Partly allowed

Shaiju Sadanandan v. Shamsudheen

Kerala HC18 May 2022MACA/393/2011

Case brief

AI extract

What is this about?

The High Court enhanced motor accident compensation awarded by the Tribunal. While noting the appellant remains in government service, following Dinesh Singh, the Court held an employee with 87% permanent brain injury is entitled to future earnings compensation despite employment. It rejected the use of current salary for calculation due to increased responsibilities post-accident, approving the T

What did the court decide?

Enhanced compensation of Rs.5,98,650/- granted to the appellant with interest at 6% per annum from date of petition.

Shaiju Sadanandan Vs Shamsudheen — 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 M.R.ANITHA

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WEDNESDAY, THE 18^TH DAY OF MAY 2022 / 28TH VAISAKHA, 1944

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MACA NO. 393 OF 2011

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AGAINST THE ORDER/JUDGMENT IN OPMV 838/2006 OF ADDITIONAL MOTOR ACCIDENTS CLAIMS

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TRIBUNAL,ERNAKULAM

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APPELLANT/PETITIONER:

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SHAIJU SADANANDAN

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AGED 34 YEARS, S/O. SADANANDAN, PUNNAKKAVELI HOUSE, PUNNAKKAVELI BHAGAM, POOTHOTTA DESOM, MANAKUNNAM VILLAGE, ERNAKULAM DISTRICT. BY ADV SRI.P.M.JOSHI

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RESPONDENTS/RESPONDENTS:

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1 SHAMSUDHEEN, S/O. BEERANKUTTY, HOUSE NO.14/113, PERIYAMKUNNU, KALAMASSERY P.O., ERNAKULAM DISTRICT.

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2 SABEESH.M.A. S/O.NOT KNOWN AGED NOT KNOWN, CHAMMALIPARAMBU HOUSE, VATTEKUNNAM, EDAPPALLY NORTH P.O., KOCHI-24, ERNAKULAM DISTRICT.

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3 SHIHAB.A.H. S/O.HUSSAIN AGED NOT KNOWN, MUTHAYIL HOUSE, BEHIND MILMA BOOTH, PEECHINGAPARAMBIL BHAGAM, KOONAMTHAI KARa, THRIKKAKARA NORTH VILLAGE, ERNAKULAM DISTRICT.KOCHI 21

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4 UNITED INDIA INSURANCE CO.LTD. THIRD PARTY CELL, VETTUKATTIL BUILDING, M.G.ROAD, ERNAKULAM, KOCHI-16. BY ADVS. SMT.K.R.DEEPA SRI.A.A.MOHAMMED NAZIR SMT.M.R.SREELATHA

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THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 28.03.2022, THE COURT ON 18.05.2022 DELIVERED THE FOLLOWING:

MACA No.393/2011

JUDGMENT

Appellant is the claimant in O.P.(MV).838/2006 on the file of Motor Accidents Claims Tribunal, Ernakulam (in short, the Tribunal). The claim petition has been filed under Section 166 of the Motor Vehicles Act, 1988 (in short, the Act) claiming total compensation of Rs.13,00,000/-, on account of the injury sustained by the appellant/claimant in a motor accident occurred on 14.10.2005.

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It is alleged that on 14.10.2005 while the appellant/claimant was riding motorcycle bearing Reg.No.KL07/AD.4868 through Poothotta – Puthiyakavu road and reached at South Paravur, due to hit by an autorickshaw bearing Reg.No.KL-07/D.7662 driven by the third respondent, appellant sustained serious injuries. It is alleged that the accident happened due to the rash and negligent driving of the autorickshaw by the third respondent. First respondent is the owner of the offending vehicle, second respondent is the insured and fourth respondent is the insurer of the autorickshaw.

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MACA No.393/2011

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Exts.A1 to A19 and Ext.C1 marked from the side of

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the appellant/claimant. There was no oral evidence from either side.

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Tribunal, on evaluating the pleading and other materials found that the accident happened due to the rash and negligent driving of the autorickshaw by the third respondent. Fourth respondent was directed to pay the amount as per the contract of insurance. A total compensation of Rs.11,70,000/- was awarded, which was allowed to be realized with interest at the rate of 8% per annum.

