NATIONAL INSURANCE COMPANY LIMITED Vs. ANU @ ANU KURIAN

JUDGEMENT

(1.) Both the above appeals arise from the award of the Motor Accident Claims Tribunal, Palakkad in O. P. (M. V) No. 1081/2005. M.A.C.A No. 177/2013 is filed by the 3rd respondent, insurance company and M.A.C.A No. 31/2014 is filed by the claimant. In both the appeals the only dispute is with respect to the quantum of compensation awarded. While the claimant is contending that the amount of compensation awarded is highly inadequate, insufficient and disproportionate, the insurance company is challenging the award contending that the amount granted is excessive.

(2.) The accident occurred on 22.04.2005 when a lorry hit against the motor cycle on which the appellant was riding. The Tribunal found that the accident was caused due to the negligence on the part of the driver of the lorry and held that the appellant insurance company is liable to pay the amount of compensation awarded. The appellant sustained Type -II open fracture of both bones on his right leg, fracture of right clavicle, comminuted fracture of right distal end of radius, along with head injury including fracture of right temporal bone and fracture on the anterior and posterio-lateral wall of the right orbit, cuppled with contusive haemorrhage, pneumocephalous and soft tissue swelling with mild proptosis. He was treated at different hospitals as in-patient on twelve occasions, spreading from the year 2005 to 2009. Exts. A10 to A19 are the discharge summary certificates produced, with respect to those in-patient treatments undergone. Ext. X1 "Disability Certificate" showed that the injuries sustained to the appellant had resulted in persistent disability of, impairment of memory and other cognitive functions, difficulty in speaking, weakness and stiffness of both upper and lower limbs, urinary and fecal incontinence and epileptic convulsions. Neurological deficiencies noted in Ext. X1 are impairment of memory and communication abilities, hypertonia of both upper and lower limbs with brisk reflexes, weakness of both upper and lower limbs. It is specifically mentioned that the appellant requires support for doing activities of daily life like, eating, bathing, shaving, dress making and toilet functions. It is also mentioned that there is recurring post traumatic epilepsy. Ext. X1 certificate was issued by the Medical Board attached to the Medical College Hospital, Thrissur. After examination of the appellant on 09.11.2009 and 02.12.2009, the Medical Board opined that, he is having 50% permanent neurological disability, 30% visual disability and 15% orthopaedic disability. On combining those disabilities, based on the formula applicable, the whole body permanent disability of the appellant was assessed at 70%.

(3.) In the claim petition, the appellant alleged that he was working in a private firm, as well as doing agricultural operations of his own. The monthly income claimed was Rs. 4500/-. The Tribunal found that no proof was adduced to prove the alleged employment. However, a notional income of Rs. 4,000/- was adopted by the Tribunal for the purpose of computation. Taking note of the details contained in Ext. X1 disability certificate and on a physical examination of the appellant, who was produced before the Tribunal with the help of two supporters, the Tribunal found that the appellant was totally disabled and the functional disability need to be assessed at 100%. The wife of the appellant was examined before the Tribunal as PW1. Her testimony is to the effect that, the appellant is unable to do anything after the accident and he used to have fits. It was stated that, he is unable to stand up or rise from the bed and has no memory, without even able to identify his own wife. The Tribunal found that the appellant is living in a bed ridden and vegetative state.