Bijoy vs Sujith on 31 January, 2015

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Kerala High Court

Bijoy vs Sujith on 31 January, 2015

These appeals arise from the common award dated 31.01.2015 passed by the Additional Motor Accidents Claims Tribunal, Alappuzha in three claim petitions which germane from the very same accident. M.A.C.A.No.3381 of 2015 is directed against the award in O.P.(MV).No.786 of 2009 and M.A.C.A.No.3410 of 2015 is directed against the award in O.P.(MV).No.785 of 2009. M.A.C.A.No.3443 of 2015 is directed against the award in O.P.(MV).No.787 of 2009. The appellants are the injured/petitioners before the Tribunal. It is dissatisfied with the quantum of compensation granted by the Tribunal that the captioned appeals have been preferred. In such circumstances, these appeals are jointly heard and they are being M.A.C.A.3381/2015 & conn. 2 disposed of by this common judgment.

2.For a proper disposal of the appeals, a brief narration of the circumstances that led the appellants to file the above mentioned claim petitions is necessary. The causative accident occurred on 21.10.2007 at about 5.30 p.m. The appellant in M.A.C.A.No.3443 of 2015 was riding a motor cycle bearing Reg.No.KL-4/U-5538 with the appellant in M.A.C.A.No.3410 of 2015 as pillion rider through Alappuzha-Changanacherry road from east to west. When they reached Pallikkoottumma Bridge, they saw their friend Bejoy, the appellant in M.A.C.A.No.3381 of 2015 and they stopped the vehicle. While they were engaged in a talk, a motor car bearing Reg.No.KL- 4/P-7373 driven by the first respondent from west to east allegedly in a rash and negligent manner knocked them down. They were taken to Medical College Hospital, Alappuzha on sustaining severe injuries and they remained there as inpatients for some days. The injuries sustained by them caused permanent disability to all. It is in the said circumstances that they filed the above mentioned claim petitions and as already stated, a common award was passed thereon. In O.P.(MV). M.A.C.A.3381/2015 & conn. 3 No.785/2009, an amount of Rs.12,84,030/- was granted as against the claim of Rs.28 lakhs and in O.P.(MV).No.786/2009, an amount of Rs.5,10,529/- was granted as against a claim of Rs.15 lakhs. In O.P. (MV).No.787/2009, an amount of Rs.2,75,383/- was granted as against a claim of Rs.15 lakhs. It is dissatisfied with the quantum of compensation granted by the Tribunal and seeking its enhancement that the captioned appeals have been preferred.

3.As per the impugned common award, the Tribunal found that the accident occurred due to the negligence on the part of the first respondent, the driver of the car. The second respondent was its owner and the third respondent was the insurer of the said vehicle. The Tribunal found that they are jointly and severally liable to compensate the appellants/the petitioners and the third respondent was directed to pay the amounts awarded for indemnifying the second respondent. Despite such conclusions, findings and directions, no appeals have been preferred by the respondents. In fact, the accident, the cause of the accident as negligence on the part of the first respondent, the driver of the offending vehicle and the insurance M.A.C.A.3381/2015 & conn. 4 coverage of the offending vehicle are not in dispute. In such circumstances, the only question that calls for consideration in all the appeals is whether or not the appellants are entitled to enhanced compensation. We are proceeding to consider that question separately.

M.A.C.A.No.3381/2015

4.This appeal arises from the judgment and award in O.P.(MV). No.786 of 2009. It is averred that on the date of the accident, the appellant was aged 24 years and he was a site supervisor attached to Ammu Engineering, Changanacherry and was earning an amount of `10,000/-. Ext.A23 is the wound certificate and it would reveal that he sustained fracture on both bones of the right leg. There were different periods of hospitalisation in different hospitals. He was discharged from Pushpagiri Medical College Hospital, Thiruvalla on 30.4.2010 with post surgical osteomyelitis on right leg with occasional discharge from middle of right leg. Ext.A9 disability certificate issued by the medical board attached to Pushpagiri Medical College Hospital would reveal his permanent disability incurred due M.A.C.A.3381/2015 & conn. 5 to the injuries sustained in the accident as 15%. The Tribunal fixed the monthly income of the appellant notionally as `5,000/- and adopted the multiplier as '17'. The entire percentage of disability assessed under Ext.A9 was accepted. Total compensation of `5,10,529/- was granted as per the impugned award. The main grievance of the appellant is that though the accident occurred on 21.10.2007 and on the date of the accident he was aged only 24 years and was working in a private firm, the Tribunal ignored the averments regarding his occupation and income and fixed the monthly income notionally for calculation purpose as `5,000/-. According to the appellant, the said erroneous fixation of the monthly income resulted in denial of due amount of compensation under the heads 'loss of earnings' and 'permanent disability'. That apart, it is contended that the compensation granted towards pain and suffering, loss of amenities, bystanders expenses, extra nourishment etc. are also on the lower side. In short, it is contended that an appellate interference for enhancing the compensation is called for.

