MACA Nos. 1835 of 2012 and 2096 of 2012; The New India Assurance Company Limited v. Nazirudden @ Nasiruddin and Others

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN ``` ``` FRIDAY, THE 14TH DAY OF JULY 2023 / 23RD ASHADHA, 1945 ``` ``` MACA NO.1835 OF 2012 ``` ## **`AGAINST THE AWARD DATED 28.02.2012 IN OP(MV) NO.293/2007 OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, ERNAKULAM APPELLANT/3RD RESPONDENT:`** ``` THE NEW INDIA ASSURANCE COMPANY LIMITED TRIPUNITHURA, NOW REPRESENTED BY ITS MANAGER, REGIONAL OFFICE, M.G. ROAD, KOCHI-11. ``` ``` BY ADVS. SRI.MATHEWS JACOB (SR.) SRI.P.JACOB MATHEW ``` ## **`RESPONDENTS/PETITIONER/ADDL.RESPONDENTS 2 TO 4:`** - **`1 C.P.HARSHAN, S/O.PURUSHAN, CHERIYAPARAPPURAM HOUSE, MANNAM.P.O., NORTH PARAVUR TALUK, PIN682315. [DIED]`** - **`ADDL.2 K.A.SINDHU, W/O.LATE HARSHAN, CHERIAPARAPURAM HOUSE, MANNAM.P.O, NORTH PARAVUR TALUK.`** - **`ADDL.3 ANANDHU HARSHAN, S/O.LATE HARSHAN, CHERIAPARAPURAM HOUSE, MANNAM P.O, NORTH PARAVUR TALUK.`** - **`ADDL.4 AVANI HARSHAN (MINOR), D/O.LATE HARSHAN, CHERIAPARAPURAM HOUSE, MANNAM P.O, NORTH PARAVUR TALUK, REPRESENTED BY HER MOTHER 2ND RESPONDENT.`** ``` (*ADDITIONAL RESPONDENTS 2 TO 4 ARE IMPLEADED AS PER ORDER DATED 30.09.2016 IN I.A.NO.3238/2016 IN MACA NO.1835/2012) ``` ``` BY ADV P.V.BABY ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 14.07.2023, ALONG WITH MACA NO.2096/2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` M.A.C.A.Nos.1835 & 2096 of 2012 2 ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN FRIDAY, THE 14TH DAY OF JULY 2023 / 23RD ASHADHA, 1945 MACA NO.2096 OF 2012 ``` ``` AGAINST THE AWARD DATED 28.02.2012 IN OP(MV) NO.293/2007 OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, ERNAKULAM APPELLANTS/PETITIONER: ``` ``` 1C.P.HARSHAN [DIED] ADDL.2K.A.SINDHU, W/O.LATE HARSHAN, CHERIAPARAPURAM HOUSE, MANNAM.P.O, NORTH PARAVUR TALUK. ADDL.3ANANDHU HARSHAN, S/O.LATE HARSHAN, CHERIAPARAPURAM HOUSE, MANNAM P.O, NORTH PARAVUR TALUK. ADDL.4AVANI HARSHAN (MINOR), D/O.LATE HARSHAN, CHERIAPARAPURAM HOUSE, MANNAM P.O, NORTH PARAVUR TALUK, REPRESENTED BY HER MOTHER 2ND RESPONDENT. ``` ``` (ADDITIONAL APPELLANTS 2 TO 4 ARE IMPLEADED BEING LR'S OF DECEASED 1ST APPELLANT AS PER ORDER DATED 31.08.2016 IN IA 2544/2016 IN MACA 2096/2012) ``` ``` BY ADVS. SRI.P.V.BABY SRI.A.N.SANTHOSH ``` ## **`RESPONDENTS/RESPONDENTS:`** ``` 1NAZIRUDDEN @ NASIRUDDIN S/O.SHAMSUDEEN, AYSHA MANZIL, PERINGALA.P.O, ERNAKULAM DISTRICT -683565. ``` M.A.C.A.Nos.1835 & 2096 of 2012 3 ``` 2K.S.SHAMEER, S/O.SHAMSUDEEN @ SHAMSU, KOLLAMPARAMBIL HOUSE, NEAR MOSQUE, PONNARIMANGALAM, MULAVUKAD.P.O, ERNAKULAM-682504. ``` ``` 3THE NEW INDIA INSURANCE COMPANY LTD. THRIPUNITHARA, ERNAKULAM -682301. ``` ``` BY ADVS. SRI.MATHEWS JACOB SR.R-3 SRI.P.JACOB MATHEW ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 14.07.2023, ALONG WITH MACA NO.1835/2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` M.A.C.A.Nos.1835 & 2096 of 2012 4 ## **`JUDGMENT`** ``` Since Both the appeals arise from the award dated 28.02.2012 in O.P(MV) No.293 of 2007 of the Additional Motor Accidents Claims Tribunal, Ernakulam, they are heard together and are disposed of by this common judgment. ``` ``` 2. M.A.C.A.No.1835 of 2012 is filed by the Insurance Company, the 3[rd] respondent before the Tribunal, challenging the award contending that the compensation awarded by the Tribunal is excessive and exorbitant. M.A.C.A.No.2096 of 2012 is filed by the petitioner contending that the compensation awarded by the Tribunal under various heads is too inadequate. ``` ``` 3. The petitioner expired on 26.02.2016 during the pendency of the appeals and his legal heirs have been impleaded as additional appellants 2 ``` M.A.C.A.Nos.1835 & 2096 of 2012 5 ``` to 4 in M.A.C.A.No.2096 of 2012. In M.A.C.A.No.1835 of 2012, they have been impleaded as additional respondents 2 to 4. ``` ``` 4. In view of the rival contentions in the appeals, this Court has to examine whether the compensation awarded by the Tribunal is just and reasonable. ``` ``` 5. The short facts for disposal of the appeals are as follows: The petitioner, while driving a motorcycle on 27.11.2006, was hit by a car driven by the 2[nd] respondent, owned by the 1[st] respondent and insured with the 3[rd] respondent and sustained injuries. He claimed an amount of Rs.20,00,000/- [Rupees Twenty lakhs only] as compensation for the personal injuries sustained in the accident. The Tribunal found that the accident happened due to the negligence of the 2[nd] respondent and awarded an amount of Rs.17,01,190/- with 9% interest per annum from the date of petition till ``` M.A.C.A.Nos.1835 & 2096 of 2012 6 ``` realisation and proportionate costs. ``` ``` 6. At the time of the accident, the petitioner was working as a Trade Instructor Grade- II[HG]inGovernmentPolytechnicCollege, Kalamassery and was aged 41 years. He was drawing a salary of Rs.9,570/- as per Ext.A15 Salary Certificate. The Medical Board, as per Ext.A10 Disability Certificate, has assessed his permanent disability as 54%, neurological disability to the extent of 50% and disability to the right shoulder as 4%. ``` ``` 7. As per Ext.A6 Wound Certificate, he sustained the following injuries: ``` ## _**`"1. Fracture right temporal bone;`**_ _**`2. Left fronts tempero-parietal subdural hematology;`**_ _**`3. Contusion on right temporal region;`**_ _**`4. Right posterior parietal extra dural haematoma;`**_ ## _**`5. Brain stem contusion, Cerebral edema.`**_ M.A.C.A.Nos.1835 & 2096 of 2012 7 ``` At the time of admission the claimant was unconscious. He was treated as inpatient from 27.11.2006 to 15.01.2007. During the hospital stay, he underwent bilateralfronto-parietalcraniectomy, bilateral temporal burst lobe evacuation. He was treated with mechanical ventilation, cerebro protective measures, tracheostomy etc. At the time of discharge, he was ambulant with support dependent for activitiesofdailylife,memory impairment, dysphasic lack of co-ordination in speech and failure to arrange words in an understandable way." ``` ``` 8. Ext.A10 Disability Certificate shows that he had head injuries in the form of severe brain odema, severe memory deficit, post-traumatic seizures 1-5 months. It is also stated that he is totally dependent on relatives for ambulation. The Tribunal, taking note of Ext.A10 Disability Certificate and after witnessing the petitioner in Court, observed that his disability at the ``` M.A.C.A.Nos.1835 & 2096 of 2012 8 ``` occupational level is 75% as against 54% permanent disability assessed by the Medical Board in Ext.A10 Certificate. ``` ``` 9. The learned Senior Counsel for the Insurance Company contends that when the Medical Board has assessed the percentage of permanent disability of the petitioner as 54%, the Tribunal went wrong in assessing the occupational disability of the petitioner as 75% for the purpose of computationofcompensationforpermanent disability, in the absence of other evidence. 10. Sri.A.N.Santhosh, learned counsel for the petitioner would submit that though the Medical Board has, by Ext.A10, assessed the percentage of the permanent disability of the petitioner as 54%, the functional disability of the petitioner is 100%. The learned counsel submits that the Tribunal, after having found that the petitioner has suffered neurological damage and has to depend on relatives ``` M.A.C.A.Nos.1835 & 2096 of 2012 9 ``` for ambulation, ought to have taken the functional disability of the petitioner as 100%. ``` ``` 11. The correlation of the percentage of disability and its impact on the functional disability was considered by the Apex Court in Rajkumar v. Ajayakumar [2011 (1) SCC 343] and the Court held as follows: ``` ``` “8. 