M.A.C.A. No. 3173/2017

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. WEDNESDAY,THE 13[TH] DAY OF DECEMBER 2023/22ND AGRAHAYANA,1945 ``` ## **`MACA NO. 3173 OF 2017`** ``` OPMV 417/2015 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, ``` ## **`MUVATTUPUZHA`** ## **`APPELLANT/3rd RESPONDENT:`** ``` NATIONAL INSURANCE CO.LTD., KOLENCHERY, SHANTI PARK, KOLENCHERY,PIN.682 311, REPRESENTED BY ITS REGIONAL MANAGER,KOCHI REGIONAL OFFICE, OMANA BUILDING, M.G.ROAD,ERNAKULAM, KOCHI.682 035. ``` ``` BY ADV SRI.P.G.GANAPPAN ``` ## **`RESPONDENTS/CLAIMANT AND RESPONDENTS 1 & 2:`** - `1 CHELLAMMA, W/O.KUNJU, RESIDING AT BLAYIKUDIYIL HOUSE,KUNNACKAL KARA, VALAKOM VILLAGE, MUVATTUPUZHA TALUK, ERNAKULAM DISTRICT,PIN.682 316.` - `2 PAILY THOMAS, PADINJAREKAIPPILLIL HOUSE, KADAKKANADU P.O.,KOLENCHERY, KUNNATHUNADU TALUK, ERNAKULAM,PIN.682 311.` - `3 REMESH K., S/O.KARUPPANKUTTY, PATHIYIL HOUSE,PULPALLY VILLAGE, PATHIKARA, PALAKKADU.678 552.` ``` BY ADVS. SRI.ANIL GEORGE SRI.T.K.KOSHY ``` ## **`THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR`** ``` ADMISSION ON 13.12.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` M.A.C.A. No.3173/2017 : 2 : ## JUDGMENT The appeal is submitted by the 3[rd] respondent in OP(MV) No.417/2015 on the files of the Motor Accident Claims Tribunal, Muvattupuzha. 2. The said claim petition was submitted by the 1[st] respondent, a woman aged 50 years at the time of the accident, seeking compensation for the injuries sustained to her in an accident that occurred on 13.02.2015. The 1[st] respondent was engaged as a daily wage worker engaged for tarring work, and while she was watering the wheels of the road roller during the tarring work, the driver lost control of the road roller, knocked down the 1[st] respondent and ran over her legs. Consequent to the injuries, the left leg of the 1[st] respondent was amputated below the knee, and the 4[th] toe of the right foot was also amputated. The monthly income claimed was Rs.12,000/- from her avocation as a tarring worker. The claim petition was submitted in such circumstances. M.A.C.A. No.3173/2017 : 3 : 3. The appellant/ 3[rd] respondent, the insurer of the road roller entered appearance and filed a written statement accepting the coverage of policy for the said vehicle. However, they raised various contentions disputing the liability. The quantum of compensation was also disputed by them. 4. The evidence in this case consists of Exts.A1 to A9 from the side of the appellants. From the side of the respondents, RW1 was examined, and Exts.B1 and B2 were marked. 5. After the trial, the tribunal came to the conclusion that the accident occurred due to the negligence on the part of the driver of the road roller and being the insurer, the appellant was imposed with the liability to pay the compensation. The quantum of compensation was fixed as Rs.20,33,950/- and the said amount was directed to be deposited by the appellant/ 3[rd] respondent with interest at the rate of 6% per annum from the date of petition till realisation with proportionate costs. This appeal is submitted by the appellant/ 3[rd] respondent challenging the quantum of compensation. 6. Heard Sri. P.G. Ganappan, the learned counsel appearing for the appellant and Sri. T.K. Koshy, the learned M.A.C.A. No.3173/2017 : 4 : counsel appearing for the 1[st] respondent/claimant. 7. The learned counsel for the appellant raised various contentions challenging the quantum of compensation. The first contention that has been raised related to the monthly income of the 1[st] respondent. It was pointed out that the tribunal, without any evidence, accepted the monthly income as Rs.12,000/-. It was also contended that the tarring work, being seasonal in nature, would not provide her regular employment throughout the year. Therefore, adopting a monthly income of Rs.12,000/- was stoutly opposed by the learned counsel for the appellant. 8. However, after considering the materials placed on record, I am not inclined to accept the contention for the following reasons: First of all, the fact that she was a tarring worker is evident from the manner in which the accident occurred. It is an undisputed fact that the accident occurred during the course of her employment while she was watering the wheels of the road roller during the course of tarring. The accident occurred in the year 2015. Considering the wages that a tarring worker may obtain at the relevant time, which are usually much higher than the other employee, I do not find any unreasonableness in taking M.A.C.A. No.3173/2017 : 5 : the monthly income of Rs.12,000/-. It is to be noted in this regard that, even while adopting the method of computation evolved from the principles laid down by the Hon’ble Supreme Court in Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Co.Ltd [(2011) 13 SCC 236] and Syed Sadiq v. Divisional Manager, United India Insurance Company [(2014) 2 SCC 735] the monthly income of an ordinary worker without any skills could be fixed as Rs.10,500/- for the year 2015. In this case, the tarring work is an employment; where usually, the remuneration will be higher, which fact cannot be ignored. Therefore, the monthly income of Rs.12,000/- appears to be reasonable. With regard to the seasonal character of the tarring work, I am not inclined to accept the said contention. As of now, the tarring work itself cannot be treated as seasonal work, and there is no evidence in this regard. Besides the same, the claimant, being a daily wage earner, would not sit idle, even when there is no work of tarring, and certainly, she would carry out some other employment to meet both ends. Therefore, I do not find any necessity to interfere in the fixation of monthly income by the tribunal. M.A.C.A. No.3173/2017 : 6 : 9. Another contention raised by the learned counsel for the appellant relates to the percentage