M.A.C.A. Nos.2559 of 2009 & 1902 of 2015

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN FRIDAY, THE 23RD DAY OF JUNE 2017/2ND ASHADHA, 1939 ## MACA.No. 2559 of 2009 ( ) -------------------------AGAINST THE AWARD IN OPMV 333/2004 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, KALPETTA APPELLANT(S):3RD RESPONDENT IN OP(MV).333/04 ---------------------------------------------------------- THE BRANCH MANAGER, NATIONAL INSURANCE COMPANY LTD., KALPETTA BRANCH, REPRESENTED BY ITS MANAGER, KOCHI REGIONAL OFFICE, OMANA BUILDINGS, JEWS STREET, PADMA JUNCTION, KOCHI-682 035. BY ADV. SRI.LAL GEORGE RESPONDENT(S):CLAIMANT AND THE RESPONDENTS IN OP(MV).NO.333/04 -------------- 1. HYMAVATHY, D/O.PADMANABHAN NAIR AGED 44 YEARS, CHEENIKKAL (H), NENMENI (PO), MADAKKARA, S.BATHERY TALUK, WAYANAD (DIST). 2. SURESH BABU, S/O.SREEDHARAN, (AGE NOT KNOWN), POOTHADY (H), NENMENIKKUNNU, S.BATHERY. 3. ROY.P.V., S/O.P.C.VARGHESE, PULICKAL (H), KUMBLERI (PO), MEENANGADI. 4. P.C.VARGHESE, S/O.CHACKO, - (AGE NOT KNOWN), PULICKAL (H), KUMBLERI (PO), AMBALAVAYAL. 5. THE BRANCH MANAGER, NEW INDIA ASSURANCE COMPANY LTD., KALPETTA BRANCH. R,R4 BY ADV. SMT.CELINE JOSEPH R,R1 BY ADV. SMT.M.R.JAYALATHA R,R5 BY ADV. SRI.P.MURALEEDHARAN THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 23-06-2017, ALONG WITH MACA. 1902/2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **C.T. RAVIKUMAR & ANIL K. NARENDRAN, JJ. -------------------------------------------------M.A.C.A. Nos.2559 of 2009 & 1902 of 2015 --------------------------------------------------** Dated this the 23[rd] day of June, 2017 ## **JUDGMENT** ## **Anil K. Narendran, J.** These appeals arise out of the award passed by the Motor Accident Claims Tribunal, Kalpetta dated 6.4.2009 in O.P.(MV)No.333 of 2004, an application filed by the appellant in M.A.C.A.No.1902 of 2015, under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of the injuries sustained by her in a motor accident which occurred on 5.4.2004 while she was travelling in a bus bearing Reg.No.KL-12/B-1616, driven and owned by respondents 1 and 2 before the Tribunal and insured with the third respondent therein (who is the appellant in M.A.C.A.No.2559 of 2009). At the place of accident, the said bus hit a lorry bearing registration No.Kl12/5274 driven and owned by respondents 4 and 5 before the Tribunal and insured with the sixth respondent therein. As a result of the accident, the appellant/claimant sustained injuries. Alleging that the accident occurred due to the rash and negligent driving of the bus by its driver, claim petition was filed before the Tribunal claiming a total compensation of Rs.5,00,000/- under different heads. 2. The first respondent driver of the bus filed written M.A.C.A.2559/2009 & 1902/2015 2 statement denying the accident as alleged in the claim petition. The second respondent owner remained ex parte. The third respondent insurer filed written statement admitting the insurance coverage of the bus at the time of accident. The said respondent contended that the accident occurred due to the rash and negligent driving of the lorry by its driver. The insurer has also disputed the claims made under different heads. 3. The fourth respondent driver and the fifth respondent owner of the lorry filed joint written statement contending that the accident occurred due to the rash and negligent driving of the bus by its driver and they have also disputed the claims made under different heads. The sixth respondent insurer of the lorry filed written statement admitting the insurance coverage of the said vehicle at the time of accident. The insurer has also disputed the claims made under different heads and denied other allegations in the claim petition. 4. Before the Tribunal, the claimant was examined as PW1 and Exts.A1 to A8 were marked on her side. The disability certificate issued by the District Medical Board was marked as Ext.C1 and the case record was marked as Ext.X1. On the side of the respondents, charge sheet was marked as Ext.B1. The respondents have not M.A.C.A.2559/2009 & 1902/2015 3 chosen to adduce any oral evidence. 