Ahammed Abbas @ Abbas v. K. C. Mohammed Haneefa and ICICI Lombard General Insurance Company Ltd.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN & THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN FRIDAY, THE 10TH DAY OF JUNE 2016/20TH JYAISHTA, 1938 MACA.No. 1029 of 2016 ------------------------AGAINST THE AWARD IN OPMV 592/2013 of M.A.C.T., MANJERI DATED 19-12-2015 ............ APPELLANT/PETITIONER : ----------------------------- AHAMMED ABBAS @ ABBAS 44 YEARS, S/O.HAMMED HAJI, KIZHISSERI HOUSE, PERINTHALMANNA AMSOM, KAKKOTH DESOM, POST KAKKOTH, PERINTHALMANA TALUK, MALAPPURAM DISTRICT BY ADV. SRI.R.SREEHARI ## RESPONDENTS/RESPONDENTS : ------------------------------------ 1. K.C.MOHAMMED HANEEFA S/O.HAMSA, KARIMBANACHUNDANGAYIL HOUSE, POST KUNNAPALLY, PERINTHALMANNA TALUK, MALAPPURAM DISTRICT 679322 2. ICICI LOMBARD GENERAL INSURANCE COMPANY LTD. CITY PLAZA, 2ND FLOOR, YMCA CROSS ROAD, KOZHIKODE, PIN 673001 R1 BY SRI.C.M.KAMMAPPU R2 BY SRI.LATHEESH SEBASTIAN THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 25-05-2016, ALONG WITH MACA. 1057/2016, THE COURT ON 10-06-2016 DELIVERED THE FOLLOWING: ## **P.N. RAVINDRAN, J. & K. RAMAKRISHNAN, J.** **-----------------------------------M.A.C.A. Nos.1029 & 1057 of 2016 ------------------------------------------------Dated this the 10[th] day of June 2016** ## **J U D G M E N T** ## **Ramakrishnan, J.** M.A.C.A. No.1029 of 2016 is filed by the claimant in O.P.(MV) No.592 of 2013 on the file of the Motor Accidents Claims Tribunal, Manjeri while M.A.C.A. No.1057 of 2016 was filed by the second respondent, Insurance Company in the very same case. For the purpose of convenience, we are referring the status of the parties as in the court below. 2. The claimant in this case filed an application for compensation for the injuries and disability suffered by him in a motor vehicle accident that occurred at 11 p.m. on 11.11.2012. According to the claimant, while he was riding on his motor cycle bearing registration No.KL-53-B-5143 through Pattambi - Perinthalmanna public road when it reached the place of occurrence, a car with registration No.KL-53-D-909 owned and driven by the first respondent came in a negligent manner from the opposite direction and hit against the motor cycle driven by the claimant. The accident occurred due to the negligence of the first M.A.C.A. Nos.1029 & 1057 of 2016 -: 2 :- respondent and the second respondent being the insurer, they are liable to indemnify the first respondent. As such, both are jointly and severally liable to pay compensation to the claimant. He suffered severe injuries, which resulted in permanent disability affecting his earning capacity and he claimed an amount of `24,00,000/- as compensation under various heads. 3. The first respondent remained absent. 4. The second respondent entered appearance and filed a written statement admitting the insurance of the vehicle, namely; the car involved in the accident, but denied the allegation that the accident occurred due to the negligence of the first respondent. According to them, the claimant himself was responsible for the accident. They denied the age, income, injuries and disability of the petitioner mentioned in the petition. According to them, the amount claimed as compensation is excessive and disproportionate to the nature of injuries sustained. They prayed for dismissal of the application. 5. No oral evidence was adduced on either side. Exts.A1 to A10 series and X1 were marked on the side of the claimant. After considering the evidence on record, the Tribunal found that the accident occurred due to negligent driving of the car by the first ## M.A.C.A. Nos.1029 & 1057 of 2016 -: 3 :- respondent and awarded a total compensation of `30,30,583/-, rounded to `30,30,500/- as follows :- |**Sl. No.**|**Head of Claim**|**Amount**<br>**claimed**<br>**(in rupees)**|**Amount**<br>**awarded**<br>**(in rupees)**|**Basis-vital**<br>**details in a**<br>**nutshell.**| |---|---|---|---|---| |1|Loss of earning|1,08,000|2,16,000|| |2|Partial loss of earning|Nil|Nil|| |3|Transport to hospital|10,000|18,000|| |4|Extra nourishment|5,000|12,750|250 x 51| |5|Damage to clothing and<br>articles|1,000|1,000|| |6|Bystander expenses|11,000|17,850|350 x 51| |7|Helper/Assistant|Nil|1,00,000|| |8|Medical expenses|10,00,000|10,04,183|Ext.A10 series| |9|Medical costs and<br>incidental expenses to<br>include future medical<br>costs|5,00,000|1,00,000|| |10|Pain and suffering|65,000|1,00,000|| |11|Loss of amenities|50,000|1,00,000|| |12|Continuing or<br>permanent disability, if<br>any|1,50,000|13,60,800|| |13|Loss of earning power|5,00,000|Nil|| ||**Total**`|**24,00,000/-**|**30,30,583/-**<br>**(rounded to**<br>**30,30,500/-)**|| The Tribunal also found that respondents are jointly and severally liable to pay the compensation and the 2[nd] respondent being the insurer of the vehicle was directed to deposit the amount. Dissatisfied with the quantum of compensation awarded, the claimant has preferred M.A.C.A.No.1029 of 2016 and aggrieved by ## M.A.C.A. Nos.1029 & 1057 of 2016 -: 4 :- the quantum of compensation awarded, the second respondent Insurance Company has filed M.A.C.A.No.1057 of 2016. Since both these appeals arise out of the very same award, we are disposing both the appeals by a common judgment. 