IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON MONDAY, THE 23RD NOVEMBER 2009 / 2ND AGRAHAYANA 1931 MACA.No. 342 OF 2006(A) ----------------------- OPMV.2117/2003 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, THRISSUR .................... APPELLANT/3RD RESPONDENT: ---------------------------------- THE NATIONAL INSURANCE COMPANY LTD., DIVISON NO.10, FLAT NO.101-106, N-1, BMC HOUSE, CONNANGHAT PLACE, NEW DELHI-01. BY ADV. SRI.RAJAN P.KALIYATH RESPONDENTS: CLAIMANT & R1 & R2: ------------------------------------------ 1. SURAN @ SUESH, S/O. KUNJAN, CHENCHERY HOUSE, CHAVAKKAD TALUK, PUNNAYYAOORKULAM VILLAGE & DESOM, THRISSUR. 2. C.A. JACOB, CHAZHOOR HOUSE, KANNAMKULANGARA, KOORKKANCHERY, THRISSUR DISTRICT. 3. SREEJITH, S/O. VELAYUDHAN NAIR KANAKALAYAM VEEDU, EDARIKKODU DESOM, THENNALA VILLAGE, MALAPPURAM DISTRICT. ADV. SRI.DILIP J. AKKARA FOR R.1 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 23/11/2009, ALONG WITH MACA NO. 752 OF 2006, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.R. RAMAN & P.R. RAMACHANDRA MENON, JJ. = = = = = = = = = = = = == == = = = M.A.C.A. Nos. 342 & 752 OF 2006 = = = = = = = = = = = = = = = = = = = = = DATED THIS, THE 23RD DAY OF NOVEMBER, 2009. J U D G M E N T Raman, J. Both these appeals arise out of the same award passed by the Motor Accident Claims Tribunal, Thrissur in O.P.(MV) 2117/2003. While the appellant in M.A.C.A. 342/2006 is the insurer of the vehicle in question, the claimants are the appellants in M.A.C.A. 752/2006. 2. As a result of a motor accident which occurred on 7.12.2002, the claimant/appellant in MACA 752/2006 suffered severe injuries including head injury. While he was walking through the Ponnani - Chavakkad public road to Chavakkad, a car driven by the second respondent in the claim petition came in a rash and negligent manner from the opposite direction and hit him. He was taken to the Puthenpalli hospital and thereafter to the Unity hospital, Kunnamkulam and to Amala Cancer Hospital, Thrissur on the same day. He was admitted as an inpatient on 7.12.2002 and was discharged only on 13.1.2003. Thus he was in the hospital for nearly forty five days. Even thereafter, the claimant was treated at Edappal Hospital and specialist Hospital, for MACA 342 & 752/06 2 which, however, there are no medical records. It was contended that the claimant suffered 60% permanent total neurological disability and also was mentally retarded. The claimant was aged 27 years at the time of the accident and he was stated to be earning an amount of Rs. 2,000/- per month working as a door to door delivery man. He is the only son of a poor widow and an amount of Rs. 6,00,000/- was claimed by way of compensation under various heads. 3. Respondents 1 and 2, who are the driver and owner of the vehicle, did not care to contest the matter and remained ex parte. The third respondent (appellant in MACA 342/2006) who was the insurer of the vehicle, admitted the coverage and contested the matter on merits, after obtaining permission under Section 170 of the Motor Vehicles Act. It was disputed that The accident as alleged and even the quantum were disputed. 4. The evidence in the case consists of the documents Exts.A1 to A13 and the oral testimony of PW.1 on the side of the claimant. Ext.B1 was marked on the side of the respondents. No oral evidence was adduced on the side of the respondents. On an appreciation of the evidence adduced in the case in support of the respective parties, the Tribunal found that the accident occurred as a result of the negligent driving of the car by the first respondent. The second respondent being the owner, is vicariously liable MACA 342 & 752/06 3 and the policy being admitted, whatever compensation awarded for the accident in question, is liable to be indemnified by the insurer. An amount of Rs.3,02,200/- was awarded under various heads. One of the major heads under substantial amount was awarded by way of compensation is towards disability compensation. Though it was contended that the injured has suffered 60% permanent total neurological disability based on Ext.A10 certificate issued by one Dr. Devaprasad of Aswini Hospital, Thrissur, the said doctor was not examined in the case. Ext.A8 is a discharge summary issued from the Amala Hospital, Thrissur. Based on the history of the case of the injured wherein it is pointed out that the claimant is a mentally retarded person, the third respondent contended that loss of vision and hearing impairments noted by the physician is not on account of the injury sustained in the accident and that the petitioner is a mentally retarded person and he was not having hearing or visual capacity even before the accident. But after referring to the evidence of PW.1, the Tribunal opined that the complications regarding sight and hearing capacity of petitioner developed subsequent to the accident. Ext.A9 series medical certificates would show that the petitioner developed bilateral opto atrophy following the accident. It was observed that the regaining useful vision is poor. Hence the Tribunal repelled the contention that the loss of vision and MACA 342 & 752/06 4 hearing impairment is not due to the injuries sustained by the petitioner in the accident. It was held that the petitioner sustained permanent disability to the tune of 40%. The multiplier of 18 was adopted and compensation worked out fixing a notional income of rs.1750/-. On calculation, the amount comes to Rs.1,51,200/-. 