Dennish @ Denny v. Rajan P.J. and George S/o Poulose and The Manager, National Insurance Company Ltd.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **MONDAY, THE 17[TH] DAY OF JANUARY 2022 / 27TH POUSHA, 1943 MACA NO. 3016 OF 2009** **OPMV 1379/2004 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, IRINJALAKUDA** ## **APPELLANT/PETITIONER** DENNISH @ DENNY, S/O VARGHESE, THATTARAPARAMBIL HOUSE, NORTH CHALAKUDY, THRISSUR DISTRICT BY ADV SRI.T.N.MANOJ ## **RESPONDENTS/RESPONDENTS** 1.RAJAN P.J., PALALATHINGAL HOUSE, K.K.ROAD, CHALAKUDY, 2.GEORGE S/O POULOSE, CHOORAMANA HOUSE, PARIYARAM DESOM, THRISSUR 3. THE MANAGER, NATIONAL INSURANCE COMPANY LTD, AMBIKA ARCADE, M.G.ROAD, THRISSUR BY ADV SRI.E.M.JOSEPH FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 6.1.2022, THE COURT ON 17.01.2022 DELIVERED THE FOLLOWING: MACA.3016 of 2009 2 ## **JUDGMENT** 1. Appellant is the claimant in O.P.(MV).1379/2004 on the file of Motor Accident Claims Tribunal, Irinjalakuda. The claim petition was filed under Section 166 of the Motor Vehicles Act, 1998 (in short the Act) for the injury sustained by the appellant/claimant in a motor accident occurred on 28.5.2004 at about 2.00 am at Sevanur Privu in Tamil Nadu. 2. It is alleged that the appellant/claimant (hereinafter referred as the claimant) was travelling as agent as owner of the goods carried in lorry with registration No.KL.08/T 2967 from Bangalore to Chalakudy. While reaching at the place of occurrence, due to the rash and negligent driving of the lorry driven by the 2[nd] respondent, it hit on another lorry bearing registration No.T.N.27/1555. Out of the accident, claimant sustained grievous injuries on his right leg and due to that, his right leg has to be amputed just below the hip and serious injury was sustained to the left leg also, causing loss of left calcaneum. MACA.3016 of 2009 3 3. 2[nd] respondent, the driver remained ex parte to the proceedings before the Tribunal. 3[Rd] respondent is the Insurance Company. 1[St] respondent is the owner of the offending vehicle, who filed written statement admitting the case of the claimant that he was accompanying the goods in the lorry as representatives of the owner. 4. 3[rd] respondent filed written statement admitting the Insurance coverage of the lorry involved in the accident but contending that the petitioner was only a gratuitous passenger in the goods vehicle and is not covered by the policy. 5. The owner of the goods in the lorry was examined as PW1 and the claimant was examined as PW2. Exts.A1 to A10 marked from the side of the claimant and Exts.B1 to B2 were marked from the side of the 3[rd] respondent. 6. Thereafter on hearing both sides and evaluating the facts and circumstances and the evidence adduced, the Tribunal found that the accident occurred due to rash and negligent driving of the lorry by the 2[nd] respondent. With regard to the liability of the 3[rd] respondent, it was found by the Tribunal that the claimant was an agent of the owner of the goods and is MACA.3016 of 2009 4 entitled to get statutory protection and coverage under Section 147 of the Motor Vehicles act as authorized agent of the owner of the goods and found that the claimant is covered by Ext.P1 policy statutorily and hence 3[rd] respondent Insurance Company is liable to pay the compensation. 7. The claimant approaches this Court dissatisfied with the quantum of compensation awarded by the Tribunal. Though respondents 1 to 3 were duly served, 3[rd] respondent insurer alone contested the matter. The learned standing counsel would contend that a just and reasonable compensation has been awarded by the Tribunal and no interference is called for in this appeal. 8. The learned counsel for the claimant on the other hand would contend that, claimant suffered serious injuries and he had been working as a salesman with P.J.Fruits, Chalakkudy. He was aged 27 years and was having a monthly income of Rs.4000/-. The total amount of compensation claimed was Rs.12,00,000/-. The Tribunal under various heads awarded a total compensation of Rs.8,40,800/- which according to the claimant is very low in view of the injury sustained by him. It is MACA.3016 of 2009 5 contended that the monthly income notionally fixed by the Tribunal as Rs.2000/- is very low. Claimant as PW2 deposed that he had been working as agent of PW1, the owner of the lorry and was not a gratuitous passenger. During crossexamination also, he asserted his stand that he had travelled in the lorry as agent. The averments in the claim petition is that he is an employee in P.J.Fruits. It is true that he did not produce any document to prove that he is an employee in P.J.Fruits. 9. In this context it is relevant to quote **Ramachandrapa v manager, Royal Sundaram Alliance Insurance Company Limited [(2011) 13 SCC 236],** wherein the Hon'ble Apex Court notionally fixed the monthly income of cooli in the year 2004 as rupees 4,500. It was held that a claimant working as coolie cannot be expected to produce any documentary evidence to substantiate their claim. It is also held that in the absence of any other evidence contrary to the claim made by the claimant, the Tribunal should have accepted the claim of the claimant. It is also held that in a given case if the claim made is so exorbitant or if the claim made is contrary to MACA.3016 of 2009 6 ground realities the Tribunal may not accept the claim and may proceed to determine the possible income by resorting to some guess work which may include the ground realities prevailing at the relevant point of time. 10. In **Syed Sadiq v. Divisional manager, United India Insurance Co. Ltd. [(2014) 2 SCC 735]** Apex Court was dealing with an appeal which arouse out of an accident occurred on 14-08-2008. Claimant was a vegetable vendor aged about 24 years who sustained injury to the lower end of right femur and left upper arm and his right leg had to be amputated. Question arouse about his monthly income. Following the principles in **Ramachandrapa's** case it was held that there is no reason for the Tribunal and the High Court to ask for evidence of monthly income of the appellant/claimant. It is further found that going by the present state of economy and rising prices in agricultural products a vegetable vendor is reasonably capable of earning Rs.6,500/- per month. 