Kerala High Court
Manu.M. Babu vs Shybu John on 16 March, 2013
Author: C.K.Abdul Rehim
Bench: C.K.Abdul Rehim
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM
&
THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH
FRIDAY, THE 27TH DAYOF OCTOBER 2017/5TH KARTHIKA, 1939
MACA.No. 1892 of 2013 ()
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AGAINST THE AWARD IN OPMV 650/2010 of MACT PALA DATED 16-03-2013
APPELLANT/PETITIONER:
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MANU.M. BABU
S/O. BABU, MUNNUTHOTUIYIL,
PALA P.O., LALAM VILLAGE.
BY ADVS.SRI.SAIGI JACOB PALATTY
SRI.BABY THOMAS
RESPONDENTS/RESPONDENTS:
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1. SHYBU JOHN
S/O. JOHN, POOMTHOTTATHIL HOUSE,
PUNNATHURA WEST P.O.,
ETTUMANOOR VILLAGE, PIN-686631. (OWNER)
2. SURESH KUMAR T.S.
S/O. SUKUMARAN, THAZHATHEKUTTU HOUSE,
AYARKUNNAM P.O., PIN-686564, (OWNER KL/5-X-4359).
3. THE MANAGER
THE ORIENTAL INSURANCE CO. LTD.,
DIVISIONAL OFFICE NO.1, P.B.NO. 166,
3RD FLOOR, MATTETHRA BUILDINGS,
M.C.ROAD, BAKER JUNCTION, KOTTAYAM-686001,
POLICY NO. 441300/31/2008 15535-VALID FROM 06-02-2008 TO 05-02-2009.
R3 BY ADV. SRI.GEORGE CHERIAN (THIRUVALLA)
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD
ON 27-10-2017, THE COURT ON THE SAME DAYDELIVERED THE FOLLOWING:
AMG
MACA No.1892/2013
APPENDIX
APPELLANT'S EXHIBITS
EXT. X1 SERIES - DOCUMENT PRODUCED AS ANNEXURE1 TO ANNEXURE-7.
RESPONDENTS' EXHIBITS
NIL
AMG
C.K. ABDUL REHIM, J.
&
K.P. JYOTHINDRANATH, J.
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M.A.C.A No. 1892 OF 2013
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DATED THIS THE 27th DAY OF OCTOBER, 2017
J U D G M E N T
Abdul Rehim, J:
The petitioner/claimant in OP (MV) No.650/2010 on the files of the Motor Accidents Claims Tribunal, Pala is in appeal, challenging the award on the ground that the quantum of compensation granted is insufficient, disproportionate and inadequate. There is no dispute in this appeal against the findings of the Tribunal with respect to the aspects of negligence and liability of the 3rd respondent insurance company. The accident in question occurred on 25-12-2008 when the appellant was riding on his motor cycle. At the spot of the accident, another motor cycle which was insured by the 3rd respondent hit against the motor cycle on which the appellant was riding. In the accident the appellant sustained the following injuries.
"1. Traumatic brain injury. Dal left temporal haemorrhagic contusion, pan plexopathy of left bracheal plexus with pseudomemigeococle. Bilateral common peroneal nerve palsy.MACA No.1892/2013 -2-
2. Head injury diffuse axonal injury SAH + left temporal haemorrhagic contusion.
3. Haemorrhagic contusion in left posterior temporal, left anterior commissural, left gangliothalmic, left crus cerebri, right superior frontal and right parietal regions.
4. Non-haemorrhagic contusions in bilateral temporal and right dorsal aspect of midbrain and pons and its adjacent right cerebellar peduncle and right frontal operculum.
5. Focal T2W and flair hyperintensities in genu, body and splenium of corpus callosum and right frontal deep white mater regions favouring diffuse axonal injury.
6. Thin subarachnoid haemorrhage in bilateral superior frontal sulcia spaces.
7. Thin extra axial haemorrhage is posterior interhemispheric region and bilateral parieto- occipital regions.
8. Subdural collection/hygroma in bilateral frontal regions.
9. A large haematoma/collections in the left lower neck, overlying the left clavicular region causing mass effect on the left brachial plexus (spinal injury).
10. Left C7-T1 and T1-T2 nerve root avulsion injury with pseudomeningoceles (spinal injury).
11. Marror oedema in the spinous process of T1 and T2 vertebrae (spinal injury).
12. Left hemplegia.
13. Behavioural abnormally."MACA No.1892/2013 -3-
He continued treatment for a total period of 133 days as in- patient and thereafter as out-patient. The injury sustained to the appellant had resulted in persistent disability, the extent of which was assessed by the Medical Board attached to the District Hospital, Kottayam at 50%, as evidenced from Ext.A13. On a perusal of Ext.A13 it is evident that, at the time of examination by the Medical Board, the appellant had various complaints including secondary weakness of left leg due to the head injury sustained and due to the brachial plexus injury. Contention of the appellant is mainly that the Tribunal, without any cogent reasons, reduced the extent of disability for the purpose of computing compensation to 35%. Further it is contended that the Tribunal went erred in adopting the income of the appellant at Rs.4,500/- per month, despite the evidence adduced to prove that he was a 'Freelance Photographer' and was earning a considerable income out of the said occupation. It is also contended that the amounts awarded under other heads are too insufficient and inadequate.
