Manoj C.V Vs Anzar

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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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&

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THE HONOURABLE MRS. JUSTICE MARY JOSEPH

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TUESDAY, THE 22ND DAY OF MARCH 2016/2ND CHAITHRA, 1938

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MACA.No. 2269 of 2012 ()

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AGAINST THE AWARD IN OPMVNO. 1725/2006 of MACT, THRISSUR DATED 06-07-2012

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APPELLANT/PETITIONER:

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MANOJ C.V, AGED 34 YEARS, S/O. VARGHESE CHIRAMBAN HOUSE, MANGARA, ENGAKKAD P.O. THRISSUR DISTRICT.

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BY ADVS.SRI.C.HARIKUMAR SMT.C.B.ANUROOPA

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RESPONDENTS/RESPONDENTS:

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ANZAR, S/O.RASHEED,

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AP9/567, MANAKKATTUVILAKOM, THEKKEVEEDU HOUSE KANIYAPURAM P.O., THIRUVANANTHAPURAM - 695 301.

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SUJITH S., S/O.SUNIL RAJ, MUKKADA PETHENVEEDU HOUSE, NEAR MALAMMEL PARAMB TEMPLE, KANIYAPURAM P.O., THIRUVANANTHAPURAM 695 301.

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THE ORIENTAL INSURANCE CO. LTD., BRANCH OFFICE, RAMAKRISHNA BUILDING, ARISTO JUNCTION, THIRUVANANTHAPURAM 695 001.

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R3 BY ADV. SRI.MATHEWS JACOB (SR.) R3 BY ADV. SRI.P.JACOB MATHEW

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THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 22-03-2016, ALONG WITH MACA. 2270/2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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C.T.RAVIKUMAR & MARY JOSEPH, JJ.

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M.A.C.A.Nos.2269 & 2270 of 2012

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Dated 22^nd March, 2016

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JUDGMENT

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Ravikumar, J.

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These appeals arise from a common award dated 6.7.2012 passed by the Motor Accidents Claims Tribunal, Thrissur in O.P.(M.V) Nos.1042 of 2006 and 1725 of 2006. The former appeal is directed against the award in O.P.(M.V)No.1725 of 2006 and the latter appeal is preferred against the award in O.P.(M.V)No.1042 of 2006. Both the claim petitions arose from the same occurrence. On 6.4.2006 the appellant in the former appeal was riding a motor cycle bearing Reg.No.KL-7/N-4504 through Thiruvananthapuram - Attingal public road and the appellant in the latter appeal was the pillion rider on it. At about 7.45 p.m. when they reached near Vettu road the offending vehicle which is another motor cycle bearing Reg. No.KL-01/AF 9233, came from the opposite direction and dashed against their vehicle. The claimants got injured and immediately they were taken to Medical College Hospital, Thiruvananthapuram. The appellant in the former appeal was shifted to Jubilee Mission Hospital, Thrissur and he remained there as an inpatient for a period of 356 days. As per Ext.A24 disability

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M.A.C.A.Nos.2269 & 2270 of 2012

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certificate the appellant in the former appeal incurred 29% permanent disability. In the case of the appellant in the latter appeal, he incurred a total permanent disability of 32%, going by Ext.A11 disability certificate. The Tribunal conducted joint enquiry in the claim petitions and as per the common award a total compensation of 8,51,600/-₹ was awarded in O.P.(M.V)No.1725 of 2006 and a total compensation of ₹ 6,28,800/- was awarded in O.P.(M.V)No.1042 of 2006. Interest at the rate of 8% per annum from the date of petition till realisation was awarded on the amount of compensation thus awarded. It is seeking enhancement of the quantum of compensation awarded thereunder that the captioned appeals have been filed. In the circumstances expatiated above these appeals were jointly heard and are being disposed of by this common judgment.

