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2017 DIGILAW 138 (KER)

SANKER B. v. NATIONAL INSURANCE CO. LTD.

2017-01-17

C.K.ABDUL REHIM, SHIRCY V.

body2017
JUDGMENT : SHIRCY V., J. 1. The appellant is the claimant in O.P. (MV) No. 502 of 2004 on the files of the Motor Accidents Claims Tribunal, Perumbavoor. The injured/appellant, who sustained injuries in a road traffic accident, has filed the petition claiming an amount of Rs 5,50,000/- as compensation from the respondents. The learned Tribunal has awarded only an amount of Rs. 85,516/- as compensation for the injuries sustained by him. Dissatisfied with the quantum of compensation awarded, this appeal has been preferred. 2. The facts in brief for disposal of this appeal are as follows: On 09.09.2003 at 10 p.m. while the appellant was standing very close to the median near the Kottai Bus Stop in Aluva-Angamaly NH Road for crossing the road, a tempo traveller bearing Reg. No. KL-7/U-8739 driven by the 2nd respondent in O.P. (MV), who is not a party herein, came in a rash and negligent manner and knocked down him causing very serious injuries including fracture. He was rushed to Little Flower Hospital, Angamaly and from there he was referred to the Medical Centre, Ernakulam. He was treated there as inpatient from 9.9.2003 to 13.9.2003 and thereafter he continued his treatment in General Hospital, Chennai as he is a native of Tamil Nadu. He sustained disability of 75% in the accident and practically he is laid up completely. But the compensation awarded is too meager and hence this appeal. 3. The accident as well as the policy of the offending vehicle are admitted by the respondent, the insurance company. So the question to be decided is whether the quantum of compensation awarded is adequate. Ext.A4 is the discharge summery issued from the Ernakulam Medical Centre, Ernakulam where he was treated as an inpatient from 9.9.2003 to 13.9.2003. The injuries noted in Ext.A4 are as follows: "He had laceration on (R) eyebrow, through and through lacerations on upper and lower lip extending to (L) cheek and chin (avulsed flaps) and mobility of (R) maxillary alveolus. CT scan showed multiple haemorrhagic contusions in the brain, subarachnoid haemorrhage, brainstem contusion, fractures of nasoethmoidal complex, bilateral maxilla and (R) temporal bone." It is revealed from Ext. A4 that he had sustained three fractures, viz. nasoethmoidal complex, bilateral maxilla and (R) temporal bone. His treatment includes Tracheostomy also. CT scan showed multiple haemorrhagic contusions in the brain, subarachnoid haemorrhage, brainstem contusion, fractures of nasoethmoidal complex, bilateral maxilla and (R) temporal bone." It is revealed from Ext. A4 that he had sustained three fractures, viz. nasoethmoidal complex, bilateral maxilla and (R) temporal bone. His treatment includes Tracheostomy also. Ext.A6 is the disability certificate issued by the Assistant Professor of Plastic Surgery, Kilplauk Medical College & Hospital, Chennai dated 06.02.2007. The Doctor, who issued this disability certificate, was examined as PW-1 before the learned Tribunal. The Doctor has assessed that the injured had permanent disability of 75% as he had residual hemiplegia left, facial palsy and incontinence of urine and bowel habits. The Doctor as PW1 has given evidence in terms of the certificate issued by him. In cross examination he deposed that 75% disability was assessed by him as the injured sustained injury to brain and the disability is functional as well as physical and that the petitioner was bed ridden and not able to move upper limb and lower limb. Even though the said Doctor was subjected to cross examination, nothing had been brought out in evidence to discard his deposition before the Tribunal or the certificate issued by him regarding the disability sustained by the appellant in the accident. Of-course this doctor has not treated the injured but he issued Ext A6 certificate after examining him. But it is significant to note that no amount was awarded as compensation for the disability sustained by him. Considering the nature of the injuries sustained by him as well the disability caused as a result of the accident, we think that it is just and proper to fix the disability caused to him as 50% and award compensation on that count also. 4. Considering the entire facts involved in this case, we are also of the opinion that the amount awarded as compensation to the appellant by the learned Tribunal is too meager and hence, the same has to be enhanced. It is also to be noted that the appellant was aged only 45 years at the time of accident. According to him, he was a driver by profession. Of course, no document has been produced to prove his employment, as well the income. It is also to be noted that the appellant was aged only 45 years at the time of accident. According to him, he was a driver by profession. Of course, no document has been produced to prove his employment, as well the income. But we feel that the notional income fixed by the learned Tribunal is on the lower side and hence, we fix the notional income of the appellant as Rs. 3,000/- per month. Hence, the amount awarded under different counts are reworked as follows. 5. As the compensation for loss of earning, the Tribunal awarded only Rs. 15,000/- (2500 x 6). When the monthly income is fixed as 3000/- p.m. the loss of income will be Rs. 18,000/- (3000 x 6 = 18,000/-). Hence, the appellant is entitled to get a further amount of Rs. 3,000/- under this head. As the compensation for Nursing attendance, the Tribunal awarded only Rs. 2,000/-. As he was laid up for a pretty long time, and is having hemiplegia, a further amount of Rs. 7,000/- is awarded. Under the head Extra nourishment, a further amount of Rs. 2500/- is also granted. For pain and suffering, the Tribunal awarded Rs. 20,000/-. We enhance the said amount as Rs. 25,000/-. So, the appellant is entitled to get a further amount of Rs. 5,000/- towards compensation for pain and suffering. Under the head of loss of amenities, the Tribunal awarded only an amount of Rs. 10,000/-. The same is enhanced to Rs. 25,000/-. So a further amount of Rs. 15,000/- is awarded. For the disability sustained by the appellant, an amount of Rs. 2,34,000/- (3000 x 12 x 13 x 50%) is granted. Thus the appellant is entitled to Rs. 2,66,500/- (Rupees two lakh sixty six thousand and five hundred only) as compensation over and above the amount already awarded by the Tribunal. The said amount of Rs. 2,66,500/- shall carry an interest at the rate of 8% per annum from the date of filing of the petition till realisation. The respondent Insurance Company shall deposit the amount within three months from today. This appeal is allowed in part as above.