Kunjiraman vs The Director
2021 Latest Caselaw 21302 Ker

MACA 661 of 2013                             1




               IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                    PRESENT
                   THE HONOURABLE MR. JUSTICE T.R.RAVI
    FRIDAY, THE 29TH DAY OF OCTOBER 2021 / 7TH KARTHIKA, 1943
                             MACA NO. 661 OF 2013
  AGAINST THE AWARD IN OPMV 1623/2006 OF MOTOR ACCIDENT CLAIMS
                          TRIBUNAL, IRINJALAKUDA
APPELLANT/PETITIONER:

               KUNJIRAMAN
               S/O.GOVINDANKUTTY NAIR,KOUSTOOBHAM,
               PERAMBRA, THRISSUR DISTRICT,
               REPRESENTED BY THE NEXT FRIEND AND WIFE
               SMT.AMBIKA,W/O.KUNJIRAMAN,
               KOUSTOOBHAM,PERMBRA,
               THRISSUR DISTRICT.
               BY ADV SRI.T.N.MANOJ


RESPONDENTS/RESPONDENTS:

     1         THE DIRECTOR
               ZABA LAB FURNITURE LTD,
               CHITTOOR ROAD,NEAR YMCA,
               COCHIN - 682 011.
     2         KURIAKOSE
               S/O.OUSEPH,THEKKANATH HOUSER,
               THENGODE.P.O,EMS ROAD,
               KOCHI - 682 003.
     3         THE MANAGER
               UNITED INDIA INSURANCE COMPANY
               LTD,KALAMASSERY,ERNAKULAM DISTRICT - 682 030.
               BY ADVS.
               SRI JOHN JOSEPH VETTIKKAD
               SRI.C.A.CHACKO
               SRI.GEORGE CHERIAN THIRUVALLA

        THIS   MOTOR   ACCIDENT     CLAIMS       APPEAL   HAVING   BEEN    FINALLY
HEARD    ON    06.09.2021,    THE   COURT    ON     29.10.2021     THE    SAME   DAY
DELIVERED THE FOLLOWING:
 MACA 661 of 2013                         2




                                T.R. RAVI, J.
                     --------------------------------------
                          M.A.C.A. No.661 of 2013
                     --------------------------------------
                   Dated this the 29th day of October, 2021


                                JUDGMENT

The appellant, while riding his scooter on 25.02.2006, was hit

by a car driven by the 2nd respondent in a rash and negligent manner.

The appellant was seriously injured and permanently disabled. At the

time of the accident, he was 54 years old and was an employee of

Apollo tyres, drawing a monthly income of Rs.15,250/-. He suffered

lacerated wound over occipital region, right fronto temporal SD

fracture, left temporal parietal EDH, frontal and temporal lobe

haemorrhagic contusions, lacerated wound over occipital scalp,

contusion on forehead, and contusion on right dorsum foot. The

injuries were proved by Exhibit A2 wound certificate. Exhibit A4

shows that he was an in-patient in the Elite Mission Hospital in the

Department of Neurosurgery for 36 days. Exhibit A5 series are CT

scan reports. Exhibit A6 is the report of of Neuropsychological

assessment. It can be seen that the appellant had severe cognitive

dysfunction and organic brain syndrome. Exhibit A9 discharge card

shows that he was an in-patient in the Crescent Hospital for 14 days.

A claim petition was filed by the appellant through his wife as next

friend. His wife was examined as PW2 and she has stated that the

appellant has serious loss of memory and is not able to do anything

and he does not even recognise close relatives. Exhibit X1 is a

certificate issued by PW3 who was a consultant Psychologist,

regarding the mental condition of the appellant. PW3 has certified

that the appellant has got memory impairment and severe mental

disability, which is not likely to improve. Exhibit A10 proves the salary

of the appellant at the time of the accident. The appellant was due to

retire on 30.04.2008. The Tribunal granted a sum of Rs.5,15,219/- as

compensation. Aggrieved by the award, the appellant has preferred

this appeal seeking enhancement of the compensation.

