Prathapan R.V. vs Balachandran Pillai and Others

S. Siri Jagan, J.—An unfortunate 22 year old youth, who became a paraplegic because of injuries suffered in an accident caused by the negligent driving of a vehicle owned and driven by respondents 1 and 2 and insured with the 3rd respondent, is the appellant herein. He filed O.P. (M.V.) No. 924/2006 before the Motor Accidents Claims Tribunal, Kollam, claiming compensation for the injuries and consequent disability suffered by him in the accident. The Tribunal, after finding negligence on the part of the driver of the vehicle, awarded compensation under various heads as follows:

Dissatisfied with the quantum of compensation awarded by the Tribunal, the appellant has filed this appeal seeking enhanced compensation.

The accident was on 22.4.2006. The appellant was 22 years old at the time of the accident. He claimed to be a Marketing Executive employed in a private firm earning Rs. 10,000/- per month as income. But the Tribunal fixed the monthly income only as Rs. 5,000/-. The appellant submits that, that is on the lower side. It is further submitted that the medical board, who examined the appellant on a reference from the Tribunal, certified the percentage of physical disability on account of the injuries in the accident as 80%. But the Tribunal has arbitrarily reduced the percentage of disability to 60% for calculating loss of earning capacity. It is also submitted that after fixing the monthly income as Rs. 5,000/-, for the purpose of calculating loss of earning capacity, the Tribunal adopted the income only as Rs. 3,000/-, which is erroneous. It is further submitted that the compensation for pain and sufferings awarded by the Tribunal is palpably inadequate to compensate the pain and sufferings suffered by the appellant. As a paraplegic, the appellant would require the assistance of a bystander through out his life. Therefore, the Tribunal went wrong in fixing the compensation for bystander''s expenses only as Rs. 8,600/-, is the further contention raised. It is also contended that the compensation for loss of amenities in life is also not commensurate with the loss suffered by him under that head.

On the other hand, the learned counsel for the insurance company would vehemently argue that the Tribunal has considered every aspect of the matter in the right perspective and no interference is called for at the hands of this Court on the amount of compensation fixed by the Tribunal.

We have considered the rival contentions in detail.

As far as the avocation and income of the appellant are concerned, the appellant did not have any consistent case. Of course, he had examined some persons to prove his employment and income. But before the medical board, who examined him, he submitted that he was working as an LIC agent. In view of the contradictory statements before different authorities, we are not inclined to interfere with the monthly income of Rs. 5,000/- fixed by the Tribunal, which includes future prospects as well. But after fixing the income as Rs. 5,000/-, the Tribunal could not have reduced the same further to Rs. 3,000/- for the purpose of calculating loss of earning capacity. Of course, it is true that the medical board has certified physical disability of 80%. But the medical board has stated that the disability suffered by the appellant are as follows:

Total paralysis of both legs. Muscle power - 0

Complete stiffness of both knees and ankles (in extension)

Complete sensory loss below T 5 level.

Bowel and bladder dysfunction.

No bed sores now.

Right forearm with in normal limits (Implant in situ).

X-ray of the Thoracic spine taken 08.12.2010 shows stabilised fracture D5 vertebra with implant in situ.

X-ray of the right forearm taken on 08.12.2010 shows the fracture of the radius well united, no deformity, no shortening, no excessive callus and implant in situ.

The same would show that there is no prospect of the appellant earning any income whatsoever for the rest of his life. Therefore, we are of opinion that, for the purpose of loss of earning capacity, the percentage of disability should be taken as 100%. Consequently, for loss of earning capacity, the appellant is entitled to a total compensation of Rs. 10,80,000/- ( Rs. 5,000 x 12 x 18 x 100%), instead of Rs. 3,88,800/- awarded by the Tribunal. The difference would be Rs. 6,91,200/-. It cannot be disputed that for his personal needs, he would certainly require a bystander for the rest of his life. Therefore, we award a further amount of Rs. 1,00,000/- towards bystander''s expenses for present and future. The poor appellant has suffered like anything during the period of treatment and his sufferings will continue. Therefore, we are inclined to award a compensation of Rs. 1,00,000/- for pain and sufferings instead of Rs. 25,000/- awarded by the Tribunal. The appellant is entitled to more amount towards loss of amenities in life insofar as he has practically no enjoyment of life for the rest of his life. Therefore, we enhance the compensation for loss of amenities in life to Rs. 3,00,000/- instead of Rs. 1,29,600/- awarded by the Tribunal. The appellant would have to certainly incur future medical expenses as well. We award Rs. 50,000/- for future medical expenses. Despite the persuasive arguments of the learned counsel for the appellants, we are not inclined to enhance compensation under the other heads. But since we are awarding compensation for 100% loss of earning capacity, the appellant is not entitled to loss of earnings for six months, because the compensation for 100% loss of earning capacity includes that amount also. Therefore, the said amount of Rs. 30,000/- has to be deducted from the additional compensation we are awarding to the appellant. The total additional compensation to which the appellant is entitled to is Rs. 10,86,600/-. If Rs. 30,000/- is reduced therefrom, the additional compensation amount due to the appellant would be Rs. 10,56,600/-. The appellant is entitled to interest at the rate of 9% per annum only on Rs. 9,06,600/- insofar as interest would not run on future bystander''s expenses as well as future medical expenses. That interest also shall be paid by the insurance company. The insurance company shall pay the additional compensation and the interest awarded by us within two months. The total additional compensation shall be deposited in a nationalised bank drawing interest and the appellant would be entitled to withdraw interest from that amount periodically. If, for some special needs, any additional amount is necessary, it would be open to the appellant to approach the Tribunal for release of the amounts in deposit showing specific reasons, which shall be considered by the Tribunal in accordance with law.

The appeal is disposed of with the above modification of the impugned award.