Biju Kumar vs Biju
2021 Latest Caselaw 15008 Ker

MACA No.2279 of 2013             1


             IN THE HIGH COURT OF KERALA AT ERNAKULAM
                              PRESENT
           THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.
    FRIDAY, THE 16TH DAY OF JULY 2021 / 25TH ASHADHA, 1943
                       MACA NO. 2279 OF 2013
  AGAINST THE AWARD IN OPMV NO.398/2008 DATED 27.02.2013 OF
         MOTOR ACCIDENTS CLAIMS TRIBUNAL,PUNALUR, KOLLAM
APPELLANT/PETITIONERS 1 AND 2:

     1      BIJU KUMAR
            S/O. SURENDRAN PILLAI, DEVIKRIPA, VILAKUDY P.O.,
            PUNALUR. (REPRESENTED BY MOTHER, 2ND APPELLANT)

     2      OMANA AMMA
            W/O. SURENDRAN PILLAI, DEVIKRIPA, VILAKUDY P.O.,
            PUNALUR.

           BY ADVS.
           SRI.T.K.KOSHY
           SMT.V.V.RISANI



RESPONDENTS/RESPONDENTS:

     1      BIJU
            S/O. RAJENDRAN MULLIKALA VEEDU, ELAMPAL.P.O.,
            PUNALUR, KOLLAM.

     2      THE BRANCH MANAGER
            ICICI LUMBARD GENERAL INSURANCE CO. LTD., ICICI
            BANK TOWERS, BANDRA-KURLA COMPLEX, MUMBAI-400005.

            R2 BY ADV. R.AJITHKUMAR


      THIS MOTOR ACCIDENTS CLAIMS APPEAL HAVING COME UP FOR
HEARING ON 16.07.2021, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
 MACA No.2279 of 2013                          2


                                      JUDGMENT

This is an appeal filed by the claimants in

OP(MV)No.398 of 2008 on the file of the Motor Accidents

Claims Tribunal, Punalur. The injured in this case is the

first petitioner. As he is unable to make an application

on his own due to serious physical impairment suffered by

him in the accident, he is represented by his mother, 2 nd

petitioner. The accident occurred on 20.12.2007 when the

motor cycle on which the petitioner was pillion riding,

was hit by another motor cycle ridden by the 1st

respondent, as a result of which, the petitioner

sustained very serious injuries. The said vehicle was

insured with the 2nd respondent. According to the

petitioner, he was working as a rubber tapper with a

monthly income of Rs.6,000/-. He was aged 27 years at

the time of accident. As per the certificate issued

by the Medical Board, Medical College Hospital,

Thiruvananthapuram, his disability was certified as 51%.

The total amount of compensation claimed by him was Rs.6

lakhs.

2. The 2nd respondent, Insurance Company filed a

written statement admitting the coverage of policy in

respect of the vehicle, but disputed the liability on

various grounds. The amount claimed by the appellant was

also disputed by the 2nd respondent.

3. The evidence in this case consists of oral

evidence of PW1, who is the 2nd petitioner and the

documentary evidence consists of Exts.A1 to A13. The

disability certificate was marked as Ext.C1 and from the

side of respondents, RW1, the doctor who was one of the

members of the Medical Board which issued Ext.C1

disability certificate, was examined.

4. After the trial, the Tribunal passed an award

holding the respondents liable to pay the compensation

and the quantum of compensation was fixed as

Rs.3,11,370/-. Being dissatisfied with the compensation,

this appeal is filed.

5. Heard the learned counsel for the appellants

and the learned counsel for the 2nd respondent.

6. The learned counsel for the appellants contends

that, the amount awarded by the Tribunal is on lower side

particularly under the heads of permanent disability,

pain and sufferings, loss of earnings, transport to

hospital and extra nourishment. It is also contended

that, no amount was awarded under the head of loss of

amenities. The counsel further points out that, the

injured/first petitioner was only aged 27 years and was

unmarried, at the time of the accident.