MACA No.1892/2013 -4-
2. We heard learned counsel appearing for the appellant and Standing Counsel appearing for the 3rd respondent insurance company.
3. Before the Tribunal the appellant had claimed that he is a 'Freelance Photographer' earning a monthly income of Rs.10,000/-. Exhibit A15 is the copy of the identity card issued by the State Association of Photographers. Apart from that the appellant when examined as PW1, had deposed that he is a Photographer working as a Freelancer for different studios and is earning considerable monthly income to the tune of more than Rs.10,000/- per month. When cross-examined, the 3rd respondent had put suggestions disputing the income of the appellant. But the fact that he was working as Photographer (Videographer) was not seen disputed. Therefore we are inclined to hold that the appellant at the time of the accident was working as a Photographer. But at the same time, the claim with respect to the monthly income cannot be accepted merely based on the oral testimony, without there being any conclusive proof. But we are of the opinion that the Tribunal MACA No.1892/2013 -5- had fixed the notional income without taking into consideration of the fact that he was occupied as a skilled Photographer/Videographer. More over, considering the socio-economic situations prevailed in the year 2008, the amount of notional income adopted as Rs.4,500/- is comparatively on the lower side. Further, we notice that, despite the proof that the appellant was a self-employed person, the Tribunal had not considered the aspect of future prospects. Under the above mentioned circumstances we are inclined to make a reasonable estimation of the monthly income of the appellant at the time of the accident at Rs.6,000/-, to which we add 30% towards future prospects. We further notice that the Tribunal had awarded loss of earnings only for a period of 8 months. Considering nature of the injuries sustained and also considering the prolonged treatment underwent by the appellant, we are of the opinion that the loss of earnings can be awarded alteast for a period of one year. Recomputed on that basis, compensation under the head of loss of earnings is refixed at Rs.72,000/- (Rs.6,000 X 12). After deducing the amount already MACA No.1892/2013 -6- awarded a sum of Rs.36,000/- is due for enhancement on that count. Compensation for permanent disability need to be reworked and refixed at Rs.8,42,400/- (Rs.6,000 + 30% X 12 X 18 X 50%). In this regard we are inclined to accept the extent of disability as certified by the Medical Board, because the Tribunal had not mentioned any cogent or acceptable reasons for the reduction effected. Therefore, after deducing the amount already awarded the appellant will be entitled for an enhancement of Rs.5,02,300/- under the head of permanent disability.
4. Learned counsel for the appellant contended that the amount of Rs.5,000/- awarded towards future treatment expenses is too low and is totally inadequate. The appellant had produced Annexure-A1 to A7 documents along with IA No.2190/2017 filed in this appeal. Those are documents pertaining to the treatments undergone by the appellant after the award, including bills for medical expenses. The appellant is seeking to accept those documents as additional evidence, which we are inclined. The documents produced along with IA No.2190/2017 are marked as Ext.X1 MACA No.1892/2013 -7- series. After excluding the non-acceptable bills, the medical expenditure covered by Ext.X1 series is calculated at Rs.1,10,831/-. We are inclined to award the said amount as enhancement under the head of medical expenses. Totality of the evidence and circumstances would indicate that the appellant had to continue under medication and treatment in future also. Hence we are of the opinion that the amount of Rs.5,000/- awarded is insufficient. We are inclined to award a further sum of Rs.45,000/- on that count.
5. Regarding the quantum of compensation awarded under the heads of pain and suffering and loss of amenities and enjoyment in life, we notice that the amount of Rs.15,000/- awarded under the head of loss of amenities and enjoyment in life is insufficient. We are inclined to award a further sum of Rs.35,000/- on this count.
6. We do not think that any interference with respect to amounts awarded under other heads is warranted. Thus we hold that the appellant will be entitled for a total enhancement of Rs.7,29,031/-.
MACA No.1892/2013 -8-
7. In the result, the appeal is allowed in part. The total compensation awarded by the Tribunal is enhanced by a further sum of Rs.7,29,031/-. Out of the enhancement ordered, the amount of Rs.1,10,831/- awarded towards medical expenses and the sum of Rs.45,000/- awarded towards future treatment expenses, will not carry interest, if the amount is paid within a period of 2 months from the date of receipt of a copy of this judgment. The balance amount of enhancement awarded in this judgment will carry interest at the same rate as ordered by the Tribunal, from the date of the claim petition till realization.
8. It is evident that the Tribunal had permitted the 3rd respondent insurance company to recover the amount of compensation from the owner and driver of the vehicle based on the finding that they have violated the policy conditions, since the 1st respondent was riding the motor cycle at the relevant time without any valid driving licence. Despite service of notice in the present appeal, the owner and the driver of the vehicle (respondents 1 & 2 herein) had not chosen to enter appearance or to contest such a finding MACA No.1892/2013 -9- in any manner. Therefore we uphold the said direction and order that the 3rd respondent will be entitled to recover the entire amount including the enhancement awarded by this court from the respondents 1 & 2.
9. The 3rd respondent is directed to make deposit of the amount before the Tribunal within a period of 2 months from the date of receipt of a copy of this judgment. Needless to observe that, on such deposit the appellant will be entitled to approach the Tribunal seeking withdrawal and the Tribunal shall pass appropriate orders thereon, without any further delay.
Sd/-
C.K. ABDUL REHIM, JUDGE.
Sd/-
K.P. JYOTHINDRANATH, JUDGE.
AMG True copy P.A. to Judge