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M.A.C.A.No.2269 of 2012

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The appellant herein was riding the motor cycle involved in the accident. In the claim petition he claimed that he was engaged in door to door sale of beds and was earning 7,000/- per month. The₹ main grievance of the appellant is that despite such specific averments in the claim petition the Tribunal took his monthly income notionally at ₹ 3,000/-, only. The further grievance of the appellant is that despite the certification in Ext.A24 that he incurred 29% permanent disability the Tribunal took the whole body disability as 25%. The learned

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M.A.C.A.Nos.2269 & 2270 of 2012 3

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counsel for the appellant contended that owing to an erroneous assessment of the extent of permanent disability and the monthly income the appellant was deprived of a just compensation. But, at the same time, it is admitted that with reference to the age of the appellant the Tribunal adopted the correct multiplier in the light of the decision of the Hon'ble Apex Court in Sarla Verma v. Delhi Transport Corporation (2010 (2) KLT 802 (SC)) . That apart, it is contended that the appellant was hospitalised for a number of times, precisely, on 22 occasions. Still, ignoring the expenditure incurred the Tribunal had granted only an amount of 5,000/- towards transportation expenses₹ as against a claim of 50,000/-. Despite the hospitalisation for 356₹ days towards extra nourishment the Tribunal had granted only an amount of 15,000/- as against a claim of 50,000/-. Though an₹ ₹ amount of 1,000/- was sought for towards damage to clothing no₹ amount was granted by the Tribunal. It is in the said circumstances that the learned counsel contended that the appellant is entitled to get enhanced compensation under the aforesaid heads. Per contra, the learned counsel appearing for the 3^rd respondent, the insurer of the offending vehicle contended that a scanning of the schedule of compensation given in the impugned judgment would reveal that the appellant was adequately compensated by the Tribunal under all heads. It is further contended that the appellant though claimed that he was a

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M.A.C.A.Nos.2269 & 2270 of 2012 4

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salesman he failed to adduce any evidence in support of such claim. In such circumstances, the Tribunal could not be found fault with in fixing the monthly income of the appellant notionally, it is further contended. The accident occurred on 6.4.2006 and therefore, according to the learned counsel, the fixation of the monthly income as 3,000/- also₹ warrants no interference. It is also contended by the learned counsel for the 3^rd respondent that the Tribunal considered the disability certificate and took note of the reasons assigned for arriving at the disability certified thereunder and that apart, the Tribunal had closely observed the appellant in court and it is only thereafter that his whole body disability was assessed as 25%. In short, according to the learned counsel, there is absolutely no reason to interfere with the award passed by the Tribunal and what is granted to the appellant is just compensation.

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We will firstly consider whether the monthly income was

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fixed correctly by the Tribunal. It is true that the appellant who claimed that he was a salesman failed to adduce any evidence in support of such contention as also the contention regarding his income. In such circumstances, we are of the view that the Tribunal cannot be said to have committed an error in fixing the monthly income of the appellant notionally. But, at the same time, the question is whether the

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M.A.C.A.Nos.2269 & 2270 of 2012 5

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monthly income fixed notionally invites interference ? In the contextual situation, it is only apposite to refer to a decision of the Hon'ble Apex Court in Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited ((2011 13 SCC 236) . The accident involved in that case occurred in the year 2004. The claimant therein was a coolie and his monthly income was notionally fixed by the Apex Court for calculation purpose as 4,500/-. The appellant herein was₹ aged 28 years. True that he had failed to establish that he was a salesman. Even in the absence of evidence, in the light of the aforesaid decision, for the purpose of calculating compensation payable for the permanent disability, his monthly income can be fixed notionally as ₹ 4,500/-. The next question to be considered is whether the Tribunal was justified in taking the whole body disability as 25% though the same was certified in Ext.A24 as 29%. In that context, the disability certificate dated 14.5.2007 has to be looked into. Going by the same, on physical examination the following aspects were noted:-

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“1. The patient is walking using a walking aid and with a brace.

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The left lower limb is shorter 3.5 cms (5%)

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There are multiple discharging sinuses present over the lower thigh indicating active infection.

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The left knee joint is fixed in extension. (16%)

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M.A.C.A.Nos.2269 & 2270 of 2012

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Only a jog of flexion possible left knee.

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There is proximal migration of the third toe left. (1%)

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Latest X-ray showed that the fracture is not united fully.

