Allowed

Joseph Abraham v. Vasudevan Nair and 2 Others

Kerala HC8 Nov 2022MACA/1900/2011

Case brief

AI extract

What is this about?

In a motor accident appeal, the High Court allowed the appellant's petition, finding the Tribunal's compensation quantum inadequate for permanent disability and other heads. The Court reassessed compensation based on a Medical Board's 83.16% disability finding and corrected the multiplier for future earnings, allowing additional sums with interest.

What did the court decide?

The insurer was directed to deposit an additional sum of Rs.3,18,048 with interest at 7.5% p.a. payable within two months.

Joseph Abraham Vs Vasudevan Nair and 2 Others — Motor Accident Claims | Kerala HC (2022)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MRS. JUSTICE MARY JOSEPH

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TUESDAY, THE 8TH DAY OF NOVEMBER 2022 / 17TH KARTHIKA, 1944

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MACA NO. 1900 OF 2011

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AGAINST THE AWARD IN O.P (MV) NO.1644/2007 OF MOTOR ACCIDENT

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CLAIMS TRIBUNAL, KOTTAYAM

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APPELLANT/PETITIONER :-

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JOSEPH ABRAHAM
S/O.ABRAHAM,ITTIYEDATH(H),VELLUR.P.O,
PAMPADY, KOTTAYAM.

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BY ADVS.
SRI.A.P.SUBHASH
P.R.VENKATESH

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RESPONDENTS :-

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1VASUDEVAN NAIR AND 2 OTHERS
THAKADIEL(H),ELANGULAM VILLAGE,2ND MILE
BHAGOM,ELAMGULAM.P.O,KOTTAYAM DISTRICT-686522.
2TOM THOMAS
KONDODY MOTORS,KODIMATHA,KOTTAYAM-686001.
3THE UNITED INDIA INSURANCE CO.LTD
KOTTAYAM-686001.
BY ADVS.
SRI.P.JACOB MATHEW
SRI.K.M.JAMALUDHEEN
SRI.KOSHY GEORGE
SRI.MATHEWS JACOB SR.

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THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR
ADMISSION ON 08.11.2022, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:

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MACA No.1900 of 2011

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JUDGMENT

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Dated this the 08^th day of November, 2022

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This appeal is filed challenging an award passed by Motor Accidents Claims Tribunal, Kottayam (for short ‘the Tribunal’) on 20.05.2011 in O.P.(MV) No.1644 of 2007.

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The appellant is the petitioner in the above Original

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Petition. The Tribunal has arrived at Rs.11,95,910/- as the compensation payable to the appellant and directed the 3^rd respondent, insurer to deposit the same with interest at the rate of 7.5% per annum from 03.11.2007 the date of filing of the Original Petition till the date of repayment and also directed to pay Rs.12,000/- as costs. Aggrieved by the quantum of compensation awarded by the Tribunal, the petitioner has approached this Court in the appeal on hand. According to him, at about 6.30 p.m. on 17.11.2002 while he was riding a motor cycle through K.K.Road from Kalathipady to Velloor, a bus bearing Registration No.KL 5/H 7830 hit against the motor cycle and thereby he sustained injuries. He was rushed to

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MACA No.1900 of 2011

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Medical College Hospital, Kottayam and after availing first aid, was transported to Matha Hospital, Thellakom. Thereafter, he was transported to Indo American Hospital, Brain and Spine Centre, Vaikom for better medical management. According to him, the accident was occurred due to the rash and negligent driving of the bus by it’s driver. The driver, owner and insurer of the bus were arrayed as respondents 1 to 3 in the Original Petition and Rs.46,62,000/- was claimed from them as compensation.

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The owner and the driver of the bus, were served with notice but they did not turn up to contest the Original Petition. The 3^rd respondent in the written statement filed admitted the insurance coverage of the bus as on date of accident. The age, occupation, monthly income and the compensation claimed were disputed, for the reason of exorbitant nature of those. Parties to this appeal will hereinafter be referred to as the petitioner and respondents 1 to 3 in accordance with their status in the Original Petition on hand.

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MACA No.1900 of 2011

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The 3^rd respondent in the written statement filed contended that the petitioner was not yet terminated from his job. The petitioner tendered oral evidence as PW1 and examined a witness as PW2. Exts.A1 to A11 were also marked. Respondents did not adduce any evidence. On appreciation of the evidence tendered by the petitioner, the Tribunal arrived at a finding that the driver of the bus, who was arrayed as the 1^st respondent was responsible for the accident by rash and negligent driving of the bus. The Tribunal found that the petitioner in view of the injuries sustained in the motor accident is entitled to get compensation from the respondents. Rs.11,95,910/- was arrived at as the compensation payable and the 3^rd respondent was directed to deposit the sum arrived at as compensation with interest and costs aforesaid.

