Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE T.R.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH MONDAY, THE13H DAY OF JULY201522ND ASHADHA, 1937 MACA.No. 126 of 2009 ( ) ------------------------- AGAINST THE AWARD IN OPMV8362000 of I ADDL.D.C. & ADDL.MACT,PALAKKAD DATED2504-2008 APPELLANT(S):PETITIONER ------------------------ M.SUBRAMANYAN S/O.LATE MADHAVA IYER, AGED45YEARS, OASIS GOVINDARAJAPURAM, PALAKKAD. BY ADV. SMT.BINDU GEORGE RESPONDENT(S):RESONDENTS ---------------------------- 1. SMT. HAMURABEE, W/O. A.G.GAFOOR MOSGUR ROAD, BASAVANAGIDU, BANGALORE-4 (DELETED) 2. THE ORIENTAL INSURANCE CO.LTD21 IST FLOOR, MISSION ROAD ABOVE FOTOFLASH, ADLABE, NEAR SUBBIAH CIRCLE BANGALORE.
3. S. ABDULSALAM NEHRU MANZIL, PARAKULAM KOLLAM.
4. THE ORIENTAL INSURANCE CO.LTD KOLLAM. (R1 DELETED FROM THE PARTY ARRAY AS PER ORDER
DATED233.2015) R,R2 BY ADV. SRI.VPK.PANICKER THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON1307-2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: T.R. RAMACHANDRAN NAIR & K.P.JYOTHINDRANATH, JJ.
- - - - - - - - - - - - - - - - - - - - - - - - - M.A.C.A.No.126 of 2009 - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 13th day of July, 2015 JUDGMENT
Ramachandran Nair,J.
The injured claimant is the appellant herein. The appellant got injured seriously in an accident which occurred on 12.4.1999 while he was travelling in a bus bearing Reg. No.KA-05/7599 from Bangalore to Palakkad. At a place called Vattappara the bus collided with a lorry bearing Reg. No. KL-02C/8440. He was taken to the Medical College Hospital, Thrissur and thereafter he was treated in the West Fort Hospital and further underwent a surgery also.
2. The Tribunal awarded a total compensation of Rs.2,20,000/- along with interest at 7.5%, out of which an amount of Rs.1,17,200/- represents the treatment expenses.
3. Heard learned counsel for the appellant, Smt. Bindu George and learned counsel for the insurance company, Shri V.P.K. Panicker.
4. The main emphasis laid by the learned counsel for the appellant is the denial of due compensation for the physical MACA1262009 2 disability, neurological disability, pain and suffering and loss of amenities. It is submitted that the appellant was functioning as an Auditor in the Co-operative Department and the disabilities have occurred to him at the age of 37. He was unmarried at that point of time. No amount has been granted towards loss of prospects of marriage also.
5. It is submitted that the percentage of disability has been assessed on two counts, viz. 16% for physical disability as per Ext.A17 certificate issued by the Doctor who has been examined as P.W.3 and in Ext.A16 issued by the Neurological expert who has been examined as P.W.4, the disability noted is 35%. It is submitted that the injuries were of very serious nature and he was subjected to various treatment procedures and was given ventilatory support also. The total period of inpatient treatment is 31 days.
6. Ext.A5 gives the details of injuries and the treatment procedures undertaken. The Tribunal, in the award, has noted the physical injuries in paragraph 12 which are the following: "1. Pain right shoulder; MACA1262009 3 2. Pain right knee; 3. Abrasion over right hand dorsal aspect; 4. Abrasion over right knee; 5. Sub dural haemorrhage; 6. Sub Arachnoid haemorrhage; 7. Fracture of occipital bone; 8. Fracture head of humerus; and 9. Fracture ribs. Ext.A5 is issued by West Fort Hospital. It can be seen from the said certificate that the following investigations were done: "C.T. brain (12.4.99) showed subarachnoid hemorrhage over tentorium, into hemispheric fissure, right fronto parietal subdural haematoma and brainstem contusion. X-ray chest :
2. d to 7th ribs, with lung contusion fracture left clavicle (middle third) X-ray right shoulder : Comminuted fracture neck right humerus. Blood group : B positive." It is seen from the said certificate that when he was brought to the hospital, as transferred from the Medical College Hospital, he was drowsy, arousable, dehydrated, had left side crepts (fracture ribs) with MACA1262009 4 flail chest . surgical neck, humerus fracture, left clavicle fracture. He was given mechanical ventilatory support and was put in intubation for a day and thereafter tracheostomy was done to facilitate tracheal and bronchial toileting. But he subsequently developed acute respiratory distress, tachypnoea, tachycardia and severe decreased air entry by left side.