5. After considering the materials on record, the Tribunal arrived at a conclusion that the accident occurred due to the rash and negligent driving of the bus by the first respondent driver. Since the said vehicle was covered by a valid insurance policy, the third respondent insurer was held liable to indemnify the second respondent owner. Based on the said finding on the question of negligence, the owner, driver and insurer of the lorry were exonerated from the liability to pay the amount of compensation. Under different heads, the Tribunal awarded a total compensation of Rs.2,37,150/- and the third respondent insurer was directed to deposit the said amount before the Tribunal together with interest at the rate of 6% per annum from the date of the petition till realisation, with proportionate costs. 6. Dissatisfied with the quantum of compensation awarded by the Tribunal under different heads, the claimant is before this Court in M.A.C.A.No.1902 of 2015. The third respondent insurer of the bus is also before this Court in M.A.C.A.No.2559 of 2009 challenging the award passed by the Tribunal to the extent the owner, driver and insurer of the lorry were exonerated from the liability to pay the amount of compensation. M.A.C.A.2559/2009 & 1902/2015 4 7. Heard the arguments. 8. First, we shall deal with the challenge made by the insurer of the bus in M.A.C.A.No.2559 of 2009 against the finding of the Tribunal on the question of negligence. In the impugned award, the Tribunal found that the accident occurred due to the rash and negligent driving of the bus by its driver and as such, the appellant insurer in M.A.C.A.No.2559 of 2009 is liable to indemnify the owner of the said bus. Based on the said finding, the Tribunal exonerated the driver, owner and insurer of the lorry form the liability. 9. As per Ext.A2 scene mahazar, at the spot of accident the tarred portion of the road is having a width of 7.20 meters and the road margin (untarred portion) on either side is having a width of more than 1.10 meters. The bus was proceeding from Sultan Bathery to Mananthavadi and the lorry was coming from the opposite direction. Therefore, the proper side of the bus was the southern side of the road. As per the scene mahazar, the spot of accident is 4.44 meters towards north from the southern tar end of the road. Even without making any reference to these factual aspects, the Tribunal concluded in Para.10 of the award that, Ext.A1 FIR, Ext.A2 scene mahazar, Ext.A3 series AMVI Reports and Ext.B1 charge sheet coupled with the oral evidence of PW1 prove that the accident M.A.C.A.2559/2009 & 1902/2015 5 occurred due to the rash and negligent driving of the bus by the 1[st] respondent driver. Based on the said conclusion, the Tribunal in Para.12 of the award held that the accident occurred due to the rash and negligent driving of the bus by the first respondent driver and as such, he is primarily liable. The second respondent being the owner of the said bus was held vicariously liable and the third respondent (appellant in M.A.C.A.No.2559 of 2009) being the insurer was held liable to indemnify the second respondent owner. Accordingly, the Tribunal exonerated the driver, owner and insurer of the lorry from the liability. 10. While exonerating the driver, owner and insurer of the lorry from the liability, the Tribunal omitted to consider the fact that, in the crime registered in connection with the motor accident, i.e., Crime No.78 of 2004 of Meenangadi Police Station, charge sheet was filed against the drivers of both the vehicles, under Sections 279, 337 and 338 of the Indian Penal Code, 1860 alleging rash and negligent driving. The charge against the driver of the lorry (charge-B) was not even adverted to by the Tribunal, while fixing negligence solely on the driver of the bus. 11. On 12.1.2015, the learned counsel for the appellant insurer in M.A.C.A.No.2559 of 2009 sought time to produce a copy of M.A.C.A.2559/2009 & 1902/2015 6 the award passed by the Tribunal in respect of the very same cause of action involving injuries to another passenger of the bus, which claim petition was tried separately. Accordingly, a free copy of the award dated 5.5.2008 of the Motor Accidents Claims Tribunal, Kalpetta in O.P.(MV)No.360 of 2004 filed by one Sumathi has been produced along with I.A.No.159 of 2016. In the said award in O.P. (MV)No.360 of 2004 arising out of the very same accident, which was not jointly tried along with O.P.(MV)No.333 of 2004, the same Tribunal found composite negligence on the driver of the bus and driver of the lorry in the ratio 50:50. In such circumstances, we find no reason to sustain the finding of the Tribunal in the impugned award exonerating the driver, owner and insurer of the lorry from the liability, especially when the said finding of the Tribunal was even without making any reference to the factual aspects of the matter, as borne out from the police records in the crime registered in connection with the motor accident. 