Appukutty C., S/O Kunhan v. United India Insurance Company Limited (MACA Nos. 1744 & 2618 of 2009)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE S.SIRI JAGAN & THE HONOURABLE MR. JUSTICE BABU MATHEW P.JOSEPH** **FRIDAY, THE 8TH DAY OF MARCH 2013/17TH PHALGUNA 1934** **MACA.No. 1744 of 2009 (C) -------------------------** **AGAINST THE AWARD IN OPMV.1493/2004 of M.A.C.T., MANJERI DATED 17-03-2009** ## **APPELLANT(S):3RE RESPONDENT** **------------------------** **UNITED INDIA INSURANCE COMPANY LIMITED, NILAMBUR NOW REP.BY ITS DEPUTY MANAGER REGIONAL OFFICE, "SHARANYA", HOSPITAL ROAD KOCHI-11.** **BY ADVS.SRI.MATHEWS JACOB (SR.) SRI.P.JACOB MATHEW** **RESPONDENT(S): PETITIONER** **----------------------------** **APPUKUTTY C,S/O.KUNHAN, CHATTUVALAYAN HOUSE, THAVANOOR P.O, KUZHIMANNA (VIA) MALAPPURAM DISTRICT.** **R1 BY ADV. SRI.P.VIJAYA BHANU R1 BY ADV. SRI.P.VENUGOPAL** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 08-03-2013, A/W. M.A.C.A NO. 2618/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** S. Siri Jagan & Babu Mathew P. Joseph, JJ. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= M.A.C.A. Nos. 1744 & 2618 of 2009 =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-= Dated this, the 8[th] day of March, 2013. ## J U D G M E N T ## Siri Jagan, J. These two appeals are filed by the claimant and the Insurance Company in O.P(MV) No. 1493/2004, before the Motor Accidents Claims Tribunal, Manjeri. Both have filed their respective appeal challenging the quantum of compensation awarded by the Tribunal. The Insurance Company wants reduction of the quantum and the claimant wants enhancement of the quantum. In the accident, the claimant suffered serious injuries to both his legs. He underwent traumatic amputation right foot at P level and traumatic amputation of left leg above knee level, crushing degloving of dorsum of foot. The claimant claimed that his monthly income from his employment in a private chemical company was Rs.4000/- p.m. Although the claimant produced a salary certificate from his employer, he did not adduce any oral evidence in support of the same. Therefore, the Tribunal fixed notional income of Rs. 3000/- p.m. The medical board who examined the claimant certified 55% physical disability. The Tribunal held that although the disability certified by the medical board is 55%, because of the disability suffered by the claimant, he has suffered 100% loss of earning capacity. On the basis of these inputs, the Tribunal awarded compensation under various heads as follows: Transport to the hospital Damage to the clothing Rs. 1,000.00 Rs. 250.00 |M.A.C.A. Nos. 1744 & 2618 of 2009<br>-: 2 :-<br>Extra nourishment and bystanders<br>expenses<br>For reviews (25 times)<br>Pain and suffering<br>For loss of income for 1 years<br>@ Rs.3,000/- per month<br>Medical bills<br>For future treatment<br>For disfigurement<br>For disability (36000x100x15/100)<br>Total|Rs. 1,900,00<br>Rs.<br>2,500.00<br>Rs. 20,000.00<br>Rs. 36,000.00<br>Rs. 43,373.00<br>Rs. 10,000.00<br>Rs. 5,000.00<br>Rs. 5,40,000.00| |---|---| ||<br>Rs. 6,60,023.00| 2. The Insurance Company contends that the Tribunal erred in adopting 100% loss of earning capacity when the medical board certified only 55% disability. 3. The claimant would contend that the Tribunal went wrong in fixing notionally Rs. 3,000/- as his monthly income. He submits that even assuming that Rs. 3000/- is the income to be fixed, in view of the decisions of the Supreme Court in **Sarla Verma v. Delhi Transport Corporation** , 2010 (2) KLT 802 (SC) **Santosh Devi v. National Insurance Company Ltd., and others,** 2012 KHC 4238, 30% should have been added for future prospects, which has not been done by the Tribunal. It is also submitted that the compensation for pain and suffering of Rs. 20,000/- is not commensurate with the trauma undergone by the claimant during the period of his treatment. The further contention is that the Tribunal has M.A.C.A. Nos. 1744 & 2618 of 2009 -: 3 :- not awarded any compensation for loss of amenities in life. The claimant also finds fault with the Tribunal for not awarding adequate compensation for transport to hospital, although it is in evidence that he had to go to the hospital for review 24 times. It is submitted that the hospital is about 45 kms. away from his house. With the disability he suffered, he cannot travel except in a taxi and for at least 30 times he must have visited the hospital for which adequate compensation has not been awarded by the Tribunal, is the contention raised. 4. We have considered the rival contentions in detail. 5. We shall first deal with the contention of the Insurance Company. 