Allowed

Anuroop M v. Ahammedkutty K T

Kerala HC11 Nov 2022MACA/2777/2012

Case brief

AI extract

What is this about?

The High Court allowed the appeal against the Motor Accidents Claims Tribunal award, holding that the assessment of disability, monthly income, and various heads of compensation were erroneous. It granted additional compensation of approximately Rs. 10.62 lakhs based on a 70% disability and enhanced other claims.

What did the court decide?

Additional compensation of Rs. 10,62,330/- with 7.5% per annum interest awarded and directed to be deposited by the insurer.

Anuroop M Vs Ahammedkutty K T — 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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FRIDAY, THE 11TH DAY OF NOVEMBER 2022 / 20TH KARTHIKA, 1944

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MACA NO. 2777 OF 2012

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AGAINST THE ORDER/JUDGMENT in OPMV 468/2009 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, MANJERI DATED 30.06.2012

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APPELLANT/PETITIONER IN OP(mv):

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ANUROOP M.,

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S/O.M. KARIKUTTY,MANGOTTIL HOUSE,P.O.PERIMBALAM
VIA MUNDUPARAMBA, ANAKKAYAM VILLAGE, MALAPPURAM
DISTRICT.

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BY ADVS.SRI.DINESH MATHEW J.MURICKEN
 SRI.P.V.BALAKRISHNAN

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RESPONDENTS/RESPONDENTS IN OP(MV):

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1 AHAMMEDKUTTY K T., S/O.AITHU

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KALATHUMTHODIKA HOUSE,

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P.O.PANNIPPARA, MALAPPURAM DISTRICT, PIN 676 541

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2 AKBARALI S/O.UNNI MOHAMMED HAJI, MOORKAN HOUSE, P.O.MAMPAD

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MALAPPURAM DISTRICT PIN – 676 542.

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3 ICICI LOMBARD GIC LTD, CITY PLAZA 2ND FLOOR, YMCA CROSS ROAD CALICUT, PIN – 673 001.

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R3 BY ADV SRI.K.B.RAMANAND

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THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP
FOR HEARING ON 11.11.2022, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:

MACA 2777/2012

MARY JOSEPH. J.

M.A.C.A.2777 of 2012

Dated this the 11^th day of November, 2022

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JUDGMENT

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This appeal is filed challenging an award passed by Motor Accidents Claims Tribunal, Manjeri (for short 'the Tribunal') on 30.6.2012 in OP(MV)No.468 of 2009. Appellant is the petitioner in the above Original Petition and a sum of Rs.12,01,000/- was claimed as compensation for the injuries sustained in a motor accident. For the sake of convenience the 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.

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The accident was allegedly occurred at 10.50 a.m. on 22.12.2007 while petitioner was travelling as pillion rider in a Motorcycle and a stage carriage bus dashed against his Motorcycle at Mukkam and sustained serious injuries. He was taken to MIMS Hospital, Calicut and was treated there as

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MACA 2777/2012

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inpatient on different spells. He had expended a huge sum for treatment. The driver, owner and insurer of the stage carriage bus were arrayed as respondent Nos.1 to 3 in the Original Petition filed claiming compensation.

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Respondents 1 and 2 though served with notice, did

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not turn up to contest the Original Petition and therefore were declared ex parte. The 3^rd respondent had filed written statement admitting insurance coverage of the stage carriage bus as on date of accident but contended that the accident was occurred due to the rash and negligent riding of the Motorcycle by its rider and that the amount claimed as compensation is on the higher side.

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Before the Tribunal, Exts.A1 to A5 and Ext.X1 were marked in evidence by the petitioner. He also mounted the box and deposed as PW1. Respondents did not adduce any evidence. On appreciation of the evidence the Tribunal arrived at a finding that the driver of the stage carriage bus was rash and negligent in driving the bus and therefore, responsible for causing the accident. The Tribunal thus fixed Rs.9,86,690/- as the compensation payable to the petitioner and direction

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MACA 2777/2012

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issued to the 3^rd respondent insurer, to deposit the above sum with interest of 9% per annum from the date of filing of the Original Petition till the date of realization.

