Partly allowed

M.R.Rajendran v. the Managing Director

Kerala HC1 Mar 2017MACA/1974/2012

Case brief

AI extract

What is this about?

This High Court allowed a part of an appeal in a motor accident claim. The court enhanced the compensation awarded by the Motor Accidents Claims Tribunal by re-fixing the monthly notional income, accepting 100% disability, increasing future treatment expenses, and adjusting bystander expenses, resulting in a total enhancement of Rs. 8,07,400.

What did the court decide?

Total compensation enhanced by a further sum of Rs. 8,07,400 with interest, and directed to be deposited by the Respondent.

M.R.Rajendran Vs the Managing Director — Medical Negligence | Kerala HC (2017)

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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.K.ABDUL REHIM & THE HONOURABLE MRS. JUSTICE SHIRCY V.

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WEDNESDAY, THE 1ST DAY OF MARCH 2017/10TH PHALGUNA, 1938

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MACA.No. 1974 of 2012 ()

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------------------------(AGAINST THE AWARD DATED 21-01-2011 IN OPMV 2093/2006 of M.A.C.T., ERNAKULAM)

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APPELLANTS/PETITIONERS:

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1. M.R.RAJENDRAN [DIED] AGED 52 YEARS, S/O.APPUKUTTAN NAIR, REP. BY HIS NEXT FRIEND AND WIFE GIRIJA DEVI, AGED 45 YEARS, KANIYATHUPARAMBU HOUSE, THIRUVAMKULAM.P.O, TRIPUNITHURA.

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*2. GIRIJA DEVI, W/O. M.R.RAJENDRAN KANIYATHUPARAMBU HOUSE, THIRUVAMKULAM.P.O, TRIPUNITHURA.

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*3. GIREESH M.R. S/O. M.R.RAJENDRAN KANIYATHUPARAMBU HOUSE, THIRUVAMKULAM.P.O, TRIPUNITHURA .

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*4. SUMESH M.R. S/O. M.R.RAJENDRAN KANIYATHUPARAMBU HOUSE, THIRUVAMKULAM.P.O, TRIPUNITHURA .

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*5. RAKESH M.R. S/O. M.R.RAJENDRAN KANIYATHUPARAMBU HOUSE, THIRUVAMKULAM.P.O, TRIPUNITHURA

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BY ADV. SRI.SAIGI JACOB PALATTY

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***[LEGAL HEIRS OF THE DECEASED SOLE APPELLANT ARE IMPLEADED AS ADDITIONAL APPELLANTS 2 TO 5 VIDE ORDER DATED 13-11-2014 IN IA No.3348/2014]**

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MACA.No. 1974 of 2012

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RESPONDENTS/RESPONDENTS:

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1. THE MANAGING DIRECTOR K.S.R.T.C, THIRUVANANTHAPURAM- 695 001.

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**2. F.C.JOHNSON [DELETED] S/O.CHAKKAPPAN, ENAKARAN HOUSE, CHRISTOPHER NAGAR, YASORAM GARDEN, OLLUR.P.O, THRISSUR DISTRICT- 680 001.

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R1 BY ADV. SRI.BABU JOSEPH KURUVATHAZHA,SC,KSRTC R1 BY ADV. SRI.P.C.CHACKO, SC, KSRTC. R1 BY SRI.JOHN MATHEW, SC, K.S.R.T.C.

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****[RESPONDENT No.2 IS DELETED FROM THE PARTY ARRAY, AT THE RISK OF THE APPELLANT VIDE ORDER DATED 06-01-2015 IN IA No.3918/2014.]**

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THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 01-03-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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AMG

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C.K. ABDUL REHIM, J. & SHIRCY V., J.

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M.A.C.A No. 1974 OF 2012

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DATED THIS THE 1^st DAY OF MARCH, 2017

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J U D G M E N T

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Abdul Rehim, J:

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The above appeal was originally filed by the claimants in OP (MV) No.2093/2006 on the files of the Motor Accidents Claims Tribunal, Ernakulam. During pendency of the appeal the original 1^st appellant died and additional appellants 2 to 5 were impleaded as his heirs. The challenge in the appeal is against the quantum of compensation awarded by the Tribunal. The appellants are seeking enhancement of the amount of compensation. There is no dispute with respect to findings of the Tribunal on the aspects of the negligence and the liability of the 1^st respondent.

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Heard; counsel for the appellant and Standing Counsel appearing for the 1^st respondent.

