Anil Uthuppu v. Reji Paul and National Insurance Co. Ltd.

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **WEDNESDAY, THE 30[TH] DAY OF MARCH 2022 / 9TH CHAITHRA, 1944** **MACA NO. 1378 OF 2013** **AGAINST THE ORDER/JUDGMENT IN OPMV 845/2008 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL** ## **MUVATTUPUZHA** ## **APPELLANT/PETITIONER:** **ANIL UTHUPPU,S/O. UTHUPPU, KANIYANNOOR HOUSE, POOTHRIKA, IKKARANADU SOUTH VILLAGE, ERNAKULAM DISTRICT BY ADVS. SRI.T.K.KOSHY SRI.ABE RAJAN SMT.V.V.RISANI** ## **RESPONDENTS/RESPONDENTS 1 & 2:** **1 REJI PAUL KAYYANICKAL HOUSE, KUNNACKAL, VALAKOM, MUVATTUPUZHA 686 661 2 NATIONAL INSURANCE CO.LTD BRANCH OFFICE,KOLENCHERRY ,PIN-682 311 BY ADV DEEPA GEORGE** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON** **30.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA No.1378/2013 2 ## **JUDGMENT** This appeal has been filed against the Award passed in O.P.(M.V)No.845/2008 on the file of Motor Accidents Claims Tribunal, Muvattupuzha (in short, the Tribunal). The claim petition has been filed under Section 166 of the Motor Vehicles Act, 1988 (in short, the Act) for the injuries sustained by the claimant in a motor accident occurred on 16.06.2008 due to hit by a car bearing Reg.No.KL-17/E 1104 at Vadaympadi while he was riding a motorcycle bearing Reg.No.KL-7/AE 8647. 2. It is alleged that the accident happened due to the rash and negligent driving of the first respondent, owner cum driver of the car. Second respondent is the insurer of the car. A total compensation of Rs.4,02,000/- was claimed which was limited to Rs.3,50,000/-. 3. Before the Tribunal, first respondent remained exparte. Second respondent filed written statement admitting the policy coverage with respect to the offending vehicle. It is also contended that the accident happened due to the rash MACA No.1378/2013 3 and negligent riding of the motorcycle by the appellant/claimant and rashness and negligence on the part of the first respondent is denied. 4. Exts.A1 to A18 marked from the side of the appellant/claimant. There was no oral evidence from either side. 5. Tribunal on evaluating the pleadings as well as the documents produced, awarded a total amount of Rs.2,03,800/which was allowed to be realised with interest @ 8% per annum from the date of petition. 6. Dissatisfied with the quantum of compensation awarded by the Tribunal under various heads, the appellant/claimant (hereinafter be referred as the claimant) is before this Court in appeal for various grounds stated in the memorandum of appeal. 7. Notice as against first respondent is dispensed with since the second respondent admitted the policy coverage with respect to the offending vehicle. Adv.Smt. Deepa George appeared on behalf of the insurer, second respondent. 8. Heard the learned counsel for the appellant as well MACA No.1378/2013 4 as the learned counsel for the second respondent, insurer. Lower court records were called for and perused. 9. According to the learned counsel for the claimant, appellant sustained 16% permanent whole body disability and had undergone 4 surgeries as well as 23 days inpatient treatment in a speciality hospital. Hence, compensation awarded under various heads are inadequate and he seeks for enhancement of compensation on all heads. 10. The learned Standing Counsel on the other hand would contend that compensation already awarded by the Tribunal under the head of disability itself is illegal since claimant continues in service and there is no loss of earning power and according to her just and reasonable compensation has already been awarded on all heads and no enhancement is required at the instance of this Court. 11. In Raj Kumar v. Ajay Kumar and Anr. [(2011) 1 SCC 343 : 2011 ACJ 1 : 2010 KHC 5021 ] the Apex Court has dealt with the general principles relating to compensation in injury cases. Damages have been classified under the heads pecuniary damages (special damages) and non-pecuniary MACA No.1378/2013 5 damages (general damages) in cases of personal injury matters. In case of routine personal injury cases, compensation will be awarded towards expenses relating to treatment, hospitalization, medicines, transportation, nourishing food and miscellaneous expenditure and loss of earning during the period of treatment as well as for damages for pain and