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It is contended by the learned counsel for the appellant that compensation arrived at under various heads are on the lower side. According to her, the appellant had sustained serious injuries in the motor accident and was treated as inpatient respectively for 58 days and two days in two different

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MACA No.1900 of 2011

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spells. Therefore, altogether the inpatient treatment continued for 60 days in two different hospitals. According to the learned counsel, compensation awarded under the head transportation expenses is insufficient and this Court’s interference is needed to make it adequate. It was further canvassed that under the heads extra nourishment and bystander expenses, Rs.3,000/- and Rs.6,000/- respectively were awarded as compensation and interference is warranted to make it proportionate to the injuries sustained, duration of treatment and the procedures undergone.

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According to the petitioner, under the head medical expenses the Tribunal confined awarding of compensation to Rs.1,58,156/- in disregard of the claim of Rs.3,00,000/- raised in the Original Petition on hand. It was further pointed out that loss of earnings for 12 months is arrived at by taking the monthly salary certified in Ext.A10. According to her, the period taken is inadequate when viewed in the backdrop of the injuries sustained by the petitioner in the motor accident. The learned counsel also addressed that Rs.25,000/- and Rs.30,000/respectively stand awarded as compensation against a claim for

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MACA No.1900 of 2011

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Rs.5,00,000/- each also is inadequate compensation and interference is called for.

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It is contended by the learned counsel that after filing of the appeal and during it’s pendency, petitioner has preferred an application for examination of the petitioner by a Medical Board and this Court has allowed the application and ordered for examination of the petitioner by the Medical Board. After examination of the petitoner, the Medical Board had issued a certificate on 16.03.2022 where 83.16%was assessed as the permanent disability of the petitioner. The learned counsel canvassed for a consideration of the certificate issued by the Medical Board after examination of the petitioner and to reassess the quantum of compensation payable for permanent disability on its basis.

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Since the quantum of compensation alone is under challenge, this Court is declined to deal with the injuires sustained by the petitioner and the procedures undergone as part of hospitalisation. Ext.A3 is the accident register cum wound certificate prepared on 17.11.2002 and issued from Medical

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MACA No.1900 of 2011

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College Hospital, Kottayam whereto the petitioner was taken immediately after the motor accident in question. Petitioner at the time when he was taken to the hospital was unconscious and disoriented. He had bleeding from his mouth and nose. His right pupil was dilated and the left appeared sluggish. The Medical Practitioner, who examined him at Medical College Hospital, Kottayam has noted a lacerated wound 5x2x1 cm above his right eyebrow and depressed skull fracture on right frontal region, lacerated wound 4x1x1 cm over right shin and another lacerated wound 4x0.5x0.5 cm over left knee. Emergency endotracheal intubation was done at the hospital and thereafter petitioner got a discharge against medical advice to continue treatment.

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Accordingly, the patient was brought to Indo American Hospital, Brain and Spine Centre, Vaikom. There left fronto-parieto-temporal Extradural/Subdural Haematoma, fracture of right zygoma, right mandible, anterior cruciate and medial collateral ligment injuries and avulsion of medial condyl of the left femur were diagnosed. Phenytoin hypersensitivity was suspected. In CT Scan of Brain, windows revealed multiple

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MACA No.1900 of 2011

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fractures over both sides. Paranasal sinuses were found filled with blood. When CT Scan of brain was repeated, complete evacuation of the haematoma was noted but multiple hypodense foci were found on the frontal as well as temporal region. CT Scan was repeated further on 26.11.2002, which revealed hypodensities the same, with no increase in its mass effect. In the CT Scan of abdomen conducted on 03.12.2002, consolidation of lower lobes of lung bilaterally was noticed. The CT Scan of Brain when repeated on 23.12.2002, dilatation of lateral & third ventricles and multiple foci of encephalomalacia were noted corresponding to the previous contusions. CT Scan of brain done on 07.12.2002 reveals chip fracture of right side of the body at C6, and left side of body at C7 and fracture of head of 1^st rib on the right side. As procedures of treatment, left fronto-temporo-parietal craniotomy, evacuation of left fronto-temporo-extradural haematoma and left fronto-tempero-parietal acute subdural haematoma were done under general anesthesia. The haematoma was evacuated and thereafter obvious bleeding was

