Benny v. Divisional Manager, National Insurance Company Limited, Kottayam Branch

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **THURSDAY ,THE 27TH DAY OF SEPTEMBER 2018 / 5TH ASWINA, 1940** **MACA.No. 2101 of 2015** **AGAINST THE AWARD IN OPMV 1117/2013 of ADDL.M.A.C.T-I, KOTTAYAM DATED 09-03-2015** ## **APPELLANT/PETITIONER:** **BENNY AGED 49 YEARS S/O.ZACHARIAH, ILAVUMKAL HOUSE, CHAKKAPALAM KARA, ANAKARA VILLAGE, KUMALI, IDUKKI DISTRICT.** **BY ADVS. SRI.P.M.JOSHI SMT.ELIZABETH KOSHY SMT.SIJI K.PAUL** ## **RESPONDENT/RESPONDENT NO.3:** **DIVISIONAL MANAGER** **NATIONAL INSURANCE COMPANY LIMITED, KOTTAYAM BRANCH, KOTTAYAM -1** **BY ADV. SRI.PMM.NAJEEB KHAN** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 27.09.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA.No. 2101 of 2015 2 ## **JUDGMENT** This appeal is preferred against the award in O.P(MV) No.1117/2013 of the Motor Accidents Claims Tribunal, Kottayam by the injured. On 23.04.2013 at 8.00 pm, the appellant sustained injuries in a motor accident, while he was walking through the side of M.C road at Changanacherry. The learned Tribunal awarded compensation of Rs.8,79,100/- with 9% interest and proportionate cost. Being aggrieved by that, the injured preferred this appeal. 2. Appellant's case was that on 23.04.2013 at 8.00 pm, while he was walking through the eastern side of M.C road, in front of Municipal Office at Changanacherry, an autorickshaw KL 33 E 1155 driven in a rash and negligent manner knocked down him, as a result he sustained serious injuries. Immediately, he was removed to Taluk hospital, Changanacherry, from there, he was referred to Medical College Hospital, Kottayam. The driver and owner of the vehicle were set ex-parte. The insurer admitted the insurance of the vehicle. The claimant did not adduce any oral evidence, but his documents were marked as Exts.A1 to A7. The MACA.No. 2101 of 2015 3 disability certificate was marked as Ext.X1. The learned Tribunal awarded the following amount as compensation. 1. Loss of earnings Rs.49,500/2. Transport to hospital Rs.2,000/3. Extra nourishment Rs.2,000/4. Damage to clothing Rs.1,000/5. Medical expenses Rs.33,953/6. Bystander expenses Rs.10,000/7. Pain and sufferings Rs.50,000/- 8. Compensation for permanent disabilityRs.6,00,600/- 9. Compensation for loss of amenities Rs.30,000/10. Compensation for loss of earning power Rs.1,00,000/- **Total Rs.8,79,053/-** 3. The learned counsel appearing for the appellant contended that he sustained serious injuries in the accident and just amount was not awarded. He was a mason by profession and was getting Rs.12,000/- per month, but the learned Tribunal took Rs.5,500/- for calculating disability compensation. He sustained permanent disability of 80% and was unable to do any work and totally bed ridden. He is living in a vegetable state. The injured was produced before the High Court, the present stage was convinced by the respondent's counsel Adv. PMM Najeeb Khan. Hence the disability is 100%. MACA.No. 2101 of 2015 4 4. The learned counsel appearing for the insurer contended that the injured is not an aggrieved party in view of the decision of apex court in _**Mithun Subramanian v. Nidhish Eldo Jospeh and another (2017 (3) KHC 710)**_ . Ext.X1 disability certificate shows 80% disability and the Tribunal took 70%, that may be increased upto 80%. 5. Apex court in _**Raj Kumar v. Ajay Kumar [2011(1) KLT 620 (SC)]**_ held as follows: _“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 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_ MACA.No. 2101 of 2015 5 _either too low or too high a compensation. What requires to be assessed by the Tribunal is the effect of the permanent 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 terms 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._ 6. Ignoring the above judicial precedent rendered by the apex court, the learned Tribunal reduced the disability from 80% to 70% itself is an illegality. Ext.X1 was certified by the Medical Board, Kottayam. If there is any dispute with regard to the assessment of the disability or the Tribunal is not satisfied with the disability certificate produced by the appellant, it can direct to constitute another Medical Board and refer the claimant to such Medical Board and assess the disability afresh. Such reference was not done in this case, but the learned Tribunal reduced the disability from 80% to 70%. 