Gnanasekar M., S/O. Michael Vs. Jude Thadhewus and Another - Court Judgment

SooperKanoon Citationsooperkanoon.com/66023
CourtKerala High Court
Decided OnSep-03-2015
JudgeHonourable Mr.Justice T.R.Ramachandran Nair
AppellantGnanasekar M., S/O. Michael
RespondentJude Thadhewus and Another
Excerpt:
in the high court of kerala at ernakulam present: the honourable mr.justice t.r.ramachandran nair & the honourable mr. justice k.p.jyothindranath thursday, the3d day of september201512th bhadra, 1937 maca.no. 2587 of 2010 ( ) -------------------------- against the award in opmv26592007 of m.a.c.t.,ernakulam dated1601-2010 appellant/petitioner: ---------------------------------------------- gnanasekar m.,aged44years, s/o. michael s/o. michael, residing at no.3 b, savariyar koil street, bishopkulam, thennur trichy, tamilnadu. by advs.sri.joy joseph (mundackal) sri.mathew skaria sri.k.j.josemon respondents/respondents ---------------------------- 1. jude thadhewus, s/o michael pulluvely house, thundathumkadavu, varappuzha.p.o. ernakulam-683512.2. united india insurance co.ltd. chittoor road, ernakulam, kochi-682035. r1 by adv. sri.sanil kumar r2 by adv. sri.p.v.jyothi prasad this motor accident claims appeal having been finally heard on0309-2015, the court on the same day delivered the following: t.r.ramachandran nair & k.p.jyothindranath, jj.- - - - - - - - - - - - - - - - - - - - - m.a.c.a.no.2587 of2010- - - - - - - - - - - - - - - - - - - - - - - - - - dated this the 3rd day of september, 2015 judgment jyothindranath, j.this appeal is preferred by the claimant in o.p.(mv) no.2659/2007 on the file of the motor accidents claims tribunal, ernakulam. the challenge is against the quantum of compensation awarded by the tribunal. the facts are as follows : on 22.8.2007 at about 7.45 p.m., while the appellant was walking on the side of cheranalloor-varapuzha road, a motor bike bearing reg.no.kl-7/ar-8462 came and knocked him down and as such he sustained very grievous injuries. he moved a claim petition before the tribunal. he was initially granted a sum of `3,21,200/-. later by an order in i.a.no.4281/2010, another sum of `83,451/- is also awarded as reimbursement of bill amount. aggrieved by the quantum of compensation, this appeal preferred.2. when the appeal came up for hearing, the learned counsel m.a.c.a.no.2587/2010 2 for the appellant submitted before us that he was working as security guard in southpaw security and mantech services pvt. ltd. he was drawing a total salary of `3,255/- for which a salary certificate was produced. it is also submitted that a responsible officer from the firm was examined before the tribunal as pw2. it is the further submission that here is a case where the appellant sustained severe head injury and disability caused. the disability was assessed by an expert i.e. head of the department of neuro, kolencherry medical college. it is also submitted that the professor is also examined before the tribunal as pw1. it is the further submission that even though the disability assessed is 65%, practically the functional disability comes to 100%. now, apart from smiling, he can do no other physical act. under such circumstances, the tribunal should have taken 100% functional disability for assessment purpose. it is also submitted that even though his income was proved as `3,255/-, the tribunal only considered `2,500/- as his monthly income for assessment purpose. the compensation assessed in all counts are to be refixed by this court.3. we heard the learned counsel for the insurance company. m.a.c.a.no.2587/2010 3 it is submitted before us that even though a salary certificate was produced, it is only a certificate allegedly issued from a private firm. even though pw2 was examined, no document produced to corroborate the fact that such a firm is functioning or this person is working therein. it is also the submission made by the learned counsel for the insurance company that even though it is alleged that he sustained very severe head injury and was having a disability of 65%, he was not examined by the medical board. under such circumstances, even the disability claimed by the appellant is not reliable.4. after hearing the learned counsel, we have perused the award passed by the tribunal. it can be seen that the appellant sustained very severe head injury. he was having subdural haemorrhage and there was fronto parietal subdural bleed with mass effect. it is also disclosed by ct scan report that there was gliotic changes in bilateral frontal and temporal lobes anteriorly. it is further seen that even though the accident occurred on 22.8.2007, he was treated as inpatient till 5.10.2007. as per the submission of the learned m.a.c.a.no.2587/2010 4 counsel for the appellant, he was under ventilation for about 28 days. the learned counsel for the appellant also produced photographs of the appellant to show the seriousness of the injury which is apparent. the photographs are marked as ext.a13 series before the tribunal.5. the claim of the appellant is that he was working as a security person. the accident occurred in the year 2007. the appellant is only claiming his income as `3,255/-. pw2 is also examined before the tribunal. considering the year in which the accident occurred and also the claim of the appellant, there is nothing to disbelieve the claim of the appellant. at the time of the accident, he was aged 43 years. the multiplier available as per the dictum laid down in sarla varma v. delhi transport corporation ( 2010 (2 ) klt802(sc) will be 14. after considering the injury and the evidence adduced by the appellant regarding his disability, we feel that it will be only just and proper to consider 65% disability in this case. after perusal of the award, it can be seen that refixation of compensation on almost all heads are warranted to fix just compensation.6. thus, the compensation is refixed as follows : m.a.c.a.no.2587/2010 5 head of claim amount awarded in rupees transportation 3000 damage to cloth 1000 extra nourishment 5000 bystander's expenses 12000 treatment expenses 86200 loss of earning 16275 (3255 x 5) pain and suffering 40000 loss of amenities 50000 disfiguration 25000 permanent disability 355446 ( 3255 x 12 x 14 x 65%) future treatment 20000 total 613921 7. thus the just compensation is assessed as ` 6,13,921/-, which is rounded to `6,14,000/-. it is made clear that the amount allowed as per order in i.a.no.4281/2010 in o.p.(mv)no.2659/2007 will be over and above this compensation amount and it can be separately claimed by the lourdes hospital, ernakulam. the enhanced compensation will bear 9% interest from the date of petition. respondent no.3 shall deposit the amount within a period of three m.a.c.a.no.2587/2010 6 months of this order. on deposit, the appellant will be entitled for release of the amount. the appeal is accordingly allowed. the parties shall bear their costs in the appeal. t.r.ramachandran nair, judge k.p.jyothindranath,judge sv.
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 THURSDAY, THE3D DAY OF SEPTEMBER201512TH BHADRA, 1937 MACA.No. 2587 of 2010 ( ) -------------------------- AGAINST THE AWARD IN OPMV26592007 of M.A.C.T.,ERNAKULAM DATED1601-2010 APPELLANT/PETITIONER: ---------------------------------------------- GNANASEKAR M.,AGED44YEARS, S/O. MICHAEL S/O. MICHAEL, RESIDING AT NO.3 B, SAVARIYAR KOIL STREET, BISHOPKULAM, THENNUR TRICHY, TAMILNADU. BY ADVS.SRI.JOY JOSEPH (MUNDACKAL) SRI.MATHEW SKARIA SRI.K.J.JOSEMON RESPONDENTS/RESPONDENTS ---------------------------- 1. JUDE THADHEWUS, S/O MICHAEL PULLUVELY HOUSE, THUNDATHUMKADAVU, VARAPPUZHA.P.O. ERNAKULAM-683512.

