M.A.C.A No. 1244 of 2017

# _`IN THE HIGH COURT OF KERALA AT ERNAKULAM`_ ## _`PRESENT`_ ``` THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN ``` ``` TUESDAY, THE 20[TH] DAY OF JUNE 2023 / 30TH JYAISHTA, 1945 ``` ``` MACA NO. 1244 OF 2017 ``` ``` AGAINST THE AWARD DATED 12.1.2017 IN OPMV 381/2015 OF MOTOR ``` ## _`ACCIDENT CLAIMS TRIBUNAL PALA`_ ## _`APPELLANT/3RD RESPONDENT IN THE OP:`_ ``` THE ORIENTAL INSURANCE CO. LTD KANJIRAPPALLY, REPRESENTED BY THE ASSISTANT MANAGER & AUTHORIZED SIGNATORY, THE ORIENTALINSURANCE CO.LTD, REGIONAL OFFICE,ERNAKULAM, METRO PALACE, ERNAKULAM NORTH.KOCHI.18. BY ADV SRI.A.R.GEORGE ``` ## _`RESPONDENT/CLAIMANT IN THE OP:`_ ``` SREEKANTH S/O RADHAKRISHNAN PADATHETTU HOUSE,KIZHAKKUMBHAGOM KARA, ETTUMANNOOR VILLAGE.686631. BY ADVS. SRI.DOMSON J.VATTAKUZHY SRI.MATHEW JOHN K ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 20.06.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` M.A.C.A No. 1244 of 2017 2 ## **MURALI PURUSHOTHAMAN, J.** **--------------------------------------------M.A.C.A No. 1244 of 2017** **-------------------------------------------------** Dated this the 20[th] day of June, 2023 ## **JUDGMENT** The 3[rd] respondent Insurance Company in OP(MV) No. 381 of 2015 on the files of the Motor Accidents Claims Tribunal, Pala, has filed this appeal challenging the award passed by the Tribunal. The parties to this appeal will hereinafter be referred to as petitioner and respondents in accordance with their status in the claim petition. 2. According to the petitioner, on 21.01.2015, while he was riding a motorcycle bearing registration No. KL67/3810, a bus bearing registration No.KL-33-E-6330, driven by the 1[st] respondent, rashly and negligently, hit against the motorcycle and the petitioner sustained serious injuries. The petitioner claimed an amount of M.A.C.A No. 1244 of 2017 3 **Rs.19,82,545** /- as compensation for the injuries sustained in the accident. 3. The 1[st] respondent remained ex parte before the Tribunal. Exts. A1 to A16 were marked on the side of the petitioner and he was examined as PW1. The respondents adduced Exts. B1 and B2. 4. The 2[nd] respondent, the owner of the vehicle, filed a written statement contending that the accident happened due to the negligence of the petitioner. 5. The 3[rd] respondent insurer of the offending vehicle filed a written statement contending that the accident happened due to the negligence of the petitioner. Though they admitted the insurance policy, it was contended that there are violations of conditions of policy. The age, occupation and income of the petitioner were also disputed. 6. The Tribunal, relying on Ext. A4 final report and the dictum laid down by the Hon’ble Supreme Court in **New India Assurance Company Ltd. Vs. Pazhaniyammal** M.A.C.A No. 1244 of 2017 4 **(2011 (3) KLT 648),** found that the accident happened due to the negligence of the 1[st] respondent, the driver of the bus. In the absence of any other evidence as regards the income, the Tribunal fixed the notional monthly income of the petitioner as Rs.9,000/-. The Tribunal took the multiplier as ‘16’ as the petitioner was aged 32 years at the time of the accident. Relying on Ext. A16 disability certificate issued by the Medical Board which assessed the permanent disability of the petitioner as 40% and after personally seeing the petitioner, the Tribunal took the disability of the petitioner as 100% for calculating the compensation for permanent disability. No amount has been awarded under the head loss of earning since the Tribunal has taken the functional disability of the petitioner as 100%. The Tribunal awarded an amount of **Rs.19,82,545/-** with 9% interest per annum from the date of the petition till realisation and proportionate costs as total compensation. The compensation awarded under various heads is as follows:- M.A.C.A No. 1244 of 2017 5 |**SL**<br>**No.**|**Head of claim**|**Amount**<br>**claimed**|**Amount**<br>**awarded**|**Basis vital**<br>**details in a**<br>**nut shell**| |---|---|---|---|---| |1|Loss of earning|65,000/-||| |2|Partial loss of earning|50,000/-||| |3|Medical and miscellaneous<br>expenses|2,00,000/-|69,543/-|| |4|Bystander expenses|25,000/-|15,500/-|(250 x 62 days)| |5|Transportation expenses|15,000/-|4,000/-|| |6|Extra nourishment|5,000/-|15,000/-|| |7|Damage to clothing etc.|5,000/-|500/-|| |8|Pain and suffering|1,00,000/-|1,00,000/-|| |9|Compensation for disability|25,00,000/-|17,28,000/-|(9000x12x16x1<br>00)| |10|Loss of amenities|3,00,000/-|50,000/-|| ||Total|Claim limited to<br>Rs. 30,00,000/-|Rs. 19,82,543/-<br>rounded to Rs.<br>19,82,545/-|Rs. 19,82,545/-<br>along with<br>interest at the<br>rate of 9% p.a.<br>from<br>29.05.2015| ## 7. The learned counsel for the 3[rd] respondent insurance company submits that the petitioner was riding the motorcycle under the influence of alcohol and the accident happened due to his negligence and the finding of the Tribunal holding the 1[st] respondent as negligent cannot be sustained. The learned counsel for the petitioner, relying on the decision in **Babu K & Another Vs. Union of India** M.A.C.A No. 1244 of 2017 6 **(2017 (4) KHC 137),** contends that mere consumption of alcohol or liquor is not at all sufficient to bring a person under the exception of “intoxication”. The learned counsel for the 3[rd] respondent points out that, in the deposition of PW1, he has admitted that he was driving the motorcycle after consuming beer. However, there is nothing in evidence to show that the petitioner was driving the motorcycle under the influence of alcohol. Ext. A3 wound certificate only says that there is smell of alcohol. Therefore, merely on the basis of Ext. A3 wound certificate, it cannot be contended that the petitioner was riding the motorcycle under the influence of alcohol. Therefore, I do not find any reason to interfere with the finding of the Tribunal as regards negligence. 