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5 . Dissatisfied with the quantum of compensation awarded by the Tribunal appellant/claimant approaches this Court in appeal for the various grounds stated in the memorandum of appeal.

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6 . Service is complete as against respondents 2 to 4. Notice as against first respondent was dispensed with. Adv.Sri. A.A. Mohammed Nazir appeared on behalf of the 4 th respondent, insurer.

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7 . Heard the learned counsel for the appellant as well

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as the learned counsel for the 4 th respondent, insurer. Lower court records were called for and perused.

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8 . The accident, injuries sustained and the liability of the fourth respondent are not in dispute. The only challenge is with regard to the quantum of compensation awarded by the Tribunal.

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9 . According to the learned counsel for the appellant, the compensation awarded under the head of permanent disability is quite insufficient. The appellant is an unmarried youth, aged 30 years, who sustained very serious injuries involving 87% permanent whole body disability. Inspite of that, adequate compensation was not awarded and he would also contend that the monthly income in computing the compensation ought to have been taken as Rs.12,932/- as borne out from Ext.A15 salary certificate. The amount awarded towards bystander expenses is also very meagre, hence he claims for enhancement of compensation on all heads.

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MACA No.393/2011

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10. The learned Standing Counsel for the insurer on the other hand would contend that a just and reasonable compensation has already been awarded by the Tribunal and hence no enhancement is called for in this proceedings.

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11. Appellant/claimant in this case is working as Lab Technical Assistant in M.L.T at S.D.P.Y.G.V.H.S.S., Palluruthy and he was found to be below 30 years and that fact is not in dispute. He had undergone inpatient treatment for 113 days in total and sustained permanent disability of 87% certified by the Medical Board.

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12. Ext.A5 to A12 are the medical records proving the injuries sustained by the appellant. Ext.A5 is the intimation from the Medical Trust Hospital to the SHO, Thrippunithura, Traffic in connection with the accident and the injury sustained by the appellant. Ext.A6 is the wound certificate issued from the Medical Trust Hospital, in which the injuries noted are : (1) lacerated wound on the right occipital region with brain exposed (2) lacerated wound on the right frontal region, brain exposed (3) lacerated wound on the right knee

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MACA No.393/2011

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(4) abrasion on the right side of chest, right side of neck, right shoulder and extremities. CT scan of brain showed right fronto tempero parietal and occipital comminuted compound fracture with parenchymal herniation and right fronto tempero parieto haemorrhagic contusion. Ext.A7 is the copy of discharge certificate issued from Medical Trust Hospital, Ernakulam proving admission from 14.10.2005 to 12.12.2005. It would prove that the appellant undergone emergency right FTP craniectomy + ICH evacuation. Also treated conservatively with elective ventilation, paralysation, antibiotics, analgesics, AED's, antiedema measures, H2 blockers, cerebral protective agents. Post OP – Patient developed scalp wound infection which was managed accordingly. Later developed UTI, which was controlled according to C/S reports. Plastic surgery/ ENT/Orthopaedics consultation given and their advice followed. Ext.A8 is another discharge card issued from IndoAmerican Hospital, Brain & Spine Centre, Vaikom proving his admission from 09.03.2006 to 20.03.2006. The investigation result of CT head shows gross enlargement of the ventricles

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MACA No.393/2011

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with periventricular lecency. Post OP gliosis present. The course in the hospital : The need for CSF diversion was explained and the patient was admitted. In view of pan ventriculomegaly it was decided to proceed with a V.P.Shunt and the same was informed to the relatives. The pros and cons of surgery and all the attendant complications of surgery were discussed in detail. Relatives consented for surgery and accordingly patient was operated under GA on 11.3.2006. A left ventriculo peritoneal shunt was done. He was shifted out of ICU on 1 st post op day (12.3.2006). The same day he was started on oral feeds. He was mobilized on 3rd post op day (14.3.2006) and was put on vigorous physiotherapy. He did well but his hemiplegia did not improve. Suture removal was done on 9th post op day (20.3.2000) and the patient discharged. Review after two months also advised. Another case summary and discharge record from 30.01.2007 to 05.02.2007 in the same hospital is also included in Ext.A8, in which it has been noted that his general condition went down and a repeat CT head showed bleeding into gliotic area and he

