Kerala High Court

P H Mehboob vs G Rama Padiyara on 12 June, 2024

             IN THE HIGH COURT OF KERALA AT ERNAKULAM
                              PRESENT
             THE HONOURABLE MRS. JUSTICE SOPHY THOMAS
     WEDNESDAY, THE 12TH DAY OF JUNE 2024 / 22ND JYAISHTA, 1946
                        MACA NO. 2736 OF 2016
AGAINST THE ORDER/JUDGMENT DATED 21.08.2015 IN OPMV NO.1084 OF
2013 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,ERNAKULAM

APPELLANT/PETITIONER:

          P H MEHBOOB
          AGED 54 YEARS
          S/O.HASSAN,THUNDIPARAMBIL, 1/366, KALLANCHERRY KAYAL
          ROAD, KOYA BAZAR,KUMBALANGI, COCHIN 7
          BY ADVS.
          SRI.RAHUL SASI
          SMT.NEETHU PREM

RESPONDENTS/RESPONDENTS:

    1     G RAMA PADIYARA
          S/O.GOKULA DAS, HOUSE NO. 10/565,AMARAVATHY, COCHIN
          682001
    2     JOBAN JOSEPH
          S/O.JOSEPH CG., CHITTAPPALLY HOUSE,KUMBALANG SOUTH PO,
          COCHIN 682007
    3     HDFC ERGO GENERAL INSURANCE CO. LTD.
          6TH FLOOR, LEELA BUSINESS PARK,ANDHERI KUJRLA ROAD,
          ANDHERI (EAST) MUMBAI 400069

          BY ADV K.B.RAMANAND SC



     THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR
ADMISSION ON 12.06.2024, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
 MACA NO.2736 OF 2016                       2


                             J U D G M E N T

This appeal is at the instance of the

claimant in OP(MV) No.1084 of 2013 on the file

of Motor Accidents Claims Tribunal, Ernakulam

impugning the award on the ground of inadequacy

of compensation.

2. On 2/1/2013 at 12.05 pm while the

appellant/claimant was travelling in KL-07/AN

4212 bus driven by the 2nd respondent through

Kappalandimukku-Mattancherry road, due to his

rash and negligent driving, a brick which was

hanging on an electric post hit on the sidebar

of the bus, and it fell upon the head of the

claimant, and he was thrown out of the seat and

he sustained serious injuries including head

injury. He had undergone decompressive

craniectomy with SDH evacuation. He was

hospitalized for 33 days in total, in different

spells, undergoing various surgical procedures.

He suffered permanent disability of 35% due to

the injuries suffered in the accident. He

approached the Tribunal claiming compensation

of Rs.15 lakh. Learned Tribunal awarded only

Rs.9,63,800/- and hence this appeal.

3. The 1st respondent was the owner of the

offending bus, 2nd respondent was its driver and

the 3rd respondent was its insurer.

4. The 3rd respondent-insurer contested the

case before the tribunal, but admitted the

policy.

5. Learned Tribunal on analyzing the facts

and evidence found that the accident occurred

due to the rash and negligent driving of

KL-7/AN 4212 bus by the 2nd respondent, and

that bus was duly insured with the 3rd

respondent-insurer, as on the date of accident.

So the company was found liable to indemnify

the insurered and thereby to compensate the

claimant.

6. In the appeal, the 3rd respondent insurer

entered appearance through learned standing

counsel and admitted the policy and its

liability to compensate the appellant. But

according to them, the compensation awarded by

the tribunal is just and reasonable, and hence

it needs no modification.

7. Now this Court is called upon to answer

whether there is any illegality, irregularity

or impropriety in the impugned award warranting

interference by this Court.

8. Heard learned counsel for the appellant

and learned counsel for the 3rd respondent

insurer.

9. Learned counsel for the appellant would

submit that the appellant was a canteen

supervisor earning monthly income of

Rs.15,000/- as on the date of accident. But

learned tribunal fixed his notional income @

Rs.6,000/- and that is on the lower side.

Learned counsel for the appellant would rely on

the decision Ramachandrappa v. Manager, Royal

Sundaram Alliance Insurance Company Limited

[AIR 2011 SC 2951], to say that, even a coolie

worker was eligible to get his notional income

fixed @ Rs.9,000/- per month, in the year 2013.

Relying on that decision this Court is inclined

to fix his notional income @ Rs.9,000/-.

10. Learned Tribunal assessed loss of

earning for 9 months. Learned counsel for the

appellant would submit that, after the accident

in the year 2013, the appellant was continuing

his treatment for years together and he

produced additional documents as Annexures A1

to A12 to show that the appellant was

continuing his treatment even in the year 2022.

So this court is of the view that loss of

earning can be taken for two years (24 months).

