M.A.C.A. Nos.1542/2013 & 2306/2013, High Court of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN FRIDAY, THE 2[ND] DAY OF JUNE 2023 / 12TH JYAISHTA, 1945** **MACA NO. 1542 OF 2013** **AGAINST THE AWARD DATED 25.3.2013 IN OPMV 741/2007 OF MOTOR ACCIDENT CLAIMS TRIBUNAL , IRINJALAKUDA** ## **APPELLANT/3RD RESPONDENT:** THE UNITED INDIA INSURANCE CO. LTD. CHALAKUDY, REPRESENTED BY ITS DEPUTY MANAGER, REGIONAL OFFICE, HOSPITAL ROAD, ERNAKULAM. BY ADV SRI.GEORGE CHERIAN (THIRUVALLA) ## **RESPONDENT/CLAIMANT:** DINESH S/O.K.GOPALAKRISHNAN, PUTHENVEETTIL HOUSE, RESIDING AT OLLUR DESOM, ELAKKUNNI VILLAGE, OLLUR P.O., THRISSUR DISTRICT, PIN-680306. BY ADV SRI.A.N.SANTHOSH THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 02.06.2023, ALONG WITH MACA.2306/2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: 2 M.A.C.A.Nos.1542/2013 & 2306/2013 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN FRIDAY, THE 2[ND] DAY OF JUNE 2023 / 12TH JYAISHTA, 1945 MACA NO. 2306 OF 2013** **AGAINST THE AWARD DATED 25.3.2013 IN OPMV 741/2007 OF MOTOR** ## **ACCIDENT CLAIMS TRIBUNAL , IRINJALAKUDA** ## **APPELLANT/PETITIONER:** DINESH S/O.K.GOPALAKRISHNAN,PUTHENVEETTIL HOUSE,OLLUR DESOM,ELAKUNNI VILLAGE,OLLOOR.P.O,THRISSUR DISTRICT. BY ADVS. SRI.P.V.BABY SRI.A.N.SANTHOSH ## **RESPONDENTS/RESPONDENTS:** - 1 RAJEEV S/O.VELAYUDHAN,PUTHUSSERY HOUSE,KANAKAMALA.P.O,THRISSUR DISTRICT-680689. - 2 LALUMON S/O.BHASKARAN,VATTAPARAMBIL HOUSE,KANAKAMALA.P.O,THRISSUR-680689. - 3 UNITED INDIA INSURANCE COMPANY LIMITED SOUTH JUNCTION,CHALAKKUDY-680307. - 4 BASHEER S/O.ABU,KALAKKATH HOUSE,VADAMA.P.O,MALA,THRISSUR680732. BY ADVS. SRI.P.JACOB MATHEW SRI.MATHEWS JACOB SR. THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 02.06.2023, ALONG WITH MACA.1542/2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: 3 M.A.C.A.Nos.1542/2013 & 2306/2013 ## **MURALI PURUSHOTHAMAN, J. --------------------------------------------M.A.C.A. Nos.1542 of 2013 & 2306 of 2013 -------------------------------------------------** Dated this the 2[nd] day of June, 2023 ## **JUDGMENT** Since these appeals arise from a common award, they are heard together and are disposed of by this common judgment. 2. M.A.C.A No.1542/2013 is preferred by the 3[rd] respondent insurance company in OP(MV) No.741/2007 on the file of the Motor Accidents Claim Tribunal, Irinjalakuda and M.A.C.A No.2306/2013 is filed by the claimant therein. The parties to the appeals will hereinafter be referred to as petitioner and respondents in accordance with their status in the claim petition. 3. According to the petitioner, while he was walking through Peringamkulam-Vallappady Lakshamveedu Road, 4 M.A.C.A.Nos.1542/2013 & 2306/2013 an autorickshaw bearing Reg.No.KL 8N 5688 driven by the 2[nd] respondent rashly and negligently, hit him from behind and he sustained injuries. The 1[st] respondent is the owner of the autorickshaw and 3[rd] respondent is its insurer. He filed the claim petition seeking a total sum of Rs.25,00,000/- as compensation. The Tribunal awarded Rs.14,98,837/- with 7.5% interest p.a from the date of the petition till realisation along with proportionate costs. The 3[rd] respondent insurer was directed to satisfy the award. 4. The learned counsel for the 3[rd] respondent insurance company contends that the Tribunal went wrong in holding that the vehicle involved in the accident was the vehicle owned by the 1[st] respondent and that the vehicle was a motorcycle as per Ext.X1(b) Group Insurance claim form. It is also contended that the amount claimed as compensation is excessive and exorbitant. The Tribunal awarded compensation under the following heads:- 5 M.A.C.A.Nos.1542/2013 & 2306/2013 |**SL.**<br>**No.**|**Head of Claim**|**Amount Claimed**<br>**(Rs.)**|**Amount**<br>**Awarded (Rs.)**|**Basis Vital**<br>**details in a nut**<br>**shell**| |---|---|---|---|---| |1|Loss of salary|2,46,810|5,66,879|| |2|Medical and<br>miscellaneous|5,00,000|--|| |3|Transportation<br>expenses|20,000|1,000|| |4|Pain and suffering|1,00,000|20,000|| |5|Permanent disability|4,00,000|9,06,158|Rs.<br>9,871x12x17x4<br>5%| |6|Damage to clothing|1,000|--|| |7|Extra nourishment|10,000|2,400|| |8|Loss of amenities and<br>conveniences etc.|1,00,000|--|| |9|Loss of earning<br>power|5,00,000|--|| |10|Bystander’s expense|10,000|2,400|Rs. 100 x 24<br>days| |11|Compensation for<br>disfiguration|50,000|--|| |12|Loss of employment|18,00,000|--|| |13|Compensation for<br>mental dejection|25,000|--|| ||Total|37,62,810/-<br>(Limited to Rs.