2. The counsel for the appellant pointed out that the

appellant could not attend work from 25.02.2006 till 30.04.2008 and

the compensation towards loss of earnings is to be awarded for the

entire period of 26 months when he could not go for work. The

counsel pointed out that Exhibits A10 and A11 clearly establish the

fact that the appellant had a loss of earnings of Rs.4,88,605/- during

the period from 24.02.2006 to 30.04.2008. The above documents are

issued by the employer and proved through PW4 who is the Assistant

Manager working in M/s Apollo Tyres and a person competent to

state about the said fact. It is contended that as long as there is no

contra evidence, the Tribunal went wrong in not accepting the

amount shown in Exhibit A10 as the loss of earnings. I find

considerable force in the above submission. Another contention

raised by the counsel for the appellant is regarding the amount

awarded towards permanent disability. The Tribunal, without any

consideration of the injury and disability suffered by the appellant,

resulting in total inability to do any work and the mental instability,

proceeded to compute the compensation for permanent disability on

the basis of a disability percentage of 50%. The counsel for the

appellant submits that it is a case of 100% disability, as is evident

from the fact that he was not even able to continue in his job. I find

substantial force in the above submission. The very fact that the

appellant could not even pursue the claim petition and had to do it

through his wife itself shows his inability to do anything. It is evident

from the records that the disability was caused solely due to the

accident. I am hence of the opinion that permanent disability should

be computed on the basis of 100% disability. Another contention that

is put forward is that the Tribunal went wrong in applying a notional

income of Rs.3,000/- to arrive at the compensation for permanent

disability after the period of retirement. Though it would not be fair to

calculate compensation for permanent disability on the basis of the

income that the appellant was earning till his retirement, it is also not

fair to fix a notional income of Rs.3,000/- in the case of a person who

retired in 2008. Applying the yardstick in Ramachandrappa v.

Manager, Royal Sundaram Alliance Insurance Co.Ltd., reported

in [AIR 2011 SC 2951], the notional income in 2008 would be

Rs.6,500/-. I am hence of the opinion it is only just that the

compensation for permanent disability is reworked on the basis of

100% disability and adopting Rs.6,500/- as notional monthly income.

Another contention that is raised by the appellant is that though a

very nominal sum of Rs.20,000/- alone was claimed towards pain and

suffering, the Tribunal awarded only Rs.15,000/- under that head and

no amount was awarded towards loss of amenities in life. The above

contentions are also fully justified. There is no reason to reduce the

amount claimed under the head pain and suffering. So also I am of

the opinion that the appellant should be granted a sum of

Rs.40,000/- towards loss of amenities in life. The appellant is hence

entitled to a sum of Rs.4,88,605/- towards loss of earnings. After

deducting the sum of Rs.2,40,000/- awarded by the Tribunal, the

appellant will be entitled to an additional compensation of

Rs.2,48,605/- under the above head. The appellant is entitled to an

additional sum of Rs.5,000/- towards pain and sufferings. The

appellant is entitled to a sum of Rs.40,000/- towards loss of

amenities. The appellant is entitled to Rs.7,02,000/- towards

permanent disability. After deducting the sum of Rs.1,62,000/-

granted by the Tribunal, the appellant will be entitled to an additional

amount of Rs.5,40,000/- under the above head.

3. In the result, the appeal is allowed and the appellant is

awarded an additional compensation of Rs.8,33,605/- (Rupees

Eight Lakhs Thirty Three Thousand Six Hundred and Five only)

with interest at the rate of 9% per annum from the date of filing of

the claim petition, till the date of realisation, with proportionate

costs. The 3rd respondent insurer shall deposit the additional

compensation granted in this appeal along with the interest and

proportionate costs, before the Tribunal within two months from the

date of receipt of a certified copy of this judgment, after deducting

any amount to which the appellant is liable towards balance court fee

and legal benefit fund. The disbursement of the compensation to the

appellants shall be in accordance with law.

Sd/-

T.R.RAVI JUDGE dsn