Allowed

Ajeesh D/O.Babu v. Jaimon S/O.Kunjappan

Kerala HC14 Jan 2016MACA/29/2012

Case brief

AI extract

What is this about?

The High Court allowed an appeal against the Motor Accidents Claims Tribunal award. The Court held that the appellant's permanent facial scar constituted permanent disablement under the Motor Vehicles Act. It enhanced the compensation significantly for disfigurement, pain and suffering, loss of marriage prospects, and other heads.

What did the court decide?

Compensation enhanced by Rs. 1,13,900 with interest at 8% (9% if default). The second respondent directed to deposit the amount within three months.

Ajeesh D/O.Babu Vs Jaimon S/O.Kunjappan — 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 MRS. JUSTICE MARY JOSEPH

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THURSDAY, THE 14TH DAY OF JANUARY 2016/24TH POUSHA, 1937

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MACA.No. 29 of 2012 ()

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AGAINST THE AWARD IN O.P(M.V)NO.1013/2005 of MOTOR ACCIDENTS CLAIMS TRIBUNAL, THODUPUZHA DATED 06-01-2011

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APPELLANT/PETITIONER:

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AJEESHA, AGED 25 YEARS, D/O.BABU UDUMBANATTU HOUSE, MANKULAM.P.O, DEVIKULAM TALUK.

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BY ADVS.SRI.T.J.MICHAEL SRI.JOHN VIPIN

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RESPONDENTS/RESPONDENTS:

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JAIMON S/O.KUNJAPPAN PULIMPARAMBIL HOUSE,VELLATHOOVAL.P.O, IDUKKI DISTRICT, PIN-685 563.

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THE ORIENTAL INSURANCE COMPANY LTD, REPRESENTED BY BRANCH MANAGER, KOTHAMANGALAM-686 691.

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JOSEMON JOSEPH, S/O.JOSEPH, AZHIYATH HOUSE, ANAKULAM, MANKULAM.P.O, PIN-685 565.

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R2 BY ADV. SRI.MATHEWS JACOB (SR.) BY ADV. SRI.P.JACOB MATHEW BY SRI.GEORGE CHERIAN (THIRUVALLA)

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THIS MOTOR ACCIDENTS CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 14-01-2016, 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.No.29 of 2012

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Dated 14^th January, 2016

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JUDGMENT

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Mary Joseph, J.

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The challenge in this appeal is against the quantum of compensation awarded by the Motor accidents Claims Tribunal, Thodupuzha in O.P.(M.V.).No 1013/2015 .

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The averments are to the following effect:- The

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appellant sustained injuries while she was travelling in a jeep bearing registration No.KL9A/9765, from Mankulam to Adimali. The third respondent, who was driving the jeep in high speed, lost control of the same and thereby it fell into a ravine. All the passengers including the appellant sustained injuries. Appellant was rushed to MBMM Hospital, Kothamangalam and from there she was shifted for better management to Medical College Hospital, Kolencherry and then to Medical College Hospital, Kottayam. She had undergone treatment for three spells in the aforesaid hospitals. As revealed from the discussion in the impugned award on the basis of Ext.A33, she was also taken to

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Amritha Institute of Medical Sciences and on conclusion of the treatment there, she was left with an extensive scar on her face, which according to the learned counsel is a disfigurement. Projecting all these factors, the claim was preferred by the victim before the Tribunal under Section 166 of the Motor Vehicles Act, 1988 (for short 'the Act') for a sum of Rs.3,00,000/-. The Tribunal awarded a sum of Rs.1,24,800/- as compensation to the claimant with interest at the rate of 7.5% per annum from the date of the claim petition till the date of realisation, which, according to her, is the outcome of total, improper appreciation of

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the materials let in by her in evidence and non-application of mind by the Tribunal. Therefore, she preferred this appeal calling for this Court's interference in the areas in which the Tribunal lost sight of.

