JINS N. JOY v. AJIMON, SHIHAZ & THE SHriram General Insurance Co. Ltd

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH WEDNESDAY, THE 7TH DAY OF DECEMBER 2016/16TH AGRAHAYANA, 1938 MACA.No. 2175 of 2015 () ------------------------AGAINST THE AWARD IN O.P(MV)NO.253/2012 of MOTOR ACCIDENTS CLAIMS TRIBUNAL, KOTTAYAM DATED 18-04-2015 APPELLANT/PETITIONER IN OP(MV): --------------------------------------- JINS N. JOY, S/O.JOY, NEDUMKALAYIL HOUSE, KALAYIPPADY, KURICHY POST, KOTTAYAM. BY ADVS.SRI.R.SURAJ KUMAR SRI.SAJITH C.GEORGE SMT.V.BEENA RESPONDENTS/RESPONDENTS IN OP(MV): ---------------------------------------------- 1. AJIMON, KULATHUMKAL HOUSE, NERCHAPPARA BHAGOM, ERUMELY POST, KOTTAYAM, PIN 686509 2. SHIHAZ, KATCHERIPPARAMBIL HOUSE, KULATHMKAL BHAGOM, ERUMELY POST, KOTTAYAM, PIN 686509 3. THE SHRIRAM GENERAL INSURANCE CO. LTD E 8, EPIP, RIICO INDUSTRIAL AREA, SITAPURA, JAIPUR DIST., RAJASTHAN, PIN 302 022. R3 BY ADV. SRI.MATHEWS JACOB (SR.) R3 BY ADV. SRI.P.JACOB MATHEW R3 BY ADV. SMT.PREETHY R. NAIR THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 07-12-2016, ALONG WITH M.A.C.A.NO.3277 OF 2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **C.T.RAVIKUMAR & K.P.JYOTHINDRANATH, JJ.** ------------------------------------------------ M.A.C.A.Nos.2175 of 2015 & 3277 of 2016 -----------------------------------------------Dated 7[th] December, 2016 ## **JUDGMENT** ## **Ravikumar, J.** These appeals arise from the judgment and award dated 18.4.2015 passed by the Motor Accidents Claims Tribunal, Kottayam in O.P.(M.V)No.253 of 2012. The former appeal has been preferred by the claimant seeking enhancement of compensation awarded thereunder and the latter appeal has been preferred by the 3[rd] respondent therein viz., the insurance company seeking to scale down the compensation on the ground of exorbitancy. In such circumstances, these appeals were jointly heard and are being disposed of by this common judgment. For the sake of convenience, the parties are referred to hereafter in this judgment in accordance with their status before the Tribunal unless otherwise specifically mentioned. 2. The petitioner/claimant was a Contractor by profession. On 26.12.2010 at about 9 p.m. while he was driving his Jeep bearing Reg.No.KL 5/AB-6381 from south to north through Plachery - Erumely road, a goods autorickshaw bearing Reg.No.KL 34/A-4762, driven by 2 M.A.C.A.Nos.2175/2015 & 3277/2016 the 2[nd] respondent came from the opposite direction in a rash and negligent manner hit against his jeep. In the accident the petitioner sustained injuries including crush injury to right upper leg. On getting injured and winced due to the injuries sustained in the accident he was immediately taken to Specialists' Hospital, Kochi and ultimately his right leg was amputated above knee. He remained as an inpatient there from 27.12.2010 to 8.1.2011. He was then aged 27 years. It is in the said circumstances that the above mentioned claim petition was filed under Section 166 of the Motor Vehicles Act claiming a total compensation of 66,71,246/-. As per the impugned award, the₹ Tribunal granted a total compensation of 32,91,000/- with interest at₹ the rate of of 8.5% per annum from the date of petition till realisation. As noticed hereinbefore, the former appeal has been preferred seeking enhancement of the compensation granted thereunder and the latter appeal has been preferred seeking to scale down the compensation on the ground of exorbitancy. 3. We have heard the learned counsel for the petitioner (appellant in M.A.C.A.No.2175 of 2015) and also the Senior Counsel Sri.Mathews Jacob appearing for the 3[rd] respondent insurance company (appellant in M.A.C.A.No.3277 of 2016). The rival submissions will 3 M.A.C.A.Nos.2175/2015 & 3277/2016 make it clear that there is absolute absence of any dispute regarding the accident, cause of accident as negligence from the part of the driver of the autorickshaw and also the liability of the insurer to indemnify the insured owner of the autorickshaw. In such circumstances, issuance of notice to respondents 1 and 2 is dispensed with in M.A.C.A.No.2175 of 2015. The 3[rd] respondent therein is the appellant in the latter appeal. In such circumstances, on consent, we are proceeding to consider the appeals on merit at the admission stage itself. 