MACA Nos. 3716 of 2019 and 3808 of 2019 (Saradha.K.R. v. Saseendran & United India Insurance Co. Ltd.; Mini v. Saseendran & United India Insurance Co. Ltd.)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE C.S. SUDHA** **THURSDAY, THE 4[TH] DAY OF APRIL 2024 / 15TH CHAITHRA, 1946 MACA NO. 3716 OF 2019** **AGAINST THE AWARD DATED 15.09.2018 IN OP(MV) NO.325 OF 2016 ON THE FILES OF MOTOR ACCIDENT CLAIMS TRIBUNAL , PALAKKAD** ## **APPELLANT/PETITIONER:** **SARADHA.K.R AGED 55 YEARS W/O. GOPALAN, KUPPAKURUSSY, KANJIRAM, THARISSIPADAM, POTTASSERY, PALAKKAD - 678 598.** **BY ADV K.A.SREEJITH** ## **RESPONDENTS/RESPONDENTS:** **1 SASEENDRAN AGED 52 YEARS S/O KELU ERADI, MADATHIL, PAYYANADAM POST, MANNARKKAD, PALAKKAD - 678 583. (R.C. OWNER CUM DRIVER OF AUTORIKSHAW BEARING REG NO KL-50 -B -6828) 2 THE UNITED INDIA INSURANCE COMPANY LTD. DIVISIONAL OFFICE, 3RD FLOOR, MALABAR FORT BUILDING, G.B. ROAD - 678 001 (INSURER OF VEHICLE BEARING REG NO KL-50 -B -6828, POLICY NO. 11012053113P 102852983 VALID FROM 12-8-2014 TO 11-2015)** **BY ADV SMT.P.K.SANTHAMMA** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR HEARING ON 04.04.2024, ALONG WITH MACA.3808/2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** M.A.C.A.No.3716 and 3808 of 2019 2 **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE C.S. SUDHA** **THURSDAY, THE 4[TH] DAY OF APRIL 2024 / 15TH CHAITHRA, 1946 MACA NO. 3808 OF 2019** **AGAINST THE AWARD DATED 15.09.2018 IN OP(MV) NO.329 OF 2016 IN THE FILES OF MOTOR ACCIDENT CLAIMS TRIBUNAL , PALAKKAD** ## **APPELLANT/PETITIONER:** **MINI, AGED 37 YEARS, W/O.SASIDHARAN, KUPPAKURUSSY, KANJIRAM, THARISIPADAM, POTASSERY POST, PALAKKAD- 678598.** **BY ADV K.A.SREEJITH** ## **RESPONDENTS/RESPONDENTS:** **1 SASEENDRAN, AGED 55 YEARS S/O.KELU ERADI, MADATHIL, PAYYANADAMPOST, MANANRKAKD, PALAKKAD- 678583 (R.C.OWNER CUM DRIVER OF THE AUTORIKSHAW BEARING REGN.NO.KL/50/B/6828).** **2 UNITED INDIA INSURANCE COMPANY LIMITED, DIVISIONAL OFFICE 3RD FLOOR, MALABAR FORT BUILDING, G.B.ROAD, PALAKKAD- 678001 (INSURER OF AUTORIKSHAW BEARING REGN.NO.KL/50/B/6828, POLICY NO.1012053113P102852983, PERIOD OF COVER 12-8-14 TO 11-8-2015)** **BY ADV SMT.P.K.SANTHAMMA** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR HEARING ON 04.04.2024, ALONG WITH MACA.3716/2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** M.A.C.A.No.3716 and 3808 of 2019 3 ## **C.S.SUDHA, J.** **-----------------------------------M.A.C.A.No.3716 and 3808 of 2019 ---------------------------------------------------Dated this the 04[th] day of April 2024** ## **J U D G M E N T** These appeals under Section 173 of the Motor Vehicles Act, 1988 (the Act) have been filed by the claimants in O.P. (MV)No.325/2016 and O.P.(MV)No.329/2016 on the file of the Motor Accidents Claims Tribunal, Palakkad, (the Tribunal), _vide_ common aggrieved by the amount of compensation granted Award dated 15/09/2018. The respondents herein are the respondents before the Tribunal. The parties and the documents will be referred to as described in the original petition. 2. According to the petitioners, on 14/06/2015 at 05:45 p.m., while they were travelling in an autorickshaw bearing registration No.KL-50B-6828 through the Payyanadam – Mannarkkad public Road driven by the first respondent in a rash M.A.C.A.No.3716 and 3808 of 2019 4 and negligent manner as a result of which the driver lost control of the vehicle and it turned turtle. The petitioners sustained grievous injuries in the incident. The first respondent is the owner cum driver of the vehicle and the second respondent, the insurer. The respondents are jointly and severally liable to compensate the petitioner. Hence the petitioner in O.P. (MV)No.325/2016 claimed an amount ₹7,43,000/-and the petitioner in O.P.(MV)No.329/2016, claimed an amount of ₹7,13,000/- as compensation under various heads. 3. Respondents 1 and 2 filed separate written statements contending that there was no negligence on the part of the driver. The policy was admitted, but the liability was denied. 4. Before the Tribunal, no oral evidence was adduced by either side. Ext.A1 to A20 were marked on the side of the petitioners. Exts.B1 and B2 were marked on the side of the respondents. Ext.C1 was also marked. 5. The Tribunal on a consideration of the documentary M.A.C.A.No.3716 and 3808 of 2019 5 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 ₹2,70,113/- to the petitioner in O.P. (MV)No.325/2016 and an amount of ₹1,26,778/- to the petitioner in O.P.