11. In the present case, the accident occurred on 28.5.2004. So the monthly income of Rs.4000/- claimed in the claim petition ought to have been accepted as just and reasonable in MACA.3016 of 2009 7 view of the principles laid down by the Apex Court in the above referred decisions. So I accept the contention of the counsel for the claimant that the monthly income notionally fixed by the Tribunal as Rs.2000/- per month is very low and hence it is re-fixed as Rs.4000/- per month. 12. Ext.A4 discharge summary issued from the Medical Trust Hospital, Ernakulam on 1.9.2004 would establish that the claimant was referred to the said hospital from the adjacent hospital where he was initially taken immediately after the incident on 28.5.2004 at early hours at Bavani near Erode. He was diagnosed to have fracture dislocation ® hip with femoral arterial injury. Femoral arterial repair, fasciotomy ® thigh and closed reduction on (R) hip, upper tibial skeletal traction was done in that hospital and later he was referred to the medical Trust hospital. It would reveal that on 31.5.2004, above knee amputation ® done under the GA because of non viability of leg muscles and deteriorating general condition and renal function. On 2.6.2004, wound debridement and partial closure of (R) A/K stump done under GA. It would also go to show that serial wound inspection and debridment of (R) A/K stump and MACA.3016 of 2009 8 - (L) leg done on 4.6.2004, 10.6.2004, 11.6.2004 and 14.6.2004. - On 16.7.2004, wound debridement (L) heel wound done and calcaneum was found to be completely infected, hence total calcanectomy was done due to acute osteomyelitis of calcaneum with total involvement. 13. So according to the learned counsel, his right leg has been amputed above the knee and left calcaneum was found to be completely infected and hence total calcanectomy was done due to acute ostemyelitis of calcaneum with total involvement. So there is considerable disablement to the left leg also out of the accident. So according to the learned counsel, the Tribunal went wrong in restricting the percentage of disability to the tune of Rs.80% while awarding compensation for the loss of earning capacity since the claimant cannot perform any job in future. 14. Ext.A7 is the disability certificate issued by the doctor certifying that permanent disability is assessed at 55% for the whole body as per McBrides scale and the loss of earning capacity for a salesman is 100%. But according to the learned counsel, the Tribunal adopted 80% permanent disability at the MACA.3016 of 2009 9 rate of Rs.24,000/- per annum and accordingly arrived at Rs.3,46,000/- under the heard 'loss of earning' capacity. But it has come out from the evidence of PW2, the claimant about the accident and the injuries sustained by him. It has come out from the medical records as well as the disability certificate that very serious injuries has been sustained and there is above knee amputation of his right leg and there is also serious injuries to his left leg also. With respect to the left leg it is certified by the doctor that he has loss of calaeneum. It is discussed by the Tribunal that amputation of leg without leaving the stump of more than 12 cm will amount to 80% disability under the Workmen's Compensation Act. In this case the petitioner is alleged to be a sales man and hence the amputation of right leg above knee and the serious injuries involving calcanectomy of left leg would practically make him unable to do his work of sales man as before. 15. In **Raj Kumar v. Ajay Kumar and Another (2011 (1) SCC 343 = 2010 KHC 5021)** the Apex Court has elaborately discussed the general principles relating to compensation in injury cases. In personal injury cases, heads MACA.3016 of 2009 10 under which the compensation is awarded has been classified into two as pecuniary damages (Special damages) and non pecuniary damages (general damages). In paragraph No.5, the heads coming under pecuniary damages and non pecuniary damages have been enumerated. In personal injury cases, compensation would be awarded only under the heads ie, expenses relating treatment, hospitalization, medicine, transportation nourishing food and miscellaneous expenditure and loss of earning during the period of treatment as well as damages for pain, suffering and trauma as a consequence of the injuries. 16. In cases of serious injuries, where there is specific medical evidence corroborating evidence of the claimants, the compensation would be granted under the heads loss of earning (and other gains) which the injured would have made had he not been injured, comprising : - 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 (shortening of normal longevity). 