Karuppuswamy v. Sunny; Sunny John; The National Insurance Co Ltd

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE C.S. SUDHA** **TUESDAY, THE 26[TH] DAY OF MARCH 2024 / 6TH CHAITHRA, 1946** **MACA NO. 166 OF 2019** **AGAINST THE AWARD DATED 19.04.2018 IN OP(MV) NO.639 OF 2016 OF THE ADDITIONAL MACT-II, THODUPUZHA** ## **APPELLANT/PETITIONER:** **KARUPPUSWAMY AGED 36 YEARS S/O.SUNDHAR, MATHA ILLAM HOUSE, HOUSE NO.CP3/260, CHINNAKANALKARA, CHINNAKANAL VILLAGE, IDUKKI(DT).** **BY ADV S.SACHITHANANDA PAI** ## **RESPONDENTS/RESPONDENTS:** - **1 SUNNY AGED 48 YEARS, S/O.JOSEPH, KOCHUPARAMBIL HOUSE, NEDUMKANDOM KARA, CHAKKAKANAM BHAGOM, KALKOONTHAL VILLAGE, IDUKKI(DT)-685553.** - **2 SUNNY JOHN AGED 48 YEARS S/O.JOHN, PEROTHU HOUSE, NEDUMKANDOM KARA, CHAKKAKANAM, IDUKKI (DT)(OWNER)685553.** - **3 THE NATIONAL INSURANCE CO LTD DIVISIONAL OFFICE, THODUPUZHA-685584, REP. BY ITS MANAGER.** **BY ADV SRI.S.K.AJAY KUMAR** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR FINAL HEARING ON 26.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 **M.A.C.A.No.166 of 2019** ## **C.S.SUDHA, J.** ## **-----------------------------------M.A.C.A.No.166 of 2019 ---------------------------------------------------Dated this the 26[th] day of March 2024** ## **J U D G M E N T** This appeal under Section 173 of the Motor Vehicles Act, 1988 (the Act) has been filed by the claimant in O.P. (MV)No.639/2015 on the file of the Additional Motor Accidents Claims Tribunal II, Thodupuzha, (the Tribunal), aggrieved by the amount of compensation granted by the Award dated 19/04/2018. The respondents herein are the respondents before the Tribunal. The parties and the documents will be referred to as described in the original petition. 2. According to the petitioner, on 24/07/2016 at about 06:00 pm, while he was riding motor cycle bearing registration No.KL 37/C-495, he was hit by a car bearing registration No.KL5-V/2383 driven by the first respondent in a rash and negligent 3 ## **M.A.C.A.No.166 of 2019** manner. The petitioner sustained grievous injuries in the incident. The first respondent driver; the second respondent owner and the third respondent insurer of the offending vehicle are jointly and severally liable to compensate the petitioner. Hence an amount of ₹15 lakh was claimed as compensation under various heads. 3. The first respondent driver was ex parte. 4. The second respondent owner of the offending vehicle filed written statement contending that the incident occurred due to the negligence of the petitioner and not due to the negligence of the first respondent. The vehicle had also a valid policy issued by the third respondent during the relevant time. 5. The third respondent insurer filed written statement contending that the incident occurred solely due to the negligence of the petitioner. The third respondent admitted existence of a valid policy in respect of the offending vehicle in the name of the second respondent. It was also contended that the compensation claimed was excessive. 4 ## **M.A.C.A.No.166 of 2019** 6. Before the Tribunal, no oral evidence was adduced by either side. Exts.A1 to A16 were marked on the side of the petitioner. No documentary evidence was produced by the respondents. 7. The Tribunal on a consideration of the documentary evidence and after hearing both sides, found negligence on the part of the first respondent resulting in the incident and hence awarded an amount of ₹4,96,180/- with interest at the rate of 9% per annum with costs to the petitioner. Aggrieved by the amount of compensation awarded, the petitioner has come up in appeal. 8. The only point that arises for consideration in this appeal is whether there is any infirmity in the findings of the Tribunal calling for an interference by this Court. 9. Heard both sides. 10. The main grievance of the petitioner is relating to the percentage of disability fixed by the Tribunal. According to the petitioner, Ext.A9 disability certificate issued by the Medical Board shows that due to the incident, there was 46% disability. 5 ## **M.A.C.A.No.166 of 2019** However, the Tribunal reduced it to 15% without any reasoning. This according to the petitioner, is incorrect and perverse and hence requires to be interfered with. Reference was made to the dictum in **Syed Sadiq v. Divisional Manager, United India Insurance Co., (2014)2 SCC 735 : 2014 KHC 4027** in support of this argument. _Per contra_ , it was submitted by the learned counsel appearing for the third respondent that there is no infirmity in the findings of the Tribunal. 11. This Court as per order dated 04/10/2023 directed the petitioner to be examined by a Medical Board again to get a clarity in the matter of disability. The Superintendent of Medical College, Kottayam was directed to constitute a medical board to assess the disability of the appellant. After assessment, the disability certificate was directed to be forwarded to this Court. Pursuant to the order, a disability certificate dated 15/11/2023 has been produced before this Court on 09/02/2024 by the Superintendent, Department of Medical Education, Medical College Hospital, Kottayam, which is taken on file and marked as Ext.C1. The 6 ## **M.A.C.A.No.166 of 2019** orthopedics disability is stated to be 41% and the neurosurgical disability as 10%. Thus, the total disability is stated to be 46%. However, it is not discernible from the certificate as to whether the disability is partial or permanent or temporary. In page 5 of Ext.C1 it is seen recorded thus - “ _No facial neurological deficiency except for immediate_ ....... (not legible) _impairment_ ”. Further it is also stated thus - “ _able to carry out all usual activities despite some symptoms_ ”. 