(MV)No.329/2016 with interest @ 9% per annum from the date of the petition till realisation along with proportionate costs. Aggrieved, the petitioners have come up in appeal. 6. 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. 7. Heard both sides. 8. The impugned award in O.P.(MV)No.325/2016 is challenged on the following grounds- - 9. **Notional Income** It is submitted by the learned counsel for the petitioner/injured that the petitioner was a coolie at the time of the incident and hence her income ought to have been fixed at the rate fixed in the decision in **Ramachandrappa** M.A.C.A.No.3716 and 3808 of 2019 6 ## **v. Manager, Royal Sundaram Allian.Co.Ltd, (2011) 13 SCC** **236** . However, the Tribunal has fixed the notional income only at the rate of ₹6,000/- per month which is against the aforesaid dictum _. Per Contra,_ it is submitted by the learned counsel for the second respondent insurer that the petitioner had claimed only an amount of ₹6,000/- and therefore the Tribunal was right in granting the said amount to the petitioner. The learned counsel for the petitioner submitted that the Tribunal as well as this Court has all the power to grant more amounts than what is claimed in the petition; that the Act being a beneficial legislation, a liberal approach needs to be taken and therefore, the notional income fixed by the Tribunal requires to be interfered with in the light of the dictum in **Ramachandrappa** _(Supra)._ 9.1. Admittedly, the claim in the petition was only that she was getting a monthly income of ₹6,000/-. It is no doubt true that the Act is a beneficial piece of legislation and that the courts have to take a liberal approach while interpreting the provisions and in M.A.C.A.No.3716 and 3808 of 2019 7 the grant of just compensation. It is also true that there are precedents to the effect that in appropriate cases to meet the ends of justice the courts can grant more than what is claimed, if that is the just compensation. The petitioner never had a case before the Tribunal that though she had claimed only ₹6,000/- in the petition, she was entitled to the rate fixed in Ramachandrappa ( _Supra_ ). In the facts and circumstances of the case, I find no reasons to enhance the notional income than what has been claimed in the petition. 10. **Extra Nourishment -** The award of ₹3,000/- granted is challenged on the ground that the petitioner had to be hospitalised for a period of 8 days and therefore extra nourishment ought to have been ₹20,000/- as claimed by the petitioner. The amount of ₹3,000/- appears to be just compensation and hence I find no reason to interfere with the same. 11. **Compensation for pain and suffering** - an amount 8 M.A.C.A.No.3716 and 3808 of 2019 of ₹30,000/- has been granted by the Tribunal, which according to the learned counsel, is too low an amount as an amount of ₹1,00,000/- had been claimed by the petitioner. In the light of the injuries sustained by the petitioner, the amount of ₹30,000/granted for pain and suffering seems appropriate. ## 12. **Compensation for loss of amenities and enjoyment** **in life** – the learned counsel pointed out that the petitioner is hailing from Palakkad, in which part of Kerala, agriculture is the main operation. The petitioner is also engaged in such agricultural operations. During the course of her work, she will have to carry articles like paddy and other agricultural products on her head. Pursuant to the incident it has become difficult for her to carryout such works and therefore the compensation under the said head needs to be enhanced. On the other hand, it is submitted by the learned counsel for the respondent insurer that no evidence has come on record relating to the nature of work carried on by the petitioner and therefore no interference is called M.A.C.A.No.3716 and 3808 of 2019 9 for. 12.1. It is true that no evidence has been adduced by the petitioner relating to the nature of her occupation or work. But the petitioner being a coolie, I think an amount of ₹25,000/would be just compensation under this head. An amount of ₹15,000/- has been granted by the Tribunal. Therefore, an enhancement of ₹10,000/- is granted under this head. 13. The impugned Award in O.P.(MV)N0.325/2016 is partly modified thus - |Sl.<br>No.|Head of claim|Amount<br>claimed|Amount<br>awarded<br>by<br>Tribunal|Modified<br>in<br>appeal| |---|---|---|---|---| |1.