5. The petitioner contended that there was no justification for reducing the disability to 40% as against 60% as supported by the medical certificate Ext.A10. On the other hand, the insurance company contended that the injured was a mentally retarded person with partial loss of vision and hearing capacity. Therefore, even the percentage as fixed by the court below is excessive. This Court, by an interim order, referred the injured to be examined by a medical board consisting of neurological experts. Accordingly, after due examination of the injured by the medical board, a certificate was forwarded to this Court. It is observed in the medical report obtained pursuant to the order of this Court that as per the history given by the person, he was apparently normal prior to the accident and now on examination, the following disabilities are noted: 1. Paroxysmal epileptic disorder with unpredictable occurrence that does not limit usual activities but is a risk to the patient or limits performance of daily activities, amounts to an impairment of ten percentage (10%). MACA 342 & 752/06 5 2. Mild left hemiparesis of 25% impairment. 3. Gait impairment, where the patient can rise to a standing position and walk to some distance with difficulty and without assistance, limited to level surface. The whole person impairment of 15%. 4. The person can not use the left upper limb (non- preferred side) for self care and daily activities, with a whole person impairment of 30%. The total neurological impairment amounts to 37% (thirty seven percentage) by calculation. 6. The Ophthalmic assessment is that as per the history, the petitioner is having poor vision and mental retardation since child-hood. As per records he had right occipital haematoma following an accident. On examination he is found to have bilateral optic atrophy. The right occipital haematoma, which developed with accident is not likely to produce bilateral optic atrophy and complete visual loss. Therefore, it could be seen that no ophthalmic disability is developed and no disability as such is fixed in the report. But the other disability (neurological impairment) determined at 37% can not be said to be one which the injured had suffered and it cannot be said that any percentage of such physical/neurological disablement was there prior to the accident merely because he was a mentally retarded person. Since the Tribunal has already assessed 40% disability and awarded compensation and justification is found even based on the report MACA 342 & 752/06 6 of the medical board, it may not be appropriate for this Court to interfere with such assessment in the absence of better evidence to support the contention on either side. True, we could have reduced 3% towards disability compensation based on the present report. But we find that compensation has not been awarded towards by-stander expense. Likewise, it is contended that no compensation is awarded towards future medical expenditure. We do not think that any further compensation is awardable under these two heads, taking into consideration that even as against 37% disability found by the medical board, 40% has been taken into account and compensation worked out. Therefore, interference as such of the award is not seen necessary since the total amount of compensation takes care of all the situation and it cannot be said that the compensation awarded is in any way inadequate or excessive as the case may be. Therefore, we are not reducing the compensation awarded towards disability, taking into consideration of the fact that compensation has not been awarded under the head by-stander expense or towards future medical expenditure. But we find that the Tribunal has awarded Rs. 25,000/- towards loss of earning. Except the ipsi dixit of PW.1, in the absence of any convincing evidence to show that the petitioner - a mentally retarded person with partial loss of vision was actually earning, the amount awarded by the Tribunal cannot be MACA 342 & 752/06 7 justified. We find that an amount of Rs. 5,000/- will be an adequate compensation under this head. Accordingly, the compensation awarded under the head of 'loss of earning' is reduced to Rs. 5,000/- as against Rs. 25,000/-. No further modification is found necessary. 7. The appeal filed by the Insurance Company - M.A.C.A.342/2006- is partly allowed to the limited extent of limiting the compensation under the head of 'loss of earning' from Rs. 25,000/ to Rs. 5,000/-. In all other respects, the award is confirmed. The appeal filed by the petitioner - MACA 752/2006 is dismissed. P.R. RAMAN, (JUDGE) P.R. RAMACHANDRA MENON, (JUDGE) KNC/-