2. UNITED INDIA INSURANCE CO.LTD. CHITTOOR ROAD, ERNAKULAM, KOCHI-682035. R1 BY ADV. SRI.SANIL KUMAR R2 BY ADV. SRI.P.V.JYOTHI PRASAD THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON0309-2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: T.R.RAMACHANDRAN NAIR & K.P.JYOTHINDRANATH, JJ.

- - - - - - - - - - - - - - - - - - - - - M.A.C.A.No.2587 OF2010- - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 3rd day of September, 2015 JUDGMENT

Jyothindranath, J.

This appeal is preferred by the claimant in O.P.(MV) No.2659/2007 on the file of the Motor Accidents Claims Tribunal, Ernakulam. The challenge is against the quantum of compensation awarded by the Tribunal. The facts are as follows : On 22.8.2007 at about 7.45 p.m., while the appellant was walking on the side of Cheranalloor-Varapuzha road, a motor bike bearing Reg.No.KL-7/AR-8462 came and knocked him down and as such he sustained very grievous injuries. He moved a claim petition before the Tribunal. He was initially granted a sum of `3,21,200/-. Later by an order in I.A.No.4281/2010, another sum of `83,451/- is also awarded as reimbursement of bill amount. Aggrieved by the quantum of compensation, this appeal preferred.