6. Heard Sri.R.Sreehari, learned counsel appearing for the claimant, who is the appellant in M.A.C.A. No.1029 of 2016 and Sri.Latheesh Sebastian, learned counsel appearing for the second respondent before the lower court, who is the appellant in M.A.C.A. No.1057 of 2016. 7. Learned counsel for the claimant submitted that the court below was not justified in coming to the conclusion that he has only 90% disability. The court below ought to have held that he is totally disabled and taken 100% disability. The court below ought to have taken the entire income stated by the petitioner for fixing the compensation. The amount awarded under the heads, pain and suffering, loss of amenities in life, future treatment etc. are on lower side. According to him, he is entitled to get enhanced compensation under all heads. 8. On the other hand, learned counsel for the Insurance Company submitted that the claimant had lost only one leg and he can do some other work. So, the court below was not justified in M.A.C.A. Nos.1029 & 1057 of 2016 -: 5 :- taking 90% disability for the purpose of assessing compensation under the head 'loss of earning power'. Further, the court below was not justified in awarding `2,16,000/- under the head 'loss of earnings' during the period of treatment of two years. The amounts awarded under the heads 'bystander expense', 'medical expense' etc. are also on the higher side. So, according to learned counsel for the Insurance Company, the amount awarded is excessive. 9. Since, the finding regarding negligence and liability of the Insurance Company to indemnify the insured are not in dispute, we are not going into those aspects in this appeal. The case of the claimant in the claim petition was that, he was a coolie by profession earning `9,000/- per month. But, no documentary evidence was adduced on the side of the claimant to prove this fact. He was aged 42 years at the time of accident which occurred in the year 2012. Even in 1994, the Legislature has taken `15,000/- per annum as the notional income for a non earning member for awarding compensation under 163A of the Act in the Second Schedule of the Act. If proportionate increase is made considering the cost of living, increase in wages etc., some allowance will have to be made for the purpose of fixing monthly income of the injured, even if there is no documentary evidence to prove that fact. It is not possible for a person, who is not employed M.A.C.A. Nos.1029 & 1057 of 2016 **==> picture [30 x 10] intentionally omitted <==** under a particular person on a permanent basis to produce documents to prove his monthly income as such. Taking an average income of `300/- per day for atleast 20 days a month, he will get an amount of `6,000/- as income per month and as such, the amount of `6,000/- fixed by the court below cannot be said to be excessive as claimed by the Insurance Company or low as claimed by the claimant. So, the court below was perfectly justified in fixing the monthly income of the injured as `6,000/- per month. 10. In the decision reported in **Rajesh** v. **Rajbir Singh** [2013 (3) KLT 89 (SC)] the Supreme Court has held that even in cases where there is no permanent income for the deceased/victim, future prospects will have to be taken into consideration for selecting the multiplicant for assessing compensation under the head 'loss of dependency' in the case of death. The future prospects will have to be taken as 50% upto the age of 40 years, 30% upto the age of 50 years and 15% upto the age of 60 years. In the decision reported in **Syed Sadiq and Others** v. **Divisional Manager, United India Insurance Company Limited** [(2014) 2 SCC 735], the Supreme Court has held that the principle of taking future prospects can be extended to the case of injury as well. So, considering the fact that the injured is aged 42 years, the court below was perfectly justified in taking 30% M.A.C.A. Nos.1029 & 1057 of 2016 -: 7 :- as future prospects for the purpose of assessing the compensation under the head 'permanent disability/loss of earning capacity. 11. The claimant in this case suffered abrasion over forehead, nasal bleeding, lacerated wound 25 x 15 over the distal aspect of the right thigh and muscles exposed with deformity of distal thigh, fracture of both bones of the right forearm, fracture of the right tibial condyle with segmental bone loss, crush injury on the right knee, fracture of the right lateral malleolus and amputation of right leg above knee. He was immediately taken to Moulana Hospital, Perinthalmanna and treated there. On 22.12.2012, he was discharged from there and referred to Ganga Medical Centre and Hospital, Coimbatore. On the same day, he was admitted and treated there. He was discharged on 31.12.2012 with an advise to continue the treatment. Ext.A2 is the copy of the wound certificate issued from Moulana Hospital, Perinthalmanna, which shows that the claimant was treated in the hospital on 11.11.2012. Ext.A6 certificate issued from Moulana Hospital, Perinthalmanna shows that he was admitted in the hospital with a history of RTA. He was diagnosed to have head injury, closed, fracture right M/3 both bones forearm, crush injury, right thigh and knee with type III B, compound fracture right tibial condyle with fracture left superior and inferior pubic rami, fracture M.A.C.A. Nos.1029 & 1057 of 2016 -: 8 :- right calcaneum, fracture right lateral