7. The learned counsel for the Insurance Company

disputed the said claims and contended that the amounts

awarded by the Tribunal is reasonable in all respects and

no interference is warranted.

8. When we consider the question of permanent

disability, the crucial aspect to be noted in this case

is that Ext.C1 medical certificate was issued by the

Medical Board. Even though the percentage of disability

was certified as 51%, the learned Tribunal has taken 30%

apparently relying upon the deposition of RW1. The

relevant observations in this regard at page 9 of the

impugned award are extracted hereunder:

"It is stated that the 1st petitioner was met with the alleged road traffic accident on 20.12.2007 and CT Scan showed acute intra cerebral haematoma in right thalamus and fracture of right zygonma. Neurological examination showed impaired comprehension and production of language symbols, loss of digital dexterity in the right hand, patient can walk some distance, but is limited to level surfaces and memory impairment is present. It is further stated in Ext.C1 that permanent neurological disability is 49.5% and permanent maxillofacial disability is 3%. RW1 deposed that the disability was assessed adopting American Medical Board Scales for assessing the

disability. Anyway that aspect is not seen mentioned in Ext.C1. Anyway, the disability is not assessed as per Mc Bride's Scale. It is deposed by RW1 that no orthopaedic complaint was noted. According to him, the disability mentioned in Ext.C1 is a whole body disability and the disability to walk and disability to speech of the 1st petitioner is with pretension, but it was ascertained by clinical observations. As per Ext.C1, 51% permanent disability is there for the 1st petitioner."

On going through the said observations, it can be seen

that, the Tribunal specifically found that the method

adopted by the Medical Board was in deviation with the

normal practice of computation by adopting the method

contemplated under Mc Bride's Scale. This was one of the

reason for taking a lesser percentage of disability than

the one certified in Ext.C1 medical certificate. However,

in this case, I am not concerned with the physical

disability of the victim alone. This is a case in which a

27 year old person sustained very serious injuries and

since he was a person engaged in an avocation which

requires physical assertion. The nature of injuries as

highlighted in the disability certificate will certainly

have serious impact on him. Hence, the functional

disability consequent to the injury, has to be taken into

consideration, which shall always be higher than the

physical disability. In such circumstances, even if it is

assumed that the discrepancies in the method of

assessment adopted by the Medical Board while issuing the

disability certificate are true as found by the Tribunal,

taking into account the probable functional disability

sustained by the 1st appellant, the entire percentage as

certified in the medical certificate can be taken, for

considering the compensation. Therefore, 51% of the

disability as certified in Ext.C1 medical certificate is

accepted for computing the compensation.

9. The next question is relating to the fixation

of monthly income. The learned Tribunal has taken

Rs.3,000/- as monthly income which is extremely on lower

side. The monthly income claimed by the petitioner was

Rs.6,000/-. The petitioner claims to be a rubber tapper.

Even though the nature of employment is not proved by the

1st appellant, this Court is of the view that in the

light of the principles laid down by the Hon'ble Supreme

Court in Ramachandrappa v. Manager, Royal Sundaram

Alliance Insurance Company Ltd. [(2011)13 SCC 236] and

Syed Sadiq v. Divisional Manager, United India Insurance

Company Limited[(2014)2 SCC 735], under no circumstances,

Rs.6,000/- can be treated as an unreasonable amount and

it is accepted accordingly. Apart from the above, he

sustained very serious injuries which adversely affected

his earning capacity and therefore while computing the

compensation for loss of permanent disability, the scope

of future earnings have also to be taken into account. As

per the principles laid down by the Hon'ble Supreme Court

in National Insurance Company Ltd. v. Pranay Sethi

[2017(4)KLT 662], for a self employed person having aged

below 40 years, 40% of the monthly income can be taken as

future prospects. Even though such a fixation is normally

done in death cases, taking into account the serious

nature of injuries and its impact upon the life of the

petitioner who was aged 27 years only, an addition in the

light of the principles laid down by the Hon'ble Supreme

Court in Pranay Sethi's case (supra) can be made.

