M. VIPIN v. NEW INDIA ASSURANCE COMPANY LTD.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE C.S. SUDHA** **FRIDAY, THE 5[TH] DAY OF APRIL 2024 / 16TH CHAITHRA, 1946** **MACA NO. 4083 OF 2019** **AGAINST THE AWARD DATED 24.04.2019 IN O.P.(MV) NO.528 OF 2015 OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL-IV, PALAKKAD.** **APPELLANT/PETITIONER:** **==> picture [78 x 143] intentionally omitted <==** **M.VIPIN,** **AGED 26 YEARS, S/O.SANKAR @ SANKARANARAYAN @ SANKARAN, 6/365, MANNATTIL HOUSE, PERUVEMBU, PALAKKAD, PIN-678 531.** **BY ADVS. JACOB SEBASTIAN SRI.K.V.WINSTON SMT.ANU JACOB** ## **RESPONDENT/2ND RESPONDENT:** **==> picture [78 x 89] intentionally omitted <==** **NEW INDIA ASSURANCE COMPANY LTD. N.S.TOWERS, 1ST FLOOR, NEAR STADIUM BUS STAND, COIMBATORE ROAD, PALAKKAD, PIN-678 001.** **BY ADV.LATHA SUSAN CHERIAN** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 05.04.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 **MACA NO. 4083 OF 2019** ## **JUDGMENT** ## **Dated this the 5[th] day of April, 2024** This appeal under Section 173 of the Motor Vehicles Act, 1988 (the Act) has been filed by the claimant in O.P. (MV)No.528/2015 on the file of the Motor Accidents Claims Tribunal-IV, Palakkad, (the Tribunal), aggrieved by the amount of compensation granted by Award dated 24/04/2019. The respondent herein is the 2[nd] respondent insurer before the Tribunal. The parties and the documents will be referred to as described in the original petition. 2. According to the petitioner, on 19/05/2013 at about 16:30 hours, he was travelling in a motorcycle bearing registration No.KL9/AF-63 as a pillion rider. The first respondent was riding the motorcycle in a rash and negligent manner due to which it collided with another motorcycle as a result of which the petitioner was thrown on to the road whereby he sustained injuries. The first respondent is the owner cum rider and the second respondent, the 3 ## **MACA NO. 4083 OF 2019** insurer of the vehicle. Hence, the petitioner claimed an amount of ₹10 lakhs as compensation under various heads. 3. The first respondent driver filed written statement denying any negligence on his part. 4. The second respondent insurer admitted the existence of a valid policy but denied liability. 5. Before the Tribunal, PW1 was examined and Exts.A1 to A9 series were marked on the side of the petitioner. The report of the Medical Board has been marked as Ext.X1. No oral or documentary evidence was adduced by the respondents. 6. The Tribunal on a consideration of the oral and 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 ₹6,73,058/- with interest @ 9% per annum from the date of the petition till realisation along with proportionate costs. Aggrieved, the petitioner has come up in appeal. 4 ## **MACA NO. 4083 OF 2019** 7. 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. 8. Heard both sides. 9. The impugned award is challenged on the following grounds - **- Loss of future prospects** It is pointed out on behalf of the petitioner that as per Ext.X1 disability certificate, the petitioner sustained 44% whole body permanent disability. Despite the same, the Tribunal did not grant any amount towards loss of future prospects/future earnings. _Per contra_ , it is submitted by the learned counsel for the respondent insurer that, after a period of one year, the petitioner had rejoined duty and that there is also no evidence to show that there was any reduction of income or loss of earning capacity pursuant to the accident. That being the position, no compensation towards loss of future prospects can be granted, goes the argument. 5 ## **MACA NO. 4083 OF 2019** 9.1. As held in **Raj Kumar v. Ajay Kumar, (2011)1 SCC 343,** all injuries (or permanent disabilities arising from injuries) do not result in loss of earning capacity. The percentage of permanent disability with reference to the whole body of a person, cannot be assumed to be the percentage of loss of earning capacity. To put it differently, the percentage of loss of earning capacity is not the same as the percentage of permanent disability (except in a few cases, where the Tribunal based on evidence, concludes that percentage of loss of earning capacity is the same as percentage of permanent disability). The doctor who treated the injured/claimant or who examined him subsequently to assess the extent of his permanent disability can give evidence only regarding the extent of permanent disability. The loss of earning capacity is something that will have to be assessed by the Tribunal with reference to the evidence in entirety. The same permanent disability may result in different percentages of loss of earning capacity in different persons, depending upon the nature of profession, occupation or job, age, 6 **MACA NO. 4083 OF 2019** education, and other factors. 9.2. The Tribunal considering the fact that the petitioner was on leave without salary for a period of one year, granted compensation for the said period. In addition, an amount of ₹4,00,000/- towards loss of amenities and ₹50,000/- towards pain and suffering has also been granted. No evidence has come on record to show that pursuant to the accident, there was any reduction in the monthly salary being received by the petitioner due to the disability caused by the injuries. There is also no evidence to show that there has been any loss of future earning capacity. 