MACA No. 3145 of 2015 (OPMV 845/2007), Motor Accident Claims Appeal, High Court of Kerala at Ernakulam

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. TUESDAY, THE 14[TH] DAY OF NOVEMBER 2023/23RD KARTHIKA, 1945 ``` ## **`MACA NO. 3145 OF 2015`** ``` OPMV 845/2007 OF MOTOR ACCIDENT CLAIMS ``` ``` TRIBUNAL ,PATHANAMTHITTA ``` ## **`APPELLANT/2ND RESPONDENT:`** ``` NATIONAL INSURANCE CO.LTD KOTTARAKKARA, REPRESENTED BY THE MANAGER, KOCHI REGIONAL OFFICE, M.G.ROAD, ERNAKULAM, COCHIN- 682035. ``` ``` BY ADV SRI.E.M.JOSEPH ``` ## **`RESPONDENTS/CLAIMANT & 1ST RESPONDENT:`** ``` 1ALEX THOMAS AGED 53 YEARS S/O.THOMAS MUTHALALI, CHAVIDIYIL PUTHENPURAYIL, MANAKKALA P.O., ADOOR-691551. 2P.VIJAYAN AGED 50 YEARS S/O.PARAMU, MOOLASSERIL VEEDU, AMBALATHUMBHAGOM P.O., PORUVAZHI-690520. BY ADV SRI.M.T.SURESHKUMAR ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 14.11.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` M.A.C.A. No.3145/2015 : 2 : ## JUDGMENT This appeal is submitted by the 2[nd] respondent in OP(MV) No.845/2007, passed by the Motor Accident Claims Tribunal, Pathanamthitta. 2. The said claim petition was submitted by the 1[st] respondent herein seeking compensation for the injuries sustained to him in a motor accident that occurred on 16.10.2006. According to him, the accident occurred when a bus bearing registration No.KL-02-V-8464, insured with the appellant herein, hit the motorcycle ridden by the 1[st] respondent herein. According to the claimant, he was a videographer and video editor with a monthly income of Rs.18,000/-. Consequent to the injuries, he sustained physical disability, which was certified as 30%. The claim petition was submitted in such circumstances seeking compensation. 3. The appellant/2[nd] respondent alone contested the matter by filing a written statement wherein they admitted the insurance policy with respect to the vehicle. However, they disputed the liability on various grounds. The negligence, as well as the quantum of compensation, were also disputed by them. M.A.C.A. No.3145/2015 : 3 : 4. The evidence in this case consists of Exts.A1 to A38 from the side of the claimants, and no evidence was adduced from the side of the appellants/respondents. 5. After the trial, the tribunal concluded that the accident occurred due to negligence on the part of the bus driver and being the insurer of the said vehicle, the appellant was held liable to pay the compensation. The quantum of compensation was fixed as Rs.17,55,695/- and the appellant was directed to deposit the said amount along with interest at the rate of 9% per annum from the date of petition till realisation. This appeal is submitted in such circumstances challenging the quantum of compensation awarded by the tribunal on the ground that the same is excessive. 6. Heard Sri. E.M. Joseph, the learned counsel appearing for the appellant and Sri. M.T. Suresh Kumar, the learned counsel appearing for the 1[st] respondent. 7. The learned counsel for the appellant contends that the Tribunal committed an error while fixing the quantum of compensation for loss of earning capacity owing to the physical disability. It was pointed out that even though the monthly income claimed in the claim petition was Rs.8,000/-, the Tribunal has M.A.C.A. No.3145/2015 : 4 : accepted the monthly income as Rs.11,000/-, which was on the higher side. It was also contended that even though the physical disability certified by the Medical Board was only 30%, towards future prospects, 30% of the monthly income was added, which was not at all warranted. On the other hand, the learned counsel for the 1[st] respondent opposed the said contention by highlighting that a reasonable amount had been awarded by the Tribunal. The learned counsel also brought the attention of this Court to Exts.A24 to A28, indicating the volume of work he used to get from various digital studios for video editing and photography. According to the learned counsel, this would justify the monthly income taken by the Tribunal. The learned counsel for the 1[st] respondent also asserted that in the claim petition, the monthly income claimed was Rs.18,000/- not 8,000/- as contended by the appellant. 