malleolus, Diabetes mellitus with compartment syndrome right leg. He was treated with wound debridement and fasciotomy of right leg. External K-wire fixation was done on 12.11.2012. Wound debridement was done on 14.11.2012 under General Anesthesia. Forearm fracture was managed by Open Reduction Internal Fixation with plate and screws on 19.11.2012 under General Anesthesia and Closed Reduction Internal Fixation with K-wire fixation of lateral malleolus was done on 19.11.2012 and multiple dressing for right leg was continued on subsequent days for right leg wound. Wound debridement and docking of fracture fragments were done on 19.12.2012 and wound dressing continued till 21.12.2012. He was managed in surgical ICU from the date of admission till 14.12.2012. Considering his wound status and poor progress of wound healing with sequestration of tibia middle 3[rd] , he was advised to undergo amputation of right leg. For getting a second opinion, he was shifted to Ganga Hospital, Coimbatore upon the request of the patient's bystander. Ext.A7 certificate issued from the Moulana Hospital, Perinthalmanna shows that the correct name of the patient is 'Muhammed Abbas', which was shown as 'Abbas' in the records. ## M.A.C.A. Nos.1029 & 1057 of 2016 -: 9 :- 12. Ext.A8 was the discharge summary issued from the Ganga Medical Centre and Hospital, Coimbatore, which shows that he was admitted in the hospital on 22.12.2012 and discharged on 31.12.2012. He was diagnosed with 1½ month old open fracture both bones of right leg with transarticular exfix insitu with segmental bone loss (proximal tibia) and knee amputation of right lower limb was done on 21.12.2012. So, considering the nature of injuries sustained and the treatment undergone, he could not have worked for atleast one year and not for two years as taken by the court below. Further, the court below was not correct in taking his income as `9,000/- after adding future prospects of 30% for assessing compensation under the head 'loss of earning power' for the purpose of awarding compensation under the head 'loss of earning' during the period of treatment. The court below should have taken his actual montly income as above for this purpose. Taking his monthly income as `6,000/-, loss of income of 12 months, he will be entitled to get compensation of an amount of `72,000/- under the head 'loss of earning' instead of `2,16,000/awarded by the Tribunal. So, the amount has to be reduced to `72,000/- from `2,16,000/- awarded by the Tribunal. 13. The Tribunal was perfectly justified in allowing the entire medical expenses covered by Ext.A10 series and we do not find any ## M.A.C.A. Nos.1029 & 1057 of 2016 -: 10 :- reason to interfere with that amount. Considering the nature of injuries and period of treatment undergone, the amount awarded under the head 'transport to hospital', 'pain and suffering' etc. appears to be reasonable and we are not inclined to interfere with the same. 14. The court below awarded `17,850/- at the rate of `350/per day for bystander's expense during the period of his treatment for 51 days in the hospital, which cannot be said to be excessive. Considering the fact that his leg was amputated he cannot do any work for some more time in the house without any help of assistant. So, the court below was perfectly justified in awarding some amount under the head 'helper/assistant'. But the amount of `1,00,000/awarded by the Tribunal under that head appears to be on the higher side and we reduce the same to `50,000/-. He was aged 42 years at the time of accident. So, the court below was perfectly justified in taking '14' as multiplier, relying on the decision reported in **Sarla Verma and Others** v. **Delhi Transport Corporation and Another** [(2009) 6 SCC 121]. 15. Ext.X1 disability certificate shows that the claimant is having 85% permanent partial disability. The Tribunal has accepted percentage of disability assessed by the medical board and taken the M.A.C.A. Nos.1029 & 1057 of 2016 -: 11 :- disability as 90% for the purpose of assessing compensation under the head, 'loss of earning power'. In the decision reported in **Raj Kumar** v. **Ajay Kumar** [2011 (1) KLT 620 (SC)], the Supreme Court has formulated a method for ascertainment of the effect of permanent disability on actual earning capacity as follows :- “Ascertainment of the effect of the permanent disability on the actual earning capacity involves three steps. The Tribunal has to first ascertain what activities the claimant could carry on in spite of the permanent disability and what he could not do as a result of the permanent disability (this is also relevant for awarding compensation under the head of loss of amenities of life). The second step is to ascertain his avocation, profession and nature of work before the accident, as also his age. The third step is to find out whether (i) the claimant is totally disabled from earning any kind of livelihood, or (ii) whether in spite of the permanent disability, the claimant could still effectively carry on the activities and functions, which he was earlier carrying on, or (iii) whether he was prevented or restricted from discharging his previous activities and functions, but could carry on some other or lesser scale of activities and functions so that he continues to earn or can continue to earn his livelihood.” 