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was observed in the ward for one week and his state got recovered well. A neurosurgery consultation was done and opined observation only needed. Another case summary and discharge record proving admission from 12.02.2007 to 01.03.2007 also produced. CT Brain showed right FTP craniectomy defect, right temporal contusion. He underwent right FTP cranioplasty under general anaesthesia on 16.02.2007. Ext.A9 is another discharge-reference card showing the admission on 17.01.2008 to 04.02.2008 at General Hospital, Ernakulam and he was admitted for rehabilitation in connection with RTA. Ext.A10 is the CT scan report. Ext.A11 is a certificate issued by doctor attached to Indo-American Hospital, Brain & Spine Centre, Vaikom, certifying that the appellant is under his treatment for rehabilitation of traumatic brain injury sustained in an alleged road traffic accident and the appellant had altered sensorium and weakness of (L) side of the body. He has multiple contractures on (L) side of body and has loss of bowel and bladder control. Ext.A12 is EEG report from Indo-American

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Hospital, Brain & Spine Centre, Vaikom. The clinical interpretation is the frequent right temporoparieto occipital spike and wave discharges and in this EEG shows evidence for very active epileptiform abnormalities arising from the same region with secondary bilateral synchrony. The report states : Recording with the patient in awake state showed back ground activity of 10 Hz over the posterior head region, reactive to alerting procedures. The back ground activity over the right hemisphere is of higher amplitude and low frequency persistently. There were very frequent right temporo parieto occipital spike and wave discharges. HV and PS did not produce any activation. Patient did not sleep during the record in spite of sedating with pedichloryl and awaiting an adequate period of time. So the above medical records would give clear picture of the seriousness of the injuries and the prolonged different procedures of treatment undergone by the appellant as a result of this accident and the resultant injuries. Ext.C1 the report of the Medical Board dated 06.02.2010 would certify that CT showed right fronto–tempor–parieto

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MACA No.393/2011

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occipital communited fracture, brain herniation and contusion. Evacuation of intracerebral hematoma done. VP shunt done on 20.03.2006 at Indo-American Hospital, Vaikom. Cranioplasty done at Vaikom. Disability includes: (1) left hemiplegia grade 0 power -75%, (2) cranial deformity right – 5% (3) on antiepileptic drug 'Eptoin', risk of seizures-7%. So permanent disability has been certified as 87%.

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13. The learned counsel for the fourth respondent, insurer, would contend that the appellant is continuing in service and there is no loss of income and hence the amount already awarded by the Tribunal towards disability itself is on a higher side and no enhancement of compensation is required. He would place reliance on Raj Kumar v. Ajay Kumar [2011 (1) KLT 620 (SC)], wherein the Apex Court dealt with the general principles relating to compensation in injury cases and the assessment of future loss of earning due to permanent disability with respect to different categories of persons. In paragraph No.8 it has been discussed that where the claimant suffers a permanent disability as a result of injuries, the

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MACA No.393/2011

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assessment of compensation under the head of loss of future earnings, would depend upon the effect and impact of such permanent disability on his earning capacity. The Tribunal should not mechanically apply the percentage of permanent disability as the percentage of economic loss or loss of earning capacity. In most of the cases, the percentage of economic loss, that is, percentage of loss of earning capacity, arising from a permanent disability will be different from the percentage of permanent disability. In paragraph No.10, while examplifying that while left hand is amputated, the permanent physical or functional disablement may be assessed around 60%.But if the claimant is a driver or carpenter, the actual loss of earning capacity may virtually be hundred percent. If the claimant is a Clerk in Government service, the loss of his left hand may not result in loss of employment and he may still be continued as a Clerk as he could perform his clerical functions and in that event the loss of earning capacity will not be 100% as in the case of a driver or carpenter, nor 60% which is the actual physical disability, but far less. In fact, there may not be

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MACA No.393/2011

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any need to award any compensation under the head of 'loss of future earnings', if the claimant continues in government service, though he may be awarded compensation under the head of loss of amenities as a consequence of losing his hand.

