K.K. Sajan @ Shaji v. Sunimon V.J., M.P. Prasad and The Oriental Insurance Company Limited

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN THURSDAY, THE 25TH DAY OF MAY 2017/4TH JYAISHTA, 1939 MACA.No. 1343 of 2012 () ------------------------AGAINST THE AWARD IN OPMV 1153/2008 of M.A.C.T.,ERNAKULAM DATED 21-02-2012 APPELLANT(S):PETITIONER ----------------------------- K.K.SAJAN @ SHAJI, AGED 34 S/O.KUMARAN, MELOTH MALAYIL HOUSE, KULAYITTIKKARA P.O., KULAYATTIKKARA VILLAGE, KANAYANNOOR TALUK, NOW RESIDING AT C/O.MANI, NALUKANDATHIL HOUSE, PANAVALLY P.O.,PANAVALLY VILLAGE, ERNAKULAM BY ADVS.SRI.MATHEWS K.PHILIP SMT.T.MANASY ## RESPONDENT(S):RESPONDENTS ----------------------------------- 1. SUNIMON V.J. S/O.THANKAPPAN, VELLEVELIPADAM HOUSE, VAIKOM EAST NADA BHAGOM, VAIKOM P.O.,NADUVILE VILLAGE, VAIKOM TALUK, KOTTAYAM-686141 2. M.P.PRASAD MANALIL PARAMBIL HOUSE, ENADI P.O.,KOTTAYAM-686608 3. THE ORIENTAL INSURANCE COMPANY LIMITED, JYOTHI SUPER BAZAAR, THODUPUZHA- 685584 R3 BY ADV. SRI.M.JACOB MURICKAN R BY SRI.GEORGE CHERIAN (THIRUVALLA) THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 25-05-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **C.T. RAVIKUMAR** ## **& ANIL K. NARENDRAN, JJ.** **========================== M.A.C.A. No.1343 OF 2012 ==========================** Dated this the 25[th] day of May, 2017 ## **JUDGMENT** _Ravikumar, J._ This appeal is directed against the judgment and award dated 21.2.2012 passed by the Motor Accidents Claims Tribunal, Ernakulam in O.P.(MV).No.1153 of 2008. The appellant filed the said claim petition seeking compensation for the injuries sustained by him in a motor vehicle accident that occurred on 8.4.2008. On that day, while he was driving a tempo van bearing Reg.No.KL-5/H 6867, it collided with a stage carriage bearing Reg.No.KL-5/U 6811. On sustaining injuries, he was admitted in Medical Trust Hospital, Ernakulam. He remained there as an inpatient for a period of 25 days. Going by Ext.A3 wound certificate, he sustained the following injuries:- “Transfers fracture of (Rt) femur, contusion on **M.A.C.A.1343/2012** 2 upper chest, abrasions with puncture wounds both knees, both feet, lacerated wound 5cm (Lt) forearm and 1cm (Lt) cheek. 2. The appellant-petitioner incurred a permanent disability of 5% for the injuries sustained in the accident as is evident from Ext.X1 medical certificate. It is in the said circumstances that the above mentioned claim petition was filed seeking a total compensation of Rs.5 lakhs. The said claim petition was enquired into along with O.P. (MV).Nos.1163/2008 and 1133/2008 filed by persons who got injured in the same accident while travelling in the very same vehicle. After considering the evidence on record and the rival contentions, the Tribunal passed an award for an amount of Rs.2,44,711/- with interest @ 8% per annum from the date of the petition till realisation. It is aggrieved by and dissatisfied with the award passed by the Tribunal that the captioned appeal has been preferred seeking enhancement of the quantum of compensation. 3. Heard the learned counsel on both sides. **M.A.C.A.1343/2012** 3 4. There is no dispute regarding the accident, the cause of the accident as negligence from the part of the second respondent, the driver of the stage carriage and also the liability of the third respondent-insurance company to indemnify the insured-owner. In such circumstances, we are called upon only to consider the question whether or not the appellant is entitled to get enhanced compensation. Despite the persuasive arguments of the learned counsel for the appellant and on perusing the schedule of compensation given in the impugned award, we are of the view that an interference is invited only in respect of compensation granted under the head 'loss of earning power'. 