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It is contended by Sri.Dinesh Mathew J.Murikan, the learned counsel for the appellant that the Tribunal had fixed Rs.3,000/- notionally as monthly income and assessed the compensation payable for loss of earning and disability on its basis. According to him, the injuries sustained by the petitioner and the period for which the petitioner was treated were well evidenced from Exts.A2, A3 and A3(a). But, the Tribunal had assessed compensation for loss of earning only for six months. According to the learned counsel, the Tribunal failed to award just and reasonable compensation under the heads transportation expenses, extra nourishment, damages to clothing, bystander expenses, pain and suffering and loss of

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amenities and enjoyments in life. According to him, the permanent disability of the petitioner was assessed as 70% by the Medical Board. According to him, assessment of disability was well supported by reasons stated in the certificate issued by the Medical Board and marked in evidence as Ext.X1, but

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MACA 2777/2012

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the Tribunal had taken only 50% as the disability. According to him, the petitioner was completely bedridden in view of the head injury sustained in the motor accident and he was not in a position to do anything independently. According to him, he had mounted the box to depose as PW1 and had spoken about his inability on account of the injuries sustained, to continue his job. Despite availability of the evidence as above, the Tribunal was reluctant to consider 70% disability stands assessed and certified by the Medical Board in Ext.X1. It is contended by the learned counsel that since the petitioner was certified as having 70% permanent disability, Tribunal is erred in not considering his loss of future prospects.

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It is noticed from Ext.A2 wound certificate prepared at MIMS Hospital, Calicut that the petitioner was brought to the hospital unconscious and intubated. It is also revealed from Ext.A2 that after initial treatment availed from Medical College Hospital, Calicut he was shifted to MIMS hospital, Calicut.

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It is established that the petitioner had sustained an abrasion on left foot and right temporal haemorrhagic

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MACA 2777/2012

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contusion. In the CT scan, increase in the size of Bi frontal as well as right temporal hemorrhagic contusions was found. Severe mass effect and fracture on right temporal bone were also detected. It is disclosed from the discharge summary marked in evidence as Ext.A3 that the inpatient treatment of the petitioner at MIMS Hospital, Calicut continued from 22.12.2007 till 2.2.2008.

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As treatment procedures right fronto-temporoparietal decompressive craniectomy and right frontal/right anterior temporal lobectomy were done on 22.12.2007 under general anaesthesia. Scalp was contused. Bone appeared normal. Dura was tense and bluish. 1 cm thick acute subdural hematoma was present over the temporo-parietal region. The entire exposed cortex exhibited subpial hemorrhages. There was a large basifrontal and a small anterior temporal contusion. Severe brain swelling was present, with brain bulging above the level of the surrounding scalp. Bone flap was saved in a subcutaneous pouch in the anterior abdominal wall. CT scan (brain) when repeated showed an increase in mass effect. Therefore he was taken up for a decompressive

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MACA 2777/2012

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craniectomy and right frontal/anterior temporal lobectomy. Post operatively he was electively ventilated. Since he had a low Glasgow Coma Scale score a tracheostomy was done. Patient had a respiratory infection which was controlled with medication. He was subsequently decannulated as his Glasgow Coma Scale score improved to E4 M6 V3-4. He was started on limb physiotherapy and upon discharge he was afebrile, standing with support, on Ryles tube/oral feeds, condom drainage for urine, had grade 4+ power in the right upper and lower limbs and grade 3 power in the left upper and lower limbs. He was advised to continue medication which consists of tablet 'Epsolin'. He was also asked to continue chest/limb physiotherapy from local hospital.

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The second discharge summary which is marked in evidence as Ext.A3(a) reveals that, during the period of hospitalization covered by it, post Traumatic Communicating Hydrocephalus and Post-head injury sequelae were finally diagonized. In the CT scan repeated, dilated lateral, third and fourth ventricles with a large pseudomeningocoele and gliotic changes were noted in the bi-frontal and bi-temporal regions.

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MACA 2777/2012

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Stretching exercises were started. At the time of discharge, he was able to stand and take a few steps with support. However, the lower limbs were still spastic and he had slight flexion deformity of the knees. His sensorium improved to E4 M6 V4 and he starts taking a normal diet. He was on condom drainage for urine. The wounds had healed well. He was discharged with advice to continue physiotherapy and medications and to attend after one month for review. He was also asked to continue Epsolin till further advice.

