Jameela v. The Divisional Manager, The National Insurance Company Ltd. MACA No. 2210 OF 2012

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN ``` ``` FRIDAY, THE 7[TH] DAY OF JULY 2023 / 16TH ASHADHA, 1945 ``` ``` MACA NO. 2210 OF 2012 ``` ``` AGAINST THE AWARD DATED 23.11.2011 IN OPMV 217/2008 OF THE ``` ``` MOTOR ACCIDENTS CLAIMS TRIBUNAL, KALPETTA ``` ## **`APPELLANT/PETITIONER:`** ``` JAMEELA AGED 42 YEARS W/O. HAMZA, KUTTAYI HOUSE, KALPETTA, VIKAS NAGAR, TURKEY ROAD, KALPETTA POST, VYTHIRI TALUK, WAYANAD DISTRICT. ``` ``` BY ADV SMT.CELINE JOSEPH ``` ## **`RESPONDENT/RESPONDENT NO.2:`** ``` THE DIVISIONAL MANAGER THE NATIONAL INSURANCE COMPANY LTD., DIVISIONAL OFFICE, PARCO TOWERS, P.B.NO.207, P.M.TAJ ROAD, CALICUT – 673 001. ``` ``` BY ADV SRI.THOMAS MATHEW NELLIMOOTTIL ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 07.07.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` M.A.C.A No.2210 OF 2012 ``` ``` 2 ``` ## **`J UDGMENT`** This appeal is preferred by the petitioner in O.P(M.V) No.217 of 2008 on the files of the Motor Accidents Claims Tribunal, Kalpetta. The status of the parties is referred to as it appears in the claim petition. 2. The petitioner was a pillion rider on a motorbike ridden by the 1[st] respondent and insured with the 2[nd] respondent and she sustained injuries when it capsized. The accident occurred on 20.02.2008. The petitioner had to undergo surgery and various procedures including nerve grafting. 3. The injuries noted in Ext.A4 wound certificate are as follows:- - “1. Fracture olecranon process of right ulnar. 2. Ulnar nerve injury right.” 4. The petitioner claimed an amount of Rs.3,00,000/- as compensation. The Tribunal found that the accident happened on account of the negligence of the ``` M.A.C.A No.2210 OF 2012 ``` **`3`** 1[st] respondent, the rider of the motorbike and awarded an amount of Rs.2,79,200/- along with interest at 7.5% per annum from the date of petition till realisation with proportionate costs as compensation for the injuries sustained in the accident. The Insurance Company was directed to satisfy the award. 5. The petitioner has filed this appeal contending that the amount of compensation awarded by the Tribunal is totally inadequate. 6. The petitioner was a coolie and she was having a monthly income of Rs.4,000/-. She was aged 38 years at the time of the accident. The Tribunal took the monthly income of the petitioner as Rs.3,000/- notionally. Since there is no evidence as regards the monthly income, it can only be fixed notionally. Going by the dictum laid down in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited** [2011 (13) SCC 236], the monthly income of the petitioner can be taken as Rs.6,500/-. Accordingly, I re- ``` M.A.C.A No.2210 OF 2012 ``` ``` 4 ``` fix the monthly income as Rs.6,500/-. 7. As regards the compensation for permanent disability, the Tribunal has taken the percentage of disability shown in Ext.C3 as the percentage of loss of earning capacity. The correlation between permanent disability and functional disability has been explained by the Hon’ble Supreme Court in **Rajkumar V. Ajay kumar and Another** [2011 (1) SCC 343]. The Court held as follows:- “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 most of the cases, equating the extent (percentage) of loss of ``` M.A.C.A No.2210 OF 2012 ``` ``` 5 ``` 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 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..…” 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 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 ``` M.A.C.A No.2210 OF 2012 ``` ``` 6 ``` 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..” This has been reiterated in **Pappu Deo Yadav V. Naresh** **Kumar and Others** [2020 KHC 6547 (SC)]. The Tribunal had an opportunity to see the claimant who was present in court and the Tribunal observed as follows:- “The Tribunal had also examined the claimant for assessing the disability. She had stated that she is unable to lift her right arm and also unable to open the fingers of her right hand. Her right hand became