Allowed

Yousaf v. D.Albert

Kerala HC26 May 2016MACA/1371/2012

Case brief

AI extract

What is this about?

In this motor accident appeal, the High Court set aside the Motor Accidents Claims Tribunal's award due to inadequate compensation for a young paraplegic pedestrian. The Court enhanced the disability assessment to 100% functional disability, reassessed loss of future earning potential to Rs. 6,250 monthly, and directed significant enhancements in compensation for future treatment, attendant expens

What did the court decide?

Compensation reassessed with 100% disability; additional award of Rs. 10,11,800 ordered with interest and directed to be deposited in a nationalized bank.

Yousaf Vs D.Albert — Motor Accident Claims | Kerala HC (2016)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR

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THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH

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THURSDAY, THE 26TH DAY OF MAY 2016/5TH JYAISHTA, 1938

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MACA.No. 1371 of 2012 ()

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OP(MV) 271/2009 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, MANJERI.

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APPELLANT/PETITIONER:

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YOUSAF, S/O.IBRAHEEM KALANCHIRA HOUSE, KULATHUR P.O, MALAPPURAM DISTRICT.

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BY ADV. SRI.K.ABDUL JAWAD

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RESPONDENT(S)/RESPONDENTS:

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1. D.ALBERT, S/O.DAVID,SUNIL BHAVAN, KUTTIYATTOOR GRAMA PANCHAYATH, CHATTUKAPARA P.O KANNUR DISTRICT (DRIVER)

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2. THE MANAGING DIRECTOR, M/S.VIJAYANAND ROAD LINES LOGISTICS LIMITED, GIRIRAJ ANNEXE, CIRCUIT HOUSE ROAD, HUBLI (R.C OWNER)

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3. THE ORINETAL INSURANCE COMPANY LIMITED, INDIAN MERCANTLE CHAMBER FLOOR, 14 R KANAMI MARG, BALLARD ESTATE, MUMBAI, MAHARASHTRA.

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R3 BY ADV. SRI.GEORGE CHERIAN (THIRUVALLA)

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THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 26-05-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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mbr/

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C.T.RAVIKUMAR& K.P.JYOTHINDRANATH, JJ.

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M.A.C.A.No.1371 OF 2012

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- - - - Dated this the 26^th day of May, 2016

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JUDGMENT

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Jyothindranath, J.

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This appeal is preferred challenging the award passed by the Motor Accidents Claims Tribunal, Manjeri in O.P.(MV)No.271/2009.

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The challenge is against the quantum of compensation awarded.

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Facts relevant for consideration of this appeal are :

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Appellant sustained very severe injuries in a motor vehicle accident that occurred on 1.7.2008 at 8.p.m. on the side of the public

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road, Valancherry. The appellant was a pedestrian. A lorry came and hit against the appellant and thereby he sustained fracture of D12 vertebra. There was also fracture of L1 and L2. There was also rupture of left diaphram. It is certified that he is having complete paraplegia and his disability was assessed by the District Medical Board as 75%,

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and the State disability board assessed his disability as 85%. There is

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no appeal by the respondents in the claim petition.

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MACA No.1371/2012 2

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The learned counsel for the appellant submitted that practically appellant became a vegetable and he cannot even move without the help of a bystander. He is practically fully laid up. It is the submission that the Tribunal ought to have taken 100% disability for calculating compensation for loss of earning capacity. In this matter there was loss of movement and sensation below the level of umbilicus i.e. paraplegia of lower limbs with no sensation and no motor power and total incontinence. It is the further submission that the appellant was aged 23 years at the time of the accident and was an agriculturist who used to attend a workshop to add to his income. It is also the submission that the compensation awarded on pecuniary loss as also non-pecuniary loss are too inadequate and therefore, reassessment of compensation on all heads, is highly necessary.

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We have also heard the learned counsel for the Insurance Company. The learned counsel submitted before us that the Tribunal awarded a total compensation of Rs.10,56,016/- and it is a just compensation. As such, an interference by this court is not warranted. It is the further submission that even though there is an

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MACA No.1371/2012

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assessment of disability by the State board, the Tribunal has rightly considered only 75% of disability for the assessment purpose as both his upper limbs are movable.

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Indisputably, the appellant became paraplegic on sustaining injuries in the motor vehicle accident. The State Medical Board assessed the disability as 85%. But surely, it is a fact that in this case the lower limbs of the appellant got no sensation. Further, it is evident from the medical records that the area below the umbilicus region lost its sense. He will not be even able to sit. The case of the claimant is that he was an agriculturist. Any way he can be considered as a manual labour, in the absence of positive evidence regarding his occupation. The effect of disability on the appellant will be more than the actual disability. The dictum laid down by the Apex Court in Rajkumar v. Ajaykumar [ 2011 (1) KLT 62(SC)] should act as a guideline in a matter like this, in the matter of assessment of functional disability/loss of earning power. Thus after considering all the medical records before us and also considering the nature of the injuries and their impact, keeping in mind that the

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MACA No.1371/2012 4

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appellant was aged 23 years only at the time of the accident and further of the fact that for eking his livelihood he has to do manual labour and he is totally incapacitated to do the same, we feel that it will be only just and proper to consider 100% functional disability for the purpose of calculation.