of disability. It was contended that even without the absence of any disability certificate, the tribunal took the percentage of disability as 60%. It was pointed out that even if the percentage of disability as contemplated in the schedule of the Employees Compensation Act is taken into consideration, the maximum percentage could be 53% in the light of the entry Nos. 20 and 41, combined together (considering the amputation below the knee, and the 4[th] toe of the right foot). However, it was also contended by the learned counsel for the appellant that what is mentioned in the schedule of the Employees Compensation Act is the loss of earning capacity and not a mere the extent of the physical disability. Since the percentage specified in the schedule of the Employees Compensation Act was with reference to the earning capacity, it was not necessary to take any higher percentage than certified therein when it comes to the question of injuries specifically covered as per the entries contemplated under the Employees Compensation Act, contends the appellant. M.A.C.A. No.3173/2017 : 7 : 10. However, I am not inclined to accept the said contention as well. This is a case in which the right leg of the 1[st] respondent was amputated below the knee, and the 4[th] toe on the right leg was also amputated due to crush injuries suffered by the 1[st] respondent. She was a manual labour engaged in the tarring work. No other evidence required to arrive at the conclusion that the disability suffered by her would deprive her from pursuing her avocation. She was 50 years old at the time of the accident. Of course, it may be possible for her to pursue any other avocation, but the chances of getting engaged in any other employment as profitable as that of a tarring worker are very low. Besides the same, in Syed Sadiq case, the Hon’ble Supreme Court was pleased to take the functional disability of a vegetable vendor as 85%, even though the actual percentage certified was only 30. Therefore, I am of the view that, considering the peculiar factual circumstances existing in this case, the acceptance of 60% as the disability of the 1[st] respondent is a reasonable figure that does not warrant any interference. 11. The other head, which is stoutly opposed by the learned counsel for the appellant, is the compensation granted M.A.C.A. No.3173/2017 : 8 : towards loss of earnings. It was contended that the tribunal had awarded compensation for a period of nine months under this head. According to the learned counsel, when compensation is calculated by taking note of the functional disability, compensation for loss of earnings for such a long period is not at all necessary. But this contention is also to be discarded. As far as the loss of earning capacity is concerned, the said compensation is granted for addressing the loss of or reduction in the ability to earn the income, suffered by the victim of a motor accident. On the other hand, the compensation for loss of earnings is to address the actual loss she suffered since she was deprived of pursuing any employment consequent to the treatment she was undergoing. Moreover, since the injuries suffered by the 1[st] respondent included amputation and it is evident that she could not have continued her present employment, and she is required to find another source of livelihood for which she will have to make herself adjust to the new situation. This also would require some time, and during the said period, it may not be possible for her to earn any amount. Hence, she should be adequately compensated to address the same. Therefore, I do not find any M.A.C.A. No.3173/2017 : 9 : illegality in granting compensation for earnings for the period of nine months. 12. The other head, which was opposed by the learned counsel for the appellant, is towards the future treatment expenses. It is seen that the tribunal has awarded an amount of Rs.1,00,000/- towards future treatment expenses. I do not find it necessary to interfere with the said amount, considering the serious nature of the injuries sustained. Besides the same, it is also evident that she had to rely on the artificial limb to carry out her day-to-day activities. The artificial limb requires periodical maintenance and she is likely to incur expenses for the same. Therefore, I do not find any necessity to interfere with the amount of Rs. 1,00,000/- towards future treatment expenses as well. 13. Another contention raised by the learned counsel for the insurance company is that an amount of Rs.2,00,000/- was awarded for the purpose of purchasing the artificial limb, and the tribunal awarded interest for the said amount from the date of the petition as well. It was pointed out that since the said compensation was for enabling the 1[st] respondent to purchase an artificial limb at a later point of time, granting interest from the M.A.C.A. No.3173/2017 : 10 : date of petition was not at all justified. Of course, it is true that there is some force in the said contention. But I am not inclined to interfere in the said compensation on that reason alone. This is particularly because, despite the fact that serious injuries were sustained and resulted in disabilities to the extent of 60% as found by the tribunal, no additional amount was granted, taking note of the future prospects. Therefore, any further reduction from the compensation already awarded by the Tribunal would amount to gross injustice to the victim. Thus, after considering all the relevant aspects and the materials produced before this Court, I do not find any necessity to interfere with the compensation awarded by the tribunal as it appears to be reasonable when the total amount is taken into consideration. Therefore, I do not find any merit in this appeal, and accordingly, it is dismissed, confirming the award passed by the tribunal. Sd/ZIYAD RAHMAN A.A. JUDGE ncd