|Loss of earning|₹50,000/-|₹30,000 /-|₹30,000 /-<br>(No<br>modification)| |2|Transportation<br>to hospital|₹20,000/-|₹3,000/-|₹3,000/-<br>(No<br>modification)| |3.|Damage<br>to<br>clothing<br>and<br>articles|₹3,000/-|₹1,000/-|₹1,000/-<br>(No<br>modification)| |4.|Extra<br>nourishment|₹20,000/-|₹3,000/-|₹3,000/-<br>(No<br>modification)| M.A.C.A.No.3716 and 3808 of 2019 10 |||10||| |---|---|---|---|---| |5.|Expenses of a<br>Bystander|₹20,000/-|₹2,400/-|₹2,400/-<br>(No<br>modification)| |6.|Medical<br>Expenses|₹80,000/-|₹27,313/-|₹27,313/-<br>(No<br>modification)| |7.|Compensation<br>for pain and<br>suffering|₹1,00,000/-|₹30,000/-|₹30,000/-<br>(No<br>modification)| |8|Compensation for<br>loss of earning<br>power|₹3,50,000/-|₹1,58,400/-|₹1,58,400/-<br>(No<br>modification)| |9|Compensation for<br>loss of amenities<br>and enjoyment in<br>life|₹1,00,000/-|₹15,000/-|₹25,000/-<br>(15,000 + 10,000/-)| ||**Total**|₹7,43,000/|₹2,70,113/<br>-|₹2,80,113/-| 14. The impugned award in O.P.(MV)No.329/2016 is challenged on the following grounds- ## 15. **Notional Income** - The petitioner in order to prove her income relies on Ext.A15 salary certificate, as per which she was drawing a monthly salary of ₹13605/- in her capacity as Assistant Pharmacist, Mannarkkad Nursing Home, Mannarkkad. The Tribunal fixed the notional income at ₹6,000/- per month on M.A.C.A.No.3716 and 3808 of 2019 11 the ground that the salary certificate had not been proved. This is challenged by the petitioner and it is submitted that Ext.A15 was never objected to and hence it was marked without any objection. That being the position, there was no reason for the Tribunal to reject the same. _Per contra,_ it is submitted by the learned counsel for the second respondent insurer that as long as Ext.A15 certificate is not proved, the same cannot be made the basis for fixing the notional income. 15.1. Ext.A15 salary certificate which is undated, is stated to have been issued by the proprietor, Mannarkkad Nursing Home. However, the person who issued Ext.A15 was not examined to prove the same. It is true that the document has been marked without any objection being raised by the respondent. However, mere marking of a document would not prove its contents. It would always have been better had the petitioner examined the person who had issued Ext.A15. Be that as it may, fixing notional income of the petitioner at ₹6,000/- per month by M.A.C.A.No.3716 and 3808 of 2019 12 the Tribunal also does not seem to be correct in the light of the dictum in **Ramachandrappa** ( _Supra_ ). Therefore, relying on the said decision, I fix the notional income of the petitioner at ₹10,000/- per month. 16. **Percentage of disability and loss of future prospects** - As per Ext.A14 disability certificate issued by Orthopedic Surgeon, Medical College Hospital, Thrissur, the petitioner is stated to have sustained 12% permanent physical disability (whole body) as a result of the injury sustained in the accident. It is submitted that inspite of Ext.A14 coming on record, the Tribunal without stating any reason(s), scaled down the percentage of disability to 4%, which is incorrect. _Per contra_ , it is submitted by the learned counsel for the second respondent insurer, fixing the percentage of disability at 4% itself is too high and unreasonable in the light of the injuries sustained by the petitioner. 16.1. As per Ext.A17 wound certificate dated 14/06/2015, M.A.C.A.No.3716 and 3808 of 2019 13 the injuries sustained by the petitioner are - _“C/o pain neck, back, right shoulder Sprain neck (Avulsion # L5 next along ACC) Contusion back K4 right shoulde_ r.” 16.2. As pointed out by the Tribunal, the doctor who issued Ext.A14 certificate was not examined to prove the same. The doctor who issued the certificate does not seem to be the doctor who treated the petitioner. As held by the Apex Court in **Raj Kumar v. Ajay Kumar, (2011) 1 SCC 343** , the Tribunal is to invariably make it a point to require the evidence of the doctor who treated the injured or who assessed the permanent disability and that mere production of a disability certificate/ discharge certificate is not proof of the extent of the disabilities stated in the certificate unless the doctor is tendered for cross examination with reference to the certificate. It has also been held that in cases where the certificates are not contested by the respondent, they may be marked on consent, thereby dispensing with oral evidence. In the