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In this case, the occupation of the appellant is shown as agriculturist. We have already considered that he will be at least considered as a manual labour. The Honourable Apex Court in Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited [(2011) 13 SCC 236] considered a notional income of Rs.4,500/- in the case of a coolie who met with a motor vehicle accident in the year 2004. In the present case, the accident occurred in the year 2008. Thus, it will be only just and proper to consider atleast Rs.5,000/- as his monthly income for calculation purpose. In this case, we have already found that 100% disability is to be considered. When, for calculation purpose, 100% disability is considered, we are coming to a conclusion that he will

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not be able to do any work in future also. If that is so, when the

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MACA No.1371/2012

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compensation is assessed, we should also keep in mind the inflation and the decrease in money value that may happen in future and

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consequential increase in the wages of manual labour. Thus, considering all these aspects and also keeping in mind that his prospects regarding earning power is also lost, it will be only just and proper to add 25% towards loss of future prospects in a case like this. Thus, his income for assessment purpose will come to Rs.6,250/- after reckoning the future prospects.

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After going through the schedule prepared by the Tribunal, it can be seen that no amount has been awarded towards future treatment. Apart from the same, under the head of bystander's expenses also only a nominal sum of Rs.4,200/- is seen awarded. Similarly, towards pain and suffering, only a sum of Rs.25,000/- is seen awarded by the Tribunal. Thus, after keeping in mind the dictum laid down by the Apex Court in Kavitha v. Deepak [(2012) 8

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SCC 604] , we feel that enhancement on these heads is highly necessary. Thus, the compensation is reassessed as follows:

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Towards loss of earnings,Rs.42,000/- is seen awarded by

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MACA No.1371/2012 6

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the Tribunal. As we are considering 100% disability, there will be no question of loss of earnings during treatment period. We are of the view that from the date of accident itself, he became a person incapable of making any earning. Under such circumstances, we are not inclined to grant any amount towards loss of earnings. The said amount of Rs.42,000/- has to be deducted from the amount to be arrived at by reassessment by this Court.

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Now, towards future treatment, the amount claimed by the appellant is Rs.1,00,000/-. It is only a moderate amount. Under such circumstances, we are inclined to grant the full amount claimed i.e. Rs.1,00,000/- towards future treatment.

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Towards bystander's expenses, the Tribunal is seen awarded only Rs.4,200/-. As this is a case of complete paraplegia, a life long bystander will be necessary. But at the very same time, keeping in mind that just compensation has to be assessed, we feel that it will be only just and proper to award Rs.1,00,000/- under this head. Thus, an additional sum of Rs.95,800/- is awarded, that is in addition to the amount already awarded under this head.

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MACA No.1371/2012 7

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Towards pain and suffering, the petitioner claimed a sum of Rs.2,00,000/-, whereas the Tribunal awarded a sum of Rs,25,000/alone. Considering the fact that apart from the pain he suffered at the time of the accident, there will be a life long suffering, we are inclined to grant an additional amount of Rs.75,000/- on this head.

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We have already come to a conclusion that the monthly income can be considered as Rs.5,000/- and after considering the future prospects in life, an amount of Rs.6,250/- can be considered for calculation purpose. Thus, taking the multiplier as 18 and considering 100% functional disability, a sum of Rs.7,83,000/( 6250 x 12 x 18 x 100/100) is awarded in addition to the amount already awarded under the head of loss of earning power/disability.

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Thus, the appellant is entitled for an additional compensation of Rs.10,11,800/-. Thus, the amount will carry interest @ 8% per annum from the date of petition till realisation. The Insurance Company shall deposit the amount within four months from the date of receipt of a copy of this judgment. It is made clear that if the amount is not deposited within the above stipulated

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MACA No.1371/2012 8

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period, the additional compensation awarded will carry interest @ 9% per annum from the date of petition till realization. It is further made clear that the Tribunal shall realise court fee, if any, liable to be realised from the appellant in addition to the court fee already paid.

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While passing the original award, the Tribunal has directed to deposit a portion of the compensation for three years. That period will be over. At the time of accident, the claimant was aged only 23 years. After considering the dictum laid down by the Apex Court in Jai Prakash v. National Insurance Co. Ltd. [(2010) 2 SCC 607] , we are giving a special direction for deposit of the additional compensation now awarded by this court. The additional compensation awarded by this Court along with accrued interest shall be deposited in a Nationalized Bank until further orders from this court or that of the concerned Tribunal. It is made clear that Tribunal is at liberty to deposit the amount for a shorter period and if the deposit is made for a shorter period with maximum benefit to

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the appellant, on expiry of the said period, the Tribunal shall renew the deposit periodically. It is also made clear that 75% of the

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MACA No.1371/2012

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interest that may generate on the deposit can be withdrawn by the appellant periodically. If any Saving Bank Account number is provided by the appellant to the Tribunal with such a prayer, automatically the periodical interest shall be credited to that account. The balance 25% of the interest referred above shall be periodically added to the principal amount in deposit. This direction is given to cope with the decrease in money value as well as the inflation rate in our country. Thus, the appellant will be periodically getting 75% of the interest so accrued on the additional compensation awarded. On any contingency or if the appellant has a better plan of investment providing regular returns, the appellant will be at liberty to approach the Tribunal for release of deposit for that purpose. There will be no order as to costs.

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C.T.RAVIKUMAR, JUDGE

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K.P.JYOTHINDRANATH, JUDGE

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sv.

Yousaf v. D.Albert

Case brief

What is this about?

What did the court decide?

Yousaf v. D.Albert

Case brief

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What did the court decide?

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