M.A.C.A.No.2246/2013: Robinet Jacob v. RARICHEN S/O JOSEPH & Others (Owner‑cum‑Driver) and United India Insurance Co. Ltd. & Oriental Insurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **MONDAY, THE 28[TH] DAY OF MARCH 2022 / 7TH CHAITHRA, 1944 MACA NO. 2246 OF 2013** **AGAINST THE AWARD IN OPMV 825/2007 OF MOTOR ACCIDENTS** **CLAIMS TRIBUNAL ,THODUPUZHA** ## **APPELLANT/PETITIONER:** ROBINET JACOB AGED 40 YEARS S/O.N.P.CHACKO, PUTHIAKUNNEL, MRALA KARA, KARIMKUNNAM VILLAGE, THODUPUZHA TALUK. BY ADVS. SRI.C.K.VIDYASAGAR SRI.P.CHANDY JOSEPH ## **RESPONDENTS/RESPONDENTS:** 1 RARICHEN S/O JOSEPH, PALAMATTOM HOUSE, PULPPALLY P.O., WAYANAD DISTRICT (OWNER CUM DRIVER). 673579 2 THE MANAGER UNITED INDIA INSURANCE CO.LTD., SULTHANBATHERI BRANCH, NOORANAL BUILDING, CHUNGAM, S-BATHERI, PIN - 673 592. 3 THE OREINTAL INSURANCE CO.LTD. BRANCH OFFICE, P.B.NO.8, JYOTHI SUPER BAZAR, THODUPUZHA. BY ADVS. SMT.REKHA NAIR SRI.THOMAS MATHEW NELLIMOOTTIL THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 16.03.2022, THE COURT ON 28.03.2022 DELIVERED THE FOLLOWING: M.A.C.A.No.2246/2013 2 **M.R.ANITHA, J** ****************** M.A.C.A.No.2246 of 2013 -----------------------------------------------------Dated this the 28[th] day of March, 2022 ## **JUDGMENT** The appeal has been filed against the award in O.P.M.V No.825/2007 on the file of Motor Accidents Claims Tribunal, Thodupuzha (in short 'Tribunal'). The claim petition has been filed under Section 166 of Motor Vehicles Act, 1988 (in short the Act) for the injury sustained by the appellant/claimant in a motor accident occurred on 06.06.2007 while riding motorcycle from Sulthanbathery to Pulppally by hit with car bearing Reg.No.KL 7W/5873 at Areappally ration shop. It is alleged that the accident happened due to the rash and negligent driving of the motor car by the first respondent who is the owner/driver of the car. 2[nd] M.A.C.A.No.2246/2013 3 respondent is the insurer. A total compensation of Rs.8,00,000/was claimed. 2. Before the Tribunal, first respondent/the owner cum driver remained ex parte. Second respondent filed written statement contending that the accident happened due to the rash and negligent driving of the motor cycle by the appellant/claimant. Policy coverage with respect to the offending vehicle is admitted. Compensation claimed under various heads are also contended to be exorbitant. 3[rd] respondent is the insurer of the motorcycle bearing Reg.No.KL 6A/8724 which the appellant/claimant was riding. But the liability is disputed and contended that the accident happened due to the rash and negligent driving of the car by the first respondent. 3. PWs 1 and 2 were examined and Exts.A1 to A14 were marked. There was no evidence from the side of the respondents. 4. The Tribunal, on evaluating the evidence, facts and circumstances, found that the accident happened due to the rash M.A.C.A.No.2246/2013 4 and negligent driving of the car by the first respondent and awarded a total compensation of Rs.4,04,800/-. 2[nd] respondent/insurer was held liable to pay the amount to the appellant/claimant. 5. Dissatisfied with the quantum of compensation awarded by the Tribunal, the appellant/claimant (hereinafter be referred as 'the claimant') came up in appeal on various grounds stated in the memorandum of appeal. 6. Heard learned counsel for the claimant as well as the learned counsel for the second respondent. Lower court records were called for and perused. 7. According to the learned counsel for the claimant, the amount awarded by the Tribunal under various heads are very low considering the loss, damage and pain and suffering undergone by the claimant. The Tribunal omitted to note that the claim was enhanced to Rs.18,00,000/- by an application for amendment. It is contended that the finding of the Tribunal that no compensation can be awarded for loss of earning since there M.A.C.A.No.2246/2013 5 is no diminution of salary, is illegal. The Tribunal ought to have computed 22% of disability as loss of earning capacity and should have applied the multiplier of 15. It is also contended that the salary of the claimant increased to Rs.39,181/- with effect from 01.06.2007 consequent to pay revision by the U.G.C as per Ext.39. Since the accident occurred on 06.06.2007, the claimant is entitled for the compensation computed as per the hike in salary. 8. The evidence of PW1 the Ortho Surgeon proves that the claimant has got osteo arthritis which means persistent nagging pain. It is further contended that since the claimant had undergone three surgeries, and 44 days of in-patient treatment, the amount awarded towards pain and suffering is very low. It is further contended that total knee replacement surgery will be needed twice or thrice in future and on all those counts, only an amount of Rs.1,50,000/- has been awarded. The amount awarded towards loss of amenities is very low. M.A.C.A.No.2246/2013 6 9. The learned counsel for the 2[nd] respondent/insurer on the other hand, would contend that a just and reasonable compensation has already been awarded. Since the claimant is a salaried person and is continuing in service there is no loss of earning and hence no compensation need be awarded under that head. Subsequent pay revision also cannot be taken into consideration for fixation of compensation as per the settled position of law. Hence, according to him, no interference is called for in the award passed by the Tribunal. 