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The fracture is extending into the knee joint left (4%)

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There is 20 degree angulation of the fracture posteriorly. (7%)”

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It is evident from Ext.A24 that he was walking with walking aid and that his left lower limb was shortened by 3.5 cms. There was non-union of the fracture which is sustained in the accident. It is taking into account all aspects which are specifically mentioned in Ext.A24 that under the Mc brides scale the whole body disability was assessed under Ext.A24 as 29%. It is also to be noted that the doctor who issued Ext.A24 certificate was examined before the Tribunal as PW1. He had deposed in tune with Ext.A24 certificate. The Tribunal also took note of the fact that despite a thorough cross examination of PW1 nothing could be elicited to discredit his version with reference to Ext.A24. A perusal of the impugned award would reveal that the Tribunal took note of the factors which persuaded PW1 to assess the extent of permanent disability of the appellant as 29%. But, at the same time, the Tribunal did not give any reason for reducing the percentage of permanent disability. It was without assigning any reason whatsoever that the

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M.A.C.A.Nos.2269 & 2270 of 2012 7

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whole body disability was assessed by the Tribunal as 24% as against the certification in Ext.A24 as 29%. When Ext.A24 was issued after taking into account all relevant aspects by a doctor and when the doctor was examined before the Tribunal and the Tribunal specifically entered into a finding that nothing was elicited there to discredit his oral account we have no reason to hold that the Tribunal had gone wrong in not accepting the certification in Ext.A24. In short, we are of the view that for the purpose of computing compensation for the permanent disability incurred by the appellant in the accident the whole body permanent disability ought to have been taken as certified in Ext.A24. In such circumstances, a re-assessment of the compensation payable for permanent disability has to be made with substitution of the re-fixed monthly income as also the percentage of permanent disability. On such re-assessment the amount payable under the said head would be ₹ 2,66,220/-. As per the impugned award the Tribunal has already granted an amount of 1,53,000/- under the said head. In such₹ circumstances, after deducting the amount awarded by the Tribunal the appellant is entitled to get an amount of 1,13,220/- additionally. We₹ have already taken note of the fact that the appellant was hospitalised several times. The appellant was granted only an amount of 5,000/-₹ towards transportation expenses. Taking into account the fact that he was hospitalised for 22 times we are of the view that the appellant is

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M.A.C.A.Nos.2269 & 2270 of 2012 8

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entitled to get an amount of ₹ 25,000/- additionally towards transportation expenses. Towards loss of earning the appellant was granted only an amount of 36,000/-. The said amount was arrived at₹ taking his monthly income as 3,000/-. Since we have already fixed₹ the monthly income of the appellant as 4,500/- for the same period₹ fixed by the Tribunal he is entitled to get an amount of 18,000/-₹ additionally towards loss of earning. The period of hospitalisation of the appellant was 356 days. Taking note of the fact that the accident and the hospitalisation were during the period 2006-07 the appellant ought to have been granted 200/- per day towards bystander's expenses.₹ The Tribunal granted only an amount of 70,000/-. The appellant is₹ entitled to get an amount of 1,200/- additionally under the said head.₹ For the same period if an amount of 100/- per day is given towards₹ extra nourishment, the appellant would be entitled to get an amount of 35,600/-. However, the Tribunal has granted only 15,000/-.₹ ₹ Consequently, the appellant is entitled to get an amount of 20,600/-₹ more under the said head. Towards damage to clothing the appellant claimed an amount of 1,000/-. But, no amount was granted by the₹ Tribunal. Taking into account the nature of the injuries sustained there can be no doubt that the dresses worn by him at the time of the accident must have been spoiled. In such circumstances, the appellant is entitled to get 1,000/- towards damage to clothing. The appellant₹

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M.A.C.A.Nos.2269 & 2270 of 2012 9

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claimed an amount of 1,00,000/- towards future treatment expenses.₹ The Tribunal granted an amount of 25,000/-. On a perusal of Ext.A24₹ it is evident that one of the fractures of the appellant was not united fully and that there was multiple discharge of sinus over the lower thigh and Ext.A24 would indicate active infection. Taking into account all such circumstances and the nature of the injuries and the disability sustained by him we are of the view that the appellant certainly require further treatment and he is entitled to get an amount of 25,000/- more₹ towards future treatment expenses. In the light of the discussion as above and the consequential assessment and enhancement the appellant is entitled to get a total additional compensation of ₹ 2,04,020/- which is rounded off to 2,04,100/-. The appellant is₹ entitled to get interest for the said amount excluding 25,000/-, the₹ amount granted towards future treatment expenses, at the rate of 8% per annum from the date of petition till realisation. Since the liability to indemnify the insured owner of the offending vehicle is not in dispute the third respondent is directed to deposit the additional compensation along with interest within a period of three months from the date of receipt of a copy of this judgment. In case of failure on the part of the third respondent to deposit the amount within the above stipulated period the amount remaining unpaid will carry interest at the rate of 9% per annum from the date of petition till realisation. There will be no

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M.A.C.A.Nos.2269 & 2270 of 2012

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order as to costs.