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It is disclosed from the injuries described as above that the petitioner was not in a position to move normally. At the time of discharge from the hospital he started to move slightly with support. He was examined by Medical Board,Medical College Hospital, Kozhikode and Ext.X1 certificate was issued. In the certificate issued by the Medical Board, the petitioner was certified as completely dependent on other persons. Therefore 70% disability assessed by the Medical Board could be taken.

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This Court also finds that the monthly income was fixed by the Tribunal on the lower side. The fixation of the

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MACA 2777/2012

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monthly income was on notional basis, since the petitioner has not adduced any evidence to establish his job and income. He claimed to be an electrician by profession. But for want of evidence to establish those the Tribunal was constrained to fix Rs.3,000/- notionally as his monthly income. The petitioner being aged only 25 years, the Tribunal is unjustified in fixing the monthly income as Rs.3,000/-. This Court finds it reasonable to fix it as Rs.6,000/- and to add 40% of the said sum in consideration of future prospects. Thus, Rs.8,400/(6,000/- + 40% of Rs.6,000/-) is arrived at. When compensation payable is assessed with 18 as the multiplier and 70% as petitioner’s disability, Rs.12,70,080/- (Rs.8400/x12x18x70%) is arrived at. Rs.3,06,000/- being the sum already awarded by the Tribunal, Rs.9,64,080/- is found payable as additional compensation.

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Under the head 'extra nourishment, the Tribunal failed to award any sum as compensation though a claim of Rs.6,000/- was made. This Court finds it reasonable to award Rs.6000/- under that head and that is awarded.

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Under the head 'bystander expenses', it is noticed

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MACA 2777/2012

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that the Tribunal has awarded compensation by fixing Rs.100/per day for 75 days of inpatient treatment. Accident being in the year 2007, this Court finds it reasonable to take Rs.200/per day and when calculated for 75 days, Rs.15,000/- is payable. Rs.7,500/- being the sum already awarded, the petitioner is entitled to get Rs.7,500/- as additional compensation.

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Under the head 'damages to clothing', the Tribunal has awarded Rs.250/- and this Court is inclined to modify it to Rs.1,000/- so that Rs.750/- is payable as additional compensation.

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Compensation for 'loss of earning' was awarded by taking six months’ period as the period for which he suffers loss of income. In view of the nature of injuries sustained by the petitioner, this Court finds it reasonable to take one year as the period and thus Rs.72,000/- is found payable. The sums stands awarded by the Tribunal under the heads 'loss of earning' and 'partial loss of earning' being Rs.18,000/- and Rs.9,000/- respectively, the petitioner will get Rs.45,000/- as additional compensation.

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MACA 2777/2012

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Under the head, ‘pain and suffering' the Tribunal has awarded only Rs.20,000/- and in the context on hand discussed above, this Court is inclined to enhance it to Rs.40,000/- so that the petitioner will get Rs.20,000/- as additional compensation.

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Under the head 'loss of amenities and enjoyments in life’ the sum stands awarded by the Tribunal being Rs.25,000/this Court is inclined to modify it to Rs.40,000/-, so that the petitioner will get Rs.15,000/- as additional compensation.

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Towards 'transportation expenses' though a claim for Rs.5,000/- was made, the Tribunal had awarded only Rs.1,000/-. It has come out in evidence that treatment was availed from Medical College Hospital, Calicut and MIMS Hospital, Calicut and the treatment was also continued as outpatient. Taking into consideration of those facts, this Court

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finds it reasonable to award the sum claimed itself as compensation. Therefore, the petitioner will get Rs.4,000/- as additional compensation under that head.

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In the above re-assessment, the petitioner is entitled to get Rs.10,62,330/- (Rupees Ten lakhs sixty two

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MACA 2777/2012

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thousand three hundred and thirty only) as additional compensation. The said 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 realization. The 3^rd respondent, being the insurer shall deposit the sum arrived at as additional compensation, together with interest fixed by this Court and also the amount stands awarded by the impugned award with interest fixed by the Tribunal (if not paid), within a period of two months from the date of receipt of a certified copy of this judgment.

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The Appeal stands allowed accordingly. The petitioner shall also pay court fee for the compensation amount granted over and above his claim.

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Sd/-

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MARY JOSEPH, JUDGE

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Mrcs

Anuroop M v. Ahammedkutty K T

Case brief

What is this about?

What did the court decide?

Anuroop M v. Ahammedkutty K T

Case brief

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