Kerala High Court
Ramachandran vs Brigumohan on 25 October, 2024
2024:KER:79795
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE EASWARAN S.
FRIDAY, THE 25TH DAY OF OCTOBER 2024/3RD KARTHIKA, 1946
MACA NO. 454 OF 2021
AGAINST THE ORDER/JUDGMENT DATED 29.09.2020 IN OP(MV) NO.277
OF 2017 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, OTTAPPALAM
APPELLANTS:
RAMACHANDRAN,
AGED 40 YEARS,
S/O.KRISHNAN, KOTTAPALLIYALIL HOUSE,
KULAKKAD P.O., OTTAPALAM TALUK,
PALAKKAD DISTRICT, PIN - 679 503,
LYING RESTLESS AND DISORIENTED WITH LOSS OF MEMORY,
REPRESENTED BY WIFE AND NEXT FRIEND SUNITHA,
AGED 30 YEARS, W/O.RAMACHANDRAN,
KOTTAPALLIYALIL HOUSE, KULAKKAD P.O.,
OTTAPALAM TALUK, PALAKKAD DISTRICT.
BY ADV T.K.SANDEEP
RESPONDENTS:
1 BRIGUMOHAN,
AGED 27 YEARS,
S/O.MANI, KALLUVETTIKKAL VEEDU,
PALOLIPARAMBU, ANANMANGAD (PO),
MALAPPURAM - 679 357.
2 ANU,
(AGE NOT KNOWN), S/O.MANI, VANIYAR STREET,
NEAR OLD MARKET, NALLEPILLY (PO),
THEKKE DESOM, PALAKKAD DISTRICT,
PIN - 678 553.
3 NEW INDIA ASSURANCE CO.LTD.,
REPRESENTED BY ITS BRANCH MANAGER,
N.S.TOWERS, 1ST FLOOR, NEAR STADIUM,
M.A.C.A. No. 454 of 2021
2024:KER:79795
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BUS STAND, COIMBATORE ROAD,
PALAKKAD - 678 013.
BY ADV SEBASTIAN VARGHESE(K/141/2000)
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD
ON 25.10.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
M.A.C.A. No. 454 of 2021
2024:KER:79795
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JUDGMENT
(Dated this the 25th day of October, 2024)
The Claimant OP(MV) No. 277/2017 on the files of the
Motor Accidents Claims Tribunal, Ottappalam come up with
the present appeal.
2. The facts in brief are as follows: On 10.12.2016 at
5.30 p.m while the claimant was riding a scooter bearing
Registration No. KL-51/B-5127 was hit by the motorcycle
bearing Registration No.KL-70/B-1410, due to the accident,
the claimant sustained grievous injuries. The claimant
contented that he was working as a Toddy tapper and was
drawing an income of Rs.21,000/-. On behalf of the claimant
Exts. A1 to A12 were produced. Since, the claimant suffered
grievous head injury, he was not in a mental state to file the
application and hence the claim petition was filed through his
next friend and wife. During the pendency of the claim
petition before the Tribunal, the claimant was referred to the
Medical Board and the Medical Board by report dated
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07.03.2020 certified that the claimant was suffering for
severe head injuries and hearing loss also occurred and thus
assessed the disability at 89%. The vocation of the claimant
as a Toddy Tapper was proved by Ext.A12, identity card and
hence, the Tribunal proceeded to fix the notional income at
Rs. 13,000/- and granted the following compensation.
Sl. Head of Claim Amount Amount Basic -Vital
No Claimed Awarded details in a nut
in ₹ in ₹ shell
1 Loss of earning 12,6000 39,000 (13,000x3
months)
2 Transport to 20,000 2,000 As per the
hospital available
documents the
petitioner went to
hospital on
several
occasions.
3 Extra nourishment 20,000 2,000
4 Bystander 25,000 8,000 (400x20 days)
expenses.
5 Damage to clothing 2,000 1,000 Nominal amount
and articles
6 Compensation for 3,00,000 2,40,116 As per Ext.A9
treatment and series medical
medicine bills
7 Future treatment 2,00,000 0
expenses
8 Compensation for 3,00,000 1,00,000 Considering the
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pain and suffering nature of injuries
9 Compensation for 35,000 35,000 Considering the
loss of enjoyment disability
and amenities of
life
10 Compensation for 30,00,000 20,82,600 13000x12x15x89/
permanent
disability
Total 45,28,000 25,09,716
Limited to 35,00,000
3. Heard Sri. Sandeep T.K, the learned counsel
appearing for the appellant and Sri. Sebastian Varghese, the
learned counsel appearing for the Insurance Company.
4. The learned counsel appearing for the appellant
submitted that on two counts the award of the Tribunal
require interference. Though, the Tribunal fixed the notional
income at Rs.13,000/-, it had not granted any future prospects
especially considering the percentage of disability suffered by
the claimant being severe and fixed at 89%. Secondly, the
Tribunal has not granted any compensation towards future
treatment especially since, Ext.A11 certificate on disability
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shows that the claimant had suffered severe head injuries.
5. On the other hand, the learned counsel
appearing for the Insurance Company submitted that even
going by the principles laid down by the Hon'ble Supreme
Court in Ramachandrappa v. The Manager, Royal Sundaram
Allianace Insurance Company [AIR (2011) SC 2951], the
claimant was entitled to fix his notional income at Rs.9,000/-.