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M.A.C.A.No.2270 of 2012

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The appellant herein was the pillion rider in the motor cycle ridden by the appellant in the former appeal. Going by Ext.A11 certificate, due to the accident he sustained 32% permanent disability. He had been an inpatient for a period of 34 days. In the claim petition he claimed that he was a salesman and was earning an amount of ₹ 7,000/- per month. Obviously, he did not adduce any evidence in support of such a claim and in such circumstances, the Tribunal fixed his monthly income notionally at ₹ 3,000/- for the purpose of calculating the compensation payable towards permanent disability. The Tribunal also took permanent disability only at 25%. The learned counsel appearing for the appellant contended that the Tribunal went wrong in taking the monthly income at 3,000/- and also in assessing₹ the percentage of permanent disability as 25% only for the aforesaid purpose. It is contended that no reason whatsoever was assigned by the Tribunal for reducing the percentage of permanent disability. The learned counsel further contended that in the light of Ext.A11 the amount of compensation towards loss of marriage prospects granted by the Tribunal is too inadequate. In support of the said contention the learned counsel relied on a decision of the Hon'ble Apex Court in G.Ravindranath v. E.Srinivas and another (2013 ACJ 2131) . It is

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M.A.C.A.Nos.2269 & 2270 of 2012 11

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also contended that no amount was granted by the Tribunal towards damage to clothing. The learned counsel appearing for the third respondent submitted that the Tribunal has granted adequate compensation under all heads as can be seen from the schedule of compensation given in the impugned award. It is further contended that the Tribunal cannot be said to have erred in fixing the monthly income notionally taking into account the failure on the part of the appellant to establish the contentions regarding occupation and income. It is further contended that the Tribunal has granted adequate compensation taking note of the loss of marriage prospects. In short, according to the learned counsel, the appellant had failed to make out any ground warranting enhancement of compensation.

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In the light of the rival contentions firstly it is to be considered whether the monthly income was fixed correctly by the Tribunal. It is true that the appellant who claimed that he was a salesman failed to adduce any evidence in support of his contentions regarding occupation and income. In such circumstances, we are of the view that the Tribunal cannot be said to have committed an error in fixing the monthly income of the appellant notionally. But, at the same time, the question is whether the fixation of monthly income warrants interference. In the contextual situation, it is only apposite to refer to a

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M.A.C.A.Nos.2269 & 2270 of 2012

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decision of the Hon'ble Apex Court in Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited ((2011 13

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SCC 236) . The accident involved in that case occurred in the year 2004. In the case of the claimant who was a coolie the monthly income was notionally fixed by the Apex Court as 4,500/-. The appellant₹ herein was aged 28 years and the accident in question had occurred on 6.4.2006. Hence, even in the absence of any evidence to show that he was a salesman an amount of 4,500/- can be fixed as his monthly₹ income for the purpose of calculating compensation payable for the permanent disability. Going by Ext.A11, the extent of permanent disability of the appellant is 32%. The doctor who issued Ext.A11 certificate was examined as PW1. He deposed in tune with Ext.A11. It is to be noted that the Tribunal had taken into account the fact that despite the lengthy cross examination of PW1 nothing was brought out to discredit his version by the respondents. That apart, it is evident that the Tribunal on seeing the appellant in court found that he could not even walk without any support. In the context of the contentions it is only appropriate to refer to Ext.A11 certificate. Ext.A11 carries the following findings on physical examination of the appellant:-

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“1. He is walking with the aid of a walker.

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The left lower limb is shorter by 2.5cms (4%)

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Hip flexion is only 90 degrees. (3%)

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M.A.C.A.Nos.2269 & 2270 of 2012

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Internal rotation of hip Nil (2%)

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External rotation 45 degrees

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Abduction and Adduction grossly restricted. (4%)

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Weakness of the muscles supplied by the SI root left side.

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Persistence of the sciatic nerve palsy present. (7%)

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As per the certificate issued by the urologist, he has impotency and penile deformity and unable to perform sexual intercourse due to this injury. (10%)

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Latest X-ray showed that the innominate is found displaced, left side. (8%).”