5.Per contra, the learned counsel for the third respondent- M.A.C.A.3381/2015 & conn. 6 insurance company submitted that the Tribunal cannot be said to have committed any error warranting appellate interference in fixing the monthly income of the appellant notionally as `5,000/- as the appellant had failed to establish his specific averments regarding occupation and income by adducing cogent evidence. It is the further contention that a glance at the schedule of compensation given in the impugned award would reveal that the Tribunal had granted adequate compensation under all heads and therefore, no appellate interference is called for.

6.We have heard the learned counsel for the appellant and also the learned counsel for the third respondent. We will firstly consider the question whether the grievance of the appellant regarding fixation of the monthly income invites interference. The Tribunal fixed the monthly income notionally as `5,000/-. As noticed hereinbefore, the accident in question occurred on 21.10.2007. On the date of the accident, the appellant was aged only 24 years. True that, he had taken up a contention in the claim petition that he was then a site supervisor attached to Ammu Engineering, Changanacherry and was M.A.C.A.3381/2015 & conn. 7 earning `10,000/-. However, he had failed to adduce evidence to establish the said contentions. In such circumstances, we are of the view that the Tribunal cannot be said to have committed a flaw in fixing the monthly income notionally for calculation purpose. But then, the question is whether the fixation of `5,000/- as monthly income for the aforesaid purpose calls for re-fixation. In that regard, the year of the accident and the age of the appellant assume relevance in the light of the decision of the Hon'ble Apex Court in Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Ltd. [(2011) 13 SCC 236]. In that decision, the monthly income of a coolie who met with an accident in the year 2004 was taken as `4,500/- notionally for calculation purpose. In this case, the accident in question occurred on 21.10.2007. In such circumstances, despite the fact that the appellant had failed to establish his occupation and income as averred, we are of the view that fixation of the monthly income at `5,000/- requires an interference. Taking into account the aforesaid factors mentioned hereinbefore, we are of the view that it is only proper to fix the M.A.C.A.3381/2015 & conn. 8 monthly income of the appellant as `6,000/-. It is fixed accordingly. Since the multiplier was correctly identified by the Tribunal, a re- assessment of compensation for permanent disability is required only by substituting the re-fixed monthly income. On such calculation, the appellant is entitled to get an amount of `30,600/-

(6000x12x17x15/100 -153000). A proportionate increase has to be granted towards compensation for loss of earning based on the re- fixation of the monthly income as `6,000/- even while retaining the same period of loss of earning taken by the Tribunal. In such circumstances, the appellant would be entitled to get an amount of `12,000/- additionally. It is granted. Taking into account the number of reviews the appellant had in connection with the treatment, we are inclined to grant `10,000/- towards transportation expenses. It is granted. The nature of the injuries would reveal that the dresses worn by the appellant must have been damaged in the accident. We are inclined to grant `750/- more under that head. The appellant had been an inpatient for a period of 90 days. The Tribunal granted `100 per day towards bystanders expenses. Taking note of the year of the M.A.C.A.3381/2015 & conn. 9 accident, we are of the view that the rate granted by the Tribunal is too low and we are inclined to grant bystanders expenses @ `200/- per day. Consequently, the appellant is entitled to get an additional compensation of `9,000/- under that head. Towards extra nourishment, the Tribunal granted only a sum of `2,000/-. Taking note of the period of hospitalisation, we are inclined to grant `7,000/- additionally. It is granted. Taking note of the nature of the injuries and the period of treatment, we are of the view that there is substance in the contention of the appellant that the compensation granted by the Tribunal under the heads 'pain and suffering' and 'loss of amenities' warrants modification. In such circumstances, we are inclined to grant an additional compensation of `20,000/- under the head pain and suffering and `10,000/- under the head loss of amenities. As noticed hereinbefore, it is evident from the discharge card that at the time of his discharge it was found that he had post surgical osteomyelitis on right tibia. In such circumstances, we are of the view that the Tribunal went wrong in not granting some amount towards future treatment expenses. We are inclined to grant an amount of M.A.C.A.3381/2015 & conn. 10 `20,000/- towards future medical treatment. In the light of the discussions as above, the appellant would be entitled to get an additional compensation of `1,19,350/-. It is awarded. M.A.C.A.No.3410/2015