10. The accident, injuries sustained and the liability of the second respondent are not in dispute. The only challenge is with regard to the quantum of compensation awarded by the Tribunal. 11. In **Raj Kumar v. Ajay Kumar and Another : 2011(1) SCC 343 : 2010 KHC 5021 : 2011(1) KLT 620** , a two Judge Bench of the Apex Court dealt with in detail regarding the general principles relating to compensation in injury cases. In paragraph 7 of the said judgment, the percentage of permanent disability and assessment of M.A.C.A.No.2246/2013 7 ## compensation thereof has been discussed which reads as follows: _“7. The percentage of permanent disability is expressed by the Doctors with reference to the whole body, or more often than not, with reference to a particular limb. When a disability certificate states that the injured has suffered permanent disability to an extent of 45% of the left lower limb, it is not the same as 45% permanent disability with reference to the whole body. The extent of disability of a limb (or part of the body) expressed in terms of a percentage of the total functions of that limb, obviously cannot be assumed to be the extent of disability of the whole body. If there is 60% permanent disability of the right hand and 80% permanent disability of left leg, it does not mean that the extent of permanent disability with reference to the whole body is 140% (that is 80% plus 60%). If different parts of the body have suffered different percentages of disabilities, the sum total thereof expressed in terms of the permanent disability with reference to the whole body, cannot obviously exceed 100%.”_ 12. In paragraph No.9 it has been discussed that the Tribunal has to first decide whether there is any permanent disability and if so the extent of said permanent disability. The M.A.C.A.No.2246/2013 8 Tribunal has to consider and decide with reference to 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 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. 13. Claimant, in this case, is the Head of Travel and Tourism Management Department of Pazhassiraja College, Pulpally. Ext.A6 is the wound certificate which would reveal the following injuries. (i) pain and tenderness of right knee with laceration. (ii) X-ray shows comminuted bicondyler fracture of right femur and compound fracture of right patella. Treatment given is reduction and internal fixation. Ext.A7 is the certificate issued from Chazhkattu hospital certifying that the claimant herein has been under treatment in that hospital from 06.06.2007 for pain and tenderness of right knee with lacerated M.A.C.A.No.2246/2013 9 wound and fracture of lower end of right femur and comminuted fracture of right patella sustained due to an alleged RTA. He was initially treated at Vinayaka Hospital, Sulthanbathery and admitted in the hospital with displaced and comminuted fracture of lower end of right femur and he underwent surgery (wound debridement, reduction and internal fixation under spinal anaesthesia) and treated with antibiotic and analgesics and discharged on 24.06.2007. Again he was admitted on 12.08.2007 and discharged on 20.08.2007. On 20.08.2007 X-ray showed uniting fracture and underwent physiotherapy from 28.08.2008 to 24.09.2008. On 14.12.2007 X-ray showed uniting fracture and underwent physiotherapy from 14.12.2007 to 01.01.2008. Subsequent reviews were done on 22.02.2008 and 07.04.2008. He was again admitted on 29.04.2008 and underwent surgery (arthroscopy and spinal anaesthesia) and discharged on 08.05.2008. On 09.05.2008 cleaning and dressing done and on 12.05.2008 suture removal done. X-ray dated 26.12.2008 showed uniting fracture. Again he was admitted on 05.05.2009 M.A.C.A.No.2246/2013 10 and implant removal was done under spinal anaesthesia and was discharged on 11.05.2009. On 18.05.2009 ASR was done and on 22.05.2009 suture removal done and he was advised physiotherapy. 14. Ext.A8 is the discharge certificate issued by the Taluk Headquarters certifying 22% permanent disability. 15. In view of the serious nature of the injuries suffered by the claimant and the prolonged treatment involving 44 days in-patient treatment and three surgeries undergone by him the amount of Rs.40,000/- awarded towards pain and suffering seems to be very low and it can be enhanced to Rs.1,00,000/-. 16. Ext.A8 disability certificate issued by the Medical Board would certify that the claimant had restricted movements of right knee joint and shortening of right femur. He had also restricted movements of right hip. He had difficulty in walking, standing for a long time, sitting, squatting and climbing steps. He also experienced severe pain in the right knee joint in his daily activities. M.A.C.A.No.2246/2013 11 17. The claimant, as stated earlier, is the Head of Travel and Tourism Management Department. As rightly contended by the learned counsel for the claimant, in connection with his employment, he will have to travel to various places and will have to climb steps in places where there are no lifts and will have to sit for long time. So, the accident, injuries and resultant disability would definitely cause great inconvenience in discharging his day to day official duties. So, taking those facts into account, Rs.35,000/-, the amount awarded towards loss of amenities seems to be very low and it is enhanced to Rs.80,000/-. Deducting the amount already awarded by the Tribunal, the balance amount would be Rs.45,000/-. 