Accordingly, 40% addition is made towards monthly income

towards future prospects. In the above circumstances,

the amount of compensation under the head of

permanent disability is fixed as Rs.8,73,936/-

[(6000+2400)x12x17x51/100]. The Tribunal has already

awarded an amount of Rs.1,83,600/- under this head. Thus,

while adjusting the said amount, the appellant is

entitled an additional amount of Rs.6,90,336/- under the

head of permanent disability. The revision of monthly

income necessitates the revision of the compensation

under the head of loss of earning as well. The amount

awarded under this head is calculated at the rate of

Rs.3,000/- for six months (Rs.18,000). Consequent to the

re-fixation of the monthly income as Rs.6,000/-, it has

to be re-worked as Rs.36,000/- (Rs.6,000x6). Thus, the

appellant is entitled an additional amount of Rs.18,000/-

under this head.

10. Another head is transport to hospital. As

against the claim of Rs.10,000/-, the learned Tribunal

has awarded an amount of Rs.6,000/- under this head. It

is evident that he was under treatment both as inpatient

and outpatient at various spells and necessarily he must

have been taken to hospital on various occasions. It is

discernible from the award that his mobility is seriously

affected due to the injuries sustained, and hence

necessarily, all his travels must have been done by

hiring vehicles. Therefore, this Court is of the view

that the amount claimed by the appellant as Rs.10,000/-

is reasonable and it is allowed. Thus, the appellant is

entitled an additional amount of Rs.4,000/- under this

head.

11. The next aspect is pain and sufferings and the

amount awarded by the Tribunal is only Rs.8,000/- under

this head which is extremely on lower side. It is

discernible that even the period of inpatient treatment

extended to 168 days and it was spread out on a number of

spells ranging from 2007-2010. From the said aspect, it

is evident that he had undergone much pain and suffering

due to the injuries. Taking note of the injuries and also

the date of accident, this Court feels that a further

amount of Rs.30,000/- would render some justice to the

1st appellant.

12. The next aspect is relating to the compensation

for loss of amenities. The learned counsel for the

appellants points out that while considering the

compensation under the said head, one crucial aspect to

be taken into consideration is that, he was an unmarried

person and the nature of injuries would have seriously

affected his marriage prospects. The learned counsel for

the Insurance Company seriously disputed this contention.

Absolutely, no materials were placed on record to show

whether he is an unmarried person. He submits that in the

absence of any such materials, the claim or assertion

that he was an unmarried at the relevant time, should not

be taken into consideration. When evaluating the above

rival contentions, the presence of the 2 nd petitioner in

the claim petition as a person representing the 1st

petitioner is relevant. If the petitioner was married at

the relevant time, certainly, it would have been his wife

representing the 1st petitioner. As he is represented by

his mother, this Court is justified in proceeding with

the computation of monthly income treating him as an

unmarried person. Further, it is also a relevant aspect

that the provision relating to the 'compensation' under

the Motor Vehicles Act is part of a welfare legislation

which are intended to protect the interests of victims

and hence there is no harm in arriving at a reasonable

assumption, favourable to victims, from the facts and

circumstances of the case. Having observed as above,

this Court is of the view that while fixing the

compensation for loss of amenities, the loss which he

might have sustained on account of loss of marriage

prospects, should also be taken into consideration. In

such circumstances, an amount of Rs.60,000/- is fixed as

compensation under the head of loss of amenities.

Under the above circumstances, this

appeal is disposed of by fixing an additional amount

of compensation Rs.8,02,336/- (Rupees Eight Lakhs

Two thousand Three hundred and Thirtysix

only)(Rs.6,90,336+18,000+4,000+30,000+60,000). The 2nd

respondent/Insurance Company shall deposit the said

amount along with interest at the rate of 7.5% per annum

within a period of three months from the date of receipt

of copy of this judgment.

The appeal is disposed of as above.

Sd/-

ZIYAD RAHMAN A.A.

JUDGE

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