4. The issue to be resolved is whether the compensation granted is exorbitant or inadequate and therefore, we will firstly consider M.A.C.A.No.3277 of 2016 as the question of enhancement would arise only if it is found that the compensation granted is not exorbitant and that it is not a just compensation. The main contention of the 3[rd] respondent insurance company is that the Tribunal went wrong in fixing the monthly income of the petitioner. It is contended that the Tribunal fixed the monthly income as 22,848/- without any₹ basis. The learned Senior Counsel contended that the Tribunal fixed the monthly income mainly taking into account Exts.A26 to A31 which would reveal the taxable income of the petitioner during the financial years from 2010 - 2011 to 2012 - 2013 and also its fluctuation. It is 4 M.A.C.A.Nos.2175/2015 & 3277/2016 the further submission that such documents could only establish that the petitioner was a Contractor by profession and in the case of a Contractor it cannot be said with precision that he would be getting a particular income at all periods and at any rate, in respect of a Contractor it cannot be said that he would always have a stable or static income. It may vary depending upon the number or nature of works in respect of which contracts have been executed. In such circumstances, fixation of monthly income by merely looking at such documents was not desirable and therefore, the Tribunal ought not to have taken into consideration the details of income discernible from such documents for the purpose of fixing it notionally, it is contended. The learned counsel for the petitioner viz., the appellant in the former appeal resisted the contentions and submitted that they cannot be sustained. It is submitted that the Tribunal cannot be said to have committed an error in the matter of fixation of monthly income warranting an appellate interference. It is submitted that the documents produced before the Tribunal would reveal the fact that the appellant was earning almost stable income and the descent in the income occurred solely due to the loss of earning capacity caused by the accident. Therefore, the Tribunal was right in deciding to compensate the appellant for loss of earning capacity and in that matter for fixing the monthly income as 22,848/-₹ 5 M.A.C.A.Nos.2175/2015 & 3277/2016 taking into account the facts and figures revealed from the aforementioned documents. In the light of such rival submissions, at first, we will consider the said issue. True that the petitioner had produced Exts.A15, A16, A17 and A25 to A34 to establish his occupation and income as claimed in the claim petition. Admittedly, in the claim petition the petitioner stated his occupation as civil and electrical contractor and further claimed that his monthly income was ₹ 22,848/-. We are at a loss to understand the basis of the claim of the appellant that as a contractor he was earning 22,848/-. Both parties₹ did not dispute the figures shown as income in the assessment years 2010-'11, 2011-'12 and 2012-'13. Going by the impugned judgment the income of the petitioner during that financial year was 3,00,879/-₹ and it was 25,000/- each during financial years 2011-'12 and₹ 2012-'13 as per Ext.A27. The discussion regarding the same in the award would reveal that his income during assessment years 2011-'12 and 2012-'13 was only 25,000/- though his income during the₹ financial year 2010-'11 was 3,00,879/-. If the annual income of a₹ person is only 25,000/- there will not be any question of paying tax₹ during that relevant year though being an assessee he may have to file a statement of nil return. But, the appendix to the award would reveal that Ext.A28 is a certificate of tax deduction pertaining to the year 6 M.A.C.A.Nos.2175/2015 & 3277/2016 2011-2012. If during the year 2011-'12 his annual income was only ₹ 25,000/- where is the question of tax deduction. If 25,000/- is the₹ amount deducted as tax the income during the year 2011-'12 must have been more than annual income of the year 2010-'11 viz., ₹ 3,00,879/-. Without any further discussion on that question and without considering the aforesaid aspect the Tribunal found his monthly income as 22,848/-. As regards a contractor how can the income be₹ stable. In fact, it is bound to be a fluctuating one as in one particular year he may get more contract works and in another he may not be able to get the same number of works. That apart, some contract may be relating minor works and some may be relating major works. In short, his income depends on number, nature of works and its estimate etc. At any rate, fixation of monthly income of a contractor as ₹ 22,848/- as if he was drawing monthly salary cannot be appreciated and accepted. We are of the considered view that such a fixation, as in the case of a salaried person, is bound to be interfered with and according to us, accepting his contention as contractor and the discussion taking into account the documents mentioned hereinbefore, the monthly income