16. Further, in the same decision, the general principle relating to compensation in injury cases also has been discussed and observed as follows :- ## M.A.C.A. Nos.1029 & 1057 of 2016 ## -: 12 :- “4. The provision of the Motor Vehicles Act, 1988 ('Act' for short) makes it clear that the award must be just, which means that compensation should, to the extent possible, fully and adequately restore the claimant to the position prior to the accident. The object of awarding damages is to make good the loss suffered as a result of wrong done as far as money can do so, in a fair, reasonable and equitable manner. The court or tribunal shall have to assess the damages objectively and exclude from consideration any speculation or fancy, though some conjecture with reference to the nature of disability and its consequences, is inevitable. A person is not only to be compensated for the physical injury, but also for the loss which he suffered as a result of such injury. This means that he is to be compensated for his inability to lead a full life, his inability to enjoy those normal amenities which he would have enjoyed but for the injuries, and his inability to earn as much as he used to earn or could have earned. (See C. K. Subramonia Iyer v. T. Kunhikuttan Nair (AIR 1970 SC 376), R. D. Hattangadi v. Pest Control (India) Ltd., (1995) 1 SCC 551 and Baker v. Willoughby (1970 AC 467). 5. The heads under which compensation is awarded in personal injury cases are the following : ## **Pecuniary damages (Special Damages)** - (i) Expenses relating to treatment, hospitalization, medicines, transportation, nourishing food, and miscellaneous expenditure. - (ii) Loss of earnings (and other gains) which the injured would have made had he not been injured, comprising : - (a) Loss of earning during the period of treatment; - (b) Loss of future earnings on account of permanent disability. M.A.C.A. Nos.1029 & 1057 of 2016 ## -: 13 :- (iii) Future medical expenses. ## **Non - pecuniary damages (General Damages)** - (iv) Damages for pain, suffering and trauma as a consequence of the injuries. - (v) Loss of amenities (and / or loss of prospects of marriage). - (vi) Loss of expectation of life (shortening of normal longevity). In routine personal injury cases, compensation will be awarded only under heads (i), (ii)(a) and (iv). It is only in serious cases of injury, where there is specific medical evidence corroborating the evidence of the claimant, that compensation will be granted under any of the heads (ii)(b), (iii), (v) and (vi) relating to loss of future earnings on account of permanent disability, future medical expenses, loss of amenities (and / or loss of prospects of marriage) and loss of expectation of life. Assessment of pecuniary damages under item (i) and under item (ii)(a) do not pose much difficulty as they involve reimbursement of actuals and are easily ascertainable from the evidence. Award under the head of future medical expenses - item (iii) -- depends upon specific medical evidence regarding need for further treatment and cost thereof. Assessment of non - pecuniary damages - items (iv), (v) and (vi) -- involves determination of lump sum amounts with reference to circumstances such as age, nature of injury / deprivation / disability suffered by the claimant and the effect thereof on the future life of the claimant. Decision of this Court and High Courts contain necessary guidelines for award under these heads, if necessary. What usually poses some difficulty is the assessment of the loss of future earnings on account of permanent disability - item (ii)(a). We are concerned with that assessment in this case. ## M.A.C.A. Nos.1029 & 1057 of 2016 ## -: 14 :- ## **Assessment of future loss of earnings due to permanent disability** 6. Disability refers to any restriction or lack of ability to perform an activity in the manner considered normal for a human - being. Permanent disability refers to the residuary incapacity or loss of use of some part of the body, found existing at the end of the period of treatment and recuperation, after achieving the maximum bodily improvement or recovery which is likely to remain for the remainder life of the injured. Temporary disability refers to the incapacity or loss of use of some part of the body on account of the injury, which will cease to exist at the end of the period of treatment and recuperation. Permanent disability can be either partial or total. Partial permanent disability refers to a person's inability to perform all the duties and bodily functions that he could perform before the accident, though he is able to perform some of them and is still able to engage in some gainful activity. Total permanent disability refers to a person's inability to perform any avocation or employment related activities as a result of the accident. The permanent disabilities that may arise from motor accidents injuries, are of a much wider range when compared to the physical disabilities which are enumerated in the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 ('Disabilities Act' for short). But if any of the disabilities enumerated in S.2(i) of the Disabilities Act are the result of injuries sustained in a motor accident, they can be permanent disabilities for the purpose of claiming compensation. 