8. The Tribunal has taken the notional monthly income of the petitioner as Rs.9,000/-. It is contended by the learned counsel for the petitioner that the petitioner was a qualified aluminium Fabrication Worker and that he was earning Rs. 20,000/- per month. In the absence of cogent evidence as M.A.C.A No. 1244 of 2017 7 regards the income of the petitioner, this Court can only arrive at a notional income. As per the guidelines in **Ramachandrappa v Manager, Royal Sundaram Alliance Insurance Company Limited** [ (2011) 13 SCC 236], I take the notional monthly income of the petitioner as Rs. 10,000/-. Going by the dictum laid down in **Raj kumar Vs. Ajay kumar and Another [2011 (1) SCC 343] and in Pappu Deo Yadav v. Naresh Kumar and Others [2020 KHC 6547 (SC)],** even in case of serious personal injuries, future prospects can be added towards the income. The petitioner was not a permanent employee and he was aged 32 years. Therefore, 40% of his income can be added towards future prospects. Accordingly, the monthly income of the petitioner is re-fixed as Rs. 14,000/- [Rs.10,000+(10,000x40/100)]. 9. The Tribunal has taken the functional disability of the petitioner as 100%. He sustained the following injuries:- - “1. Comminuted fracture distal 3[rd] femur(Rt). 2. Type III open comminuted fracture proximal third tibia (Rt). M.A.C.A No. 1244 of 2017 8 3. Brachial plaxis injury (Rt) 4. Elbow dislocation (Rt).” 10. The Medical Board constituted pursuant to the orders of this Court dated 14.03.2023 has assessed the permanent disability of the petitioner as 45%. The Hon’ble Supreme Court in **Rajkumar** (supra) considered in detail the correlation between the permanent disability suffered in an accident and the loss of earning capacity resulting therefrom. The Court held as under:- “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% M.A.C.A No. 1244 of 2017 9 loss of future earning capacity. In most of the cases, equating the extent (percentage) of loss of 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 the 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 (see for example, the decisions of this court in Arvind Kumar Mishra v. New India Assurance Co.Ltd. - 2010(10) SCALE 298 and Yadava Kumar v. D.M., National Insurance Co. Ltd. - 2010 (8) SCALE 567). 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 M.A.C.A No. 1244 of 2017 10 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 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 M.A.C.A No. 1244 of 2017 11 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 yardstick has been reaffirmed in **Pappu Deo Yadhav’s** case (supra). 11. Going by the dictum laid down in the above decisions of the Apex Court, I find that the functional disability of the petitioner cannot be taken as 100% as assessed by the Tribunal. The Tribunal has found that the right hand of the petitioner is paralysed. However, the petitioner will be able to carry out other avocation or some other activities of lesser scale. In the facts and circumstances of the case, I fix the functional disability of the petitioner as 65%. Accordingly, the compensation for permanent disability is re-worked as Rs.17,47,200/- (Rs. 14,000/- × 12× 16× 65/100). Tribunal has already awarded an amount of Rs.17,28,200/-. Therefore, the petitioner is granted an additional sum of Rs.19,200/under the said head. M.A.C.A No. 1244 of 2017 12 12. Since the Tribunal has taken the permanent disability of the petitioner as 100%, no amount was awarded under the head loss of earnings. Taking the monthly income of the petitioner as Rs. 10,000/-, the petitioner will be entitled for Rs. 60,000/- (Rs.10,000/- × 6 months) as compensation for loss of earnings. 13. Towards loss of amenities, the Tribunal has awarded only an amount of Rs.50,000/-. The petitioner was aged only 32 years at the time of accident. Considering the nature of injuries sustained by the petitioner and the disability certified by the Medical Board, I find that the petitioner is entitled for an amount of Rs. 1,00,000/- as compensation for loss of amenities. After deducting Rs. 50,000/- already awarded, the petitioner will be entitled for an additional amount of Rs. 50,000/- under the said head. 14. I find that the compensation awarded under the other heads is just and reasonable. M.A.C.A No. 1244 of 2017 13 15. Since I have re-worked the compensation as above, the total compensation payable to the petitioner would come to Rs. 21,11,745/- (Rs.19,82,545/- + Rs. 19,200/- + Rs.60,000/- + Rs. 50,000/-). The difference would come to Rs. 1,29,200/-. It is to be noted that the petitioner has not preferred any appeal or cross objection. In the circumstances, the appeal is dismissed. Pursuant to the interim order of this Court, the appellant/ the 3[rd] respondent Insurance Company had deposited one half of the amount awarded, inclusive of interest and costs, with the Tribunal and the claimant has received the same. The balance amount as per the Award of the Tribunal with interest and costs shall be deposited by the appellant/3[rd] respondent Insurance Company within a period of two months from the date of receipt of a certified copy of this judgment. Sd/- **MURALI PURUSHOTHAMAN JUDGE** al/-+