2. When the appeal came up for hearing, the learned counsel M.A.C.A.No.2587/2010 2 for the appellant submitted before us that he was working as security guard in Southpaw Security and Mantech Services Pvt. Ltd. He was drawing a total salary of `3,255/- for which a salary certificate was produced. It is also submitted that a responsible officer from the firm was examined before the Tribunal as PW2. It is the further submission that here is a case where the appellant sustained severe head injury and disability caused. The disability was assessed by an expert i.e. Head of the Department of Neuro, Kolencherry Medical College. It is also submitted that the Professor is also examined before the Tribunal as PW1. It is the further submission that even though the disability assessed is 65%, practically the functional disability comes to 100%. Now, apart from smiling, he can do no other physical act. Under such circumstances, the Tribunal should have taken 100% functional disability for assessment purpose. It is also submitted that even though his income was proved as `3,255/-, the Tribunal only considered `2,500/- as his monthly income for assessment purpose. The compensation assessed in all counts are to be refixed by this Court.

3. We heard the learned counsel for the Insurance Company. M.A.C.A.No.2587/2010 3 It is submitted before us that even though a salary certificate was produced, it is only a certificate allegedly issued from a private firm. Even though PW2 was examined, no document produced to corroborate the fact that such a firm is functioning or this person is working therein. It is also the submission made by the learned counsel for the Insurance Company that even though it is alleged that he sustained very severe head injury and was having a disability of 65%, he was not examined by the Medical Board. Under such circumstances, even the disability claimed by the appellant is not reliable.

4. After hearing the learned counsel, we have perused the award passed by the Tribunal. It can be seen that the appellant sustained very severe head injury. He was having subdural haemorrhage and there was fronto parietal subdural bleed with mass effect. It is also disclosed by CT scan report that there was gliotic changes in bilateral frontal and temporal lobes anteriorly. It is further seen that even though the accident occurred on 22.8.2007, he was treated as inpatient till 5.10.2007. As per the submission of the learned M.A.C.A.No.2587/2010 4 counsel for the appellant, he was under ventilation for about 28 days. The learned counsel for the appellant also produced photographs of the appellant to show the seriousness of the injury which is apparent. The photographs are marked as Ext.A13 series before the Tribunal.

5. The claim of the appellant is that he was working as a security person. The accident occurred in the year 2007. The appellant is only claiming his income as `3,255/-. PW2 is also examined before the Tribunal. Considering the year in which the accident occurred and also the claim of the appellant, there is nothing to disbelieve the claim of the appellant. At the time of the accident, he was aged 43 years. The multiplier available as per the dictum laid down in Sarla Varma v. Delhi Transport Corporation ( 2010 (2 ) KLT802(SC) will be 14. After considering the injury and the evidence adduced by the appellant regarding his disability, we feel that it will be only just and proper to consider 65% disability in this case. After perusal of the award, it can be seen that refixation of compensation on almost all heads are warranted to fix just compensation.

6. Thus, the compensation is refixed as follows : M.A.C.A.No.2587/2010 5 Head of claim Amount Awarded in rupees Transportation 3000 Damage to cloth 1000 Extra nourishment 5000 Bystander's expenses 12000 Treatment expenses 86200 Loss of earning 16275 (3255 x 5) Pain and suffering 40000 Loss of amenities 50000 Disfiguration 25000 Permanent disability 355446 ( 3255 x 12 x 14 x 65%) Future treatment 20000 Total 613921 7. Thus the just compensation is assessed as ` 6,13,921/-, which is rounded to `6,14,000/-. It is made clear that the amount allowed as per order in I.A.No.4281/2010 in O.P.(MV)No.2659/2007 will be over and above this compensation amount and it can be separately claimed by the Lourdes Hospital, Ernakulam. The enhanced compensation will bear 9% interest from the date of petition. Respondent No.3 shall deposit the amount within a period of three M.A.C.A.No.2587/2010 6 months of this order. On deposit, the appellant will be entitled for release of the amount. The appeal is accordingly allowed. The parties shall bear their costs in the appeal. T.R.RAMACHANDRAN NAIR, JUDGE K.P.JYOTHINDRANATH,JUDGE sv.