suffering and trauma as a consequence of the injury. Only in serious cases of injury where there is medical evidence proving disability certificate corroborating the evidence of claimant compensation will be granted for loss of future earnings on account of permanent disability, future medical expense, loss of amenities and loss of expectation of life etc. 12. The injuries sustained by the claimant as borne out from Ext.A9 and 10 discharge summaries are as follows: Diagnosis in Ext.A9 : Comminuted segmental fracture shaft (R) femur with sub trochanteric extension, Lacerated wound L/3[rd] (R) thigh with quadriceps muscle tear, Fracture tibia/fibula (R) leg with compartment syndrome. The treatment undergone by him as per Ext.A9 is that on 16.6.2008 emergency fasciotomy MACA No.1378/2013 6 of leg compartments and interlocking nailing (R) tibia using 9x340 (Yogeshwar) nail was done. Wound debridement and repair of quadriceps muscle was done. Lower femoral traction was applied. On 23.6.2008 recon nailing (R) femur using 11x400 (SMPL) nail was done along with SSG of raw areas of (R) leg. On 2.7.2008 once SSG settled, NWB crutch, walking, knee mobilization & Q'ceps exercise were started. 13. As per Ext.A10 again he was admitted on 09.01.2009 to 13.01.2009 which would show the treatment undergone as dynamisation and bone grafting of right femur. FBW walking was started on 2[nd] POP day. X-Ray result would show non union of m/3[rd] shaft. Subtrochanteric fracture united with Recon nail in situ. 14. Admittedly claimant is working as Lab Assistant in Mar Kurilose Higher Secondary School, Pattimattom. According to the learned counsel, the Tribunal taken the salary as Rs.6,500/-. But actually the income of the claimant was 7,763/- and he produced Employment certificate in appeal and as per order in I.A.No.1/2021 it has been accepted and marked as Ext.A19 to prove the income for the month of June MACA No.1378/2013 7 2008. It would prove the salary of the claimant during that time as Rs.7,763/-. He also bring to my attention Ext.A14 salary certificate which would certify that the claimant was on medical leave from 17.6.2008 to 06.9.2008 (82 days) due to motor accident. So actually these leaves could have been used by him for any other useful purpose. [See. George v. Krishna Venu [2020 (4) KLT 239]. Hence claimant is entitled to get compensation for the loss of earning for those period also. So under the head of loss of earnings for 82 days, claimant is entitled to get Rs.21,218/-. Deducting the amount already awarded the balance would be Rs.3,451/ - [21,218 – 17,767] . 15. Towards bystander expenses, the Tribunal awarded Rs.2,200/- in total. It has come out that he has undergone 23 days inpatient treatment. The accident was in the year 2008. So towards bystander expenses, claimant is entitled to get Rs.5,750/- (250x23). Deducting the amount already awarded, balance would be Rs.3,550/[5,750-2,200]. Towards transportation, an amount of Rs.8,000/- was claimed. But only Rs.3,500/- has been awarded. The discharge summaries and the other treatment records would go to show that he had MACA No.1378/2013 8 been to hospital on several occasions due to the accident. So amount of Rs.6,000/- can be awarded towards transportation expenses. So towards transportation, the enhanced amount would be Rs.2,500/ - [6,000-3500]. 16. Towards extra nourishment, an amount of Rs.7,000/is awarded in view of the fact that he is a Lab Assistant working in a school and also in view of the treatment and the injury sustained by him. So deducting the amount already awarded, the claimant is entitled to get Rs.3,000/- [7,0004,000]. 17. The main dispute is with regard to the compensation on account of future loss of earning power due to the disability. As per Ext.A13 Orthopedic Surgeon assessed the permanent whole body disability as 16% as per Mc Bride Scale. But the Tribunal adopted 12% whole body disability and Tribunal taken the multiplicand as Rs.3,000/- notionally and adopted multiplier of '17' as per 2[nd] Schedule and awarded Rs.73,440/- under the head of physical disability and disfiguration. 18. Apex Court in para No.10 of Raj Kumar referred MACA No.1378/2013 9 above made an elaborate discussion with respect to ascertainment of the effect of permanent disability on the actual earning capacity, which reads thus: “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 MACA No.1378/2013 10 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 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. …..........”