12. Considering the factual aspects of the matter, as borne out from the scene mahazar and the charge sheet, we hold that the accident occurred due to the composite negligence of the driver of both the vehicles in the ratio 50:50. In the result, the liability to pay 50% of the compensation originally awarded by the Tribunal in the M.A.C.A.2559/2009 & 1902/2015 7 impugned award and 50% of the additional compensation, if any, granted in this appeal shall be on the insurer of the lorry (sixth respondent before the Tribunal). The appellant insurer in M.A.C.A.No.2559 of 2009 (insurer of the lorry) shall be liable to pay the remaining 50% of the compensation originally awarded by the Tribunal and 50% of the additional compensation, if any, granted in this appeal. 13. Now we shall deal with the quantum of compensation awarded by the Tribunal under different heads, in order to find out whether the appellant/claimant is entitled for enhancement of compensation under any of those heads. 14. The accident is of the year 2004 and at the time of accident the appellant/claimant was aged 44 years. She claimed a monthly income of Rs.4,000/- as a coolie worker. However, other than the oral testimony of the appellant as PW1, no reliable materials were produced before the Tribunal in order to prove her monthly income. It was in such circumstances that the Tribunal took the monthly income notionally at Rs.2,100/- for the purpose of assessing compensation under different heads. 15. In **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited [(2011) 13 SCC 236]** the M.A.C.A.2559/2009 & 1902/2015 8 Apex Court notionally fixed the monthly income of a coolie, who met with a motor accident in the year 2004 at Rs.4,500/-. In the instant case, the accident is of the year 2004 and at the time of accident, the appellant/claimant was an able bodied person aged 44 years. Considering the facts and circumstances of the case, in the light of the decision of the Apex Court referred to supra, we find that even in the absence of any reliable materials, the monthly income of the appellant/claimant at the time of the accident can be taken as Rs.4,000/-. In the result, she is entitled for assessment of compensation under different heads taking her notional monthly income as Rs.4,000/-. 16. The accident occurred on 5.4.2004. Ext.X1 case record produced by the Superintendent, Medical College Hospital, Kozhikode would show that the appellant/claimant sustained crush injury right axilla and amputation through surgical neck of right humerus was done on 5.4.2004. After undergoing in-patient treatment for a period of 11 days, she was discharged on 16.4.2004. Pursuant to an order of the Tribunal dated 8.8.2006, she was subjected to medical examination by the District Medical Board, Wayanad for assessing permanent disability. In Ext.C1 disability certificate dated 17.4.2007, the District Medical Board has certified that, on 5.4.2004 she M.A.C.A.2559/2009 & 1902/2015 9 sustained 'mangled extremity of right upper limb' in a road traffic accident and she was treated at the Medical College Hospital, Kozhikode by amputation of right upper limb at shoulder level, through surgical neck of humerus. In Ext.C1 disability certificate, the District Medical Board assessed her permanent disability as 60%, based on McBride Scale. 17. In **Raj Kumar v. Ajay Kumar [(2011) 1 SCC 343]** the Apex Court held that, the Tribunal should not be a silent spectator when medical evidence is tendered in regard to the injuries and their effect, in particular the extent of permanent disability. While dealing with personal injury cases, the Tribunal should preferably equip itself with a medical dictionary and a handbook for evaluation of permanent physical impairment for understanding the medical evidence and assessing the physical and functional disability. 18. In the instant case, in Para.10 of the award, the Tribunal has only stated that, as per Ext.C1 the claimant sustained 'mangled extremity of right upper limb'. 