<br>25,00,000)|14,98,837/-|Rs.14,98,837/-<br>along<br>with<br>interest rate of<br>7.5%p.a from<br>16.07.2007 till<br>reaslisation.| 5. M.A.C.A No.2306/2013 is filed by the petitioner 6 M.A.C.A.Nos.1542/2013 & 2306/2013 challenging inadequacy of the quantum of compensation awarded by the Tribunal. 6. In view of the rival contentions, this Court is called upon to consider the question whether the Tribunal has awarded just and reasonable compensation. 7. The contention of the insurer that the vehicle involved in the accident is not an autorickshaw, cannot be sustained in view of the Ext.A4 FIR in the crime registered in connection with the accident in question and Ext.A5 charge sheet laid in that crime after investigation. The 2[nd] respondent-driver of the autorickshaw was arraigned as accused in the charge sheet. In the light of the decision of the Division Bench of this Court in **New India Assurance Co. Ltd. v. Pazhaniammal** reported in 2011 (3) KLT 648, production of a police charge sheet in a crime registered in connection with the accident concerned would be prima facie sufficient evidence of negligence in a claim filed under section 166 of the Motor Vehicles Act. The 2[nd] respondent driver had not chosen to 7 ## M.A.C.A.Nos.1542/2013 & 2306/2013 enter appearance before the Tribunal and rebut the same. Also, no rebuttal evidence was adduced by the 3[rd] respondent insurer who contested the claim petition. Ext.X1 (b) is only a claim form filled by the employer of the petitioner in respect of Group Insurance Policy and the entry therein cannot be relied upon to hold that the vehicle involved in the accident was a motor cycle. It can only be a clerical mistake crept on the part of the employer while filling the form for Group Insurance Policy. On the basis of the Ext.A4 FIR and Ext.A5 charge sheet, the Tribunal found that the vehicle involved in the accident was an autorickshaw which is owned by the 1[st] respondent. I do not find any reason to take different view from that of the Tribunal with respect to the finding regarding the vehicle involved in the accident as well the negligence and hold that the accident occurred on account of the negligence on the part of the driver of the autorickshaw. 8. The petitioner was aged 30 years at the time of 8 M.A.C.A.Nos.1542/2013 & 2306/2013 accident and he was an employee of Apollo Tyres. According to the petitioner, he was drawing an amount of Rs. 8,500/- as monthly salary. Ext. A3 is the salary certificate which shows the monthly salary of the petitioner as Rs.9,871/-. Ext. X1 is the certificate issued by the Medical Board assessing the permanent disability of the petitioner as 45%. It has come out in evidence that the left hand of the petitioner is not functioning. The petitioner was in hospital for 11 days. From Ext. A6 wound certificate, it can be seen that the petitioner sustained the following injuries: “(1) Fracture both bones left leg M/3D/3 closed. (2) MDCT neck and chest- evidence of extensive soft tissue signal change around trunks and proximal part of cord of the left brachial plexus. Traumatic brachial plexus palsy left C5 to C8 & T1 lesion. (3) MRI study of cervical spine and brachial plexus conducted at A Aarthi Advanced CT scan and MRI Chennai shows **-** Swelling and T2 hyperintensity of the C5, C6, C7 and C8 nerve roots, all the trunks, divisions, cords of the brachial plexus on left side, 9 M.A.C.A.Nos.1542/2013 & 2306/2013 consistent with post traumatic brachial plexopathy denervation atrophy of all the muscles around the shoulder girdle on the left side.” 9. The Tribunal found that the petitioner was incapacitated to work for a period of 5 years and assessed the loss of salary as Rs.5,66,879/-. As per Ext. A3 salary certificate issued by Appollo Tyres, the salary of the petitioner comes to Rs.5,66,878/- p.a which is inclusive of allowances and other incentives. The Tribunal has taken the monthly salary of the petitioner as Rs. 9871/-. Ext. A3 issued by the employer would also show the total loss of earning as Rs. 8,83,898/-. Therefore, the loss of salary of the petitioner for a period of 5 years has to be compensated. I find that the amount of Rs. 5,66,879/awarded to the petitioner towards loss of salary is, therefore, just and reasonable. 