17. The assessment of non pecuniary damages under the MACA.3016 of 2009 11 damages for pain, suffering and trauma, loss of amenities and loss of expectation of life 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. The tribunal in the judgment had found that as per the schedule attached to Workmen's Compensation Act, 1923, the percentage of disability for amputation below hip with stump not exceeding 12.70 cms in length measured from hip from deep of grave trenchanter is 80%. But amputation below hip with stump exceeding 12.70 cms in length measured from hip of grave trenchanter but not beyond middle thigh is 70%. 18. In this case, by looking at the photographs as well as the disability certificate (Ext.A7) it appears that the amputation in the case on hand comes in the category of serial No.18 of part II of Schedule I of the Workmen's Compensation Act which specifies disability at 70% in the case of amputation below hip with stump exceeding 12.70 cm measured from the hip of grave trenchanter but not beyond middle thigh. But at the same time, in the disability certificate the doctor though calculated the permanent disability at 55% for the whole body, MACA.3016 of 2009 12 as per the McBrides scale and natural guidelines, the loss of earing capacity as a salesman is fixed as 100%. 19. In **Raj Kumar** 's case it has been held by the Apex Court that in cases where claimant suffers 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 common disability of 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. What is to be assessed is the effect of 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. 20. In the present case, the right leg above the knee was amputed and left leg also sustained grievous injuries. Doctor certified 55% permanent disability and 100% occupational disability. In view of the avocation of the claimant as salesman, the loss of one leg above knee and the injury sustained on the left leg ostemyelitis and calcanectomy etc., MACA.3016 of 2009 13 would make him disabled to do the work of salesman who has to stand almost the whole working hours. So, 100% of loss of earning capacity assessed by the doctor could have been followed to assess the loss of earning capacity of the claimant. Admittedly the claimant was 27 years old at the time of incident. 21. The Tribunal awarded six months loss of income that can be maintained by fixing the monthly amount as Rs.4000/-. So under the head of 'loss of income', claimant is entitled to get an enhanced compensation of Rs.24,000/- (4000 x 6). Deducting the amount already awarded by the Tribunal, the balance would be **Rs.12,000/-** (24000 – 12000) towards loss of income. 22. Towards 'pain and suffering', Tribunal already awarded Rs.30,000/-. In view of the serious nature of injuries including the amputation of right leg and the injuries to the left leg also, amount towards pain and suffering can be refixed as Rs.50,000/-. So deducting the amount already awarded, the claimant is entitled for an enhanced compensation of **Rs.20,000/- towards 'pain and suffering'** . MACA.3016 of 2009 14 23. Towards 'loss of amenities', an amount of Rs.50,000/- has already been awarded. No further enhancement is needed under that head. 24. As per **Sarla Verma v. Delhi Transport Corporation (2009 (2) SCC 121 = 2010 (2) KLT 802)** which is followed in **Rajkumar** as well as in **National Insurance Company Limited v. Pranay Sethi and Ors (2017 (4) KLT 662 (SC))** , the multiplier to be applied is 17 since the claimant is 27 years at the time of accident. 25. Under the head ' **future earning capacity** , claimant is entitled to get Rs.8,16,000/- (4000 x 17 x 12). Out of it, the amount of Rs.3,46,000/- awarded by the Tribunal has to be deducted. The balance amount would be **Rs.4,70,000/-** (8,16,000 – 3,46,000). Claimant further claimed an amount of Rs.10,000/- towards compensation of 'disfiguration'. He was only 27 years old and his right leg was amputed above the knee and left leg also sustained grievous injuries including loss of calcaneum but the tribunal refused to award any compensation for disfiguration. In view of the nature of injury sustained by him and his age, I am of the view that an amount MACA.3016 of 2009 15 of **Rs.5000/-** can be awarded towards compensation for 'disfiguration'. In effect, claimant is entitled for an enhanced compensation of **Rs.5,07,000/-** (12,000 + 20,000 + 4,70,000 + 5000) with interest at the rate of 7.5% per annum from the date of petition, ie, 8.10.2004. At the time of allowing C.M.Application No.1 of 2009, 48 days were excluded for calculating the interest. So claimant is not entitled for interest for 48 days. 26. In the result, Appeal allowed and the appellant is allowed to realize an enhanced compensation of **Rs.5,07,000/-** which will carry interest at the rate 7.5% per annum from the date of petition, ie, 8.10.2004, till realization deducting 48 days out of it. 27. 3[rd] respondent/insurer shall satisfy the additional amount together with interest within a period of two months from the date of receipt of a certified copy of this judgment, after deducting the liability of the claimants towards balance court fee. The disbursement of additional compensation to the appellant/claimant shall be made taking note of the law on the point and in terms of the directives issues by this Court in MACA.3016 of 2009 16 Circular No.3 of 2019 dated 6.9.2019 and clarified further in Official Memorandum No.D1-62475/2016 dated 7.11.2019. Appellant/claimant shall provide his 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, with copy to the learned Standing Counsel for the insurer, within one month from the date of receipt of a certified copy of this judgment. Parties shall bear their respective costs. Sd/- M.R.Anitha, Judge Mrcs/5.1.22.