **Rs.500/-** . 19. The Tribunal awarded a sum of Rs.19,700/- under the head 'medical expenses', covered by Ext.A12 and A13 medical bills. The compensation awarded as above represents just and reasonable compensation, which requires no enhancement in this appeal. 20. Towards 'compensation for pain and suffering', the Tribunal M.A.C.A.No.869 of 2014 :-10-: awarded a sum of Rs.25,000/-. Considering the nature of injuries sustained and the treatment the appellant had undergone, as borne out from medical records, the compensation awarded by the Tribunal under this head represents just and reasonable compensation, which requires no enhancement in this appeal. 21. Towards 'compensation for disability', the Tribunal awarded a sum of Rs.73,920/-, taking the notional monthly income as Rs.4,000/-, applying the multiplier of '14' applicable to the age group of the appellant, and the percentage of disability as 11% (by deducting half of the compensation, since the disability falls under 'mild category'). Since we have already re-fixed the monthly income of the appellant notionally at Rs.7,500/-, and held that he is entitled for the entire compensation under this head, towards loss of future earnings on account of permanent disability, taking the percentage of disability as 22%, as certified in Ext.C1 disability certificate, the compensation payable is re-worked as Rs.2,77,200/- (7,500x12x14x22/100), resulting an additional compensation of **Rs.2,03,280/-** . 22. Towards 'future treatment', the appellant claimed a sum of Rs.25,000/-. However, no amount was awarded by the Tribunal under this head. Considering the nature of injuries sustained and the disability that has been arisen therefrom, as certified in Ext.C1 disability M.A.C.A.No.869 of 2014 :-11-: certificate, we deem it appropriate to grant a sum of **Rs.15,000/-** as compensation under this head, which will carry interest at the rate of 8% per annum only from the date of this judgment, till realisation. 23. Towards 'loss of amenities and enjoyment in life', the appellant claimed a sum of Rs.25,000/-. However, no amount was awarded by the Tribunal under this head, on a finding that he is not entitled for compensation under that head. The said finding has already been set aside in this appeal. As certified in Ext.C1 disability certificate, the appellant is having a total neurological permanent disability of 22%. Considering the inability of the appellant to lead a normal life and enjoy normal amenities, on account of the injuries sustained in the accident, we deem it appropriate to grant a sum of **Rs.25,000/-** under this head. 24. In the result, the appellant/claimant will be entitled for a total additional compensation of **Rs.2,61,780/-** (17,500+500+500+ 2,03,280+15,000+25,000) in this appeal, which will carry interest at the rate of 8% per annum from the date of petition till realisation, except for a sum of Rs.15,000/- granted under the head 'future treatment', which will carry interest at the rate of 8% per annum only from the date of this judgment, till realisation . 24. Since the insurance coverage of the offending vehicle is not M.A.C.A.No.869 of 2014 :-12-: in dispute, the 3[rd] respondent insurer shall deposit the said amount before the Tribunal, within a period of 2 months from the date of receipt of a certified copy of this judgment. The appeal is disposed of as above. No order as to costs. Sd/- **C.T. RAVIKUMAR JUDGE** Sd/- **JUDGE** **ANIL K. NARENDRAN** ami/4.8.17 //True copy// P.A.to Judge