case on hand, it is true that Ext.A14 certificate M.A.C.A.No.3716 and 3808 of 2019 14 was marked without any objection being raised by the respondent. As per Ext.A14 the petitioner is stated to have 12% permanent physical disability, which is whole body, as a result of the injuries sustained by her. As held in **Raj Kumar** ( _Supra_ ) where the claimant suffers a permanent disability because of the 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. It is wrong to assume in all cases, a particular extent (percentage) of permanent disability would result in a corresponding loss of earning capacity. For instance, if the evidence produced shows 45% as the permanent disability, it M.A.C.A.No.3716 and 3808 of 2019 15 cannot be held that there is 45% loss of future earning capacity. 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. 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 an injured - claimant or who examined him subsequently to assess M.A.C.A.No.3716 and 3808 of 2019 16 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, education, and other factors. 16.3. In the aforesaid circumstance, taking into account the injuries sustained by the petitioner, I find that percentage of disability fixed by the Tribunal warrants no interference. 17. The learned counsel for the petitioner also challenges the period of four months that has been taken for loss of earnings as well as the compensation awarded for loss of amenities and enjoyment. The notional income has been raised to ₹10,000/- per month. The period of four months taken for loss of earnings and the awarded under other heads are compensation quite M.A.C.A.No.3716 and 3808 of 2019 17 reasonable. The only modification that is required is regarding the notional income that has been fixed by the Tribunal at ₹6,000/- which would stand modified to ₹10,000/- and in the light of such modification, the compensation awarded under the heads loss of earnings and compensation for loss of future earning power would stand appropriately modified. 18. The impugned Award in O.P.(MV)N0.329/2016 is partly modified thus - |Sl.<br>No.|Head of claim|Amount<br>claimed|Amount<br>awarded by<br>Tribunal|Modified in<br>appeal| |---|---|---|---|---| |1.|Loss of earning|₹50,000/-|₹24,000 /-|₹40,000 /-<br>(10,000 x 4<br>M*)| |2|Transportation<br>to hospital|₹20,000/-|₹2,000/-|₹2,000/-<br>(No<br>modification)| |3.|Damage<br>to<br>clothing<br>and<br>articles|₹3,000/-|₹1,000/-|₹1,000/-<br>(No<br>modification)| |4.|Extra<br>nourishment|₹20,000/-|₹2,000/-|₹2,000/-<br>(No<br>modification)| |5.|Expenses of a<br>Bystander|₹20,000/-|₹1,800/-|₹1,800/-<br>(No| M.A.C.A.No.3716 and 3808 of 2019 18 |||18||| |---|---|---|---|---| |||||modification)| |6.|Treatment<br>Expenses|₹50,000/-|₹14,898/-|₹14,898/-<br>(No<br>modification)| |7.|Compensation<br>for pain and<br>suffering|₹1,00,000/-|₹25,000/-|₹25,000/-<br>(No<br>modification)| |8|Compensation<br>for loss of future<br>earning power|₹3,50,000/-|₹46,080/-|₹ 76,800/-<br>(10,000 NI* x<br>12M* x 16<br>MR* x 4/100<br>PD*)| |9|Compensation<br>for loss of<br>amenities and<br>enjoyment in life|₹1,00,000/-|₹10,000/-|₹10,000/-<br>(No<br>modification)| ||**Total**|₹7,13,000/|₹1,26,778/-|₹1,73,498/-| [ * M – Month; MR – Multiplier; NI – Notional Income; PD – Permanent Disability] 19. In the result, MACA No.3716/2019 is allowed in part by enhancing the compensation by a further amount of **₹10,000/-** (total compensation ₹2,80,113/-, that is, ₹2,70,113 /- granted by the Tribunal + ₹10,000/- granted in appeal) with interest at the rate of 7.5% per annum from the date of petition till date of M.A.C.A.No.3716 and 3808 of 2019 19 realization and proportionate costs. MACA No.3808/2019 is allowed in part by enhancing the compensation by a further amount of **₹46,720/-** (total compensation ₹1,73,498/-, that is, ₹1,26,778/- granted by the Tribunal + ₹46,720/- granted in appeal) with interest at the rate of 7.5% per annum from the date of petition till date of realization and proportionate costs. The second respondent/insurer is directed to deposit the enhanced compensation with interest and costs before the Tribunal within a period of 60 days from the date of receipt of a copy of the judgment. On deposit of the compensation amount, the Tribunal shall disburse the amount to the petitioners/appellants at the earliest in accordance with law. Interlocutory applications, if any pending, shall stand closed. **Sd/C.S.SUDHA JUDGE** Jms