7. The appellant was a mason by profession and MACA.No. 2101 of 2015 6 was getting Rs.12,000/- per month. The work of a mason is a skilled job and the wages of an ordinary labourer is fixed as Rs.750/- by the Government of Kerala in the year 2017, earlier it was above Rs.500/-. If 20 days income is considered, the monthly income will be Rs.10,000/-. In the absence of any contra evidence, in view of the decisions in _**Syed Sadiq and others v. Divisional Manager, United India Insurance Company Ltd (2014 (2) SCC 735)**_ and _**Dixit Kumar and Ors. v. OM Prakash Goel (2017 ACJ 2057)**_ and the monthly income is fixed as Rs.10,000/-. The age of the injured is 49 years at the time of accident and the multiplier is 13. In view of _**National Insurance Company V. Pranay Sethi [2017 (4) KLT 662 (SC)]**_ , 25% is added towards future prospects with the monthly income. For calculating disability compensation, the monthly income is taken as Rs.12,500/-. 8. In the decision of Apex court in _**S. Suresh v. Oriental Insurance Company and another (JT 2009 14 SC 359)**_ , the driver sustained 40% disability and considering his profession, it was fixed as 100% disability. In _**Rekha Jain**_ _**v. National Insurance Company Limited (2013 8 SCC 389)**_ , 30% disability was fixed as 100% disability. _**K.**_ MACA.No. 2101 of 2015 7 ## _**Janarthanan v. United India Insurance Company Limited**_ _**(2008 2 KLT 995)**_ , the disability was fixed at 100%. The job of a mason is a skilled work and he has to stand for a long time in connection with his construction work. Now he is in a vegetable state and unable to stand or sit and lying fully bed ridden. If that be the position, 80% disability certified by the Medical Board in Ext.X1 certificate is considered as 100% disability. Hence, the disability compensation is Rs.12,500x12x13x100/100=Rs.19,50,00/-. The learned Tribunal awarded Rs.6,00,600/- and the balance amount is Rs.13,49,400/-. Along with that, another Rs.1,00,000/- for pain and suffering, another Rs.1,00,000/- for loss of amenities and future medical treatment another Rs.2,00,000/-. The learned Tribunal awarded compensation for loss of earning power additional Rs.1,00,000/-, which is duplication, that amount is set aside. The total compensation is Rs.17,49,400/-. Therefore, the appellant is entitled to get total additional compensation of Rs.17,49,400/-. 9. Three Judge Bench of apex court in _**Rajesh and Ors. vs. Rajbir Singh and Ors. ( 2013 ACJ 1403)**_ held that the Tribunal /Court has duty, irrespective of claims made MACA.No. 2101 of 2015 8 in application, if any, to properly award just, equitable, fair and reasonable compensation, if necessary, ignoring claim made in application for compensation amount awarded in excess of what is claimed under Section 166. The learned counsel for the insurer relied the decision in _**Mithun Subramanian v. Nidhish**_ **(supra),** but in view of the decision of apex court in _**Rajesh**_ **(supra)** , the appellant is entitled to get enhanced compensation of Rs.17,49,400/(Rupees Seventeen Lakhs Forty Nine Thousand Four Hundred only) with 9% interest and proportionate cost in addition to the award amount. The insurer is directed to satisfy the award within 30 days from the date of receipt of a copy of this judgment, failing which it will carry 12% interest from the date of default. This appeal is disposed of, as above. Sd/- **P.D.RAJAN JUDGE** bng/06.10.18