'Mangled extremity' only means a limb with injury to at least three out of four systems, namely, soft tissue, bone, nerves, and vessels. Though the appellant/claimant had suffered amputation of her right upper limb at shoulder level, through surgical neck of humerus, the said factual aspect of the matter is not M.A.C.A.2559/2009 & 1902/2015 10 even referred to in the impugned award. The nature of treatment undergone by her is also not referred to in the said award. 19. In the matter of assessment of compensation under the heads disability, pain and suffering, loss of amenities, etc., the factors such as the nature of injuries sustained by the claimant, the treatment he/she had undergone and the disability, if any, that has arisen out of such injuries, play a vital role. These factors will certainly have a material bearing on the quantification of compensation under those heads. The Tribunal, being the fact finding authority, is therefore required to consider the fact scenario obtaining in each case as to the nature of injuries sustained, the treatment undergone and also the disability, if any, that has arisen out of such injuries, while assessing compensation under the heads disability, pain and suffering, loss of amenities, etc. 20. In **Raj Kumar's case (supra)** the Apex Court held that, 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 M.A.C.A.2559/2009 & 1902/2015 11 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 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. 21. Going by the law laid down by the Apex Court in **Raj Kumar's case (supra)** , 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. What requires to be assessed by the Tribunal is the effect of the permanent disability on the earning capacity of the M.A.C.A.2559/2009 & 1902/2015 12 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). 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 percentage of permanent disability in which case, of course, the Tribunal will adopt the said percentage for determination of compensation. 22. In the instant cases, as borne out from medical records, the appellant/claimant suffered amputation of her right upper limb at shoulder level, through surgical neck of humerus, which has resulted in a permanent disability of 60% as per McBride Scale. Though there was no reliable materials to prove that, at the time of accident she was eking her livelihood as a coolie worker, the Tribunal took the percentage of loss of earning capacity as 60%. We notice that, on 5.4.2004, while the appellant/claimant was undergoing in-patient treatment at Assumption Hospital, Batheri, her statement was recorded by the Police, which form part of Ext.A1 FIR. The said statement (FIS) given by the appellant/claimant would indicate that she was unemployed at the time of accident. However, PW1 was M.A.C.A.2559/2009 & 1902/2015 13 never confronted with the statement so made in the FIS. Therefore, considering the facts and circumstances of the case, in the light of the materials and evidence on record, we find no valid grounds to modify the assessment of disability compensation made in the impugned award of the Tribunal by taking the percentage of loss of earning power as 60%. 23. The compensation awarded by the Tribunal under different heads reads thus; |rent heads reads thus;||| |---|---|---| |Head of claim|Amount claimed|Amount<br>awarded| |Loss of earning|6000/-|3000/-| |Transport to hospital|10000/-|600/-| |Extra nourishment|3000/-|500/-| |Damage to clothing and<br>articles|500/-|250/-| |Medicines and treatment|50000/-|500/-| |Loss of expectation of life|25000/-|| |Loss of amenities in life|150000/-|| |Salary paid to an attendant|10000/-|500/-| |Expense for an artificial<br>limb|50000/-|| |Pain and suffering|50000/-|5000/-| |Disability|100000/-|226800/-| |Future earning power|300000/-|| |Total||237150/-| 24. Under the head disability compensation, the Tribunal awarded Rs.2,26,800/-, taking a monthly income as Rs.2,100/-, M.A.C.A.2559/2009 & 1902/2015 14 adopting a multiplier of '15' and the percentage of disability as 60%, as certified in Ext.C1 disability certificate. 