Kerala High Court
P.J.Francis vs Usha on 7 November, 2024
2024:KER:83099
MACA No.3131 of 2020
1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE P. KRISHNA KUMAR
THURSDAY, THE 7TH DAY OF NOVEMBER 2024 / 16TH KARTHIKA, 1946
MACA NO. 3131 OF 2020
AGAINST THE ORDER/JUDGMENT DATED IN OPMV NO.2039 OF 2016 OF
MOTOR ACCIDENT CLAIMS TRIBUNAL ,ERNAKULAM
APPELLANT/S:
P.J.FRANCIS
AGED 58 YEARS
S/O. JOSEPH, PUTHENPADATH HOUSE, KALATHARA, KANNAMALY
P.O, COCHIN 8
BY ADVS.
RAHUL SASI
SMT.NEETHU PREM
SHRI.VIVEK.P.K
RESPONDENT/S:
1 USHA
W/O. UNNI, HOUSE NO. 22/647, ANAMOOTTIL HOUSE,
EDACOCHIN, COCHIN 682 010
2 RAHUL,
S/O. RAJAN, NIKARTHIL PARAMBIL HOUSE, PAMPAIMOOLA,
EDACOCHIN, COCHIN 682 010
3 THE ORIENNTAL INSURANCE CO.LTD,
REGIONAL OFFICE, METRO PALACE, OPP. NORTH RAILWAY
STATION, ERNAKULAM, COCHIN 682 018 REPRESENTED BY ITS
AUTHORIZED OFFICER.
BY ADV SRI.VPK.PANICKER
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD
ON 07.11.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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MACA No.3131 of 2020
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JUDGMENT
Dated the 7th day of November, 2024
This appeal is preferred against the award passed
on 30.4.2018 by the Motor Accidents Claims Tribunal,
Ernakulam in OP(MV) No.2039 of 2016, by the petitioner
therein, claiming that the amount awarded under various
heads is insufficient.
2. The accident occurred on 11.07.2016 while the
appellant was walking through a public road. As there is no
challenge against the findings of the Tribunal regarding the
cause of the motor accident, the nature of injuries suffered,
the liability of the respondent, etc., the discussion
hereunder is limited to the essential aspects only.
3. Heard both sides and perused the available
records.
4. The learned counsel for the appellant submits
that the Tribunal committed a serious error in fixing the
quantum of compensation in two aspects.
1. The Tribunal did not award any amount towards
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future prospects, though the appellant suffered
permanent disability which is assessed as 30%
by the Medical Board constituted at
Government T.D.Medical College Hospital,
Alappuzha.
2. The Tribunal completely omitted the fact that
the appellant sustained serious head injuries
which is evident from Ext.A7.
5. According to him, the Tibunal ought to
have fixed the monthly income of the appellant at a higher
rate, as it is evident from Ext.A7 FIS, that the appellant was
a mason and the accident occurred while he was on the way
back to home after his work. The learned counsel forcefully
contended that in view of the law laid down by the Hon'ble
Supreme Court in Raj Kumar v. Ajay Kumar & Anr
[AIRONLINE 2010 SC 125], the appellant is entitled to get
compensation for occupational disability accounting for
future prospects as well at a higher rate than what is fixed
by the Tribunal, as it did not follow the percentage of
disability assessed by the Medical Board.
6. The learned counsel for the 3rd
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respondent/insurer contended that the entitlement of a
claim for future prospects depends upon the seriousness of
the injury resulting in permanent disability, and in the
present case, where the court is not assisted by any oral
evidence, it is difficult to interfere with those aspects,
including the question of occupation of the appellant. To
support his submissions, the learned counsel referred to
paragraph 31 of the judgment rendered by the Hon'ble
Supreme Court in Sidram v. The Divisional Manager,
United India Insurance Co.Ltd and Anr [2022
LiveLaw(SC)968]
7. It is true that the Hon'ble Supreme Court
has held that future prospects has to be fixed after
assessing the seriousness of injury resulting in permanent
disability. However, the Hon'ble Supreme Court has infact,
emphatically stated as follows:-
"31. It is now a well settled position of law that even in cases
of permanent disablement incurred as a result of a motor-
accident, the claimant can seek, apart from compensation for
future loss of income, amounts for future prospects as well.
We have come across many orders of different tribunals and
unfortunately affirmed by different High Courts, taking the
view that the claimant is not entitled to compensation for
future prospects in accident cases involving serious injuries
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resulting in permanent disablement. That is not a correct
position of law. There is no justification to exclude the
possibility of compensation for future prospects in
accident cases involving serious injuries resulting in
permanent disablement. Such a narrow reading is illogical
because it denies altogether the possibility of the living victim
progressing further in life in accident cases - and admits such
possibility of future prospects, in case of the victim's death."
In the present case, there is sufficient evidence to assess
the nature of injuries and their seriousness. Ext.X1
disability certificate issued by the Medical Board consisting
of the doctors in the Government T.D. Medical College
Hospital, Alappuzha, reads as follows:-
1) Poly trauma (a) left forearm - Closed Galeazzi fracture.
(b) Type III B open Right leg both bones fracture.
(c) Bennett fracture left hand with 1st MCP joint dislocation.
(d) Blunt Trauma Abdomen.
(e) Head injury with EDH and Right temporal bone fracture,
Left Maxillary/Zygoma fracture.
Assessment
1) Mobility component - 20%.
2) Stability component: Difficulty in full squatting/cross
legged sitting & climbing stairs in normal pace - 09%
3) Extensive soft tissue defect with scarring over the
posterior aspect of middle 1/3rd of Right leg - 03%.
4) Secondary osteoarthritis of Right knee joint-02%.
Total disability - 30%
8. Further, from Exts. A10 to 12, it is
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evident that the following injuries were noted in the CT
Brain "EDH plus right temporal cerebral bone and left
Maxillary/Zygoma fracture.
9. The Tribunal has awarded compensation
for permanent disability at `4,75,200/-. As the head injury
suffered by the appellant was not taken into account by
the Tribunal, it is only just and fair to refix the
compensation, accounting for the said injuries too. Hence,
it is fair and reasonable to fix the occupational disability at
the rate of 40%, in view of the guidelines fixed in the
decision reported in the decision in Raj Kumar's case
(supra).
10. As contended by the learned counsel
appearing for the appellant, the Tribunal did not consider
the question of loss of future prospect, though it appears
from the medical records that the appellant has suffered
serious injuries resulting in permanent disability. Thus, he
is entitled to get future prospects at the rate of 10%,
taking into account his age at the time of the accident.
Thus, the appellant is entitled to get `6,96,960/- [`13,200
(`12,000+10%)x12x11x 40/100] as compensation for
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permanent disability.
11. In view of the above discussion, the
appeal is allowed as follows:-
The appellant is entitled to get additional
compensation under the below head:
1. Compensation for permanent
disability - `2,21,760/-
The impugned award is modified only to the above
extent. The M.A.C.A stands disposed of accordingly.
Sd/-
P.KRISHNA KUMAR
JUDGE
SM