18. Learned counsel would vehemently contend that he will have to do the knee replacement since he was only 34 years old at the time of the accident. An amount of Rs.1,50,000/- has already been awarded by the Tribunal towards future treatment and surgery. According to PW2 Doctor, at present, 1.5 lakhs is the cost of knee replacement in his hospital (Chazhkattu M.A.C.A.No.2246/2013 12 hospital). Replaced knee can lasts upto 25 years. So expenses for further knee replacement need also to be awarded to the appellant. Hence 1.5 lakhs further is awarded towards knee replacement. 19. The main argument of the learned counsel is with respect to compensation towards future loss of earning power and the multiplicand to be taken in connection with the same. Relying on **Raj Kumar,** the learned counsel for the insurer would vehemently contend that since the claimant is a Government employee and is receiving salary, he is not entitled to get compensation towards future loss of earning power. 20. In paragraph No.10 of **Raj Kumar** , Apex Court discussed that ascertainment of effect of 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 disability. The second step is to ascertain his avocation, profession and nature of work before the accident, M.A.C.A.No.2246/2013 13 as also his age. The third steps is to find out (i) whether the claimant is totally disabled from earning any kind of livelihood or (ii) whether inspite 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. It is also found that there may not be any need to award any compensation under the head of “loss of future earnings”, if the claimant continues in Government service though he may be awarded compensation under the head of loss of amenities as a consequence of the accident. 21. It is discussed further that if the left hand of a claimant is amputated, the permanent physical or functional disablement may be assessed around 60%. If the claimant was a driver or a carpenter, the actual loss of earning capacity may virtually be hundred percent, if he is neither able to drive or do M.A.C.A.No.2246/2013 14 carpentry. On the other hand, if the claimant was a clerk in government service, the loss of his left hand may not result in loss of employment and he may still be continued as a clerk as he could perform his clerical functions; and in that event the loss of earning capacity will not be 100% as in the case of a driver or carpenter, nor 60% which is the actual physical disability, but far less. In fact, there may not be any need to award any compensation under the head of ‘loss of future earnings’, if the claimant continues in government service, though he may be awarded compensation under the head of loss of amenities as a consequence of losing his hand. Sometimes the injured claimant may be continued in service, but may not found suitable for discharging the duties attached to the post or job which he was earlier holding, on account of disability, and may therefore be shifted to some other suitable but lesser post with lesser emoluments, in which case there should be a limited award under the head of loss of future earning capacity, taking note of the reduced earning capacity. M.A.C.A.No.2246/2013 15 22. In **New India Assurance Company Ltd. v. Satish Chandra Sharma and Another : Civil Appeal No.1579 of 2022 @ S.L.P (c) No.14350 of 2019** , a two Judge Bench of the Apex Court while dealing with an injury matter in a case filed under Section 166 of the Act by a Government servant who is continuing in work has held that the High Court was not correct in awarding compensation by applying the multiplier to the net salary payable to the first respondent (claimant in that case). It is also found that the first respondent was continued to earn the monthly salary he was earlier drawing, including increments, except some allowances given due to the nature of posting. The first respondent, at the time of the injury, was 56 years old and had about four years of service till his retirement. It is also held that High Court failed to notice that the injury certificate did not relate to permanent disability in the entire body, and had certified 75% disability in the lower limb. In that context, it was found that first respondent (claimant) was not immobilized and can perform and undertake daily chores without help and assistance. M.A.C.A.No.2246/2013 16 However, taking into account the fact that the claimant in that case had undergone an operation and an implant had been fixed in his vertebrae causing him physical pain, discomfort and possible decrease in lifespan and though entitled to pension and retirement benefits, has lost the opportunity to take up postretirement employment, compensation was enhanced from Rs.6,21,000/- and a total compensation in all was fixed at Rs.10,00,000/- instead of Rs.56,44,378/- awarded by the High Court. 