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Taking note of the aforesaid findings PW1 assessed the permanent physical disability of the appellant as per Mc brides scale, for the whole body disability as 32%. Evidently, the Tribunal took note of the reasoning in Ext.A11. The recital in the impugned award with respect to the disability of the appellant would undoubtedly go to show that the Tribunal was also convinced regarding the disability incurred by the appellant. A bare perusal of the impugned award, however, would reveal that the Tribunal did not assign any reason for reducing the percentage of permanent disability as certified under Ext.A11. True that, under all circumstances, the percentage of permanent disability certified in a disability certificate cannot be accepted in toto for the purpose of assessing the compensation under the said head. But, when the doctor who issued the certificate was examined before the Tribunal and nothing was elicited from him to discredit his version as also the certificate issued by him there is no reason for rejecting the certification

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M.A.C.A.Nos.2269 & 2270 of 2012

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thereunder. On going through the medical disability certificate and the version of PW1 we are of the view that the entire percentage of disability certified under Ext.A11 has to be taken into account for the purpose of computing the compensation payable for the permanent disability incurred by the appellant. It is the common case that with reference to the age of the appellant the Tribunal correctly identified the multiplier. In such circumstances, a re-assessment of the compensation payable for permanent disability incurred by the appellant has to be made taking note of the re-fixed monthly income and the extent of permanent disability. Based on such quantification, the appellant would be entitled to get an additional amount of ₹ 1,40,760/- for permanent disability. The Tribunal took the monthly income as 3,000/- for the purpose of calculating loss of earning.₹ Since we have enhanced the monthly income of the appellant as ₹ 4,500/- he is entitled to get an amount of 18,000/- additionally₹ under the said head. The appellant was not given any amount towards damage to clothing. The nature of the injuries sustained by him would go to show that the dresses worn by him at the time of the accident must have been damaged. In the said circumstances, we award ₹ 1,000/- under the said head. Towards loss of marriage prospects the Tribunal granted an amount of 1,00,000/-. In this context, Ext.A10₹ certificate issued by PW2 has to be looked into. In Ext.A10 it is certified

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M.A.C.A.Nos.2269 & 2270 of 2012

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that the appellant had sustained Type B complex acetabular fracture with dislocation left hip involving posterior column associated with central dislocation and separation of posterior column from remainder of the iliac bone, posterior wall fracture, posterior displacement of femoral head, transverse fracture, anterior column and wall fracture, acetabulum roof fracture, fracture of inferior pubic ramus, diastasis of left sacroiliac joint. After noting such injuries PW2 certified that the said injuries with permanent disability which he sustained in the accident made it difficult for him to pass urine and he has also sustained impotency and penile deformity and he is unable to do intercourse. It was specifically stated therein that all such injuries have been sustained in the accident. The appellant was aged only 29 years. Though PW2 was cross examined the respondents could not elicit anything to make him untrustworthy. The evidence of PW2 together with Ext.A10 would undoubtedly show that the appellant had become impotent and Ext.A10 certificate would reveal that he would not be able to perform sexual activities. He incurred impotency also. Taking into account all those facts and factors we are of the view that the amount claimed by the appellant viz., 2,00,000/- ought to have been granted towards loss of₹ marriage prospects. In the result, we award an amount of 1,00,000/-₹ additionally under the head loss of marriage prospects. In the light of the discussion as above, the appellant is entitled to get a total

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M.A.C.A.Nos.2269 & 2270 of 2012

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enhanced compensation of 2,59,760/- rounded off to 2,60,000/-₹ ₹ over and above the amount already awarded by the Tribunal. The said enhanced amount will carry interest at the rate of 8% per annum from the date of petition till realisation. Since the liability to indemnify the insured owner of the offending vehicle is not in dispute the third respondent is directed to deposit the enhanced amount within a period of three months from the date of receipt of a copy of this judgment. In case of failure on the part of the third respondent to deposit the amount within the above stipulated period the amount remaining to be deposited will carny interest at the rate of 9% per annum from the date of petition till realisation. There will be no order as to costs.

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Both appeals are allowed as above.

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Sd/- C.T.RAVIKUMAR Judge

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Sd/- MARY JOSEPH Judge

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TKS

Manoj C.V v. Anzar

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Manoj C.V v. Anzar

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