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MACA No.1900 of 2011

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not found. When the dura was opened, large acute subdural haematoma over the fronto-tempero-parietal region was found and that was also evacuated. Thereafter, no obvious bleeding was found. The dura was closed primarily and the bone flap was replaced. The relatives were also apprised of the need for emergency evacuation in case of overbleeding. He was electively ventilated postoperatively for 72 hours and weaned off the ventilator gradually on finding spontaneous respiration adequate. Ryles’ tube feeds and the bronchial toiletting were facilitated by Tracheostomy. He showed gradual improvement and started moving his right upper limb gradually. Due to paucity of limb movements, CT scan of the cervical spine alongwith screening of the thoracic and lumbar spine were done. Bony injury of large area was not reported. The patient commenced moving all four limbs. He progressively became more alert and also started obeying commands. Ryles’ tube & later tracheostomy tube were removed. He started feeding and speaking normally. He was directed to consult an Orthopedic surgeon for his left knee ligament injuries and to consult a

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MACA No.1900 of 2011

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general surgeon for persistent swelling on his left leg. A trial of condom drainage removal was attempted. At the time of discharge, patient was confused and was not properly responding to commands. He was advised to continue physiotherapy, rehabilitation and meditation. He was also directed to consult Facio-maxillary Surgeon, Orthopedic Surgeon and General Surgeon and to review at OPD, Neurosurgery after one month.

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Ext.A5 is the case summary. Ext.A6 is a certificate issued to the petitioner as a handicapped person from a Medical Board associated with Medical College Hospital, Kottayam certifying 50% as his total disability on account of instability of his left knee following ACL+MCL injuries. Ext.A7 incorporate O.P. Tickets issued from Indo American Hospital, Brain and Spine Centre, Vaikom which shows reviews on 10.02.2005, 05.06.2005, 07.06.2005, 10.06.2006, 15.08.2006, 18.11.2006, 25.08.2007, 10.02.2007, 10.06.2007 and 31.10.2009. As per Exts.A8 and A9 series of medical bills he had spent Rs.1,58,156/- towards his treatment.

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MACA No.1900 of 2011

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It is pertinent to note that the Tribunal confined awarding Rs.3,000/- as compensation for transportation, despite the factum evidenced that the petitioner had undergone inpatient treatment in two different hospitals. Petitioner was a resident of Kottayam and his treatment was continued at Medical College Hospital, Kottayam and Indo American Hospital, Brain and Spine Centre, Vaikom. The treatment at Indo American Hospital, Brain and Spine Centre, Vaikom continued for a prolonged period. Despite evidence adduced in the above manner, the Tribunal awarded only Rs.3,000/- as compensation. As noticed from the claim petition Rs.5,000/- was the compensation claimed and this Court awards the same as compensation under that head. Therefore, the petitioner is entitled to get Rs.2,000/- as additional compensation under the head.

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It is noticed that the petitioner was treated as inpatient for 60 days, but the Tribunal has confined awarding compensation to Rs.3,000/- under the head Extra Nourishment against a claim of Rs.50,000/-. In view of the serious injuries

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MACA No.1900 of 2011

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sustained and the prolonged treatment, this Court is inclined to take Rs.150/- per day for 100 days and therefore, the petitioner will get Rs.15,000/- as compensation under that head. Rs.3,000/was already awarded by the Tribunal in the impugned award and when that is deducted, the petitioner will get Rs.12,000/- as additional sum payable as compensation under the head extra nourishment. As compensation towards damages to clothing, Rs.500/- stands awarded being low, this Court is inclined to modify it to Rs.1,000/-. Therefore, the petitioner will get Rs.500/- as additional compensation.

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As compensation under the head bystander expenses, the Tribunal has awarded Rs.100/- per day for 60 days. This Court is inclined to modify the period to 100 days and the sum payable per day as Rs.150/-. Thus, Rs.15,000/- is arrived at. Rs.6,000/- is already awarded by the Tribunal and therefore the petitioner will get Rs.9,000/- as additional compensation. As compensation towards medical expenses, the Tribunal had awarded the entire sum claimed as per the medical bills marked in evidence as Exts.A8 to A10. As compensation

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MACA No.1900 of 2011

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towards loss of earnings the last drawn salary proved by Ext.A10, was considered for 12 months and thus Rs.1,02,132/is arrived at as the compensation payable and the same is awarded. The sum being reasonable this Court is hesitant to interfere with.