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% loss of future earning capacity. In most of the cases, equating ``` M.A.C.A.Nos.1835 & 2096 of 2012 10 ``` 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 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..…” ``` ``` 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 total disablement or permanent partialdisablement,(iii)ifthe disablement percentage is expressed with reference to any specific limb, then the effect of such disablement of the limb on ``` M.A.C.A.Nos.1835 & 2096 of 2012 11 ``` 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 discharging his previous activities and functions, but ``` M.A.C.A.Nos.1835 & 2096 of 2012 12 ``` 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 has been reaffirmed in Pappu Deo Yadav V. Naresh Kumar and Others [2020 KHC 6547 (SC)]. ``` ``` 12.The Tribunal had opportunity to see the claimant who was present in court and the Tribunal observed as follows:- ``` ``` “The Tribunal had also examined the claimant for assessing the disability. She had stated that she is unable to lift her right arm and also unable to open the fingers of her right hand. Her right hand became useless. She is unable to eat food and even wear dress. She stated that she is using a nighty with a full opening at the front portion. She expressed her inability in offering prayer. Her right arm was corrected by grafting the bones from the back portion of her right leg. The condition of the claimant is really pitiable. The assessment done by the Medical Board as spoken to by CW1 as 30% of disability appears to be a true and correct assessment and hence Ext.C2 series and C3 are taken into account for fixing the compensation regarding the disability pertaining to the claimant.” ``` ## **`13. The Tribunal, after taking note of the`** M.A.C.A.Nos.1835 & 2096 of 2012 13 ``` disability of the petitioner as certified by the Medical Board, found that the occupational disability of the petitioner is 75%. The Tribunal refused to take 100% occupational disability on the ground that the petitioner was still on the rolls of employment and had not taken any voluntary retirement. I find the reasoning given by the Tribunal for taking the occupational disability as 75% as correct. Therefore, the percentage of functional disability of the petitioner for the purpose of assessment of compensation is fixed as 75% as found by the Tribunal. ``` ``` 14. The petitioner was a Government servant. His disability being above 50%, the Tribunal ought to have added 30% of the income towards future prospects. The petitioner was aged 41 years at the time of accident and the multiplier to be adopted is 14 [Sarla Verma & Ors. v. Delhi Transport Corporation & Anr. [2010 (2) KLT 802 (SC)]. ``` M.A.C.A.Nos.1835 & 2096 of 2012 14 ``` 15. Keeping in mind the above factors, the compensation to be awarded to the petitioner [now died] has to be reworked: ``` ``` 16. The monthly income of the petitioner is Rs.9,570/-. The Tribunal has awarded an amount of Rs.1,14,840/- [9570 x 12] towards loss of earnings. Going by the dictum laid down in R.D.Hattangadi v. M/s.Pest Control (India) Pvt.Ltd. [(1995) 1 SCC 551], the petitioner is entitled for loss of earnings only up to the date of trial. Accordingly, the petitioner is entitled only for an amount of 9,570x4 months = 38,280/-, towards loss of earnings. Therefore, an amount of