At the rate of Rs.9,000/- per month the

appellant is entitled to get Rs.2,16,000/-

(24x9000), towards loss of earnings. After

deducting Rs.90,000/- already awarded, he is

entitled to get the balance amount of

Rs.1,26,000/- as enhanced compensation under

the head loss of earning.

11. Towards transportation expenses, learned

Tribunal awarded only Rs.1,000/- against his

claim of Rs.5,000/-. He was hospitalized on

various occasions, and Exts.A8, A13 and A15

will show that he had gone to hospital on

several occasions, even after discharge. So

this court is inclined to award Rs.4,000/-

more, towards transportation expenses.

12. Towards extra nourishment, learned

Tribunal awarded only Rs.5,000/-. The appellant

was hospitalized for 33 days with severe head

injury and he had undergone decompressive

craniectomy with SDH evacuation. So he might

have been under special diet during that

period. Considering that aspect, this court is

inclined to award Rs.10,000/- more, under the

head extra nourishment.

13. Towards bystander expenses, learned

Tribunal awarded Rs.10,000/- as claimed by the

appellant. It has come out in evidence that the

appellant was having 25% risk of post traumatic

epilepsy, and he was having mood swings etc.,

and so even after discharge from hospital, he

might have been under the care and assistance

of a bystander. Considering that fact, this

court is inclined to award Rs.5,000/- more,

under the head attendant expenses.

14. Towards medical expenses, learned

Tribunal awarded compensation as per bills.

Learned Tribunal had awarded Rs.75,000/-

towards future treatment expenses. The

appellant produced Annexure A1 to A12 documents

to show that he had suffered medical expenses

of Rs.50,584/- during the period 2017-2022. So

those bill amounts are covered, under the

amount awarded for future treatment. So the

appellant is not entitled to get any further

amount towards treatment expenses, on the basis

of Annexures A1 to A12 documents.

15. Towards pain and suffering, learned

Tribunal awarded Rs.1 lakh against his claim of

Rs.2 lakh. The appellant had suffered severe

head injury and he had undergone various

surgical procedures including decompressive

craniectomy with SDH evacuation. He was

hospitalised for 33 days and even after

discharge, he was continuing his treatment for

various problems, which manifested due to the

injuries suffered in the accident. So this

court is inclined to award Rs.25,000/- more,

under the head pain and sufferings.

16. The medical board certified the

disability suffered by the appellant as 35%.

Learned counsel for the appellant would submit

that the functional disability of the appellant

is 100% as he is not able to do any job. He was

a 59 year old man at the time of the accident.

In paragraph 8 of the award towards last,

learned Tribunal has noted that the appellant

had inability to talk clearly and he was not in

a position to do any work. So this court is

inclined to take his functional disability as

60%, though his permanent physical disability

was reported to be 35% by the medical board.

Since he was below 60, 10% addition could have

been given towards future prospects. So his

monthly income for assessing the disability

compensation can be taken as

Rs.9,900/-[9000+10%]. So the compensation for

60% disability can be assessed as Rs.6,41,520/-

[9900x12x9x60/100]. Learned Tribunal awarded @

Rs.2,26,800/-, towards compensation for

permanent disability, and Rs.50,000/- more for

loss of earning power. Since loss of earning

power also is covered under the head permanent

disability, that amount also comes under the

disability compensation. So on deducting

Rs.2,76,800/- awarded by the tribunal, the

appellant is entitled to get the balance amount

of Rs.3,64,720/-, as enhanced compensation for

disability.

17. Towards loss of amenities, and the

disfiguration caused due to craniectomy,

this court is inclined to award Rs.25,000/- as

it is reported in Ext.C1 disability

certificate, that the appellant was having

headache, dizziness, mild dysartha and 25% risk

of post traumatic epilepsy on AED.

18. The compensation awarded under all other

heads seems to be reasonable, and hence it

needs no modification.

19. The enhanced compensation awarded in this

appeal is stated in the table given below:-

Amount Amount Difference to Head of claim awarded awarded in be drawn as by the appeal enhanced Tribunal compensation

2,16,000/-

Loss of earning 9,000/- 1,26,000/-

[9000x24] Transportation expenses 1,000/- 5,000/- 4,000/- Extra nourishment 5,000/- 15,000/- 10,000/- Attendant expenses 10,000/- 15,000/- 5,000/- Pain and sufferings 1,00,000/- 1,25,000/- 25,000/-

      Permanent                                        6,41,520/-
      disability/Loss of earning   2,26,800/-        [9900x12x9x       3,64,720/-
                                    50,000/-
      power                                             60/100]
      Loss of amenities                -                25,000/-          25,000/-

                                                          TOTAL      5,59,720/-



          16.      So     the      appellant         is    entitled        to     get