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14. In New India Assurance Company Ltd. v. Satish Chandra Sharma & Anr. [Civil Appeal No.1579/2022 in SLP (C)No.14350/2019], Apex Court dealt with a case of award of compensation in the case of a claimant who is in government service. That was a case in which the claimant was 56 years old and had four years of service left for retirement. He suffered 75% disability to the lower limbs. It has come out that he can move around and sometime requires assistance and it has been found that he is not immobilized and he can perform and undertake daily chores without help and assistance. It was also found that he continued to earn the monthly salary which he was earlier drawing, including increments, except some allowances given due to the nature of posting. It was also taken into account that 75% disability is to the lower limbs and is not to the entire body. The Tribunal awarded only

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MACA No.393/2011

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Rs.6,21,000/- towards compensation. The High Court, in appeal, enhanced the compensation to Rs.56,44,378/-. So the Apex Court taking into account the above factors though found that claimant is not entitled to get any amount towards future loss of earning, taking into account the fact that he had undergone operation and an implant has been fixed on his vertebra causing him physical pain, discomfort and possible decrease in lifespan and though he is entitled to pension and retirement benefits, has lost the opportunity to take up postretirement employment, enhanced the compensation awarded by the Tribunal from Rs.6,21,000/- to Rs.10,00,000/-, giving an enhancement of Rs.3,79,000/- in total.

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15. In Dinesh Singh v. Bajaj Allianz General Insurance Co.Ltd. [2014 (9) SCC 241 : 2014 ACJ 1412 : 2014 KHC 4294], a three Judge Bench of the Apex Court dealt with a case of compensation to be awarded to a claimant who was bachelor, aged 24 years holding B.E. degree in Metallurgy and working as Quality Engineer in Hospet Steels Ltd. The accident was on 13.04.2004 and he suffered grievous injuries to his left leg and

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MACA No.393/2011

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it was amputated. He had undergone prolonged treatment and subsequently resigned the job of Engineer and accepted the desk job in a private bank and he was a young boy of 24 years and was unmarried. The permanent disability suffered by him was fixed as 60% whole body disability and it was found to affect his employment and future prospects and hence compensation was awarded by taking the salary as on the date of accident as fixed by the Tribunal and the High Court and adopting the multiplier as '17' a total compensation of Rs.15,71,616/- by rounding off the same to Rs.15,72,000/towards loss of future earnings was awarded. Towards pain and agony the amount of Rs.70,000/- awarded by the Tribunal was enhanced by Rs.50,000/-. Towards loss of amenities the amount awarded by the Tribunal was Rs.2,50,000/- and it was enhanced by another Rs.1,00,000/- by giving a total amount of Rs.3,50,000/- towards loss of amenities. Rs.50,000/- awarded towards loss of marriage prospects by the Tribunal was enhanced to Rs.50,000/- more. Towards future medical expenses, the Tribunal awarded Rs.5 lakhs and taking into

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MACA No.393/2011

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account the fact that the claimant had to undergo treatment further and has to change the artificial limb as and when required, Rs.50,000/- was further enhanced. The amount of Rs.3,10,000/- towards medical expenses including conveyance and attendance fee for the period he had undergone treatment is also granted. So in total an amount of Rs.33,10,160/- was awarded.

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16. In the present case the appellant/claimant was a Lab Technical Assistant attached to a Vocational Higher Secondary School. He had undergone total 113 days inpatient treatment. The detailed description of the injuries sustained by him have been extracted in the previous paragraphs. The major injuries sustained to the appellant are on the head involving communited displaced fracture of right frontal bone and the treatment records also would reveal that he had altered sensorium and weakness of (L) side of the body and he has lost bowel and bladder control. The Medical Board in the certificate also noted left hemiplegia grade 0 power -75%, cranial deformity right – 5%, anti-epileptic drug 'Eptoin', risk

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MACA No.393/2011

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of seizures-7%. So permanent disability has been certified as 87% that has been taken as such by the Tribunal also. So in view of the seriousness of injuries sustained to the appellant to the vital part of the body i.e. the skull the fact that he has been continuing in service by itself is not a reason as has been held in Dinesh Singh's case to deny the compensation to the appellant on the ground of permanent disability sustained by him.

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17. So I am of the view that the appellant is entitled for the adequate compensation for the injuries and the permanent disability sustained by him in view of 87% permanent whole body disability suffered by him due to the accident. He was below 30 years old at the time of accident.