7. The percentage of permanent disability is expressed by the Doctors with reference to the whole body, or more ## M.A.C.A. Nos.1029 & 1057 of 2016 -: 15 :- often than not, with reference to a particular limb. When a disability certificate states that the injured has suffered permanent disability to an extent of 45% of the left lower limb, it is not the same as 45% permanent disability with reference to the whole body. The extent of disability of a limb (or part of the body) expressed in terms of a percentage of the total functions of that limb, obviously cannot be assumed to be the extent of disability of the whole body. If there is 60% permanent disability of the right hand and 80% permanent disability of left leg, it does not mean that the extent of permanent disability with reference to the whole body is 140% (that is 80% plus 60%). If different parts of the body have suffered different percentages of disabilities, the sum total thereof expressed in terms of the permanent disability with reference to the whole body, cannot obviously exceed 100%. 8. Where the claimant suffers a permanent disability as a result of injuries, the assessment of compensation under the head of loss of future earnings, would depend upon the effect and impact of such permanent disability on his earning capacity. The Tribunal should not mechanically apply the percentage of permanent disability as the percentage of economic loss or loss of earning capacity. In most of the cases, the percentage of economic loss, that is, percentage of loss of earning capacity, arising from a permanent disability will be different from the percentage of permanent disability. Some Tribunals wrongly assume that in all cases, a particular extent (percentage) of permanent disability would result in a corresponding loss of earning capacity, and consequently, if the evidence produced show 45% as the permanent disability, will hold that there is 45% loss of future earning capacity. In ## M.A.C.A. Nos.1029 & 1057 of 2016 ## -: 16 :- most of the cases, equating the extent (percentage) of loss of earning capacity to the extent (percentage) of permanent disability will result in award of either too low or too high a compensation. What requires to be assessed by the Tribunal is the effect of the permanently disability on the earning capacity of the injured; and after assessing the loss of earning capacity in terms of a percentage of the income, it has to be quantified in terns of money, to arrive at the future loss of earnings (by applying the standard multiplier method used to determine loss of dependency). We may however note that in some cases, on appreciation of evidence and assessment, the Tribunal may find that percentage of loss of earning capacity as a result of the permanent disability, is approximately the same as the percentage of permanent disability in which case, of course, the Tribunal will adopt the said percentage for determination of compensation (see for example, the decisions of this court in Arvind Kumar Mishra v. New India Assurance Co.Ltd., 2010 (10) SCALE 298 and Yadava Kumar v. D.M., National Insurance Co. Ltd., 2010 (8) SCALE 567). 9. Therefore, the Tribunal has to first decide whether there is any permanent disability and if so the extent of such permanent disability. This means that the tribunal should consider and decide with reference to the evidence: (i) whether the disablement is permanent or temporary; (ii) if the disablement is permanent, whether it is permanent total disablement or permanent partial disablement, (iii) if the disablement percentage is expressed with reference to any specific limb, then the effect of such disablement of the limb on the functioning of the entire body, that is the permanent disability suffered by the person. If the Tribunal concludes that there is no permanent disability then there is no question ## M.A.C.A. Nos.1029 & 1057 of 2016 -: 17 :- of proceeding further and determining the loss of future earning capacity. But if the Tribunal concludes that there is permanent disability then it will proceed to ascertain its extent. After the Tribunal ascertains the actual extent of permanent disability of the claimant based on the medical evidence, it has to determine whether such permanent disability has affected or will affect his earning capacity. 10. Ascertainment of the effect of the permanent disability on the actual earning capacity involves three steps. The Tribunal has to first ascertain what activities the claimant could carry on in spite of the permanent disability and what he could not do as a result of the permanent ability (this is also relevant for awarding compensation under the head of loss of amenities of life). The second step is to ascertain his avocation, profession and nature of work before the accident, as also his age. The third step is to find out whether (i) the claimant is totally disabled from earning any kind of livelihood, or (ii) whether in spite of the permanent disability, the claimant could still effectively carry on the activities and functions, which he was earlier carrying on, or (iii) whether he was prevented or restricted from discharging his previous activities and functions, but could carry on some other or lesser scale of activities and functions so that he continues to earn or can continue to earn his livelihood. For example, if the left hand of a claimant is amputated, the permanent physical or functional