useless. She is unable to eat food and even wear dress. She stated that she is using a nighty with a full opening at the front portion. She expressed her inability in offering prayer. Her right ``` M.A.C.A No.2210 OF 2012 ``` ``` 7 ``` arm was corrected by grafting the bones from the back portion of her right leg. The condition of the claimant is really pitiable. The assessment done by the Medical Board as spoken to by CW1 as 30% of disability appears to be a true and correct assessment and hence Ext.C2 series and C3 are taken into account for fixing the compensation regarding the disability pertaining to the claimant.” Since the petitioner is unable to lift her right arm or to open the fingers of her right hand, I am inclined to take her functional disability as 50% following the aforecited decisions. 8. In **Pappu Deo Yadav** (supra), the Apex Court has held that in cases of serious injuries resulting in permanent disablement incurred as a result of the motor accident, the claimant can seek, apart from compensation for future loss of income, amounts for future prospects also. Since the petitioner was not a permanent employee, she is entitled for 40% of the income towards future prospects. Therefore, her income has to be taken as Rs.9,100/- (6500+2600) for assessment of compensation for disability. ``` M.A.C.A No.2210 OF 2012 ``` **`8`** 9. The Tribunal has taken the multiplier as 16. The correct multiplier to be adopted is ‘15’ [ **Sarla Verma & Ors. V. Delhi Transport Corporation & Anr.** [2010 (2) KLT 802 (SC)]. In the light of the above factors, the compensation awarded by the Tribunal requires modification. 10. Towards compensation for permanent disability, the Tribunal awarded an amount of Rs.1,72,800/-. With the refixed monthly income, percentage of disability and multiplier, the compensation for loss of earning power/disability is recalculated as Rs.8,19,000/[9,100x12x15x50%]. On deducting the amount already awarded, she is entitled for an enhanced amount of **Rs.6,46,200/-** (8,19,000-1,72,800) under the said head. 11. The petitioner was treated as an inpatient for 12 days and had to undergo two surgeries, grafting and other procedures. The Tribunal found that the petitioner was incapacitated to work for four months and awarded an amount of Rs.12,000/- (3,000x4 months) as ``` M.A.C.A No.2210 OF 2012 ``` ``` 9 ``` compensation for loss of earning. In the light of the nature of the injuries sustained by the petitioner, it can safely be inferred that the petitioner was incapacitated to work at least for a period of six months. Accordingly, I revise the compensation for loss of earning as Rs.39,000/(6,500x6 months). Therefore, the petitioner is entitled for an enhanced amount of **Rs.27,000/-** (39,000 – 12,000) under the said head. 12. Towards pain and suffering, only an amount of Rs.10,000/- has been awarded. Going by the nature of injuries sustained by the petitioner, I find that an amount Rs.20,000/- can be awarded under the head pain and suffering. Therefore, an amount of **Rs.10,000/-** (20,000-10,000) is awarded additionally. 13. Towards loss of amenities, no amount has been awarded by the Tribunal. Taking into account the age of the petitioner and the disability suffered, the petitioner is granted an amount of **Rs.20,000/-** under the said head. 14. I find that the compensation awarded under ``` M.A.C.A No.2210 OF 2012 ``` ``` 10 ``` other heads is just and reasonable. Accordingly, the petitioner will be entitled for an enhanced compensation of **Rs.7,03,200/-** (27,000 + 6,46,200+10,000 + 20,000). The respondent Insurance Company shall deposit the said amount before the Tribunal with 7.5% interest per annum from the date of petition till realisation and proportionate costs, within a period of two months from the date of receipt of a copy of this judgment. While calculating the interest, the petitioner will not be entitled to interest for the delay of 229 days as per order of this Court dated 07.06.2019 in C.M Application No.2591 of 2012. The appeal is allowed as above. ## **`Sd/-`** ``` MURALI PURUSHOTHAMAN JUDGE ``` SPR