25. At the time of accident, the appellant/claimant was aged 44 years. Going by the judgment of the Apex Court in **Sarla Verma v. Delhi Transport Corporation [2010 (2) KLT 802]** , the proper multiplier applicable to her age group is 14. Since we have already re-fixed her monthly income as Rs.4,000/-, the compensation under the head disability is re-worked as Rs.4,03,200/(4000x12x14x60/100). After deducting Rs.2,26,800/- awarded by the Tribunal, the appellant will be entitled for an additional compensation of **Rs.1,76,400/-** under this head. 26. Towards loss of earning, the Tribunal awarded only a meagre sum of Rs.3,000/-. Considering the nature of the injuries sustained and the treatment the appellant/claimant had undergone, as borne out from medical records, she is entitled for loss of earning for a period of four months. Since we have already re-fixed her monthly income notionally at Rs.4,000/-, the compensation payable under this head is re-worked as Rs.16,000/- (4000x4), resulting an additional compensation of **Rs.13,000/-** . 27. The Tribunal awarded a sum of Rs.600/- towards transportation to hospital. Considering the fact that the accident is of M.A.C.A.2559/2009 & 1902/2015 15 the year 2004, we deem it appropriate to re-fix the compensation under this head as Rs.1,000/-, resulting an additional compensation of **Rs.400/-** . 28. Towards extra nourishment, the Tribunal awarded a sum of Rs.500/-. Considering the fact that the accident is of the year 2004 and that the appellant/claimant had undergone inpatient treatment for a period of 11 days, we deem it appropriate to re-fix the compensation under this head as Rs.1,100/- (100x11), resulting an additional compensation of **Rs.600/-** . 29. Towards bystander expenses, the Tribunal awarded a sum of Rs.500/-. Considering the fact that the accident is of the year 2004 and that the appellant/claimant had undergone inpatient treatment for a period of 11 days, we deem it appropriate to re-fix the compensation under this head as Rs.1,650/- (150x11), resulting an additional compensation of **Rs.1150/** -. 30. Towards damage to clothing, the Tribunal awarded a sum of Rs.250/-. Considering the fact that the accident is of the year 2004, we deem it appropriate to re-fix the compensation under this head as Rs.500/-, resulting an additional compensation of **Rs.250/-** . 31. Towards loss of amenities, no amount was awarded by the Tribunal. Considering the nature of injuries sustained and the M.A.C.A.2559/2009 & 1902/2015 16 permanent disability that has arisen out of therefrom, as certified in Ext.C1 disability certificate, we deem it appropriate to grant a sum of **Rs.60,000/-** as compensation towards loss of amenities. 32. Towards pain and suffering, the Tribunal awarded a sum of Rs.5,000/-. Considering the nature of the injuries sustained and the treatment the appellant/claimant had undergone, we deem it appropriate to re-fix the compensation payable under this head as Rs.30,000/-, resulting an additional compensation of **Rs.25,000/-** . 33. In the result, the appellant claimant in M.A.C.A.No.1902 of 2015 will be entitled for an additional compensation of **Rs.2,76,800/-** (17,6400+13,000+400+600+250+1,150+60,000-25,000) in that appeal, which will carry interest at the rate of 8% per annum from the date of the petition till realisation, excluding the period of delay of 2185 days in filing that appeal, which was condoned by the order dated 7.7.2016 in C.M.Appln.No.2121 of 2015, subject to the condition that in case enhanced compensation is awarded, the appellant/claimant will not be entitled for interest for the said period of delay. In such circumstances, for the additional compensation awarded in this appeal, the appellant/claimant will be entitled for interest from the date of the petition till realisation, excluding the aforesaid period of delay of 2185 days. M.A.C.A.2559/2009 & 1902/2015 17 34. In view of our finding that the accident occurred due to the composite negligence of the driver of both the vehicles in the ratio 50:50 the liability to pay 50% of the compensation originally awarded by the Tribunal in the impugned award and 50% of the additional compensation granted in this appeal shall be on the insurer of the lorry (sixth respondent before the Tribunal). The appellant insurer in M.A.C.A.No.2559 of 2009 (insurer of the lorry) shall be liable to pay the remaining 50% of the compensation originally awarded by the Tribunal and 50% of the additional compensation granted in this appeal. Since the insurance coverage of both the vehicles are not in dispute, the insurer of the said vehicles shall deposit their respective share in the amount of compensation awarded, within two months from the date of receipt of a certified copy of this judgment. Appeals are disposed of as above. No order as to costs. **Sd/C.T. RAVIKUMAR (JUDGE)** **Sd/ANIL K. NARENDRAN (JUDGE)** **spc/**