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Sri.T.J.Michael, the learned counsel for the appellant

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and Sri.Mathews Jacob, the learned Senior Counsel appearing for the 2^nd respondent were heard. The impugned award and the documents marked in evidence were also perused.

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According to Sri.T.J.Michael, the learned counsel,

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M.A.C.A.No.29/2012

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the appellant sustained permanent left sided nervous weakness. An ugly scar was left on her face by the lacerated injury sustained in the motor vehicle accident, and that reduced her prospects for a good marital alliance. The counsel urged that the appellant being a young and unmarried lady, the extensive scar is nothing short of a disfigurement and the Tribunal has erred in not taking its impact in its true perspective and in declining the appellant's claim for compensation under that head. According to him, the appellant was forced to undergo prolonged treatment following the serious injuries sustained by her in the motor vehicle accident and it caused a temporary suspension of her studies and that impacted her future prospects considerably. The Tribunal is unjustified in discarding those aspects while computing the compensation, it is further submitted. According to him, on account of the failure of the Tribunal to consider those aspects, the appellant was denied due compensation to which she was entitled to. According to him, had the Tribunal adverted to all the materials placed on record in evidence from the appellant's side, it ought to have awarded adequate compensation under the heads, pain and sufferings, by-

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M.A.C.A.No.29/2012

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stander expenses, treatment expenses, disfigurement and loss of amenities. It is contended by the learned counsel that the Tribunal has awarded only a paltry sum under the head damages to clothing and loss of amenities. According to him, the Tribunal failed to compensate the appellant under the head loss of earning, loss of studies and disfiguration. The learned counsel urged that the trend of the Apex Court is liberal in granting compensation for loss of future earnings while computing compensation and when viewed in that perspective, the Tribunal is highly unjustified in declining compensation for the same. He has concluded his argument stating that had the evidence on record been properly appreciated by the Tribunal, the compensation awarded to the appellant would have definitely been on the higher side. The learned counsel urged that interference of this Court in the matter on hand is warranted in the aforesaid circumstances.

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Per contra, Sri.Mathews Jacob, the learned Senior Counsel appearing for the second respondent/insurer contended that the Tribunal has passed the award under challenge after appreciating the materials let in evidence by the appellant in its

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true spirit. According to him, the award is just and reasonable in all aspects and interference is uncalled for.

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We will deal with the specific contentions put forth

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by the learned counsel for the appellant one by one. The first and foremost contention put forth was that the grant of compensation under the head pain and suffering, extra nourishment and bystander expenses, is too low. Ext.A24 is the Accident Registercum-Wound Certificate issued to the appellant from MBMM Hospital, Kothamangalam. It is evidenced from the description in the impugned award on the basis of Ext.A24 that the appellant had availed first aid treatment from the hospital and was referred therefrom to Medical College Hospital, Kolancherry for better management. The Tribunal has narrated on the basis of Ext.A25, the patient history issued to the appellant from Medical College Hospital, Kolencherry that she was admitted there on 08.08.2005 and discharged on 30.09.2005. The injuries sustained by the appellant are narrated in the impugned award as left temporal minimal epidural haematoma, fracture of left maxilla, alveolar fracture, fracture of right zygomatic arch and brachial plexus

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injury on left upper limb. From the description in the impugned award, it is noticed that the appellant was re-incubated and ventilated under CMV Mode. Tracheotomy was also done for better chest loitering. The Tribunal has described based on Ext.A32 that the appellant was shifted to Medical College Hospital, Kottayam and had two spells of treatment there from 08.10.2008 till 22.10.2008 and from 25.03.2009 till 02.04.2009, during which period, she was subjected to plastic, reconstructive and microvascular surgery. It is described in the impugned award on the basis of Ext.A33 that the appellant had scar revision at Amritha Institute of Medical Sciences on 16.10.2009, during which course, left sided facial nerve weakness, orbital retrusion and bad facial scar were noticed by the Doctor and further reconstructive surgery, orbital floor surgery and scar revision respectively were recommended as part of treatment. Ext.A28 and Ext.A31 are photographs of the appellant, which are also made available for our perusal and that helped us to be convinced about the nature and gravity of the scar left at the face of the appellant by the injuries sustained by her. We are also convinced from the details