. 19. In the present case though Ext.A13 disability certificate has been produced certifying 16% whole body disability Doctor was not examined and Tribunal adopted 12% MACA No.1378/2013 11 whole body disability in view of the nature of injuries and period of inpatient treatment undergone by the claimant and other facts and circumstances. I do not find any reason to interfere with the percentage of disability adopted by the Tribunal. Since the claimant continues in service as held in Raj Kumar his loss of earning capacity is far less than any other who is self employed. 20. In New India Assurance Company Ltd. v. Satish Chandra Sharma and Another : Civil Appeal No.1579 of 2022 @ S.L.P (c) No.14350 of 2019 Apex Court while dealing with fixation of compensation in the case of injury sustained by a person in government service has held that though he would be entitled for pension and retirement benefits, he lost opportunity to take up post-retirement employment and hence an amount of Rs.3,79,000/- was awarded. That was a case in which the claimant sustained 75% disability to the lower limbs. 21. In the present case, claimant has been working as Lab Assistant in a school and was aged 32 years. The accident was in the year 2008. So the income can notionally be taken as MACA No.1378/2013 12 Rs.6,500/-. The accident and 12% permanent disability will definitely reduce the opportunity to take up post-retirement employment. Hence claimant is allowed realise Rs.84,240/[6,500x12x12x9/100] towards disability. Deducting the amount already awarded by the Tribunal balance would be Rs.10,800/[84,240-73,440]. 22. Medical records would reveal that he has undergone three surgeries. Tribunal awarded Rs.35,000/- towards pain and suffering. It has come out that he has undergone 23 days inpatient treatment in a speciality hospital. Hence an amount of Rs.15,000/- is further awarded towards pain and suffering. 23. The learned counsel also bring to my attention Ext.A13 disability certificate issued by the Consultant Orthopedic Surgeon, Deputy Director, KHS (Rtd) certifying that he has 16% permanent whole body disability as per Mc Bride Scale. Photograph of the claimant was also brought to my attention, which had been marked as Ext.A17, would show deep old scars on two sides of his right leg. The photographs shows dis-figuration to his right leg to a great extent. He is working as a Lab Assistant and was only 32 years at the time MACA No.1378/2013 13 of accident. Ext.A13 disability certificate would state about his inability to stand or climb and the rotation of leg is also limited. So considering the nature of his work the disability caused due to the accident would cause great inconvenience in discharging his duties. So towards loss of amenities an amount of Rs.40,000/- is awarded. Deducting the amount already awarded, balance would be Rs.20,000/ - [40,00020,000]. 24. In the result, the appellant/claimant is allowed to realise enhanced compensation of Rs.58,301/[3,451+ 3,550+2,500+3,000+10,800+15,000+20,000] rounded to Rs.58,300/- (Rupees fifty eight thousand three hundred only), which will carry interest at the rate of 6.5% per annum from the date of petition till realisation (excluding the period of 13 days delay caused in filing the appeal). The second respondentinsurer is directed to pay the additional compensation granted in this appeal, together with interest, within a period of two months from the date of receipt of certified copy of this judgment, after deducting the liability towards balance Court Fee. MACA No.1378/2013 14 25. Appellant/claimant shall provide his/her Bank Account details (attested copy of the relevant page of the Bank Passbook having details of the Bank Account Number and IFSC Code of the branch) before the Tribunal, within one month from the date of receipt of certified copy of this judgment. Parties shall bear their respective costs. Sd/- **M.R.ANITHA JUDGE** ## **shg** MACA No.1378/2013 15 ## **APPENDIX** **APPELLANT'S EXTS:** **ANNEXURE A1: EMPLOYMENT CERTIFICATE DATED 28.01.2022 ISSUED BY THE MAR COORILOSE MEMORIAL HIGHER SECONDARY SCHOOL,** **PATTIMATTOM**