BY AD v. SRI.P.R.SREEJITH

Heard Sri. P.R. Sreejith, the learned counsel appearing for the appellant and Smt. Deepa George, the learned counsel appearing for the 3rd respondent insurance company. M.A.C.A. No.272/2011 : 4 :

7. During the pendency of this appeal, appellant/claimant died on 26.10.2020 and the legal heirs of the deceased appellant were impleaded as additional appellants 2 and

8. The only contest in this appeal is with regard to the amount of compensation awarded by the tribunal under various heads. The learned counsel for the appellant would submit that the amounts awarded were grossly inadequate whereas, the learned counsel for the 3rd respondent would oppose the said contention by highlighting that a reasonable award has been passed and hence no interference has been warranted.

9. I have carefully gone through the records. Ext.A2 is the copy of the wound certificate and it would show the injuries sustained to the appellant which are as follows:

1. 2. 3. 4. 5. Lacerated would (L) parietal region of scalp. (Rt) Hermiparesis Oedema (L) centrum semi ovale. Diffuse brain oedema. Sub archniod hemorrhage. Ext.A3 is the discharge summary issued by the Baby Memorial Hospital, Kozhikode, which would indicate that she was admitted on

22.08.2004 and discharged on 07.10.2004. As per Ext.A4 C.T. M.A.C.A. No.272/2011 : 5 : scan report, the following observations are made: “Archniod hemorrhage, lacerated wound (L) perietal region of scalp (Rt.) Hemiparesis, Oedema (L) centrum semi ovale and diffuse brain oedema.”

10. Besides the same, the learned counsel also placed reliance upon the documents produced along with I.A. No.1/2021, which includes a series of medical bills produced as Annexures-1 to

61. In addition to that, he also brought the attention of this Court to the certificate issued by the Indira Gandhi Hospital, Manjodi, Thalassery, wherein it was certified that the deceased claimant was undergoing treatment in their hospital as outpatient. The said certificate was issued on 09.02.2017. Annexure 63 is yet another disability certificate issued by the Government Medical College Hospital, Kalamassery, Ernakulam, wherein the percentage of whole body disability was certified as 60%. Ext.C1 was the earlier certificate produced before the tribunal wherein the disability was certified as 50%. Ext.C1 certificate was dated 04.12.2008 whereas Annexure 63 is dated 23.05.2019. As mentioned above, Exts.A2, A3 and A4 would clearly indicate the serious nature of neurological disabilities sustained by the appellant. The documents produced along with I.A. No.1/2021 would clearly indicate that the deceased/ M.A.C.A. No.272/2011 : 6 : claimant was continuing her treatment regularly, until she died on

26.10.2020. There cannot be any doubt, taking into account the nature of injuries sustained, that serious injuries were sustained to her and those resulted in physical disability of a higher extent. Ext.63 disability certificate is issued after 13 years of the accident, which would clearly show the impact of the nature of injuries and the pathetic condition of the deceased claimant. The careful examination of the medical records would indicate that the original claimant was practically bed ridden and was continuing the treatment in such condition.

11. The claimant was a typist as per the claim petition with a monthly income of Rs.2,000/-. From the nature of injuries and the impact of the same, as is discernible from the medical records, it can be safely concluded that, the appellant must have been prevented from pursuing the avocation after the accident. Moreover, the nature of injuries and the disabilities would clearly suggest that, she is incapable of carrying out any avocation. The high degree of physical disability as certified in Ext.C1 and Annexure 63 are clear testimonies of the said aspect. Therefore, I am of the view that, this is a case in which, the compensation has M.A.C.A. No.272/2011 : 7 : to be calculated not merely based on the physical disability as reflected in the documents produced before the court, but the same has to be reckoned taking into account the functional disability as well. It is already found that she is incapable of performing not only the job which she was doing at the relevant time and also the other jobs, and hence, I deem it appropriate to fix it as 85% for the purpose of assessment of compensation.

