Full Judgment
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.
MACA 661 of 2013 3
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
MACA 661 of 2013 4
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
MACA 661 of 2013 5
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 MACA 661 of 2013 6 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