8. I have carefully gone through the lower court records, which were called from the Tribunal. With regard to the claim of monthly income as contended by the learned counsel for the appellant, it is to be noted that, in the original claim petition, the monthly income mentioned is Rs.18,000/-. Of course, it is true that a correction was made in the amount of compensation after the M.A.C.A. No.3145/2015 : 5 : petition was prepared. The appellant would contend that in the copy of the claim petition they received, the monthly income of the the claimant was shown as Rs.8,000/- and it did not contain the correction as found in the original of the claim petition. However, I am of the view that since Rs.18,000/- is specifically mentioned in the original claim petition, I have no reason to disbelieve the same. Therefore, the contention with respect to the claim of monthly income in this regard can only be disregarded. 9. The learned counsel for the appellant also contends that even otherwise, the monthly income of Rs.11,000/- taken by the Tribunal is on the higher side. The learned counsel for the appellant brought the attention of this Court to the observations made by the Tribunal in paragraph 8 of the award. In the said paragraph, it was observed by the Tribunal that as per Exts.A4 to A26, the petitioner used to get an average of 5 to 7 engagements every month from each of the three studio owners, and he used to execute a work at the rate of Rs.1,250/-. The specific contention of the learned counsel for the appellant is that considering the fact that he was getting an average of 6 to 7 works in a month at the rate of Rs.1,250/- at the most, the maximum amount he could M.A.C.A. No.3145/2015 : 6 : have earned was only Rs.8,750/- whereas the Tribunal has accepted it as Rs.11,000/-. Therefore, interference is required. But a careful reading of the observations of the Tribunal and also on perusal of Exts.A24 to A26 would reveal that such contention is not sustainable because, in Exts.A24 to A26, it was specially mentioned that all the said studio owners were giving regular work to the 1[st] respondent, with an average ranging from 5 to 8 and each work was for Rs.1,250/-. Therefore, going by the said documents, the 1[st] respondent was getting about more than 20 orders in a month at the rate of Rs.1,250/-, which would go beyond Rs.18,000/- as claimed in the claim petition. Of course, it is true that the persons who issued Exts.A24 to A26 certificates were examined. But considering the nature of the materials and appreciation thereof made by the Tribunal, I am of the view that the monthly income of Rs.11,000/- fixed by the Tribunal is a probable amount. Therefore, no interference is required. 10. The next aspect relates to the addition in the monthly income towards future prospects. The learned counsel for the appellant would contend that, considering the nature of disability sustained and the employment of the appellant, no addition ought M.A.C.A. No.3145/2015 : 7 : to have been made towards future prospects. The learned counsel further points out that the tribunal, while making an addition of 30%, relied on the observations made by the Hon’ble Supreme Court in Syed Sadiq v. Divisional Manager, United India Insurance Company [(2014) 2 SCC 735] wherein the factual circumstances which prompted the Hon’ble Supreme Court was completely different. However, after perusing the materials placed before this Court, I am not inclined to accept the said contention as such. In this regard, the learned counsel for the 1[st] respondent relied on Ext.A33. It was a certificate issued from RV Clinic and Hospital where the 1[st] respondent had undergone treatment, and the same was signed by an Orthopaedic surgeon. 11. It is discernible from the said certificate that, initially, the 1[st] respondent had undergone treatment in the said hospital from 02.01.2007 for 2½ months old infected gap non-union right femur with bone loss. Subsequently, he was discharged on 20.01.2007. Later, he was readmitted on 23.02.2007, the bone gap corrected by bone transport and partly by shortening and discharged on 02.05.2007 with the advice to walk with a walker. Again, he was readmitted on 13.06.2007 for ring fixator M.A.C.A. No.3145/2015 : 8 : realignment and discharged on 16.06.2007. Again readmitted with acute exacerbation of infection on 13.07.2007 for I & D of lower thigh, removal of clove wires and discharged on 24.07.2007. Furthermore, there was readmission on 01.10.2007 for realignment and compression at a non-union site and discharged on 05.10.2007. 