12. The next aspect to be considered is the monthly income. Ofcourse it is true that, the monthly income claimed was Rs.2,000/- and the tribunal accepted the same as well. However, the learned counsel for the appellant would contend that, the amount of Rs.2,000/- shown in the claim petition was the income she was getting from her avocation as a typist. Besides the same, she was also a housewife and therefore, the tribunal ought to have considered the said aspect by fixing the monthly income. The learned counsel for the 3rd respondent insurance company stoutly opposes the said contention by highlighting that, since a specific amount has been claimed in the claim petition, it is not necessary for this Court to adopt any higher amount than the said amount. This is particularly because this case is the one for personal M.A.C.A. No.272/2011 : 8 : injuries.

13. After perusing the entire materials and the physical as well as mental condition of the appellant, I find force in the contention put forward by the appellant. The fact that, besides being a typist, the claimant was also a housewife. As far as a housewife is concerned, the services rendered by her to the family cannot be measured in terms of money. Merely because, the claimant was pursuing another avocation as well, her services as a housewife to her family members and the valuation thereof cannot be ignored while assessing the compensation. Since the claimant was unable to pursue the duties of her as a housewife, certainly, she might have compelled to avail the services of any other person which would incur expenses. Therefore, some additional amount ought to be taking into account the status of the claimant as a housewife and the duties carried out by her in such status. Since the accident has occurred in the year 2004, I deem it appropriate to take the monthly income as Rs.4,500/- taking note of the income she claimed to have been earning from her avocation and also towards the value of her services as a housewife put together.

14. Since the original claimant had sustained very serious M.A.C.A. No.272/2011 : 9 : disability which is already taken as 85% in terms of functional disability, the future prospects also to be taken into account. In Annexure-63, the date of birth of the original claimant was shown as 11.05.1961 and since the accident occurred on 22.08.2020 she was aged 43 as on the date of the accident. Therefore, she would come within the age group of 40-50 and thus an addition of 25% is to be made towards future prospects. While reassessing the compensation with the above criteria, the amount would come to Rs.8,03,250/- (4500+25%) x 12x14x85/100). The amount already awarded by the tribunal is Rs.1,80,000/- and thus the additional compensation under this head would come to Rs.6,23,250/-.

15. The tribunal awarded only an amount of Rs.500/- towards transport to hospital. The documents produced before this Court would clearly indicate that, she was continuing her treatment until she died in the year 2020. Therefore, some more amount has to be granted towards transport expenses. Therefore, a further sum of Rs.4,500/- is awarded under this head. Under the head of loss of earning, the tribunal awarded only Rs.6,000/- which was calculated at the rate of Rs.2,000/- for a period of three months. I have already enhanced the monthly income as Rs.4,500/-. M.A.C.A. No.272/2011 : 10 : Considering the serious nature of injuries and its impact, I am of the view that, the period has to be fixed as six months and therefore, the additional compensation under this head would come to Rs.21,000/- (4500x6-6000).

16. The next head which requires attention is pain and sufferings. The tribunal awarded only Rs.15,000/- under this head which is grossly inadequate. I have already discussed in the earlier paragraphs about the serious nature of injuries, the period of inpatient treatment she availed and the prolonged treatment she was forced to avail as an outpatient even after her discharge. Such kind of injuries and prolonged treatment would make the original claimant entitled to additional compensation under the head of pain and suffering. In the facts and circumstances of the case, I deem it appropriate to reassess it as Rs.50,000/-, thus, resulting in an addition of Rs.35,000/- under this head. No amount is seen granted towards loss of amenities. Evidently, the original claimant was practically bed ridden, until she died on 26.10.2020. The records produced along with I.A. No.1/2021 would clearly establish the said aspect. Therefore, I deem it appropriate to grant an amount of Rs.50,000/- under the said head. M.A.C.A. No.272/2011 : 11 :

