T.MAMMEDKUTTY HAJI @ MOHAMMEDKUTTY HAJI v. IBRAHIMKUTTY.T

Original Petition was filed before the Tribunal.

4. The driver cum owner of the Jeep and it’s insurer were arrayed respectively as the 1st and 2nd respondents in the Original Petition. Both respondents were served with notice. 1st respondent did not turn up to contest the Original Petition and therefore, declared as ex parte. 2nd respondent filed written statement admitting insurance coverage of the Jeep bearing Registration No.KL 10J 622 as on date of the motor MACA NO.1739 OF 2013 4 accident. It was contended that the information regarding the motor accident was not furnished by the insured/owner of the vehicle to the insurer following the motor accident.

5. Petitioner adduced documentary evidence and it consists of Exts.A1 to A7 and Ext.X1 and oral evidence, which consists of the deposition of PWs 1 and 2. Based on the oral as well as the documentary evidence, the Tribunal found that the motor accident in question was occurred due to the rash and negligent driving of the Jeep bearing Registration No.KL 10J 622 by the 1st respondent. The Tribunal has also found that the petitioner, in view of the injuries sustained in the motor accident, is entitled to get compensation. The Tribunal arrived at a sum of `2,98,638/- as the total compensation payable and ordered that to be paid by the 2nd respondent with interest at the rate of 9% per annum from the date of filing of the Original Petition till the date of realisation. Aggrieved by the quantum of compensation stood awarded by MACA NO.1739 OF 2013 5 the Tribunal, the petitioner has approached this Court in the appeal on hand.

6. The learned counsel for the petitioner contended that though the motor accident was occurred in the year 2006, the Tribunal went wrong in fixing only `3,500/- as the monthly income. According to him, the claim of the petitioner in the Original Petition being that he was getting a monthly income of `6,000/-, the Tribunal ought to have taken a higher sum as the monthly income and calculated compensation on it’s basis. The learned counsel contended furthermore that the petitioner was successful in establishing his permanent disability following the motor accident by relying on Ext.X1 and Ext.A7 marked in evidence. Ext.X1 is a certificate issued by the District Medical Board associated with District Hospital, Manjeri, where the permanent disability of the petitioner was certified as 32%, whereas in Ext.A7, a certificate issued by the Medical Board associated MACA NO.1739 OF 2013 6 with Department of Health Services, Government of Kerala, the permanent disability of the petitioner in view of below knee amputation was certified as 50%. According to the learned counsel, the Tribunal relied on Ext.X1 and took only 32% as the permanent disability of the petitioner for calculation of compensation. The learned counsel invited this Court’s attention to the oral evidence of PW2, the doctor who had issued Ext.A7 and urged that MC Bride Scale was based by him for assessing the disability of the petitioner. According to him, guidelines have been issued by the Department of Health Services later and those ought to have been based for assessment of compensation for disability. Accordingly he canvassed for assessment of compensation for disability based on Ext.A7 issued by District Medical Officer, Department of Health Services, Government of Kerala.

7. The learned counsel urged furthermore that the compensation stood awarded by the Tribunal under MACA NO.1739 OF 2013 7 transportation expenses, extra nourishment, pain and suffering and loss of amenities and enjoyments in life fall on the lower side and sought for modification of the compensation under those heads.

8. The learned counsel for the 2nd respondent contended that the Tribunal has awarded just and reasonable compensation under various heads, having due regard to the evidence on record. According to the learned counsel, the award under challenge therefore is only to be maintained.

9. This Court has gone through Exts.X1 and A7. Ext.X1 is a certificate issued by the District Medical Board of District Hospital, Manjeri, where 32% was certified as the permanent partial disability of the petitioner on account of B.K amputation of his left leg. Ext.A7, as already stated is a certificate issued for Persons With Disabilities by Department of Health Services, Government of Kerala, wherein the multiple disability in relation to B.K amputation of left leg MACA NO.1739 OF 2013 8 was certified as 50%. The difference noticed in the certificate of disability as per Ext.X1 and Ext.A7 was that, in Ext.X1, the disability was assessed solely based on B.K amputation of left leg whereas in Ext.A7, multiple disability in relation to B.K amputation of left leg was based for assessment of disability.

10. Petitioner himself was examined as PW1. He deposed that in view of the injuries sustained by him in the motor accident and the disability suffered on account of that, he lost his capability to do any work he has been doing prior to the motor accident. Petitioner was not cross examined with reference to that aspect. The Superintendent of General Hospital, Manjeri, who was not part of the Medical Board which issued Ext.X1, but was instrumental for issuance of Ext.A7 was examined as PW2. Admittedly he was not a signatory to Ext.X1. He deposed that there was near total amputation of left leg, fracture of femur left side, scaphoid fracture and fracture scapular lateral boarder of left side. MACA NO.1739 OF 2013 9 When Ext.A7 was shown to him during the course of examination, he deposed that it was issued based on the new guidelines and Ext.X1 was issued based on Mc Bride Scale. According to him, as per the new guidelines, disability on account of below knee amputation is 70% up to 8 cm and 60% up to lower 1/3rd. The new guidelines relied on by PW2 is not produced. Therefore, this Court is not in a position to accept the argument advanced by the learned counsel for the petitioner in the case on hand.