6. As we have already stated, the contention of the Insurance Company is that when the medical board has assessed disability at 55%, the Tribunal could not have adopted 100% disability for the purpose of calculating loss of earning capacity. Of course, the learned counsel for the Insurance Company finds fault with the Tribunal in adopting the percentage fixed in the Workmen's Compensation Act, which cannot be applied for claims under Section 166 of the Motor Vehicles Act. Even assuming that as contended by the counsel for the Insurance Company, the percentage fixed in the Workmen's Compensation Act cannot be adopted for the purpose of calculating loss of earning capacity in claims under Section 166 of the Motor Vehicles Act, we have to still consider the M.A.C.A. Nos. 1744 & 2618 of 2009 -: 4 :- effect of the disability suffered by the claimant on his capacity to earn a living. Of course, that will essentially depend upon the disability itself, which has to be considered in the light of the avocation which the claimant was engaged in. The claimant was 36 years old at the relevant time. He claimed that he was a semi-skilled worker in Associated Engineering and Chemicals, a private firm. Although he produced a salary certificate for Rs. 4000/-, he did not either examine himself or the employer to prove the same. Therefore, that cannot be accepted as the basis for determining the claimant's monthly income. Of course, the learned counsel for the appellant would point out that in view of the decisions in **Sarla Verma's case** (supra) and **Santosh Devi's case** (supra), the future prospect should also be taken into account for the purpose of fixing income for calculating loss of earning capacity. But, in the absence of any reliable evidence regarding the income of the claimant, we are inclined to adopt Rs. 3000/- as the income including future prospects as well. 7. As we have already indicated, the Tribunal has to necessarily consider the impact of the physical disability on the earning power of the claimant. Therefore, simply because the medical board had assessed disability of only 55%, that does not mean that the loss of earning power is also only 55%. It is not in dispute before us that the claimant's right foot was amputated and his left leg was amputated above the left knee. With that disability, the M.A.C.A. Nos. 1744 & 2618 of 2009 -: 5 :- claimant will not be able to engage in any avocation whatsoever and earning any meaningful income. Therefore, we do not find any infirmity in the Tribunal holding that on account of the disability, the claimant has suffered 100% loss of earning capacity. In the above circumstances, we are not inclined to interfere with the Tribunal awarding compensation for loss of earning to the extent of 100%. 8. Now, we shall come to the claim of the claimant. The claimant would seriously contest the monthly income fixed by the Tribunal. We note that although the claimant had produced Ext.A4 salary certificate claiming to be earning daily wages of Rs. 119.55, the claimant did not support the same by oral evidence either on his own or that of his employer. Therefore, that document cannot be taken on face value. The accident was in 2003. There is no clear cut evidence as to the employment of the claimant except the salary certificate, which has not been proved properly. In the above circumstances, we are inclined to take his monthly income including future prospects as Rs.3000/-. Therefore, we do not find any reason to interfere with the compensation fixed for loss of earning capacity (which is termed as disability by the Tribunal). 9. The Tribunal has awarded an amount of Rs.20,000/towards compensation for pain and suffering. It cannot be disputed by anybody that because of the injuries and consequent amputation of his one leg and the foot of the M.A.C.A. Nos. 1744 & 2618 of 2009 -: 6 :- other, the claimant would have suffered excruciating pain not only physically but also mentally. Therefore, we enhance the compensation for pain and suffering from Rs. 20,000/- to Rs. 30,000/-. 10. The claimant did not claim any amount towards loss of amenities in life either in the claim petition or in the appeal memorandum in this appeal. The learned counsel for the Insurance Company would contend that therefore the Tribunal was right in not awarding any compensation for loss of amenities. We are unable to agree with the counsel for the Insurance Company. It is settled law that it is the duty of the Tribunal and this Court to see that a claimant is paid just compensation for his injuries and consequent disability even if under a particular head he has not claimed a particular amount towards compensation. As we have already indicated, in cases of permanent disability, the compensation is not only for the loss of earning capacity but also for the adverse effect of the disability on the personal life of the injured. Apart from earning his livelihood, the claimant will have to do his personal chores every day like every other human being. If because of the disability he has difficulties in doing the same, he should be adequately compensated for the same. The disability suffered by the claimant in this case is serious enough to warrant substantial sum towards compensation for loss of amenities in life. We fix the same as Rs. 50,000/-. 11. Although the appellant had not specifically proved M.A.C.A. Nos. 1744 & 2618 of 2009 -: 7 :- the distance to the hospital and the amounts incurred for transportation to hospital, noting the fact that he had to attend the hospital for reviews on so many occasion, we grant Rs. 2500/- more under this head in addition to what has been awarded by the Tribunal. Adding together, the appellant will be entitled to additional compensation of Rs.62,500/- over and above what has been awarded by the Tribunal. That amount would carry interest @ 9% p.a. from the date of the claim petition till the date of payment. The Insurance Company is directed to deposit that amount also within two months. Consequently, M.A.C.A. No. 1744/1999 is dismissed and M.A.C.A. No. 2618/2009 is disposed of as above. Sd/- S. Siri Jagan, Judge. Sd/- Babu Mathew P. Joseph, Judge. Tds/ [True copy] P.S to Judge.