Kerala High Court
M.A.Abdul Kareem vs Martin @ Gigi on 3 April, 2012
Author: C.T.Ravikumar
Bench: C.T.Ravikumar
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR
&
THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR
MONDAY, THE 18TH DAY OF SEPTEMBER 2017/27TH BHADRA, 1939
MACA.No. 2018 of 2012 ()
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OPMV 1847/2010 of M.A.C.T.,ERNAKULAM DATED 03-04-2012
APPELLANT(S)/APPELLANTS IN MACA:
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M.A.ABDUL KAREEM
AGED 51 YEARS, S/O.AHAMMED, MOOLAYIL HOUSE,
VAZHAKKALA, KAKKANADU POST, KOCHI - 30.
BY ADVS.SRI.A.P.SUBHASH
SRI.M.A.ABDUL SHUKKOOR
RESPONDENT(S)/RESPONDENTS IN O.P(MV):
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1. MARTIN @ GIGI
S/O.STANSILAVOUR, PAYYATHARA HOUSE,
PUTHIYA ROAD,
PALARIVATTOM, KOCHI - 25.(Deleted)
2. THOMAS K.K., 1118/27, (Deleted)
KIZHAKKEMOOLAKKAL HOUSE,
ELAMKULAM,
KOCHI - 20.
(Respondents Nos.1 and 2 are deleted from the
party arrary at the risk of the appellant as per
the order dated 25-3-2015 in I.A. No. 1111 of
2015 in M.A.C.A. No. 2018 of 2012)
3. THE NEW INDIA ASSURANCE CO.LTD.,
IST FLOOR, THARAYIL CHAMBERS
VYTTILA, KOCHI, ERNAKULAM.
R3 BY ADV. SRI.P.G.GANAPPAN
BY SRI.A.A.ZIYAD RAHMAN
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN
FINALLY HEARD ON 18-09-2017, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
C.T.RAVIKUMAR
&
B. SUDHEENDRA KUMAR, JJ.
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M.A.C.A. No. 2018 of 2012
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Dated this the 18th day of September, 2017
JUDGMENT
Ravikumar, J The injured petitioner is the appellant in this appeal filed claiming enhancement of the quantum of compensation. He got injured in a motor vehicle accident occurred on 17-3-2010. On that fateful day, he was standing by the side of the Indira Junction-Padamukal U.P.School road. A road roller driven by the 2nd respondent knocked him down and ran through his right leg resulting in amputation of his right leg from below knee. He was then aged 53 years. It is in the said circumstances that the claim petition was filed seeking a compensation for Rs. 20 lakhs.
-2- M.A.C.A. No. 2018 of 2012
2. The Tribunal granted a compensation of Rs. 3,64,814/- with interest at the rate of 8% per annum from the date of petition till realisation, on evaluation of the evidence on record.
3. Heard the learned counsel for the 3rd respondent-Insurance Company. The insurance coverage of the vehicle involved in the accident is not in dispute. So also, there is no dispute regarding the finding of the Tribunal that the accident occurred due to the exclusive negligence of the 2nd respondent, the driver of the said road roller, at the time of the accident. In such circumstances, the Tribunal held the first respondent vicariously liable and called upon the 3rd respondent to indemnify the first respondent. In view of the absence of disputes regarding the cause of the accident as also the liability to indemnify the insured owner, the short question to be resolved in this case is whether or not the appellant is entitled to get the enhanced compensation. -3- M.A.C.A. No. 2018 of 2012
4. Before the Tribunal, the petitioner got himself examined as PW1 and Exts. A1 to A10 were got marked on his side. No evidence, either oral or documentary, was adduced on the side of the respondents. The medical report produced in respect of the appellant was marked as Court Exhibit viz., Ext. X1. On evaluation of the evidence on record and appreciating the rival contentions, the claim petition was allowed as mentioned above. The appellant seeks for enhancement of the aforesaid quantum of compensation.
5. The Tribunal fixed the monthly income for calculation purpose as Rs. 10,000/-. Obviously, for that purpose Exts. A9, A9(a), A9(b) and A9(c) were taken into consideration. There is no grievance for the appellant regarding the fixation of the monthly income. The Tribunal assessed the disability as 50% evidently with reference to Sl.No.21 in Schedule-1, Part-II of the Work Men's -4- M.A.C.A. No. 2018 of 2012 Compensation Act. The grievance of the petitioner is that no amount was granted by the Tribunal either as compensation for loss of earning power or as compensation for permanent disability, even after such assessment. He was granted Rs. 1,50,000/- towards compensation for loss of amenities taking into account the said extent of disability. Additionally, he was granted Rs. 30,000/- towards loss of earning, Rs. 15,000/- towards miscellaneous expenses, Rs. 10,000/- towards bystander's expenses, Rs. 40,000/- towards compensation for pain and suffering and Rs. 1,19,814/- towards reimbursement of the medical expenses, as can be seen from the schedule of compensation. The amount reimbursed towards medical expenses included the cost of artificial limb. In the said circumstances, the appellant raises grievance of inadequacy of quantum of compensation.
6. The learned counsel for the third respondent submitted that the finding of the Tribunal, taking note of -5- M.A.C.A. No. 2018 of 2012 the avocation of the appellant, that the disability would not incur reduction of earning power and that he is also not entitled to get compensation for disability, invite no interference. In the claim petition, the appellant claimed that he was a Contractor. In such circumstances, the Tribunal is justified in arriving at the conclusion that the amputation of his right leg below knee would not result in reduction of earning power, it is submitted.
7. The learned counsel for the third respondent further submitted that the compensation granted under other heads also invites no interference as the appellant was justly compensated under all such heads.