disablement may be assessed around 60%. If the claimant was a driver or a carpenter, the actual loss of earning capacity may virtually be hundred percent, if he is neither able to drive or do carpentry. On the other hand, if the claimant was a clerk in government service, the loss of his left hand may not result in loss of employment and he may ## M.A.C.A. Nos.1029 & 1057 of 2016 -: 18 :- still be continued as a clerk as he could perform his clerical functions; and in that event the loss of earning capacity will not be 100% as in the case of a driver or carpenter, nor 60% which is the actual physical disability, but far less. In fact, there may not be any need to award any compensation under the head of 'loss of future earnings', if the claimant continues in government service, though he may be awarded compensation under the head of loss of amenities as a consequence of losing his hand. Sometimes the injured claimant may be continued in service, but may not found suitable for discharging the duties attached to the post or job which he was earlier holding, on account of his disability, and may therefore be shifted to some other suitable but lesser post with lesser emoluments, in which case there should be a limited award under the head of loss of future earning capacity, taking note of the reduced earning capacity. It may be noted that when compensation is awarded by treating the loss of future earning capacity as 100% (or even anything more than 50%), the need to award compensation separately under the head of loss of amenities or loss of expectation of life may disappear and as a result, only a token or nominal amount may have to be awarded under the head of loss of amenities or loss of expectation of life, as otherwise there may be a duplication in the award of compensation. Be that as it may. 11. The Tribunal should not be a silent spectator when medical evidence is tendered in regard to the injuries and their effect, in particular the extent of permanent disability. S.168 and S.169 of the Act make it evident that the Tribunal does not function as a neutral umpire as in a civil suit, but as an active explorer and seeker of truth who is required to 'hold ## M.A.C.A. Nos.1029 & 1057 of 2016 -: 19 :- an enquiry into the claim' for determining the 'just compensation'. The Tribunal should therefore take an active role to ascertain the true and correct position so that it can assess the 'just compensation'. While dealing with personal injury cases, the Tribunal should preferably equip itself with a Medical Dictionary and a Handbook for evaluation of permanent physical impairment (for example the Manual for Evaluation of Permanent Physical Impairment for Orthopedic Surgeons, prepared by American Academy of Orthopedic Surgeons or its Indian equivalent or other authorized texts) for understanding the medical evidence and assessing the physical and functional disability. The Tribunal may also keep in view the first schedule to the Workmen's Compensation Act, 1923 which gives some indication about the extent of permanent disability in different types of injuries, in the case of workmen. If a Doctor giving evidence uses technical medical terms, the Tribunal should instruct him to state in addition, in simple non - medical terms, the nature and the effect of the injury. If a doctor gives evidence about the percentage of permanent disability, the Tribunal has to seek clarification as to whether such percentage of disability is the functional disability with reference to the whole body or whether it is only with reference to a limb. If the percentage of permanent disability is stated with reference to a limb, the Tribunal will have to seek the doctor's opinion as to whether it is possible to deduce the corresponding functional permanent disability with reference to the whole body and if so the percentage. 12. The Tribunal should also act with caution, if it proposed to accept the expert evidence of doctors who did not treat the injured but who give 'ready to use' disability ## M.A.C.A. Nos.1029 & 1057 of 2016 ## -: 20 :- certificates, without proper medical assessment. There are several instances of unscrupulous doctors who without treating the injured, readily giving liberal disability certificates to help the claimants. But where the disability certificates are given by duly constituted Medical Boards, they may be accepted subject to evidence regarding the genuineness of such certificates. The Tribunal may invariably make it a point to require the evidence of the Doctor who treated the injured or who assessed the permanent disability. Mere production of a disability certificate or Discharge Certificate will not be proof of the extent of disability stated therein unless the Doctor who treated the claimant or who medically examined and assessed the extent of disability of claimant, is tendered for cross - examination with reference to the certificate. If the Tribunal is not satisfied with the medical evidence produced by the claimant, it can constitute a Medical Board (from a panel maintained by it in consultation with reputed local Hospitals / Medical Colleges) and refer the claimant to such Medical Board for assessment of the disability. 