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The original 1^st appellant was aged 52 years at the time of the accident. He was working as a Porter in the

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MACA No.1974/2012

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Southern Railway. Exhibit A11 photocopy of the identity card issued from the Southern Railway along with Badge No.222, which were produced by the claimant, would reveal that he was working as a Porter in the Railway Station. But no proof regarding his exact income could be produced, since the income derived was the remuneration given by the passengers in connection with individual works. He sustained severe head injury. In Ext.X1 'Disability Certificate' issued by the Medical Board indicated that, he underwent craniotomy and he remained mentally incapacitated, unable to comprehend or to perform any day to day activities. He was totally bed ridden. The Tribunal discarded the contentions raised by the claimant that there occurred total functional disability and adopted the extent of disability only at 80%, as certified in Ext.X1. For the purpose of computing compensation for disability, the Tribunal fixed a notional monthly income of the claimant at Rs.3,000/- and based on an assumption that he could work only upto the age of 60 years only a multiplier of 8 was adopted. Learned counsel for the appellant contended that

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MACA No.1974/2012

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the basis for computation of compensation under the head of permanent disability was totally erroneous and the amount awarded is too inadequate and unreasonable.

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Considering the fact that the claimant was working as a Railway Porter and that the accident occurred during the year 2005, we are of the opinion that the monthly notional income adopted by the Tribunal is on the lower side. We reasonably re-fix the said amount at Rs.4,500/-. As evident from Ext.X1 certificate, the claimant was totally paralysed and he was in a vegetative stage. Therefore the permanent disability sustained had prevented him from continuing any avocation in life. Therefore the Tribunal ought to have accepted the contention that there occurred total functional disability. Hence we are inclined to accept 100% disability with respect to the claimant. Considering the age of the claimant at 52 years at the time of the accident, the correct multiplier ought to have been adopted is 11. But the Tribunal had reduced it to 8 finding that he could work only upto the age of 60 years. But there is no basis for such a finding. No proof is adduced regarding

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MACA No.1974/2012 -4-

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any stipulation of retirement with respect to the Railway Porters. Hence we are of the opinion that the entire multiplier of 11 need to be adopted. Calculated on that basis, the amount of compensation under the head of permanent disability need to be refixed at Rs.5,94,000/-. This will entitle the appellants for an enhancement of Rs.3,63,600/- on that count.

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The appellant had produced before the court various medical bills and treatment certificates, along with an interim application praying to accept them as additional evidence. On a perusal of those documents, it includes the bills and documents pertaining to treatment undertaken prior to the Award and after the impugned Award. Learned counsel for the appellant contended that the claimant had to continue the treatment both as inpatient and outpatient, till his death on 21-07-2013. It is pointed out that the additional medical bills produced itself would come to about Rs.2,49,000/-. But we are not inclined to accept those documents for the purpose of enhancing the compensation awarded under the head of medical expenses. At the same

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MACA No.1974/2012

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time, it can be considered as proof regarding continued future treatment undertaken. The Tribunal had awarded only a sum of Rs.25,000/- towards future treatment expenses. We are inclined to enhance the same to Rs.2,00,000/-, which will entitle the appellants for an enhancement of Rs.1,75,000/-.

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It is contended that the amount of Rs.31,200/awarded towards bystander's expenses is too inadequate and unreasonable. Learned counsel for the appellant had pointed out that, in the tabulation shown in the impugned Award the basis was taken as Rs.200/- per day, till the claimant attains the age of 65 years, i.e., for 13 years. If that was the basis, then definitely there occurred a calculation error. But we are not inclined to accept the contention as such. There is evidence to the effect that the claimant was totally laid up and need personal attendance all along. There is evidence to the effect that he died on 21-07-2013. Therefore we reasonably re-fix the amount awarded under the head of bystander's expense at Rs.3,00,000/-. This will entitle the appellant for a further

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MACA No.1974/2012 -6-

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enhancement of Rs.2,68,800/-. Eventhough the appellant had raised various contentions regarding the amount of compensation awarded under different other heads, we do not find any ground existing warranting inference with respect to the amounts awarded under any other head. Thus the appellant is entitled for a total enhancement of Rs.8,07,400/-

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In the result, the appeal is allowed in part by enhancing the total compensation awarded by the Tribunal by a further sum of Rs.8,07,400/-, which will carry interest at the rate as ordered by the Tribunal, from the date of the claim petition till realization. The 1^st respondent is directed to deposit the amount before the Tribunal within a period of 2 months from today.

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Sd/-

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C.K. ABDUL REHIM, JUDGE .

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Sd/- SHIRCY V., JUDGE .

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AMG

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True copy

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P.A. to Judge

M.R.Rajendran v. the Managing Director

Case brief

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M.R.Rajendran v. the Managing Director

Case brief

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