has to be fixed notionally for calculation purpose. It is also pertinent to note that the petitioner has not obviously produced any document before the Tribunal to prove his qualifications 7 M.A.C.A.Nos.2175/2015 & 3277/2016 to know his know-how on civil and electrical works. However, taking into account the fact that the petitioner had produced documents referred to in the impugned award and the Tribunal had accepted the claim of the petitioner as contractor and also taking into account the year of the accident and his age at the time of the accident we are inclined to fix the monthly income of the petitioner viz., the appellant in the former appeal as 15,000/- notionally for calculation purpose. In₹ this case, as noticed hereinbefore, Ext.A13 disability would reveal that pursuant to the sustaining of injuries in the accident his right leg was amputated above knee and going by the certification thereunder his disability of the right leg was assessed as 60%. Thus, it would go to show that the said assessment was only pertaining to a particular limb. The Tribunal assessed the disability as 50%. Certainly, taking note of the fact that the petitioner was a contractor, the disability would cause a considerable degree of inconvenience to him to function as a contractor especially, if he bid a work in a high altitude. But, at the same time, we are at a loss to understand how it will adversely affect his earning capacity as a Contractor. At any stretch of imagination it cannot be said that merely because a leg was amputated in the case of a contractor it would adversely affect his earning capacity and the documents would reveal that despite the disability he continued in the 8 M.A.C.A.Nos.2175/2015 & 3277/2016 said profession. Merely because his income was reduced in the subsequent years it cannot be said that there is reduction in his earning capacity. In such circumstances, we are of the view that in a case of this nature when even after sustaining of injuries a person still continues with the profession in which he was engaged prior to the accident, it would not be safe to say that the injuries reduced his earning capacity merely because there occurred fluctuation in his annual income. We are of the view that under such circumstances, it is safe to compensate such a person for the permanent disability incurred by him rather than to compensate him for loss of earning capacity. We will be fortified in our view by the decision of the Hon'ble Apex Court in **Raj Kumar** v. **Ajay Kumar (2011 (1) KLT 620)** . In the said decision, the Apex Court held in the case of a Government employee that if even after the accident he could continue in his employment it cannot be said that the accident had reduced his earning capacity. While considering the question whether what should be the percentage of disability to be taken into consideration for the purpose of granting compensation for permanent disability we are of the view that the inconveniences which would cause due to the amputation can also be taken into account though normally, in such circumstances assessment of disability in respect of a particular limb when being converted to 9 M.A.C.A.Nos.2175/2015 & 3277/2016 whole body disability would result in considerable reduction of percentage. Taking into account all aspects, we are of the view that in this case, it would be just and proper to assess the percentage of disability for the purpose of computing compensation for disability as 50%. In other words, we are maintaining the percentage of permanent disability assessed by the Tribunal. It is to be noted that even while granting compensation for permanent disability and for granting compensation for loss of earning capacity a common factor is the permanent disability. The petitioner was aged 27 years at the time of the accident. In the light of the dictum laid down in _**Sarla Verma** v._ _**Delhi Transport Corporation (2010 (2) KLT 802 (SC))**_ with reference to the age the multiplier applicable is `17'. It is to be noted that the claim of the petitioner towards loss of earning capacity was only 5,00,000/-. True that, the petitioner claimed 49,35,330/-₹ ₹ towards permanent disability incurred due to the injuries sustained in the accident. Taking into account all such relevant factors such as monthly income, multiplier and extent of permanent disability the compensation payable for disability has to be assessed and it would come to 15,30,000/- (15000 x 12 x 17 x 50/100). In such₹ circumstances, instead of the compensation granted by the Tribunal under the head `loss of earning capacity', of 23,30,496/- as against₹ 10 M.A.C.A.Nos.2175/2015 & 3277/2016 a claim of 5,00,000/,- we are of the view that the injured petitioner is₹ entitled to compensation for `permanent disability' to the tune of ₹ 15,30,000/-. 