13. We may now summarise the principles discussed above : (i) All injuries (or permanent disabilities arising from injuries), do not result in loss of earning capacity. (ii) The percentage of permanent disability with reference to the whole body of a person, cannot be assumed to be the percentage of loss of earning capacity. To put it differently, the percentage of loss of earning capacity is not the same as the percentage of permanent disability (except in a few cases, where the Tribunal on the basis of evidence, concludes that percentage of loss of earning capacity is the same as percentage of permanent disability). M.A.C.A. Nos.1029 & 1057 of 2016 ## -: 21 :- (iii) The doctor who treated an injured - claimant or who examined him subsequently to assess the extent of his permanent disability can give evidence only in regard the extent of permanent disability. The loss of earning capacity is something that will have to be assessed by the Tribunal with reference to the evidence in entirety. (iv) The same permanent disability may result in different percentages of loss of earning capacity in different persons, depending upon the nature of profession, occupation or job, age, education and other factors. 14. The assessment of loss of future earnings is explained below with reference to the following illustrations: **Illustration 'A'** : The injured, a workman, was aged 30 years and earning Rs.3000/- per month at the time of accident. As per Doctor's evidence, the permanent disability of the limb as a consequence of the injury was 60% and the consequential permanent disability to the person was quantified at 30%. The loss of earning capacity is however assessed by the Tribunal as 15% on the basis of evidence, because the claimant is continued in employment, but in a lower grade. Calculation of compensation will be as follows: a) Annual income before the accident : Rs.36,000/-. - b) Loss of future earning per annum (15% of the prior annual income) : Rs.5400/-. - c) Multiplier applicable with reference to age : 17 d) Loss of future earnings : (5400 x 17) : Rs. 91,800/- **Illustration 'B'** : The injured was a driver aged 30 years, earning Rs.3000/- per month. His hand is amputated and his permanent disability is assessed at 60%. He was terminated from his job as he could no longer drive. His chances of getting any other employment was bleak and even if he got M.A.C.A. Nos.1029 & 1057 of 2016 **==> picture [37 x 10] intentionally omitted <==** any job, the salary was likely to be a pittance. The Tribunal therefore assessed his loss of future earning capacity as 75%. Calculation of compensation will be as follows: a) Annual income prior to the accident : Rs.36,000/-. b) Loss of future earning per annum (75% of the prior annual income) : Rs.27000/-. c) Multiplier applicable with reference to age : 17 d) Loss of future earnings : (27000 x 17) : Rs. 4,59,000/- **Illustration 'C'** : The injured was 25 years and a final year Engineering student. As a result of the accident, he was in coma for two months, his right hand was amputated and vision was affected. The permanent disablement was assessed as 70%. As the injured was incapacitated to pursue his chosen career and as he required the assistance of a servant throughout his life, the loss of future earning capacity was also assessed as 70%. The calculation of compensation will be as follows: - a) Minimum annual income he would have got if had been employed as an Engineer : Rs.60,000/- b) Loss of future earning per annum (70% : Rs.42000/- of the expected annual income) c) Multiplier applicable (25 years) : 18 d) Loss of future earnings : (42000 x 18) : Rs. 7,56,000/[ **Note** : The figures adopted in illustrations (A) and (B) are hypothetical. The figures in Illustration (C) however are based on actualize taken from the decision in Arvind Kumar Mishra (supra)]. 15. After the insertion of S.163A in the Act (with effect from 14.11.1994), if a claim for compensation is made under that section by an injured alleging disability, and if the quantum of loss of future earning claimed, falls under the M.A.C.A. Nos.1029 & 1057 of 2016 -: 23 :- second schedule to the Act, the Tribunal may have to apply the following principles laid down in Note (5) of the Second Schedule to the Act to determine compensation : " **5. Disability in non - fatal accidents** : The following compensation shall be payable in case of disability to the victim arising out of non - fatal accidents : - Loss of income, if any, for actual period of disablement not exceeding fifty two weeks. PLUS either of the following : - (a) In case of permanent total disablement the amount payable shall be arrived at by multiplying the annual loss of income by the Multiplier applicable to the age on the date of determining the compensation, or (b) In case of permanent partial disablement such percentage of compensation which would have been payable in the case of permanent total disablement as specified under item (a) above. Injuries deemed to result in Permanent Total Disablement / Permanent Partial Disablement and percentage of loss of earning capacity shall be as per Schedule I under Workmen's Compensation Act, 1923." 