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As compensation towards pain and suffering, having regard to the serious injuries sustained by the petitioner and the various surgical procedures undergone by him, this Court finds it just and reasonable to award Rs.50,000/- as compensation. Rs.30,000/- was already awarded by the Tribunal and therefore the petitioner will get Rs.20,000/- as additional compensation. As compensation towards loss of amenities and enjoyments in life also this Court finds justification in awarding Rs.50,000/- as compensation. Rs.25,000/- having been awarded by the Tribunal, the petitioner will get Rs.25,000/- as additional compensation.

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Compensation for disability was assessed by the Tribunal by taking 50% as the disability based on Ext.A6. Ligament injuries sustained by the petitioner on his leg was

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MACA No.1900 of 2011

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considered as the basis for assessment of 50% disability for the petitioner. The Neuro, opthalmic and other disabilities suffered by the petitioner were also assessed by the Medical Board associated with Government Medical College Hospital, Kottayam pursuant to direction issued by this Court. The certificate issued by the Medical Board certifying the disability of the petitioner is marked in evidence as Ext.A12. The Medical Board has certified in Ext.A12 that the petitioner has 83.16% of permanent disability. Since the disability was assessed by the Medical Board, this Court is inclined to consider the percentage certified in Ext.A12 as such for the purpose of assessment of compensation under that head.

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The learned counsel for the 3^rd respondent has raised an argument that evidence is not forthcoming to establish that the petitioner was terminated from service by MRF, his employer at the relevant time. The petitioner examined an officer associated with MRF as PW2. PW2 was not instrumental for issuance of Ext.A10. It was issued by the predecessor in office of PW2, whose signature was identified by

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MACA No.1900 of 2011

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him. He deposed on the basis of Ext.A10 that the petitioner was given a salary of Rs.8,511/- at the relevant time of the motor accident. To a specific question, whether the petitioner was terminated from service, PW2 deposed in the negative and added that steps are being taken to terminate him. For his continuous absence from duty that steps are being taken to terminate him from his job at MRF. The permanent disability of the petitioner certified in Ext.A10 being high, the petitioner may not also be able to attend his job any further.

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It was urged by the learned counsel for the 3^rd respondent that the petitioner was not terminated from service. But, no evidence has been adduced by them to establish that the petitioner is still an employee of MRF. Therefore, this Court is constrained to take a view that he lost his job. Copy of the 3^rd page of the S.S.L.C book is marked in evidence by the petitioner as Ext.A11 to prove his date of birth as 25.05.1968. Therefore, at the relevant time of the motor accident he must have completed 34 years. The Tribunal had taken 17 as the multiplier. It being incorrect, this Court is inclined to substitute

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MACA No.1900 of 2011

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it by 16, the correct multiplier. There is no evidence to show the age at which the petitioner will retire from MRF in normal course. Therefore, this Court is inclined to take 56, the age of retirement of a Government employee in the case of the petitioner also. Therefore, after 56 years, the petitioner will not be able to get the salary as he was earning at the relevant time of the accident. Therefore, this Court is inclined to assess the compensation for disability by fixing Rs.7,000/- as his monthly income. When compensation for disability is reassessed on the basis of the monthly income fixed notionally as Rs.7,000/- , multiplier as 16 and the percentage of disability as 83.16, Rs.11,17,670/- (7,000 x 16 x 12 x 83.16%) is arrived at as compensation payable for disability. Rs.8,68,122/- stands awarded by the Tribunal when deducted the petitioner will get Rs.2,49,548/- as additional compensation under the head permanent disability.

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In the above manner of reassessment, the petitioner will get a sum of Rs.3,18,048/- (Rupees Three lakhs eighteen thousand forty eight only) as additional compensation. The said

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MACA No.1900 of 2011

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amount will carry interest at the rate of 7.5% per annum from the date of filing of the Original Petition till the date of realisation. The 3^rd respondent being the insurer shall deposit the aforesaid sum with interest fixed as above and also the sum stands awarded by the Tribunal together with interest and costs (if not paid) within a period of two months from the date on which the certified copy of this judgment is received.

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M.A.C.A. stands allowed accordingly.

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Sd/-

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MARY JOSEPH SMA JUDGE

Joseph Abraham v. Vasudevan Nair and 2 Others

Case brief

What is this about?

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Joseph Abraham v. Vasudevan Nair and 2 Others

Case brief

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