5. After hearing the learned counsel on both sides and scanning the schedule of compensation given in the impugned judgment we are of the view that a further interference is required only in respect of compensation granted under the head compensation for the `cost of artificial limb (AK prosthesis)'. It would reveal that relying on Ext.A4 the Tribunal granted an amount of 3,75,250/- under that₹ head. It is virtually the cost of the said artificial limb. We have no hesitation to hold that while granting compensation, under different heads especially, like reimbursement of the cost of artificial limb merely because a person has purchased an artificial limb which is very expensive, it cannot be said that he is entitled to get reimbursement of the entire amount. The Tribunal and courts cannot lost sight of the relevant observation of the Hon'ble Apex Court that a claimant in compensation claim cannot be permitted to create fortune out of misfortune. We are of the considered view that though the petitioner was entitled to purchase a good artificial limb the amount to be reimbursed has to be reasonable taking into account the usual cost of 11 M.A.C.A.Nos.2175/2015 & 3277/2016 such artificial limbs. It is true that the amputation was above knee of the right leg. An artificial limb in a case like this, is available for Rs.1,00,000/- and even below. It is also to be noted that what exactly is the special feature of the artificial limb purchased by the petitioner for ₹ 3,75,250/- is also not discernible. It is also not brought on record that the artificial artificial limb in question was purchased under special medical advice. In such circumstances, we have no hesitation to hold that the compensation granted by the Tribunal towards `cost of artificial limb' relying on Ext.A4 is exorbitant and taking that it is having some special features we are of the view that it would be proper to scale down the same only to 2,00,000/-. Despite persuasive arguments₹ made by the learned Senior Counsel for the 3[rd] respondent viz., the appellant in the latter appeal that the Tribunal also went wrong in granting `partial loss of earnings' as 68,544/- after granting an₹ amount of 9,893/- towards` loss of earnings' and taking the multiplier₹ as `17' for the purpose of computing compensation for permanent disability, taking note of the fact that the petitioner was aged only 27 years and he had to suffer amputation of right leg above knee and he was granted an amount of only 1,00,000/- towards `pain and₹ sufferings' and we have effected deduction in the quantum of compensation granted under the head `loss of earning capacity' while 12 M.A.C.A.Nos.2175/2015 & 3277/2016 converting it as compensation for `permanent disability' and also on the cost of artificial limb we are of the view that any further interference with the quantum of compensation under any other head would result in denial of just compensation to the petitioner. By virtue of conversion of compensation granted to the petitioner for permanent disability as against the compensation granted towards loss of earning capacity there would be a reduction of 8,00,496/-. By virtue of interference₹ with the reimbursement towards cost of artificial limb, there will be a reduction of 1,75,250/-. Thus, altogether there will be a reduction of₹ ₹ 9,75,746/- and such deduction would bring down the total compensation as 23,15,254/- from 32,91,000/-. It is certainly, a₹ ₹ just compensation commensurating with the injuries and disability sustained by the petitioner. 6. In the light of the discussion as above, the impugned judgment and award will stand modified and the quantum of compensation is scaled down by 9,75,746/- and consequently, the₹ amount of compensation payable to the petitioner will be 23,15,254/-₹ rounded off to 23,15,300/-. It is awarded. We are maintaining the₹ percentage of interest fixed by the Tribunal viz., 8.5%, from the date of petition till realisation. The insurance company, the appellant in the 13 M.A.C.A.Nos.2175/2015 & 3277/2016 latter appeal, shall deposit the amount payable under this judgment along with interest within a period of three months from the date of receipt of a copy of this judgment. In the result, M.A.C.A.No.3277 of 2016 is allowed and the judgment and award is modified as above and M.A.C.A.No.2175 of 2015 is dismissed. In the circumstances, there will be no order as to costs in both the appeals. Sd/- **C.T.RAVIKUMAR Judge** Sd/- **K.P.JYOTHINDRANATH Judge** TKS // true copy // P.S. To Judge