5. Ext.X1 disability certificate would reveal that owing to the injuries, the appellant incurred a permanent disability of 5%. A perusal of the impugned award and also the evidence on record would reveal that the appellant-petitioner had not established his occupation before the Tribunal. True that the Tribunal treated him as a driver. The appellant claimed an amount of Rs.8,000/- as his monthly income **M.A.C.A.1343/2012** 4 and the Tribunal took the monthly income notionally as Rs.4,000/- for calculation purpose. The accident in question occurred on 8.4.2008. The learned counsel for the appellant submitted that the Tribunal went wrong in limiting the quantum of compensation for loss of earning power as Rs.40,800/-. In view of the facts obtained in this case, the first question to be considered is whether the appellant was entitled to be compensated under the head compensation for loss of earning power. In the light of the decision of the Hon'ble Apex Court in **Raj Kumar v. Ajay Kumar [2011 (1) KLT 620],** ascertainment of the effect of the permanent disability on the actual earning capacity involves three steps. In paragraph 13 of the said decision, it is further stated thus:- “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 disability (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 **M.A.C.A.1343/2012** 5 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. Evidently, in this case, no material whatsoever was produced by the appellant to establish his avocation, profession and nature of the work before the accident. True that, in the claim petition, he claimed that he is a driver by profession. It is also true that he met with the accident at a time when he was driving the tempo van. Merely, a person met with an accident while driving a vehicle by itself cannot be taken as sufficient evidence to conclude that his avocation is driving and then to ascertain the effect of the permanent disability on his earning capacity. Certainly, these materials are not sufficient to arrive at a conclusion on the question of assessment of loss of earning power following the steps to be followed in terms of the decision in **M.A.C.A.1343/2012** 6 **Ajay Kumar** 's case (supra). That apart, taking note of the fact that he sustained only 5% disability and also the nature of disability, we are of the considered view that the Tribunal ought not to have granted compensation for loss of earning power whereas he ought to have compensated for permanent disability incurred due to the injuries sustained in the accident. It is submitted by the learned counsel on both sides that the Tribunal had rightly adopted '17' as the multiplier with reference to the age of the appellant who was aged 30 years at the time of the accident. In view of the schedule given in **Sarla Verma v. Delhi Transport Corporation [2010 (2) KLT 802 (SC)],** the multiplier applicable is 17. Now, the question is whether the fixation of monthly income invites any interference. The Tribunal fixed the monthly income notionally as Rs.4,000/-. We have already found that the appellant had failed to prove his avocation by producing any relevant material. There is also absolute absence of evidence his income. In such any establishing monthly circumstances, it cannot be said that the Tribunal went wrong in **M.A.C.A.1343/2012** 7 fixing the monthly income notionally. However, the question is whether the fixation of the monthly income notionally at Rs.4,000/requires interference. In that context, the decision of the Hon'ble Apex Court in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Ltd.** [ **(2011) 13 SCC 236]** assumes relevance and it can act as guidance. In that case, in respect of a coolie who met with an accident in the year 2004, the Hon'ble Apex Court fixed the monthly income as Rs.4,000/- notionally for calculation purpose. The accident in question occurred about four years thereafter, precisely, on 8.4.2008. In such circumstances, we are inclined to fix the monthly income of the appellant as Rs.5,000/-. With the modified monthly income and other relevant factors, the compensation payable for the permanent disability has to be decided. On such assessment, the appellant would be entitled to get an amount of Rs.51,000/- (5000x12x17x5/100) under that head. The Tribunal has already granted an amount of Rs.40,800/- under the head compensation for loss of earning power. After deducting the said **M.A.C.A.1343/2012** 8 amount, the appellant would be entitled to get Rs.10,200/additionally. Since we do not find any reason to interfere with the compensation granted under any other heads, this appeal is allowed by granting an additional compensation of Rs.10,200/- which will carry 8% interest from the date of the petition till realisation. The third respondent shall deposit the additional compensation along with interest at the above rate within one month from the date of receipt of copy of this judgment. No order as to costs. **Sd/C.T. RAVIKUMAR (JUDGE)** **Sd/-** **ANIL K. NARENDRAN (JUDGE)** **spc/** **M.A.C.A.1343/2012** 9 **C.T. RAVIKUMAR, J.** **M.A.C.A.1343/2012** 10 **JUDGMENT September, 2010**