17. The learned counsel for the appellant would further submit that, subsequent to the award, the claimant incurred huge amounts towards treatment and Annexures 1 to 61 were produced to substantiate the same. The said documents are the medical bills showing the expenses so incurred. The learned counsel for the insurance company submitted an objection. It was also pointed out that, some of the bills were not properly authenticated and one bill for Rs.2,470/-(Annexure 9) does not contain the name of the original claimant and it includes other expenses than the medical expenses as well. On perusal of the records, I find the same to be correct. Therefore, out of the total amount of Rs.1,33,806/- covered as per Annexures .A1 to A61, the amount of Rs.2470 can be deducted. Thus the additional amount towards medical expenses would come to Rs.1,31,336/-. The total additional compensation is fixed as Rs.8,65,086/- (6,23,250+4500+ 21000+ 35000+ 50000+ 131336). In the light of the aforesaid observations and findings, this appeal is allowed. The award dated 8/9/2010 passed by the II Additional Motor Accident Claims Tribunal, Kozhikode in OP(MV) M.A.C.A. No.272/2011 : 12 : No.415/2005 is hereby modified by granting an additional compensation of Rs.8,65,086/- (Rupees eight lakhs, sixty five thousand and eighty six only). Out of the said amount, an amount of Rs.7,33,750/- (Rupees seven lakhs thirty three thousand seven hundred and fifty only) would carry interest at the rate as ordered by the tribunal from the date of petition, i.e., 05.02.2005, whereas Rs.1,31,336/- (Rupees one lakh thirty one thousand three hundred and thirty-six only) towards the medical expenses incurred after the award, would carry interest at the rate as ordered by the tribunal from the date of this judgment. In addition to that, the appellant shall also be entitled for proportionate costs. The said amount shall be deposited by the 3rd respondent insurance company within a period of three months from the date of receipt of a copy of this judgment. ncd/ Sd/- ZIYAD RAHMAN A.A. JUDGE M.A.C.A. No.272/2011 : 13 : APPENDIX OF MACA 272/2011 PETITIONER ANNEXURES Annexure 1 Annexure 2 Annexure 3 Annexure 4 Annexure 5 Annexure 6 Annexure 7 Annexure 8 Annexure 9 Annexure 10 Annexure 11 Annexure 12 Annexure 13 THE BILL DATED 26.12.2011 FOR RS. 2,982/-ISSUED BY AT VAIDYAMADHAM VYDIASALA AND NURSING HOME, MEZHATHUR, THRITHALA THE BILL DATED 26.12.2011 FOR RS. 25 ISSUED BY AT VAIDYAMADHAM VYDIASALA AND NURSING HOME, MEZHATHUR, THRITHALA" THE BILL FOR RS. 2868/-DATED 03..2.2012 ISSUED BY THE VAIDYAMADHAM VAIDHYASALA THE BILL DATED 15.03.2012 FOR, RS. . 