Lalan D. v. Rajesh Mathew

The Judgment of the Court was delivered by

P.R Ramachandra Menon, J.:— The appeal is for enhancement of compensation awarded by the Tribunal in respect of the injuries sustained by the first appellant, who is stated as virtually lying in a ‘coma stage’. The second appellant is his wife, who has joined him as the legal guardian and next friend, since the first appellant is not in a position to have independent view/thoughts of his own or to subscribe to the proceedings being filed before this Court.

2. The first appellant was riding his bicycle along N.H.47 on 31.12.2003 While so, at about 6.45 pm., the car bearing No. KL.2.N.9779, owned and driven by the first respondent and insured by the second respondent, dashed against him, causing serious head injury. Immediately, he was taken to the Medical College hospital, where he was admitted and was continuing treatment till 14.01.2004 Thereafter, he was shifted to the Medical Trust Hospital, Ernakulam, where he was admitted on 14.01.2004 and was continuing treatment till 10.02.2004 After discharge from the hospital, petition was filed seeking for compensation in respect of the injuries sustained and the consequences, claiming a total compensation of Rs. 16 lakhs under various Heads.

3. The claim was not contested by the first respondent, who chose to remain ex parte. The second respondent Insurance Company contested the matter, disputing negligence attributed on the driver of the car and also on quantum. Based on the evidence adduced before the Tribunal (Exts. A1 to A20 and deposition of the second appellant, who was examined as P.W.1 besides Ext. B1 policy and Ext. C1 disability certificate issued by the Medical Board), the Tribunal repelled the contentions raised by the Insurance Company as to the aspect of negligence attributed on the claimant and held that it was only because of the rashness and negligence of the first respondent, i.e person who was driving the car at the relevant time, that the accident had occurred.

4. With regard to the quantum of compensation, the case projected before the Tribunal was that the first appellant was a skilled worker and was earning Rs. 250/- per day. The Tribunal, for want of proper evidence in this regard chose to fix the notional income at Rs. 2500/- per month. Based on the permanent disability, certified as 50% by the Medical Board vide Ext. C1, the Tribunal awarded compensation of Rs. 2,55,000/-, reckoning the multiplier of 17 (which ought to have been 16) based on the age of the injured. Awarding amounts under different heads, the total compensation payable was held as Rs. 4 lakhs, which was ordered to be satisfied with interest at the rate of 7.5% per annum from the date of claim petition, till satisfaction.

5. The amounts awarded by the Tribunal under different heads are reproduced below, in the form of a Table:

HeadAmount awardeed (Rs.)Compensation for loss of earning20000Cost of medicines and treatment charges68000Transportation charges6000Bystander expense6000Extra nourishment1500Damage to clothing500Pain and suffering30000Compensation for permanent disability and loss of earning power2,55,000Loss of amenities10000Compensation for future treatment2500TOTAL4,00,000/-

6. The appellant has produced some additional documents as Annexures A, B and C. along with IA. No. 1017 of 2017. As per separate order passed today, we have allowed the said application, as not opposed from the other side. The said documents, particularly Annexure-A1 reveal the present condition of the appellant, which is more than sufficient to arrive at a finding that he is virtually lying as a vegetable. Annexure B. certificate issued by the Doctor of Primary Health Centre, Thakazhy shows that the injured is having permanent Locomotor disability of right hemiplegia sequilac of head injury, not likely to improve and that he needs a full time care giver as the injured is not in a position to move about on free will. Annexure C. is the treatment record of the first appellant issued by the “Aarogya Keralam” Palliative Caring Scheme, which shows the present condition of the appellant and the medicines being administered on a regular basis.

7. The materials already produced before the Tribunal and the additional documents now produced before this Court are adequate enough to hold that no recovery is possible for the injured. This persuades this Court to hold that, even though the extent of permanent disability certified by the Medical Board vide Ext. C1 is only 50%, since the injured is lying in this stage for more than 14 years, the permanent disability has to be reckoned as 100% to work out the proper compensation.

8. It is true that the accident was in the year 2003, but it was on the last day of the year and by the dawn of the next day, it was to begin with the year 2004. Evidently, the injured was maintaining a family of his own, consisting of his wife, who is the second appellant/second claimant. By virtue of the present state of affairs, it can be reasonably presumed that the wife will not be in a position to move about for getting some job and she has to be near her husband throughout, to give constant care and attention, even for meeting the calls of nature, for administration of medicines and for food intake. In the said circumstance, we find that the notional monthly income fixed by the Tribunal requires some modification. We enhance the same to Rs. 3500/- per month. The proper multiplier, as rightly pointed out by the learned Sr. Counsel appearing for the Insurer is ‘16’; in view of the date of birth of the injured being 25.09.1969 On re-working the compensation towards disability, it comes to Rs. 6,72,000/- (3500 × 12 × 16 × 100/100). After giving credit to the sum of Rs. 2,55,000/- awarded by the Tribunal, the balance comes to Rs. 4,17,000/-. Since we have awarded compensation for disability, reckoning it as 100%, the compensation of loss of earning awarded by the Tribunal becomes irrelevant and insignificant and hence the said amount of Rs. 20000/- is deleted. Hence the balance payable comes to Rs. 3,97,000/-.

9. The compensation under the heads ‘pain and suffering’ and towards ‘loss of amenities and enjoyment in life’ also require some modification. Taking into the totality of the facts and circumstances, we award a further sum of Rs. 10,000/- under the head ‘pain and suffering’ and a sum of Rs. 40,000/- towards loss of amenities and enjoyment in life. Thus, the total balance compensation comes to Rs. 4,47,000/- (Rupees four lakhs forty seven thousand only), which shall be satisfied with interest at the rate of 9% from the date of petition till realisation, within ‘one month’ from the date of receipt of a copy of the judgment.

10. The appeal stands allowed to the above extent. No cost.