12. In **Syed Sadiq** ( _Supra_ ) relied on by the petitioner, the claimant/injured was a vegetable vendor whose right leg had to be amputated pursuant to the incident. The medical evidence adduced before the Tribunal was to the effect that the claimant had suffered 24% disability to upper limb and 85% to the lower limb. The Tribunal fixed the disability caused to the whole body at 30%. In appeal, the disability was fixed at 65%, which according to the Apex Court was without assigning any proper reasons for the same. The Apex Court relying on its earlier decisions in **Mohan Soni v. Ram Avtar Tomar, (2012)2 SCC 267** and **Raj Kumar v.** 7 ## **M.A.C.A.No.166 of 2019** **Ajay Kumar, (2011)1 SCC 343 : 2011 (1) KLT 620** held that a vegetable vendor often selling vegetables in a cart requires 100% mobility and that even by a conservative approach, the vegetable vending by the claimant involved selling vegetables from one place, he would require assistance with his mobility in bringing vegetables to the market place which otherwise would be extremely difficult for him with an amputated leg. Manual labour cases where loss of limb is equivalent to loss of livelihood are required to be dealt with sensitively. In these circumstances, the disability was fixed at 85% to determine loss of income. The aforesaid situation is not applicable to the case on hand. 13. As held in **Raj Kumar** _(Supra)_ disability refers to any restriction or lack of ability to perform an activity in the manner considered normal for a human being. Permanent disability refers to the residue of the incapacity or loss of use of some part of the body, found existing at the end of the period of treatment and recuperation. Permanent disability can be either partial or total. Partial permanent disability refers to a person's inability to perform 8 ## **M.A.C.A.No.166 of 2019** all the duties and bodily functions that he could perform before the accident, though he is able to perform some of them and is still able to engage in some gainful activity. Total permanent disability refers to a person's inability to perform any avocation or employment related activities as a result of the incident. The Tribunal has to first decide whether there is any permanent disability and if so, the extent of such permanent disability. This means that a Tribunal has to 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 finds that there is permanent 9 ## **M.A.C.A.No.166 of 2019** disability, then it will proceed to ascertain its extent. After the Tribunal ascertains the actual extent of permanent disability of the claimant based on medical evidence, it has to determine whether such a permanent disability has affected or will affect his earning capacity. Ascertainment of the effect of permanent disability on the actual earning capacity involves three steps. The Tribunal has to ascertain what activities the claimant could carry on inspite of permanent disability and what he could not do as a result of the permanent disability. 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 inspite of 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 continue to his livelihood. 10 ## **M.A.C.A.No.166 of 2019** 14. As stated earlier, Ext.C1 certificate does not make it clear whether the 46% disability is partial, permanent or temporary. The petitioner is stated to be a qualified fitter. On going through Ext.C1, the 41% orthopaedic disability seems to be with respect to the left lower extremity of the left limb. In such circumstances, assessment of functional disability as 15% by the Tribunal in my opinion, does not suffer from infirmity in the light of injuries sustained by him which are a temporal bone fracture, a head injury, a fracture of the knee with contusion on the temporal lobe. 15. It is also contended that the notional income taken as ₹10,000/- by the Tribunal in the place of ₹15,000/- claimed, is wrong. Compensation towards future prospects has not been granted though the appellant was aged only 34 years and a qualified fitter. Compensation granted under head of loss of earning is inadequate and insufficient, contends the petitioner. The notional income of ₹10,000/- seems to be quite reasonable in the light of the dictum in **Pushkar Mehra v. Brij Mohan** 11 **M.A.C.A.No.166 of 2019** **Kushwahar, (2015) 12 SCC 688** where the notional income of a skilled labourer in the year 2010 was fixed at ₹7020/- per month. In the case on hand, the incident occurred in the year 2016 when the petitioner was 34 years old. That being so, the notional income fixed at ₹10,000/- does not suffer from any infirmity. The contention that no amount was granted for loss of future prospects is incorrect because an amount of ₹2,88,000/- is seen granted by the Tribunal. In the light of Ext.C1, I do not find any reasons to enhance the amount awarded under the said head. In these circumstances I find no infirmity in the findings of the Tribunal calling for an interference by this Court. In the result, the appeal is dismissed. Interlocutory applications, if any pending, shall stand closed. Sd/- **C.S.SUDHA JUDGE** ami/ 12 ## **M.A.C.A.No.166 of 2019** **APPELLANT'S EXHIBITS** : **EXT.C1 : DISABILITY CERTIFICATE ISSUED BY SUPERINTENDENT, GOVT.MEDICAL COLLEGE HOSPITAL, KOTTAYAM, DATED 15.11.2023**