7.This appeal arises from the judgment and award in O.P.(MV). No.785 of 2009. It is averred in the claim petition that the appellant was aged 32 years on the date of the accident and he was a Computer Engineer and was earning `15,000/- per month. Going by Ext.A5, he sustained the following injuries:-

1. Laceration 3x5 cm on right forearm.

2. Laceration in right thigh.

3. Laceration 2x1 cm in right malleolus.

4. Abrasion in right little finger.

Exts.A7 and A8 discharge summaries would reveal that on further diagnosis it was found found that he had sustained external iliac artery injury on the right lower limb, open pelvis injury open book, type IIIC open fracture shaft right femur M/3rd, type III B open fracture BB right leg, M/3rd closed fracture right radius with soft tissue loss right M.A.C.A.3381/2015 & conn. 11 forearm. Ext.A20 would reveal that he had developed chronic osteomyelitis on right side lower 1/3rd of leg. Ext.A8 is the disability certificate issued by PW3. Going by the same, the appellant sustained 20% permanent disability as a result of the injuries sustained in the accident. The main grievance of the appellant is that ignoring his averments in the claim petition regarding occupation and income, the Tribunal fixed the monthly income as `6,000/- and ignoring Ext.A9 disability certificate, the Tribunal took only 15% disability for assessment purpose without assigning any reason. It is the further contention that the Tribunal granted only meagre amounts under the heads of loss of amenities, pain and suffering, extra nourishment, bystanders expenses, transportation expenses etc.

8.The learned counsel for the third respondent submitted that when the appellant failed to establish the averments taken up in the claim petition regarding occupation and income, the Tribunal cannot be said to have erred in fixing the monthly income notionally. Taking into account the fact that the appellant was then aged only 32 years and the accident occurred in the year 2007, it is submitted that fixation M.A.C.A.3381/2015 & conn. 12 of monthly income as `6,000/- cannot be said to be on the lower side. The learned counsel further submitted that the compensation granted is a just compensation commensurating with the injuries sustained by the appellant in the accident and the appellant has failed to bring out any ground warranting an appellate interference with the common award as relates the aforesaid claim petition.

9.Though the learned counsel for the appellant vehemently argued that fixation of monthly income by the Tribunal warrants interference, we are of the view that taking note of the year of the accident and the age of the appellant and further taking note of the fact that the appellant had failed to adduce evidence to establish his occupation and income, we do not find any reason to interfere with the fixation of the monthly income by the Tribunal as `6,000/-. There is no case for the appellant that the multiplier was wrongly identified by the Tribunal. In fact, it was correctly identified with reference to the age of the appellant. In such circumstances, as regards the compensation granted for permanent disability, the question to be looked into is whether the Tribunal had committed any error in M.A.C.A.3381/2015 & conn. 13 assessing percentage of disability of the appellant. Going by Ext.A8, the medial board assessed the permanent disability as 20%. We have already taken note of the injuries sustained by the appellant. Ext.A8 contains the reasons for assessing the percentage of disability as 20%. A mere perusal of the impugned award would reveal that the Tribunal had not assigned any specific reason for declining to accept entire percentage of permanent disability certified under Ext.A8. When there is absolute absolute absence of any reason and when it is evident that percentage of disability was assessed by a medical board, it can only be said that the Tribunal went wrong in declining to accept the entire percentage of disability assessed under the medical certificate. In such circumstances, we are inclined to take the entire percentage of disability assessed by the medical board under Ext.A8 viz., 20%. In such circumstances, the amount payable for permanent disability has to be re-assessed with the re-fixed percentage of permanent disability. On such re-assessment, the appellant would be entitled to get `61,200/- (6000x12x17x20/100-183600) additionally. Taking note of the nature of the injuries and the period of treatment and also the M.A.C.A.3381/2015 & conn. 14 nature of the disability, we are of the view that the appellant is entitled to get enhancement of compensation under the heads 'pain and suffering' and 'loss of amenities'. We are inclined to grant `10,000/- each additionally under the said heads. It is evident that the appellant had been an inpatient for 175 days. The Tribunal had granted only `5,000/- towards extra nourishment and an amount of `17,500/- towards bystanders expenses by granting only `100/- per day. Taking note of the year of the accident, we are of the view that the rate of bystanders expenses ought to have been `200/- per day. In that view of the matter, the appellant is entitled to get an additional compensation of `17,500/-. It is granted. Taking into account the period of hospitalisation, the appellant is entitled to get some more amount towards expenses for extra nourishment. Taking note of the nature of the injuries, it is evident that the appellant must have had nutrient food during the period of hospitalisation. We are inclined to grant expenses towards extra nourishment at `100 per day. In such circumstances, the appellant is entitled to get an amount of `12,500/- additionally. It is granted. We are inclined to grant an amount of M.A.C.A.3381/2015 & conn. 15 `750/- additionally towards damage to clothing. The number of reviews and hospitalisation which the appellant must have had is revealed from discharge summaries. In such circumstances, an additional amount of `10,000/- is granted under the head transportation to hospital. We have assessed the permanent disability of the appellant as 20%. It is evident from Ext.A20 that the appellant was discharged on 27.4.2013 with chronic osteomyelitis right side lower 1/3rd of leg with cement beads in situ. In such circumstances, the appellant is certainly entitled to some amount towards future treatment expenses. Accordingly, an amount of `20,000/- towards expenses for future treatment is granted. The Tribunal took only 10 months period for calculation of the compensation for loss of earning. Going by the nature of the injuries, we are inclined to take 12 months for calculation of compensation for loss of earnings. In such circumstances, the appellant is entitled to get `12,000/- more under that head. In the light of the assessment/re-assessment made by us, the appellant is entitled to get an additional compensation of `1,53,950/- which is rounded off to `1,54,000/-. Accordingly, it is M.A.C.A.3381/2015 & conn. 16 awarded as additional compensation.