23. In this case, as discussed above, the Medical Board certified 22% permanent disability and it is also not certified as whole body disability and the injuries sustained are also fracture of lower end of right femur and comminuted fracture of right patella. There is no head injury or any other injury to any other parts of the body. So, 22% permanent disability assessed by the Medical Board also does not appear to be whole body disability. There is nothing in evidence to show that the injury sustained and disability suffered will cause any loss to the earning capacity M.A.C.A.No.2246/2013 17 of the claimant. Hence, as rightly found by the Tribunal, the accident has neither affected the intellectual or physical capacity of the claimant to continue in service nor the steady progression in his career and hence there is no loss of income to the claimant due to the accident. Therefore, the claimant is not entitled to get any compensation towards loss of future earning. 24. Learned counsel for the claimant also argued about the revised pay scale of Rs.39,181/- as per Ext.A39 and would contend that while giving loss of earning for 4½ months, the Tribunal did not take into account the revised salary of the claimant which was proved through Ext.A39. In this context, learned Single Judge of this Court in **Shyno M.Aykara v. Sumol Roy : 2020(4) KLT 787** has held that subsequent pay revision cannot be considered for fixing income of a victim. In that decision the dictum laid down in **Oriental Insurance Co.Ltd v. Jashuben : 2008(3) KLT S.N.2 Case No.3 : 2008(4) SCC 162** has been quoted wherein it has been held that only because salary was revised at a later point of time, the same by itself M.A.C.A.No.2246/2013 18 would not have been a factor which could have been taken into consideration for determining the amount of compensation. So, at any rate, subsequent pay revision is not at all a factor for determination of compensation. However, in this case, that question also does not arise since it has already been found that the claimant is not entitled to get any amount towards future loss of earning power. It is true that the learned counsel for the claimant placed reliance on **Jithendran v. The New India Assurance Co.Ltd : 2021 (4) KLJ 646** , paragraph 19 of the said judgment was highlighted by the learned counsel which reads as follows: _“Before parting, it needs emphasizing that in cases such as this, the Tribunal and the Courts must be conscious of the fact that the permanent disability suffered by the individual not only impairs his cognitive abilities and his physical facilities but there are multiple other nonquantifiable implications for the victim. The very fact that a healthy person turns into an invalid, being deprived of normal companionship, and incapable of leading a productive life, makes one_ M.A.C.A.No.2246/2013 19 _suffer the loss of self-dignity. Such a claimant must not be viewed as a modern day Oliver Twist, having to make entreaties as the boy in the orphanage in Charles Dickens' classic, “Please Sir, I want some more”. The efforts must be to substantially ameliorate the misery of the claimant and recognize his actual needs by accounting for the ground realities. The measures should however be in correct proportion. As is aptly said by Justice R.V Raveendran, while speaking for the Division Bench in Sarla Verma and Others Vs. Delhi Transport Corporation and Another, just compensation is adequate compensation and the Award must be just that - no less and no more. The plea 8 (2009)6 SCC 121 of the victim suffering from a cruel twist of fate, when asking for some more, is not extravagant but is for seeking appropriate recompense to negotiate with the unforeseeable and the fortuitous twists is his impaired life. Therefore, while the money awarded by Courts can hardly redress the actual sufferings of the injured victim (who is deprived of the normal amenities of life and suffers the unease of being a burden on others), the courts can make a genuine attempt to help restore the self-dignity of such claimant, by awarding ‘just compensation’._ M.A.C.A.No.2246/2013 20 But that decision is not with regard to the fixation of compensation of a Government servant. So, the claimant is not further entitled to get any enhanced compensation on account of loss of earning. 25. Based on the above discussion, I find that claimant is entitled to get enhanced compensation of Rs.60,000 + 45,000 + 1,50,000 = Rs.2,55,000/- 26. In the result, appeal allowed in part. The claimant is allowed to realise enhanced compensation of Rs.2,55,000/(Rupees two lakhs fifty five thousand only) with interest at 6.5% from the date of petition till realisation. The 2nd respondent/insurer shall satisfy additional compensation granted in this appeal together with interest within a period of two months from the date of receipt of certified copy of this judgment. The claimant shall provide the Bank account details (attested copy of relevant page of bank pass book, Bank Account number and IFSC code of the branch) before the Tribunal with a M.A.C.A.No.2246/2013 21 copy to the learned Standing Counsel for the insurer, within one month from the date of receipt of certified copy of this judgment. (sd/-) **M.R.ANITHA, JUDGE** jsr True Copy P.S.to Judge