1974/- ISSUED BY VAIDYAMADHAM VAIDYASALA THE BILL DATED 16.04.2012, FOR RS 3558/ ISSUED BY VAIDYAMADHAM VAIDYASALA THE BILL FOR RS. 2253/-, DATED 11.06.2012 ISSUED BY VAIDYAMADHAM VAIDYASALA THE BILL FOR RS. 8126/-, DATED 15.07.2012 ISSUED BY VAIDYAMADHAM VAIDYASALA THE BILL FOR RS. 3110/-, DATED 16.07.2012 ISSUED BY VAIDYAMADHAM VAIDYASALA THE BILL FOR RS. 2470/-, DATED 16.07.2012 ISSUED BY VAIDYAMADHAM VAIDYASALA CANTEEN THE BILL FOR RS. 25/-, DATED 17.07.2012 ISSUED BY VAIDYAMADHAM VAIDYASALA THE BILL FOR RS. 29050/-, DATED 17.07.2012 ISSUED BY VAIDYAMADHAM VAIDYASALA THE BILL FOR RS. 499/-, DATED 03.11.2014 ISSUED BY IQRAA HOSPITAL, KOZHIKODE THE BILL FOR RS. 240/-, DATED 03.11.2014 ISSUED BY IQRAA HOSPITAL, KOZHIKODE M.A.C.A. No.272/2011 : 14 : Annexure 14 Annexure 15 Annexure 16 Annexure 17 Annexure 18 Annexure 19 Annexure 20 Annexure 21 Annexure 22 Annexure 23 Annexure 24 Annexure 25 Annexure 26 Annexure 27 Annexure 28 Annexure 29 THE BILL FOR RS. 669/-, DATED 19.12.2014 ISSUED BY IQRAA HOSPITAL, KOZHIKODE THE BILL FOR RS. 190/-, DATED 19.12.2014 ISSUED BY IQRAA HOSPITAL, KOZHIKODE THE BILL FOR RS. 50/-, DATED 02.03.2015 ISSUED BY CHOCKLI MEDICAL CENTRE CHOKLI THE BILL FOR RS.780/-, DATED 02.03.2015 ISSUED BY CHOCKLI MEDICAL CENTRE CHOKLI THE BILL FOR RS. 947/-, DATED 11.03.2015 ISSUED BY IQRAA HOSPITAL, KOZHIKODE THE BILL FOR RS. 240/-, DATED 11.03.2015 ISSUED BY IQRAA HOSPITAL, KOZHIKODE THE BILL FOR RS. 240/-, DATED 13.07.2015 ISSUED BY IQRAA HOSPITAL, KOZHIKODE THE BILL FOR RS. 1435/-, DATED 13.07.2015 ISSUED BY IQRAA HOSPITAL, KOZHIKODE THE BILL FOR RS. 897/-, DATED 27.11.2015 ISSUED BY IQRAA HOSPITAL, KOZHIKODE THE BILL FOR RS. 240/-, DATED 27.11.2015 ISSUED BY IQRAA HOSPITAL, KOZHIKODE THE BILL FOR RS. 240/-, DATED 27.04.2016 ISSUED BY IQRAA HOSPITAL, KOZHIKODE THE BILL FOR RS.1122/-, DATED 27.04.2016 ISSUED BY IQRAA HOSPITAL, KOZHIKODE THE BILL FOR RS.47/- DATED 26.04.2019 ISSUED BY KOROTHUKUZHI HOSPITAL, ALUVA THE BILL FOR RS.220/-, DATED 26.04.2019 ISSUED BY KOROTHUKUZHI HOSPITAL, ALUVA THE BILL FOR RS.129/-, DATED 26.04.2019 ISSUED BY KOROTHUKUZHI HOSPITAL, ALUVA THE BILL FOR RS.73/-, DATED 28.10.2019 ISSUED BY KOROTHUKUZHI HOSPITAL, ALUVA M.A.C.A. No.272/2011 : 15 : Annexure 30 Annexure 31 Annexure 32 Annexure 33 Annexure 34 Annexure 35 Annexure 36 Annexure 37 Annexure 38 Annexure 39 Annexure 40 Annexure 41 Annexure 42 Annexure 43 Annexure 44 Annexure 45 Annexure 46 Annexure 47 Annexure 48 THE BILL FOR RS.150/-, DATED 28.10.2019 ISSUED BY KOROTHUKUZHI HOSPITAL, ALUVA THE BILL FOR RS.150/-, DATED 27.11..2019 ISSUED BY KOROTHUKUZHI HOSPITAL, ALUVA THE BILL FOR