M.A.C.A.No.3443 of 2015

10.This appeal is directed against the judgment and award in O.P.(MV).No.787 of 2015. Going by the averments in the claim petition, the appellant was aged 32 years at the time of the accident and he was working as a Supervisor (Civil Engineering) with Nirmal Constructions, Kottayam and was earning `12,000/- per month. Ext.A37 is the wound certificate which would reveal that the appellant had sustained the following injuries in the accident.

1.Laceration 10x8 cm on right forearm.

2.Lacerated wound 3x4 cm on scalp

3.X-ray shows fracture both bone right leg.

4.Fracture shaft of femur right.

11.Ext.A40 discharge summary would reveal that he was discharged on 30.10.2007 with both bone fracture on the right leg besides compound and multiple soft tissue injury. He was treated with emergency wound debridment and K nailing right was also done. Ext.A48 is the disability certificate issued by the medical board M.A.C.A.3381/2015 & conn. 17 attached to Medical College Hospital, Alappuzha assessing the permanent disability of the appellant as 25%. It was proved through PW1. The main grievance of the appellant is that despite the certification of permanent disability as 25% under Ext.A48, only 15% disability was taken for calculation purpose and ignoring the averments in the claim petition regarding occupation and income, only `5,000/- was taken notionally as monthly income by the Tribunal. It is contended that the Tribunal granted only meagre amounts under the heads 'loss of amenities', 'pain and suffering', 'bystanders expenses', 'transportation to hospital' etc. As regards the fixation of monthly income, the contention of the appellant is that to establish his occupation and income, he has produced Ext.A36 certificate and proved the same through PW2. PW2 is the contractor who allegedly issued Ext.A36 certificate. True that he had deposed to the effect that it was he who issued the same. But during cross examination, he had deposed that he had not stated the registration number in Ext.A36. Merely because PW2 was examined to prove Ext.A36, evidently, the Tribunal did not think it safe to act upon as it M.A.C.A.3381/2015 & conn. 18 did not inspire its confidence. It is also to be noted that in the claim petition, the appellant had claimed his monthly salary as `12,000/-. At the same time, going by Ext.A36, he was drawing only `10,000/- per month. We have already found that the registration number of the contractor was not specifically given in Ext.A36 and that it was given by PW2 in his personal capacity. Taking note of all such aspects, we do not find any reason to hold that the Tribunal had committed any error or illegality in declining to accept and act upon Ext.A36. In other words, according to us, the Tribunal was right in fixing the monthly income of the appellant notionally for calculation purpose. But at the very same time, taking into account the fact that the accident occurred in the year 2007 and the appellant was then aged only 32 years, the question is whether the fixation of the monthly income of the appellant as `5,000/- warrants interference. Following the same reasons which we have assigned for the purpose of fixing the monthly income in M.A.C.A.No.3410 of 2015, we are of the view that in this case also the monthly income can be fixed as `6,000/-. It is fixed accordingly. Going by the nature of the injuries as revealed from M.A.C.A.3381/2015 & conn. 19 the relevant medical records and the nature of the treatment undergone by the appellant, as discussed in the impugned award, we are of the view that the Tribunal was justified in taking one year as the period for calculating compensation for loss of earning. Since we have fixed the monthly income as `6,000/-, we do not think it necessary to make any deduction under that head. Towards transportation to hospital, the Tribunal granted only an amount of `2,000/-. Taking note of the fact that the appellant had a couple of reviews subsequent to the initial admission and discharge, we are inclined to grant an amount of `2,000/- more under that head. Taking note of the nature of the injuries it is evident that the dresses worn by the appellant must have been damaged. We are inclined to grant `750/- under the head damage to clothes. Only an amount of `2,500/-was given towards bystanders expenses and an amount of `2,000/- was granted towards extra nourishment. Taking note of the year of the accident, we are of the view that during the period of hospitalisation, the appellant ought to have been granted `200/- per day towards bystanders expenses and `100/- per day towards extra M.A.C.A.3381/2015 & conn. 20 nourishment. In that view of the matter, the appellant is entitled to get `2,500/- more towards bystander expenses and `500/- more towards extra nourishment. The nature of the injuries, the nature of the permanent disability and the treatment undergone by the appellant constrain us to grant additional compensation under the heads pain and suffering and loss of amenities. We are inclined to grant `10,000/- more under the head 'pain and suffering' and `20,000/- more towards 'loss of amenities'. Taking note of the nature of the injuries and the percentage of permanent disability, we are inclined to grant an amount of `10,000/- towards future treatment expenses. As noticed earlier, one of main grievances of the appellant is regarding the fixation of compensation for permanent disability. Though the medical board assessed his permanent disability as 25%, the Tribunal took only 15% for the said purpose. The medical board assessed the permanent disability noting the following:-