8. On considering the contentions and on going through the impugned judgment, we are of the view that the Tribunal had failed to grant just compensation to the appellant commensurating with the injuries sustained by him in the accident. Therefore, it is an eminently fit case -6- M.A.C.A. No. 2018 of 2012 for invocation of the appellate power to enhance the quantum of compensation.
9. The discussion in paragraph 14 of the impugned judgment would reveal that the Tribunal has arrived at a conclusion that the appellant though sustained amputation of his right leg below the knee and thereby incurred permanent disability would not be entitled to get compensation for loss of earning power or for compensation for permanent disability. There can be no doubt that a person injured in a motor vehicle accident and thereby incurred permanent disability is not entitled to compensation under both the said heads. But, at the same time, taking into account the fact that the appellant's right leg was amputated below knee, it is evident that he sustained loss of bodily integrity. Owing to the tortious action of another when a person had to sustain loss of his bodily integrity, it cannot be heard to contend that such an injured is not entitled to get compensation for loss of -7- M.A.C.A. No. 2018 of 2012 integrity, unless it resulted in loss of any power of loss of amenities. But the position is that he could not be compensated under both heads of 'loss of earning power' and 'for permanent disability', in addition to loss of amenities.
10. Hence, we do not find any reason to concur with the conclusion and findings of the Tribunal that the appellant is not entitled to compensation for permanent disability though the accident resulted in loss of his bodily integrity due to the amputation of right leg. We have already taken note of the fact that for calculation purpose, the Tribunal has fixed the monthly income of the appellant as Rs. 10,000/- after taking into consideration Exts. A9 , A9
(a), A9(b) and A9(c). In the absence of any dispute regarding the said fixation, we do not find any reason to interfere with the same. Taking into account the fact that the appellant was aged 53 years at the time of the accident, the proper multiplier to be applied in this case is '11' in the -8- M.A.C.A. No. 2018 of 2012 light of the Schedule given in the decision of the Apex Court in Sarala Verma and Others v. Delhi Transport Corporation and Another [2010 (2) KLT 802].
11. What survives for consideration is whether the entire percentage of disability is to be taken into account for the purpose of granting compensation for the disability especially taking note of the fact that his right leg was amputated below the knee and then whether on such grant any deduction is to be effected from the compensation granted for 'loss of amenities'. We are of the view that for granting just compensation for permanent disability incurred by the appellant it is only proper to take the extent of disability as 30%. Taking into account the relevant factors, if compensation for permanent disability is assessed, the appellant will be entitled to get an amount of Rs. 3,96,000/-. In the light of the decision of this Court in Jyni and Others v. Raphel P.T. and Others [ILR 2016 (2) Kerala 54] when compensation for disability is -9- M.A.C.A. No. 2018 of 2012 granted following the multiplier multiplicand method, a higher amount of compensation cannot be paid towards loss of amenities. In this case, the Tribunal fixed an amount of Rs. 1,50,000/- towards loss of amenities after declining to grant compensation for loss of earning power and compensation for permanent disability. Since we have now granted compensation for permanent disability, the appellant is not entitled to an amount of Rs. 1,50,000- towards loss of amenities. We are of the view that an amount of Rs. 25,000/- can be granted towards loss of amenities. Taking into account the age of the appellant at the time of the accident as also the impact of the injury sustained by him, we are of the view that a higher period of loss of earnings ought to have been fixed for the purpose of computing compensation for loss of earning. The Tribunal has taken only three months for the said purpose. We are inclined to take six months in that regard. Maintaining the monthly income fixed by the Tribunal and taking the period as six months, the appellant will be entitled to get an -10- M.A.C.A. No. 2018 of 2012 amount of Rs. 60,000/- towards loss of earning. After deducting the amount of Rs. 30,000/- granted by the Tribunal thereunder, the appellant will be entitled to get Rs. 30,000/- more thereunder. Towards by-stander's expenses, the Tribunal has granted an amount of Rs. 10,000/-. No evidence was virtually adduced by the appellant to prove the exact period of hospitalisation. But at the same time, taking into account of the nature of the injuries as also the fact that at the age of 53 years the appellant's right leg was amputated, we are inclined to take a period of three months for the purpose of granting compensation for bystander's expenses, at the rate of Rs. 250/- per day. Accordingly, the amount payable towards bystander's expenses will be Rs. 22,500/-. After deducting the amount already granted by the Tribunal under that count, the appellant is entitled to get an amount of Rs. 12,500/- additionally towards loss of earnings. There can be little doubt with respect to the fact that the appellant endured excruciating pain from the injuries sustained. In -11- M.A.C.A. No. 2018 of 2012 the said circumstances, we are inclined to grant Rs. 10,000/- more towards compensation for pain and sufferings. Towards extra nourishment, no amount was granted by the Tribunal and we are inclined to grant an amount of Rs. 5000/- thereunder. No amount was granted by the Tribunal towards damage to clothing. We are inclined to grant an amount of Rs. 1000/- under that head as the dresses worn by him must have been spoiled.
In the said circumstances, this appeal is allowed. The appellant is granted an additional compensation of Rs. 3,29,500/- . The said additional compensation will carry interest at the rate of 8% per annum from the date of petition till realisation.
In view of the admitted insurance coverage of the vehicle at the time of accident, the third respondent is directed to deposit the said amount of additional compensation along with the interest at the aforesaid rate, -12- M.A.C.A. No. 2018 of 2012 within a period of two months from the date of receipt of a copy of this judgment.
There will be no order as to costs.
C.T.RAVIKUMAR, JUDGE B.SUDHEENDRA KUMAR, JUDGE ani/