Even if 40% of future prospects is granted, the income arrived
by the Tribunal was just and proper. In respect of the claim
for compensation under the head future expenses, the learned
Counsel for the Insurance Company pointed out that there is
no evidence to show that the claimant had incurred any
further expenditure for future medical treatment.
6. I have considered the rival submissions raised
across the bar and perused the award.
7. It is true that the claimant has not proved his
monthly income at Rs.21,000/-. But considering the fact that
his vocation as a Toddy Tapper being proved through Ext.A12,
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the Tribunal proceeded to fix the notional income as
Rs.13,000/-. Although, the learned counsel for the Insurance
Company submitted that the Tribunal ought not have fixed the
said amount as notional income, this Court proceeds to
consider this appeal by taking Rs.13,000/- itself as a notional
income. It is to be noted that the claimant was aged 37 at the
time of accident. Hence, going by the judgment of the Hon'ble
Supreme Court in National Insurance Company Ltd. v. Pranay
Sethi, [2017 (4) KLT 662 (SC)], the claimant is definitely
entitled for a future prospects of 40%. Thus, after adding 40%
of future prospects the claimant's income ought to have been
fixed by the Tribunal at Rs.18,200/-.
8. Coming to the percentage of disability fixed by
the Medical Board, it is seen that the Medical Board had
assessed the disability at 89%. The findings of the Medical
Board are as follows:-
"We the members of the Medical Board Medical
College Hospital Thiruvananthapuram have examined
Ramachandran aged 40 years residing Kottappalliyalil,
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Pakaravoor, Kulakkad, Vellinezhi, Palakkad on 21.01.2020
and found him as a person with disability by reason of
physical impairment due to
Psychiatric disability (Major neurocognitive
dysfunction due to head injury)- 85%
Neurological disability (Locomotor disability due
to mild right hemiparesis is 40%
Hearing disability 63%
Total disability 85 + 3.5 + 0.7 = 89.2 ~ 89%
The following consultants in different specialties were
included in the Medical Board and they have examined the
patient to assess the disability and it is found that the
disability is permanent, the total degree of disability
having been found as 89%% (eighty nine percentage only)
Identification marks
1. Whitish mark on medical aspect of left thigh
2. Black mole below right collar bone".
9. It is thus clear that because of the percentage
of disability suffered by the claimant, he is not in a position to
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do his vocation. In such circumstances, this Court is in perfect
agreement with the learned counsel for the appellant that the
Tribunal ought to have fixed the functional disability of the
appellant at 100%. The power of the Courts and Tribunals to
fix the functional disability in accordance with the nature of
injury suffered by the claimant is no longer res integral. In
Rekha Jain v. National Insurance Company Ltd. [2013
KHC 4600], the Hon'ble Supreme Court had laid down that
the parameters for consideration of the Courts and Tribunals
by fixing the functional disability of the claimants. Therefore,
following the aforesaid principles, this Court is of the view
that the Tribunal ought to have fixed the functional disability
at 100%.
10. Turning to the next contention of the appellant
that no compensation has been awarded for the future
treatment, this Court is constrained to note that no evidence
was adduced before the Tribunal to prove that the claimant
had incurred expenses for future treatment. Hence, this Court
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is not in a position to accede to the request of the learned
counsel for the appellant.
11. In the result the appeal is allowed. The award
of the Tribunal in OP(MV) No. 277/2017 is modified as follows:
18,200 x 12 x 15 = 32,76,000 - 20,82,600 =
11,93,400/-.
12. This Court has granted compensation by taking
into consideration the functional disability as 100%, the
appellant is not entitled for any compensation towards the loss
of earning. Hence, the compensation of Rs. 39,000/- granted
under the head loss of earning is hereby deleted. The
modified amount is as follows:
Sl. Head of Claim Amount Amount Enhanced by
No Claimed Awarded this Court
in ₹ in ₹ (Rs.)
1 Loss of earning 12,6000/- 39,000/- (-39,000)
2 Transport to 20,000/- 2,000/-
hospital
3 Extra nourishment 20,000/- 2,000/-
4 Bystander 25,000/- 8,000/-
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expenses
5 Damage to clothing 2,000/- 1,000/-
and articles
6 Compensation for 3,00,000/- 2,40,116/-
treatment and
medicine
7 Future treatment 2,00,000/- 0
expenses
8 Compensation for 3,00,000/- 1,00,000/-
pain and suffering
9 Compensation for 35,000/- 35,000/-
loss of enjoyment
and amenities of
life
10 Compensation for 30,00,000/- 20,82,600/ 11,93,400/-
continuous or -
permanent
disability
Total 45,28,000/- 25,09,716/ 11,54,400/-
-
Limited to 35,00,000/-
Thus a total amount of Rs.11,54,400/- (Rupees
Eleven Lakhs fifty four thousand and four hundred only) is
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awarded as the enhanced compensation to the appellants. The
amount shall carry 8% interest from 27.04.2017 till
realization. The appellants will also be entitled for
proportionate costs. The Insurance Company shall deposit the
enhanced compensation together with interest and
proportionate costs within a period of one month from the
date of receipt of a copy of this judgment. The claimant shall
furnish the details of the bank account to the Insurance
Company for transfer of the amount. The appeal is ordered
accordingly.
Sd/-
EASWARAN S.
JUDGE
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