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18. Ext.A15 employment cum salary certificate produced from the side of the appellant as rightly found by the Tribunal is dated 07.05.2010 and the salary as on that date is Rs.12,932/-. The incident in this case was occurred on 14.10.2005. So the salary shown in Ext.A15 as rightly found by the Tribunal cannot be taken for fixing the compensation. It is

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MACA No.393/2011

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the burden of the appellant to prove the actual income as on the date of accident i.e. 14.10.2005. In the absence of the same, Rs.6,500/- taken by the Tribunal is seems to be reasonable since the accident was in the year 2005. Hence income of Rs.6,500/- taken by the Tribunal is approved.

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19. Towards loss of earnings, appellant claimed Rs.67,000/-. But no amount seems awarded by the Tribunal under that head. The Tribunal awarded Rs.6,78,600/- towards loss due to amenities and loss of income and disability by adopting the multiplier of '10', taking into account the fact that he has no loss of income. Amount of Rs.3,30,650/- has been awarded towards medical expenses as per the bills produced including Ayurvedic treatment. Rs.50,000/- is also awarded towards future medical treatment and Rs.25,000/towards shortening of longevity.

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20. Ext.A14, the certificate issued by the Principal, S.D.P.Y.G.V.H.S.S., Palluruthy would show that the appellant was on leave without allowance from 01.02.2006 to 31.05.2006 (120 days) due to the accident. So definitely the

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appellant would be entitled to get loss of earning for the above four months which will come to Rs.26,000/[6,500x4]. It has been found that the appellant has to be adequately compensated towards permanent disability suffered by him at 87% whole body as per the principles laid down in Dinesh Singh's case. Admittedly he was below 30 years at the time of accident. The monthly income has already been found as Rs.6,500/-. The permanent whole body disability at 87% would almost make him unable to do any job whatsoever after retirement also. So, towards loss of future earning due to the injuries and the permanent disability, I am inclined to grant Rs.11,53,620/- [6,500x12x17x87/100]. From that the amount already awarded by the Tribunal has to be deducted. Then the balance would be Rs.4,75,020/[11,53,620-6,78,600]. Towards pain and suffering, Rs.50,000/- was awarded by the Tribunal. It is enhanced to Rs.75,000/-. Deducting the amount already awarded, balance would be Rs.25,000/ - [75,000-50,000]. The injuries and permanent disability suffered by the appellant would cause great loss in amenities of his life. So an amount of

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Rs.50,000/ - is awarded towards loss of amenities. Towards bystander expenses, Tribunal awarded Rs.20,000/-. It has come out that the appellant had undergone 113 days inpatient treatment. The accident was in the year 2005. So taking Rs.200/- per day towards bystander expenses for 113 days, the appellant is entitled to get Rs.22,600/- [200x113]. Deducting the amount already awarded balance would be Rs.2,600/[22,600-20,000]. Evaluating the nature of injuries sustained by him through out the life he would require an assistant. So an amount of Rs.20,000/ - is further awarded on that account.

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In the result, the appellant/claimant is allowed to realise enhanced compensation of Rs.5,98,620/- [26,000+ 4,75,020+25,000+50,000+2,600+20,000] rounded to

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Rs.5,98,650/ - (Rupees five lakhs ninety eight thousand six hundred and fifty only), which will carry interest at the rate of 6% pe r annum from the date of petition till realisation (excluding the period of 112 days delay caused in filing the appeal). The fourth respondent, insurer, shall satisfy the additional compensation granted in this appeal, together with

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MACA No.393/2011

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interest, within a period of two months from the date of receipt of certified copy of this judgment, after deducting the liability of the appellant/claimant towards balance Court Fee.

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The disbursement of additional compensation to appellant/claimant shall be made taking note of the law on the point and in terms of directives issued by this court in Circular No.3 of 2019 dated 06.09.2019 and clarified further in Official Memorandum No.D1-62475/2016 dated 07.11.2019. Appellant/claimant shall provide his Bank Account details (attested copy of the relevant page of the Bank Passbook having details of the Bank Account Number and IFSC Code of the branch) before the Tribunal, with copy to the learned Standing Counsel for the insurer, within one month from the date of receipt of certified copy of this judgment. Parties shall bear their respective costs.

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Sd/-

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M.R.ANITHA JUDGE

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shg

Shaiju Sadanandan v. Shamsudheen

Case brief

What is this about?

What did the court decide?

Shaiju Sadanandan v. Shamsudheen

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

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