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given in the impugned award that the appellant had undergone inpatient treatment for 57 days at various hospitals. The evidence let in by the appellant is also indicative of the fact that she was forced to travel long distance to avail treatment at various hospitals following the accident. We are also convinced from the observation in the impugned award on the basis of Exts.A29 and A30, the series of medical bills that a total sum of Rs.72,300/was expended by the appellant towards the treatment undergone by her. It could also be gathered from the description in the impugned award that the appellant was a Plus Two student of the age of 17 years at the relevant time of accident. The Tribunal in the impugned award had described the serious injuries sustained by the appellant on her face and about the left sided facial nervous weakness. The Tribunal has also drawn a conclusion based on the facial scar that it caused disfiguration to his face and there is likelihood for her personal life to be impacted thereby. It is urged by the learned counsel that the extensive scar left by the injuries caused disfigurement to the face of the appellant and she being unmarried, that would definitely impact her marriage

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prospects. When viewed in the backdrops of the evidence on record, we could see merit in the arguments so advanced by the counsel that certain relevant aspects have not been properly considered by the Tribunal and thereby the appellant was denied adequate compensation.

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First of all, it is apposite to see the sustainability of the argument of the learned counsel that the appellant on account of the scar left on her face must have to be compensated under the head permanent disablement. The contention obliges us to have a look on the issue in the backdrop of the medical evidence on record.

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The learned counsel for the appellant had also drawn our attention to the various relevant provisions of law and several rulings of this Court as well as that of the Apex Court in the matter. The said circumstances necessitated us to have an anxious look at the relevant provision of the Act, wherein permanent disablement is dealt with. Explanation incorporated under S.163-A of the Act reads:-

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“ Explanation : For the purpose of this sub-section “permanent disability” shall have the same meaning

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and extent as in the Workmen's Compensation Act, 1923 (8 of 1923)”.

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Even though the word in usage in the Explanation is

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`permanent disability' the word used in Section 163A(1) is

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permanent disablement'. In this connection, it is apposite to have a look at the decision in **<u>Babu</u>** v. **<u>Jacob K. Thomas</u>** . **(2011 (4) KLT 733)** wherein this aspect came up for consideration of a Division Bench of this Court. It is held therein that “permanent disability” referred to in the Explanation actually refers to and explains “permanent disablement” referred to in Section 163A(1) as also Section 2(9) of the Workmen's Compensation Act, 1923. Therefore, the word permanent disability' found in the Explanation to Section 163A has to be read as `permanent disablement' as contained in Section 163A(1).

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In this connection, it is appropriate and relevant to

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read Section 140 of the Act which provides for awarding of compensation to the victims of motor vehicle accident in case of death and permanent disablement. Section 142 incorporates within it the type of cases which have to be treated as cases of permanent disablement. Section 142 of the Act reads:-

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“ 142. Permanent disablement .- For the purposes of this Chapter, permanent disablement of a person shall be deemed to have resulted from an accident of the nature referred to in subsection (1) of Section 140 if such person has suffered by reason of the accident, any injury or injuries involving:-

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a) permanent privation of the sight of either eye or the hearing of either ear, or privation of any member or joint; or

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(b) destruction or permanent impairing of the powers of any member or joint; or

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Therefore, Section 142 is exhaustive in nature as the category of cases falling within it are conclusive and there is no scope for any further addition. The categories of cases coming under 'permanent disablement' as per the provision are permanent privation of the sight of either eye or the hearing of either ear or privation of any member or joint or destruction or permanent impairing of the powers of any member or joint or permanent disfiguration of the head or face. A Division Bench of this Court had occasion to deal with the word 'disfigure' in United

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India Insurance Co. Ltd. v. Thomas (2000 (1) KLT 516) by

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extracting a portion from Gour's Penal Law of India, 10^th Edn., p.