10. Towards permanent disability, an amount of Rs. 9,06,158/- (9871x12x17x45%) was awarded by the Tribunal applying the multiplier of ‘17’. Going by Annexure 10 M.A.C.A.Nos.1542/2013 & 2306/2013 A1 additional document, petitioner availed medical voluntary retirement from service on 21.11.2012 at the age of 36 years, since he became disable to work as a result of the accident. Compensation for permanent disability has to be reworked under the said circumstances. Therefore, the multiplier has to be taken as ‘15’ as applicable to the age group 36-40 [ **Sarla Verma & Ors. v. Delhi Transport Corporation & Anr. [2010 (2) KLT 802 (SC)]** for the purpose of assessing compensation for permanent disability. 11. Ext. X1 report of the medical board shows that the petitioner has suffered 45% permanent disability. The Hon'ble Supreme Court, in **Raj Kumar v. Ajay Kumar and another [2010 KHC 5021: 2011 (1) KLT 620: (2011) 1 SCC 343]** , 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: 11 M.A.C.A.Nos.1542/2013 & 2306/2013 “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 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 12 M.A.C.A.Nos.1542/2013 & 2306/2013 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 partial disablement, (iii) if the disablement percentage is expressed with reference to any 13 M.A.C.A.Nos.1542/2013 & 2306/2013 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 14 M.A.C.A.Nos.1542/2013 & 2306/2013 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 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..” The said yardstick in determining the extent of permanent disability for assessment of loss of earning capacity has been reaffirmed by the Hon'ble Supreme Court in **Pappu Deo Yadav v. Naresh Kumar and others** [AIR 2020 SC 4424] and reiterated in **Jithendran v. New India Assurance Co. Ltd. and another** [2021 KHC 6653: 2021 (4) KLJ 646: AIR 2021 SC 5382]. 12. The permanent disability cannot be equated with functional disability. The left hand of the petitioner is not 15 M.A.C.A.Nos.1542/2013 & 2306/2013 functional and he had to take voluntary retirement from service as he was not in a position to carry out the job he was doing before the accident. Having regard to the percentage of disability certified by the doctor and the age of the petitioner, I take the functional disability of the petitioner as 50%. 13. In the light of the decision in **National Insurance Co. Ltd. v. Pranay Sethi** [2017 (16) SCC 680], the petitioner, who was having a permanent employment before the accident, is entitled to get 50% of the income towards future prospects. Accordingly, I fix the monthly income of the petitioner as Rs.14,806.5/- (9871+ 50% of 9871) for assessment of compensation for permanent disability. Accordingly, the compensation for permanent disability is reworked as Rs.13,32,585/(14806.5x12x15x50/100). Since an amount of Rs. 9,06,158/- has already been awarded under the head permanent disability, the petitioner is entitled for **Rs.4,26,427/-** as enhanced compensation under the 16 M.A.C.A.Nos.1542/2013 & 2306/2013 said head. 14. Towards pain and suffering, only an amount of Rs.20,000/- has been awarded by the Tribunal. Taking note of the injuries sustained by the petitioner and the period of hospitalisation, I find that he is entitled for an amount of Rs.50,000/- towards pain and suffering. After deducting the amount already awarded, the petitioner will be entitled for an additional amount of **Rs. 30,000/-** under the said head. 15. Towards loss of amenities and inconvenience, no amount is seen awarded. Taking note of the age of the petitioner, the injuries sustained and the disability, I find that an amount of **Rs.70,000/-** can be awarded under the said head. 16. Accordingly, the petitioner will be entitled for an amount of **Rs.5,26,427/-** (4,26,427+30,000+70,000) as enhanced compensation. 17. As per the direction of this Court in IA No. 17 M.A.C.A.Nos.1542/2013 & 2306/2013 2078/2013 in M.A.C.A No.1542/2013, the 3[rd] respondent insurance company has deposited 25% of the award amount and the petitioner has withdrawn the said amount. The insurance company shall deposit the balance amount in terms of this judgment with interest at 7.5% per annum and costs, which I fix as Rs. 50,000/-, before the Tribunal within a period of two months from the date of receipt of a copy of this judgment. The appeals are disposed of as above. **Sd/-** **MURALI PURUSHOTHAMAN JUDGE** al/-++.