11. For below knee amputation, as per the schedule to the Employees Compensation Act, 1923, the disability is 50%. Therefore, this Court is inclined to base 50% as the permanent disability of the petitioner for assessment of compensation. The Tribunal undoubtedly has gone wrong in opting to base 32% as the permanent disability of the petitioner and assessing compensation on its basis.

12. Despite the claim raised by the petitioner in the MACA NO.1739 OF 2013 10 Original Petition that, he was getting `6,000/- as his monthly income, the Tribunal fixed `3,500/- as the monthly income on a notional basis, for failure of the petitioner to adduce evidence in that regard. According to the learned counsel, a certificate issued by the Village Officer is produced by the petitioner, where the income of the petitioner was certified as `6,000/-. But that being not an authenticated one, issued by a person responsible for it’s issuance was discarded and the monthly income was fixed by the Tribunal as `3,500/-on a notional basis.

13. On a reading of the discussion of the Tribunal in the impugned award, this Court is convinced that the Tribunal failed to consider loss of future prospects for the petitioner, though he suffered disability on account of below knee amputation. In the above circumstances, `3,500/- taken as monthly income undoubtedly is on the lower side. Therefore, this Court finds justification in fixing `5,500/- as MACA NO.1739 OF 2013 11 the monthly income. Petitioner being aged 45 years, 25% is also added to the monthly income fixed, in consideration of loss of future prospects. When 25% is added to `5,500/- fixed by this Court, `6,875/- (`5,500/- + 25% of `5,500/-) is arrived at. 14 adopted by the Tribunal as multiplier being correct is maintained. In view of the modification as above, the compensation payable would vary.

14. In the reassessment of compensation towards permanent disability, `5,77,500/- (`6,875/- x 12 x 14 x 50/100) is arrived at. `1,88,160/-, the sum stood awarded by the Tribunal as compensation when adjusted against, the petitioner will get `3,89,340/- (`5,77,500/- - `1,88,160/-) as additional compensation towards permanent disability.

15. As compensation towards transportation expenses, `1,200/- is found awarded by the Tribunal. Petitioner was a resident of Manjeri and had undergone treatment as inpatient for 80 days at Medical College Hospital, Kozhikode. MACA NO.1739 OF 2013 12 Therefore, `1,200/- stood awarded by the Tribunal is too low and this Court is inclined to enhance it to `8,000/-. Therefore, the petitioner will get `6,800/- as additional compensation. As compensation towards extra nourishment, `750/- stood awarded by the Tribunal being low, this Court is inclined to award `8,000/- and thus the petitioner will get `7,250/- as additional compensation.

16. As compensation towards pain and suffering and loss of amenities and enjoyments in life, `25,000/- and `10,000/- respectively were awarded by the Tribunal. This Court had already discussed in detail about the injuries sustained. In view of the B.K amputation of left leg the petitioner must have taken time to cope up with the reality. He must have suffered difficulties and discomforts on account of the amputation of his leg. He must have also suffered much pain and sufferings on account of that. Taking into account of all those aspects, this Court finds it appropriate to MACA NO.1739 OF 2013 13 enhance the compensation stood awarded by the Tribunal towards pain and suffering and loss of amenities and enjoyments in life each to `80,000/-. Therefore, the petitioner will get `55,000/- and `70,000/- respectively as additional compensation under those heads.

17. Since the monthly income of the petitioner has been enhanced by this Court to `5,500/-, there would be variance in the quantum of compensation payable towards loss of earning. The Tribunal had taken loss of earning for 12 months. In the absence of any challenge by the insurer against that, this Court is inclined to maintain that. When compensation for loss of earning is calculated on the basis of `5,500/-, the modified monthly income for a period of 12 months’, a sum of `66,000/- (`5,500/- x 12) is arrived at. `42,000/- stood awarded by the Tribunal when adjusted against, the petitioner will get `24,000/- (`66,000/- - `42,000/-) as additional compensation. Compensation stood MACA NO.1739 OF 2013 14 awarded by the Tribunal under other heads are maintained, since challenges were not raised against those by the learned counsel for the appellant.

18. In the above manner of re-assessment of compensation afresh, the petitioner will get `5,52,390/- (`3,89,340/- + `6,800/- + `7,250/- + `55,000/- + `70,000/- + `24,000/-) (Rupees Five Lakh Fifty Two Thousand Three Hundred and Ninety only) as additional compensation, which amount will also carry interest at the rate of 7.5% per annum from the date of filing of the Original Petition till the date of realisation.

19. 2nd respondent shall pay the above sum within two months from the date on which a certified copy of this judgment is received and the disbursal of the amount in favour of the petitioner shall be in accordance with the directions issued by this Court in Circular No.03/2019 dated

06.09.2019. MACA NO.1739 OF 2013 15 Since the appeal on hand is filed with a delay of 816 days, 2nd respondent is also exonerated from paying interest for that period. Since the compensation stood awarded by the Tribunal as well as this Court, is in excess of the quantum of compensation claimed by the petitioner, court fee proportionate to the sum in excess shall also be realised from the petitioner. The Tribunal shall either deduct the additional court fee payable at the time of disbursal of the amount or else recover it from the petitioner separately. Sd/- MARY JOSEPH JUDGE JJ