17. The same principle has been reiterated in the decision reported in **Syed Sadiq's case** (cited supra). That also was a case where, the claimant suffered amputation of one leg above the knee and the disability was assessed as 85%. He was a vegetable vendor aged 24 years. In that case, the court below had taken disability as 85% instead of 65% taken by the High Court. In that case, it was M.A.C.A. Nos.1029 & 1057 of 2016 -: 24 :- held that even if a person is having occupational disability, he can do some other work for earning his livelihood and that will have to be taken as his income for assessing compensation under the head 'loss of earning power'. So, taking that principle in mind, the Supreme Court has taken 85% disability in the case of loss of one leg and no increase was given in taking percentage of disability. Under such circumstances, the court below was not justified in taking 90% disability for assessing compensation under the head 'loss of earning power'. Considering these aspects, the injured will be entitled to get a compensation of only `11,13,840/- [(`6,000 x 130%) = `7,800 x 12 x 14 x 85%)] under that head instead of `13,60,800/- awarded by the Tribunal. 18. Further, in the above decisions, it has been held that in cases where, the claimant suffered permanent disability affecting his earning capacity, reasonable amount will have to be awarded under the head 'loss of amenities in life', taking into consideration the impact of his disability in his personal life, especially the fact that the claimant was aged only 42 years at the time of accident and he lost his right leg in the accident, it may have a great impact on his personal life. It will be affect his mobility as such. He cannot move freely as he was doing prior to the accident. He may require ## M.A.C.A. Nos.1029 & 1057 of 2016 **==> picture [37 x 10] intentionally omitted <==** some support from his relatives even for his day-to-day life. So, considering these aspects, we feel that the amount of `1,00,000/awarded by the Tribunal under that head appears to be on the lower side and we increase the same to `2,00,000/-. 19. It is seen from the documents produced that the claimant is suffering from diabetes mellitus as well. So, he may have to undergo future treatment for the injuries sustained. In order to have his avocation in a better manner, he may require an artificial limb as well. Without that, it will be very difficult for him to do any job for his livelihood. So, considering these aspects, we feel that an amount of `1,50,000/- can be awarded under the head 'future medical expense and incidental expenses' including fixation of an artificial limb, instead of `1,00,000/- awarded by the Tribunal. The court below had awarded only `12,750/- under the head 'extra nourishment'. He has undergone treatment as an inpatient in the hospital for 51 days. Even after the discharge from the hospital, he may have had to get nutritious food apart from his normal food. So, considering these aspects, we enhance the same to `20,000/- from `12,750/-. We confirm the amount awarded under the head 'damage to clothing and articles', namely; `1,000/- awarded by the Tribunal. In all, the claimant will ## M.A.C.A. Nos.1029 & 1057 of 2016 ## -: 26 :- be entitled to get `27,46,873/-, which we rounded to `27,47,000/instead of `30,30,500/- awarded by the Tribunal. 20. In view of the above calculation, we reassess the compensation payable to the claimant as follows :- |**Sl. No.**|**Head of Claim**|**Amount**<br>**awarded by the**<br>**Tribunal**<br>**(in rupees)**|**Amount**<br>**reassessed by**<br>**this court**<br>**(in rupees)**|**Remarks**| |---|---|---|---|---| |1|Loss of earning|2,16,000|72,000|6,000 x 12| |2|Partial loss of earning|Nil||| |3|Transport to hospital|18,000|18,000|| |4|Extra nourishment|12,750|20,000|| |5|Damage to clothing and<br>articles|1,000|1,000|| |6|Bystander expenses|17,850|17,850|During the<br>period of his<br>treatment in the<br>hospital as<br>inpatient| |7|Helper/Assistant|1,00,000|50,000|For the period<br>after the<br>discharge from<br>the hospital| |8|Medical expenses|10,04,183|10,04,183|Ext.A10 series| |9|Medical costs and<br>incidental expenses<br>including future medical<br>costs and fixation of<br>artificial limb|1,00,000|1,50,000/-|| |10|Pain and suffering|1,00,000|1,00,000|| |11|Loss of amenities|1,00,000|2,00,000|| |12|Continuing or permanent<br>disability, if any / loss of<br>earning power|13,60,800|11,13,840|6000 x 130% x<br>12 x 14 x 85%| ||**Total**|`**30,30,583/-**<br>**(rounded to**<br>`**30,30,500/-)**|`**27,46,873/-**<br>**(rounded to**<br>`**27,47,000/-)**|| ## M.A.C.A. Nos.1029 & 1057 of 2016 **==> picture [37 x 10] intentionally omitted <==** So, the amount of compensation awarded is reduced to ` **27,47,000/-,** which the 2[nd] respondent Insurance Company is liable to pay with 9% interest for the amount less `1,50,000/- awarded towards future medical expenses till payment. The claimant is also entitled to proportionate costs in the lower court. The parties are directed to bear their respective costs in the appeals. If the amount is deposited, then the claimant is permitted to withdraw `15,00,000/- and the balance amount is directed to deposit in fixed deposit in a nationalised bank for a period of three years with liberty to the claimant to withdraw the amount showing the necessities. Accordingly, M.A.C.A. No.1029 of 2016 is dismissed as the amount of compensation awarded by the Tribunal has been reduced and M.A.C.A. No.1057 of 2016 is allowed in part modifying the award passed by the Tribunal as mentioned above. **Sd/-** **P.N. RAVINDRAN JUDGE** **Sd/K. RAMAKRISHNAN JUDGE** Jvt/7.6.2016.