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2839 which is quoted herein below :-

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“The word 'disfigure' must be distinguished from the word 'disable'. For, to disfigure is to do a man some external injury which detracts from his personal appearance, but does not weaken him, but to 'disable' is to do something creating a permanent disability and not a mere temporary injury. Such disfigurement may be caused by lopping off a man's ear or nose, in which case there would be sufficient disfigurement, without consequential disability, so as to constitute grievous hurt under this clause. A nasty gash on the face leaving a permanent scar would be another instance of this species of injury. So, branding may leave permanent scar causing disfigurement but whether it will not do so is a question of fact depending upon the seriousness of the branding and the injury inflicted upon which the testimony of a medical witness should be material”

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The court held in the aforesaid case that loss of one tooth cannot be treated as permanent disfiguration of the head or face, but that cannot be equated to an ugly scar on the face or other disfiguration due to mutilation of any portion of the face. Therefore in view of Clause (c) of sub Section (1) of Section 142, permanent disfigurement of face undoubtedly is permanent

M.A.C.A.No.29/2012

disablement.

In the case on hand, the question to be looked into is to see whether the appellant had disfigurement of face and if so whether that is of permanent nature? It is evident from Exts.A28 and A31 photographs, marked in evidence before the Tribunal and produced before us that the injury sustained by the appellant in the motor vehicle accident has left with an extensive scar on her face. Indisputably, the extensive scar was impacted by the lacerated injury sustained by the appellant on her face in the motor vehicle accident. The injury was described by the Doctor associated with Amritha Institute of Medical Sciences as a bad scar. According to the said Doctor, she requires scar revision for the bad facial scar. It is disclosed from Ext.A32, the discharge book issued from Medical College Hospital, Kottayam that the appellant had already undergone plastic, reconstructive and micro vascular surgery there. It is pertinent to note here that despite the corrective procedures undergone by the appellant, the ugly scar on her face is still retained. The accident was in the year 2005. The treatment particulars contained in Ext.A32 are related

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to the period 2008-2009, i.e., 3 years after the impression of the scar at the injury site, that too, after undergoing a correctional surgery for reconstruction and therefore, it cannot be said with precision that with the proposed scar revisions at the hospitals, any possibility is there for it to be wiped off in toto. Even the medical practitioners of Amrutha Institute of Medical Sciences where the appellant had consultation finally has not opined while proposing correctional surgery that by undergoing that, there is possibility for a total curation. Or in other words the ugly scar cannot be said to be falling short of a permanent disfigurement, which in terms of Section 142 is a permanent disablement. We are justified in taking such a view as the same is well fortified by the dictum laid down by the Division Bench in United India Insurance Co. Ltd. 's case (supra). In view of the aforesaid discussion, we are constrained to accept the arguments advanced by the learned counsel for the appellant and to hold that the appellant in this case has suffered permanent disablement due to the disfiguration caused to her face following the injuries sustained in the motor vehicle accident.

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We have already discussed the various aspects

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entitling the appellant for enhanced compensation and we are reluctant to re-iterate the same. We are of the considered opinion that the compensation awarded by the Tribunal under several heads need reconsideration. Under the head transportation expenses', though a sum of Rs.8,000/- was claimed by the appellant the Tribunal was pleased to grant only Rs.5,000/-, which in view of the duration of treatment undergone by the appellant in various hospitals appears to us too low and therefore, we are inclined to grant Rs.8,000/-, the sum, as such, claimed as compensation. Therefore the appellant would get a sum of Rs.3,000/- in addition under the head transportation expenses. Towards damage to clothing' even though a sum of Rs.1,000/was claimed the Tribunal has granted only Rs.500/- which according to us is too low and therefore we are inclined to grant the conventional sum of Rs.1,000/- under that head. Accordingly, the appellant would get Rs.500/- in addition as compensation. We have already discussed that the appellant had undergone inpatient treatment for 57 days. She claimed Rs.10,000/- as compensation