"Fracture shaft of femur right, both bones right leg with knee stiffness, numbness of right LL"

Thus, it is evident that on examination, the medical board found that M.A.C.A.3381/2015 & conn. 21 the appellant had knee stiffness and numbness on the knee of the right lower limb. The Tribunal evidently assigned no reason for reducing the permanent disability. When the medical board assigned reasons for assessing 25% disability and no apparent reason has been brought out to discredit the certification while examining PW1 who was one of the members of the medical board, we are of the considered view that the Tribunal has committed error in reducing the percentage of disability by a Claims Tribunal. But, for doing so, it has to assign specific reasons. True that merely because the medical board assessed the permanent disability of an injured- claimant that by itself is no reason for simply accepting the entire percentage of disability. The only reason stated by the medical board for assessing 25% is that he had stiffness and numbness on right lower limb. Since the permanent disability is only on one limb, we are of the view that the entire percentage of disability assessed by the medical board cannot be accepted for the purpose of computing compensation for permanent disability. The evidence on record would reveal that PW1 was examined to prove Ext.A48. The Tribunal had an opportunity to see M.A.C.A.3381/2015 & conn. 22 the injured-claimant and it is after seeing the injured-claimant that the Tribunal declined to accept the entire percentage of disability certified under Ext.A48. Still, taking note of the fact that Ext.A48 is supported by the oral testimony of PW1 and taking into account the nature of the permanent disability, we are of the view that it is only proper to take 20% as permanent disability for calculation purpose. In the light of the fact that we have already fixed the monthly income of the appellant as `6,000/- and re-assessed the permanent disability as 20%, the compensation for disability has to be re-assessed. The multiplier was correctly adopted by the Tribunal as '17'. On re-assessment, the appellant would be entitled to get an amount of `91,800/- additionally (6000x12x17x20/100-153000). In the light of the assessment and re- assessment made by us, the appellant will be entitled to get an additional compensation of `1,37,550/-. It is awarded.

In the result, all the appeals are allowed as above. The additional compensation awarded in each of the appeals will carry interest at the rate of 8% per annum from the date of the petition till realisation. The third respondent is directed to deposit the amount M.A.C.A.3381/2015 & conn. 23 awarded within a period of two months from the date of receipt of a copy of this judgment. No order as to costs, in all the appeals.

Sd/-

C.T. RAVIKUMAR (JUDGE) Sd/-


                                   K.P.JYOTHINDRANATH
                                               (JUDGE)

spc/

M.A.C.A.3381/2015 & conn.    24




                                C.T. RAVIKUMAR, J.




                                JUDGMENT

                                September,2010

M.A.C.A.3381/2015 & conn.    25

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