7. It is the case of the appellant that he had taken leave for five months which is supported by Ext.A15 certificate. Learned counsel submitted that but for the accident he could have utilised the said leave for other purposes. He heavily relied upon the evidence of the Doctors, P.Ws.3 and 4.
8. Learned counsel for the insurance company submitted that the evidence will show that he was promoted as Assistant Registrar during the pendency of the case and therefore there is no functional disability as far as the appellant is concerned. It is submitted that the Tribunal has granted Rs.24,000/- towards physical disability and further amounts have been granted towards pain and suffering as well as loss of amenities in life. Learned counsel further submitted that in a case MACA1262009 5 where the claimant is not suffering from any functional disability, he cannot claim amounts by applying the multiplier method. It is submitted that over compensation will have to be checked in such cases also.
9. Having heard learned counsel on both sides, we are of the view that the fact that the appellant had sustained severe injuries, cannot be disputed. The Doctor who has reported 16% physical disability, has treated it as permanent disability itself, that too to the whole body. As far as the neurological disability is concerned, it is seen from the evidence of the Doctor who was examined as P.W.4, that initially he had 70% partial disability for 3 months and 50% for the next three months and lastly he has assessed 35% permanent disability. He was cross examined on various aspects and according to him, he has assessed the disability as per McBride scale. He stated that that the appellant has various difficulties including speech difficulty and abdusance paresi.
10. As far as the percentage of disability is concerned, it is true that there is no consolidated certificate issued by the Medical Board. MACA1262009 6 The accident is of the year 1999. Rather than relegating the parties for such a venture, we feel it appropriate to fix up the compensation based on the factors proved before the Tribunal.
11. The appellant was having a monthly salary of Rs.8,088/- and was aged 37 years at the time of accident and the multiplier available will be 15. Keeping in mind the various factors, we will be justified in fixing the percentage of disability by combining the orthopedic and neurological disabilities for the purpose of assessing the quantum of compensation, at 15%. Therefore, the compensation for permanent disability will be Rs.2,16,000/- (Rs.8000/- x 12 x 15 x 15/100). As regards compensation for pain and suffering is concerned, Rs.45,000/- has been granted by the Tribunal and the learned counsel for the appellant seeks for further enhancement which is opposed by the learned counsel for the insurance company. The appellant was subjected to various treatment procedures and even after the inpatient treatment, it is obvious that he was continuing the treatment for five months. Therefore, we slightly enhance the compensation for pain and suffering and we grant an amount of Rs.50,000/-. Apart from the same, MACA1262009 7 he has been deprived of the pleasures of life and therefore the disabilities have resulted in loss of amenities including loss of prospects of marriage for which we award a sum of Rs.50,000/- in total. We also slightly enhance the amount granted by way of bystander's expenses by granting Rs.150/- per day and grant an amount of Rs.2,500/- towards extra nourishment which has not been granted by the Tribunal. Even though no provision has been made in the award for future medical expenses, we grant an amount of Rs.10,000/-, in the light of the fact that he will have to incur amounts towards future medical expenses. Thus, the total compensation is refixed as follows: Head of claim Amount awarded Loss of income 14800 Medical expenses 117200 Telephone charges 4000 Bystander's expenses (Rs.150/-x 31) 4650 Transportation charges 3000 Extra nourishment 2500 Pain and suffering 50000 Permanent disability (8000 x 12 x 15 x 15/100) 216000 Loss of amenities including 50000 loss of marriage prospects MACA1262009 8 Head of claim Amount awarded Expenses for future treatment 10000 Total 472150 (Rupees Four lakhs Seventy-two thousand one hundred and fifty only) The enhanced compensation will carry interest at the rate of 9% per annum from the date of filing of the petition and the insurance company shall deposit the entire amount along with interest, less the amount if any deposited before the Tribunal, within a period of three months. The appellant is entitled to withdraw the amount. The appeal is allowed as above. The parties will suffer their costs in the appeal. (T.R. RAMACHANDRAN NAIR, JUDGE.) (K.P.JYOTHINDRANATH,, JUDGE.) kav/