Rs.76,560/- has to be deducted from the head of loss of earnings. ``` ``` 17. Towards pain and sufferings, though the petitioner claimed an amount of Rupees Two lakhs, only an amount of Rs.50,000/- has been awarded. Taking into account the injuries noted in Ext.A6 Wound Certificate, which has already been extracted ``` M.A.C.A.Nos.1835 & 2096 of 2012 15 ``` above, I am of the view that an amount of Rupees One lakh has to be awarded under the head pain and sufferings. Since the petitioner has been awarded an amount of Rs.50,000/- under the said head, the petitioner will be entitled for an additional amount of Rs.15,000/- under the head pain and sufferings. ``` ``` 18. Towards compensation for loss of amenities, though the petitioner claimed an amount of Rupees Three lakhs, only Rs.30,000/- has been awarded. Taking into account the age of the petitioner at the time of the accident, the disability certified in Ext.A10 Certificate, I find that an amount of Rupees One lakh will be just and reasonable compensation under the said head. Accordingly, the petitioner will be entitled to an enhancement of Rs.70,000/- [Rupees Seventy thousand only] under the head loss of amenities and enjoyment in life. ``` M.A.C.A.Nos.1835 & 2096 of 2012 16 ``` 19. The compensation for permanent disability is reworked as follows: 12,441 [9570+(9570x30/100)] x 12x14x75/100. After deducting the amount already awarded under the said head, the petitioner will be entitled for an enhanced compensation of Rs.2,75,616 [15,67,566-12,91,950]. ``` ``` 20. An amount of Rs.15,000/- has been awarded as attendant benefits, while the petitioner was undergoing treatment as an inpatient. Ext.A10 Disability Certificate issued by the Medical Board would show that the petitioner is totally dependent on relatives for ambulation. Adv.A.N.Santhosh, the learned counsel for the petitioner, submits that the petitioner is entitled for bystander's expenses from the date of accident till the date of his death, on 26.02.2016. The learned counsel placed reliance on the judgment of the Apex Court in Kajal v. Jagdish Chand [2020 ACJ 1042]. Since it is certified in ``` M.A.C.A.Nos.1835 & 2096 of 2012 17 ``` Ext.A10 that the petitioner is totally dependent on his relatives for ambulation, the petitioner is entitled for bystander's expenses at the rate of Rs.200/- with a multiplier of 10 (date of accident being 27.11.2006 and the date of death being 26.02.2016). The monthly bystander's expense is taken as Rs.5,000/- and the petitioner will be entitled for an amount of Rs.6,00,000/- [5000x12x10]. ``` ``` 21. I find that the compensation awarded under the other heads are just and reasonable. ``` ``` 22. In the result, the petitioner will be entitled for an amount of Rs.50,000+70,000+ 2,75,616+6,00,00-76,560 =9,19,056. ``` ``` 23. I find that 9% interest per annum on compensation awarded by the Tribunal is on the higher side. In the facts and circumstances of the case, I reduce the rate of interest to 7.5% per ``` M.A.C.A.Nos.1835 & 2096 of 2012 18 ``` annum for the enhanced amount. ``` ``` 24. At the time of admission of M.A.C.A.No.1835 of 2012, this Court, by order dated 12.09.2012, had stayed the execution of the award on condition the appellant deposits 50% of the award amount before the Tribunal. This Court, by order dated 12.04.2013, had permitted the petitioner to withdraw the said amount. ``` ``` 25. The appellant Insurance Company shall deposit the amount as enhanced by this Court with interest and cost before the Tribunal within two weeks from the date of receipt of a certified copy of this judgment. ``` ``` Both the appeals are disposed of. ``` ``` Sd/- ``` ``` MURALI PURUSHOTHAMAN, JUDGE ``` ``` sp/15/07/2023 ```