12. Thus, it is evident that there was a prolonged treatment consequent to the problems arising from the injury suffered by the appellant. It is also discernible from the certificate that he was advised not to travel, suggested restricted activities, and to avoid climbing the steps to prevent re-fracture. In the said certificate, it was explicitly stated that, even though his fracture has healed, it is not safe as the chances of re-fracture are very high. The disability was evaluated with reference to the particular limb as per the certificate, which was 82%. The learned counsel for the 1[st] respondent contends that being a photographer by profession, he has to move around, and the nature of his disability would certainly affect his earning capacity. Therefore, the addition of future prospects is justifiable. It is to be noted in this regard that, in Mohan Sony v. Ram Avatar Tomar & others [(2012) 2SCC 267], M.A.C.A. No.3145/2015 : 9 : the manner in which the determination of loss of income has to be made in a case of disability was clearly explained. The relevant paragraph reads as follows: “11. In a more recent decision in Raj Kumar v. Ajay Kumar and another [(2011) 1 SCC 343] this Court considered in great detail the correlation between the physical disability suffered in an accident and the loss of earning capacity resulting from it. In paragraphs 10, 11 and 13 of the judgment in Raj Kumar, this Court made the following observations: 10. 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, the 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% 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. 11. What requires to be assessed by the Tribunal is the effect of the permanent 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 M.A.C.A. No.3145/2015 : 10 : 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 Company Ltd. [(2010) 10 SCC 254] and Yadava Kumar v. National Insurance Company Ltd. [(2010)10 SCC 341]. 13. 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 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 steps is to find out whether (i) the claimant is totally disabled from earning any kind of livelihood or (ii) whether inspite 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.” 13. The Hon’ble Supreme Court made the said observations after referring to Rajkumar v. Ajay Kumar [(2011) 1 SCC 343]. The said observations were relied on by the Hon’ble Supreme Court in Syed Sadiq’s case, where the functional disability was taken at a higher rate. The principle that can be deduced from the aforesaid observations is that, what is relevant for consideration in such circumstances, is the impact of the disability upon the avocation of the appellant. In this case, going M.A.C.A. No.3145/2015 : 11 : by the nature of the employment, the petitioner was restricted from movement, which would certainly affect his earning capacity. Therefore, what is relevant is the functional disability and not the mere physical disability as certified in the medical certificate issued by the Medical Board. From the award, it is evident that the Tribunal has considered the aforementioned aspects and an addition of 30% was made towards future prospects. Therefore, in the facts and circumstances of the case, there was nothing wrong in making an addition of future prospects. 14. However, even when the addition made by the tribunal is to be accepted, some interference is required with regard to the percentage of additions made. As per the principles laid down by the Hon’ble Supreme Court in Pranay Sethi ’s case, in respect of persons coming within the age group of 40-45 the addition to be made is 25% where such person is a self employed persons. Therefore, the addition of 30% is contemplated only in respect of salaried employees in regular employment. Consequently, I am of the view that instead of 30%, as taken by the tribunal, the proper addition should have been at the rate of 25%. Accordingly, the only modification required is to reduce the percentage of addition M.A.C.A. No.3145/2015 : 12 : to 25% from 30%. Thus, while reassessing the compensation with 25% addition of monthly income towards future prospects and by retaining the other criteria adopted by the Tribunal, the amount of physical disability compensation would come to Rs.6,93,000/[(11000+ 25% x 12x 30x14/100] whereas the tribunal has awarded an amount of Rs.7,20,720/- under this head. Thus, the excess amount awarded by the tribunal comes to Rs.27,750/-. In such circumstances, this appeal is allowed by modifying the award dated 04.03.2015 in OP(MV) No.845/2007 passed by the Motor Accident Claims Tribunal, Pathanamthitta, by refixing the total amount of compensation as Rs.17,27,945/- [175569527750] (Rupees seventeen lakhs twenty seven thousand, nine hundred and forty five only) and the appellant is directed to deposit the said amount along with interest at the rate as ordered by the tribunal within a period of three months from the date of receipt of a copy of this judgment after adjusting the amounts already deposited. Sd/ZIYAD RAHMAN A.A. JUDGE ncd