9.3. The learned counsel for the petitioner relies on the decisions in **Erudhaya Priya v. State Express Transport Corporation Ltd. [2020 KHC 6460]** and **Hari Om v. National Insurance Co. Ltd. [2023 KHC 2944]** to canvass the point that in the light of the disability sustained by the petitioner, he is certainly entitled to the compensation towards loss of future prospects/future earnings. On going through the decisions cited, it can be seen that 7 ## **MACA NO. 4083 OF 2019** the injured/claimant therein had sustained multiple fractures and in the light of the nature of work being done by them, it was held that the future prospects of the injured therein had been adversely affected. That is not the case in the case on hand. 9.4. As per Ext.X1 disability certificate issued by the medical board, the petitioner has 30% ophthalmology and 20% orthopaedics disability and thus a total whole body permanent disability of 44%. The Apex court in **Raj Kumar** ( _Supra_ ) has explained **t** he manner in which the effect of permanent disability on the actual earning capacity has to be ascertained, which is thus- the effect of the permanent disability on the actual earning capacity involves three steps- (i) 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). (ii) to ascertain his avocation, profession, and nature of work before the accident, as also his age. 8 ## **MACA NO. 4083 OF 2019** (iii) to find out whether (a) the claimant is totally disabled from earning any kind of livelihood, or (b) 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 (c) 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. For example, if the left hand of a claimant is amputated, the permanent physical or functional disablement may be assessed around 60%. If the claimant was a driver or a carpenter, the actual loss of earning capacity may virtually be hundred percent, if he is neither able to drive or do carpentry. On the other hand, if the claimant was a clerk in Government service, the loss of his left hand may not result in loss of employment and he may still be continued as a clerk as he could perform his clerical functions; and in that event the loss of earning capacity will not be 100% as in the case of a driver or carpenter, nor 9 ## **MACA NO. 4083 OF 2019** 60% which is the actual physical disability, but far less. In fact, there may not be any need to award any compensation under the head of ‘loss of future earnings’, if the claimant continues in Government service, though he may be awarded compensation under the head of loss of amenities as a consequence of losing his hand. Sometimes the injured claimant may be continued in service, but may not be found suitable for discharging the duties attached to the post or job which he was earlier holding, on account of his disability, and may therefore be shifted to some other suitable but lesser post with lesser emoluments, in which case there should be a limited award under the head of loss of future earning capacity, taking note of the reduced earning capacity. It may be noted that when compensation is awarded by treating the loss of future earning capacity as 100% (or even anything more than 50%), the need to award compensation separately under the head of loss of amenities or loss of expectation of life may disappear and as a result, only a token or nominal amount may have to be awarded under the head of 10 ## **MACA NO. 4083 OF 2019** loss of amenities or loss of expectation of life, as otherwise there may be a duplication in the award of compensation. 9.5. PW1 was examined by the petitioner to prove Ext.A1 salary certificate, which certificate has been accepted by the Tribunal, based on which compensation has been granted for loss of pay for a period of one year, during which period he was on leave without pay. PW1 was examined in the year 2018. The incident took place on 19/05/2013. PW1 admitted that the petitioner continues to be a permanent employee in their business concern. No evidence has been brought through the testimony of PW1, examined on behalf of his employer to show that pursuant to the accident, the petitioner, a Plant Operator, had been shifted from his post or that his salary had been reduced as he was unable to discharge his duties. 9.6. Further, where a person is employed in a salaried job and notwithstanding the disability suffered by him on account of the injuries in the accident, if he does not suffer any reduction in salary or loss of future prospects in his employment, then he will not be 11 ## **MACA NO. 4083 OF 2019** entitled to any compensation for loss of earning capacity. In such cases, the claimant would be entitled to compensation for loss of amenities in life, considering the effect of the disability on his personal life and his ability to do the personal chores in his private life (See **National Insurance Co. Ltd., Kozhikode v. Anoop Kumar, 2014 KHC 13** ). Here an amount of ₹4,00,000/- towards loss of amenities and ₹50,000/- towards pain and suffering has been granted by the Tribunal. As there is no evidence or materials on record to show that there has been any loss of earning capacity or earning power due to the injury sustained, no compensation can be awarded under this head. 10. The learned counsel for the petitioner made a request for remanding the matter to the Tribunal to enable him to adduce evidence to establish his case of loss of income and loss of future prospects. In the claim petition, the case of the petitioner is that pursuant to the accident, he is completely disabled and that he cannot do any work whatsoever. This case of the petitioner is belied 12 ## **MACA NO. 4083 OF 2019** by the testimony of PW1 who when examined in the year 2018 deposed that the petitioner continues to be a permanent employee of their business concern. Therefore, remanding the case would also not help the petitioner in any way. Moreover, the petitioner has no case that the Tribunal had not given sufficient opportunity to adduce evidence. Hence, I find no reasons to interfere with the findings of the Tribunal. In the result, the appeal is dismissed. Interlocutory applications, if any pending, shall stand closed. Sd/- **C.S. SUDHA JUDGE** bpr