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towards bystander expenses. The Tribunal has taken Rs.105 per day for reckoning compensation towards bystander expenses, which according to us is on the lower side and therefore we are inclined to consider Rs.200/- per day. The appellant being an inpatient in the hospital for 57 days, the compensation which is now payable to the appellant would be Rs.11,400/-. Therefore over and above the sum already awarded under the said head, the appellant would get to Rs.5,400/- in addition. The fact that the appellant was a student of Plus Two at the relevant time of accident is not a matter in dispute. In view of the serious injuries sustained, the various procedures of treatment undergone by her and the duration to which the treatment was extended, the appellant indisputably must have lost attendance in the school and thereby her studies. Therefore she needs to be compensated under the head loss of studies, in respect of which a claim for Rs.25,000/- was made in the claim petition. In our considered opinion, Rs.10,000/- would be a reasonable sum and therefore, we grant the same under the head. Elaborate discussion is already had with respect to the injuries, the procedures of

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treatment and the duration of treatment and therefore, a reiteration is not necessary. The Tribunal though made an elaborate discussion of all these aspects in the impugned award, granted only Rs.15,000/- under the head pain and suffering. Undoubtedly, the sum awarded under the said head is inadequate and highly unreasonable. In view of the sufferings to which the appellant was put to by the accident and the consequences followed thereby, we feel it appropriate to grant a sum of Rs.40,000/- under that head and that would settle the grievance of the appellant. Therefore the appellant would get a sum of Rs.25,000/- over and above the sum already awarded by the Tribunal. The Tribunal has granted a total sum of Rs.20,000/under the head loss of amenities and disfiguration against a claim of Rs.1,00,000/-. We are of the considered opinion that the Tribunal is not justified in granting such a meagre sum under both the above heads. Undoubtedly, the appellant was compelled to manage the discomforts and inconveniences owing to the injuries sustained by him and in view of the various surgical interventions undergone to get cured off, we are of the considered opinion that

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a sum of Rs.20,000/- if granted in addition, the appellant would reasonably be compensated. Therefore, we award Rs.20,000/more under the head discomforts and loss of amenities. The appellant being a girl of the age 17 years and being left with an extensive bad scar on her face with weakness to the facial nerve would not be able to find out a counterpart in life to her choice. Or in other words the marriage prospects have been considerably impacted with the facial scar, which in the view of the medical practitioner associated with Amritha Institute of Medical Sciences, is a bad facial scar. We too had opportunity to visualise the gravity of the facial scar from Exts.P28 and P31 photographs of the appellant. Therefore we are of the view that the grievances of the appellant would be settled to a certain extent if a sum of Rs.50,000/- is granted under the head loss of marriage prospects.

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Computation of compensation if done in the aforesaid manner, the total sum payable to the appellant would come to Rs.2,28,700/-. Therefore, over and above the total sum awarded by the Tribunal as compensation under the impugned award the appellant would get a sum of Rs.1,13,900/- (Rupees

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One lakh thirteen thousand and nine hundred only) in addition. The enhanced sum would carry interest at the rate of 8% from the date of claim petition till realisation. The second respondent shall deposit the said amount with interest as aforesaid within a period of three months from the date of receipt of a copy of this judgment. Needless to say, in case of any default by the second respondent to deposit the compensation amount awarded within the stipulated period, the appellant would be entitled to get interest at the rate of 9% per annum for the sum remaining unpaid from the date of the claim petition till realisation. No order

as to costs.

Sd/-

C.T.RAVIKUMAR

Judge

Sd/- MARY JOSEPH Judge

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TKS

Ajeesh D/O.Babu v. Jaimon S/O.Kunjappan

Case brief

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Ajeesh D/O.Babu v. Jaimon S/O.Kunjappan

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