RS.1700/- DATED 28.10.2019 ISSUED BY DDIC SCAN AND DIAGNOSTICS THE BILL FOR RS.103/-, DATED 17.12.2019 ISSUED BY KOROTHUKUZHI HOSPITAL, ALUVA THE BILL FOR RS.547/- DATED 17.12.2019 ISSUED BY KOROTHUKUZHI HOSPITAL, ALUVA THE BILL FOR RS.150/- DATED 17.12.2019 ISSUED BY KOROTHUKUZHI HOSPITAL, ALUVA THE BILL FOR RS.90/- DATED 17.12.2019 ISSUED BY KOROTHUKUZHI HOSPITAL, ALUVA THE BILL FOR RS.233/- DATED 17.12.2019 ISSUED BY KOROTHUKUZHI HOSPITAL, ALUVA THE BILL FOR RS.577/- DATED 17.12.2019 ISSUED BY KOROTHUKUZHI HOSPITAL, ALUVA THE BILL FOR RS.500 /- DATED:17.12.2019 ISSUED BY BLOOD BANK DISTRICT HOSPITAL, ALUVA THE BILL FOR RS.500 /- DATED:17.12.2019 ISSUED BY BLOOD BANK DISTRICT HOSPITAL, ALUVA THE BILL FOR RS.222/- DATED 18.12.2019 ISSUED BY KOROTHUKUZHI HOSPITAL, ALUVA THE BILL FOR RS.366/- DATED 17.12.2019 ISSUED BY KOROTHUKUZHI HOSPITAL, ALUVA THE BILL FOR RS.2750/- DATED 18.12.2019 ISSUED BY KOROTHUKUZHI HOSPITAL, ALUVA THE BILL FOR RS.1600/- DATED 19.12.2019 ISSUED BY MEDI BAZAR, ALUVA THE BILL FOR RS.1090/- DATED 23.12.2019 ISSUED BY MEDI BAZAR, ALUVA THE RECEPT FOR RS.18000/- DATED 01.01.2020 ISSUED BY SUSRUSHA NURSING SERVICE, ALUVA THE BILL FOR RS.307/- DATED 09.01.2020 ISSUED BY KOROTHUKUZHI HOSPITAL, ALUVA THE BILL FOR RS.8/- DATED 09.01.2020 ISSUED BY KOROTHUKUZHI HOSPITAL, ALUVA M.A.C.A. No.272/2011 : 16 : Annexure 49 Annexure 50 Annexure 51 Annexure 52 Annexure 53 Annexure 54 Annexure 55 Annexure 56 Annexure 57 Annexure 58 Annexure 59 Annexure 60 Annexure 61 Annexure 62 Annexure 63 THE BILL FOR RS.80/- DATED 09.01.2020 ISSUED BY KOROTHUKUZHI HOSPITAL, ALUVA THE BILL FOR RS.123/- DATED 09.01.2020 ISSUED BY KOROTHUKUZHI HOSPITAL, ALUVA THE BILL FOR RS.19/- DATED 09.01.2020 ISSUED BY KOROTHUKUZHI HOSPITAL, ALUVA THE BILL FOR RS.243/- DATED: 10.01.2020 ISSUED BY KOROTHUKUZHI HOSPITAL, ALUVA THE BILL FOR RS.2090/- DATED 10.01.2020 ISSUED BY KOROTHUKUZHI HOSPITAL, ALUVA THE BILL FOR RS.29/- DATED 10.01.2020 ISSUED BY KOROTHUKUZHI HOSPITAL, ALUVA THE BILL FOR RS.231/- DATED 21.01.2020 ISSUED BY SEVANA MEDICALS, ALUVA THE RECIEPT FOR RS.18000/- DATED 27.01.2020 ISSUED BY SUSRUSHA NURSING SERVICE, ALUVA THE BILL FOR RS.219/- DATED 31.01.2020 ISSUED BY ANAND MEDICALS, ALUVA THE BILL FOR RS.520/- DATED 01.02.2020 ISSUED BY MEDI BAZAR, ALUVA THE BILL FOR RS.160/- DATED 05.02.2020 ISSUED BY MADEENA MEDICALS, ALUVA THE BILL FOR RS.350/- DATED 19.02.2020 ISSUED BY FATHIMA MEDICALS, ALUVA THE RECIEPT FOR RS.18000/- DATED 24.02.2020 ISSUED BY SUSRUSHA NURSING SERVICE, ALUVA A CERTIFICATE DATED:09/02/2017 ISSUED FROM THE INDIRA GANDHI HOSPITAL A CERTIFCATE ISSUED BY THE MEDICAL BOARD DATED:23/05/2019