Mahesh Kumar @ Unni v. Divisional Manager, New India Assurance Company Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE N.NAGARESH** **WEDNESDAY, THE 03RD DAY OF JUNE 2020 / 13TH JYAISHTA, 1942** **MACA.No.4217 OF 2019(B)** **AGAINST THE AWARD IN OP(MV) NO.758/2015 DATED 21-06-2019 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,PATHANAMTHITTA** ## **APPELLANT:** **MAHESH KUMAR @ UNNI, AGED 29 YEARS S/O.SASIDHARAN, VATTAVILAYIL VEEDU, VAYALA P.O., ADOOR.** **BY ADV. SRI.A.N.SANTHOSH** ## **RESPONDENT:** **THE DIVISIONAL MANAGER, NEW INDIA ASSURANCE COMPANY LTD., KOLLAM - 691 001.** **BY ADV. ZIYAD RAHMAN(BY ORDER) BY ADV. SRI.PMM.NAJEEB KHAN** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 27-05-2020, THE COURT ON 03-06-2020 DELIVERED THE FOLLOWING:** **MACA. No.4217 OF 2019(B)** **2** ## **J U D G M E N T** ~ ~ ~ ~ ~ ~ ~ ~ ~ ## _**Dated this the 3[rd] day of June, 2020**_ The petitioner, who is the claimant in O.P.(MV) No.758/2015 on the files of Motor Accidents Claims Tribunal, Pathanamthitta, is in appeal. 2. The appellant-claimant states that on 07.12.2014, while he was travelling as a pillion rider in a motorcycle through Enathu – Ezhamkulam Road, an autorickshaw hit on the motorcycle. The autorickshaw was driven in a rash and negligent manner. Consequent to the accident, the appellant was taken to Government Hospital, Adoor and was referred to Medical College Hospital, Thiruvananthapuram. The appellant claimed that he was 25 years of age, earning a monthly income of ₹27,500/- as a military personnel. He was treated for 62 days as an **MACA. No.4217 OF 2019(B)** **3** in-patient. The appellant filed O.P.(MV) No.758/2015 in the MACT, Pathanamthitta claiming an amount of ₹15 lakhs as compensation. 3. The 1[st] respondent-Insurance Company defended the claim, filing written statement. The Insurer contended that there was no negligence on the part of the Driver of the autorickshaw. The insurance in respect of the autorickshaw was admitted. The claim made by the appellant as regards his age, disability, injuries, period of treatment, occupation and income were denied. The respondent-Insurer stated that the compensation claimed by the appellant is highly excessive. 4. The appellant produced Exts.A1 to A26 documents and examined himself as PW1. The respondent-Insurer did not produce any documents nor did examine any witnesses. 5. The MACT, Pathanamthitta, on appreciation of evidence, awarded an amount of ₹8,12,510/- to the **MACA. No.4217 OF 2019(B)** **4** ## appellant under the following heads:- |**Sl.**<br>**No.**|**Head of Claim**|**Amount**<br>**claimed**|**Amount**<br>**Awarded**|**Basis vital**<br>**details**| |---|---|---|---|---| ||Income/Notional Income|₹27,425/-|₹17,000/-|Occurrence was<br>in the year 2014| |1|Loss of earnings|₹1,50,000/-|₹85,000/-|17000 x 5 months| |2|Transport to hospital|₹50,000/-|₹5,000/-|Nil| |3|Extra nourishment|₹5,000/-|₹15,500/-|250 x 62 days| |4|Damage to clothing|₹₹1,000/-|₹1,000/-|| |5|Medical expenses|₹1,00,000/-|₹64,510/-|Ext.A20 series| |6|Bystander's expenses|₹50,000/-|₹15,500/-|250 x 62 days| |7|Pain and sufferings|₹5,00,000/-|₹50,000/-|| |8|Compensation for<br>permanent disability|₹7,00,000/-|₹5,61,000/-|| |9|Loss of amenities &<br>enjoyment of life|₹3,00,000/-|₹15,000/-|| ||Total amount claimed in<br>various heads|₹18,56,000/-<br>limited up to<br>₹15,00,000/-|**₹8,12,510/-**|| The respondents in the O.P.(MV) were made liable to pay interest also at the rate of 9% per annum from the date of the O.P.(MV). The respondent-Insurer herein/3[rd] respondent in the O.P.(MV) was directed to remit the compensation amount. 6. Aggrieved by the Award dated 21.06.2019 in O.P.(MV) No.758/2015 of the MACT, Pathanamthitta, the claimant is in appeal. **MACA. No.4217 OF 2019(B)** **5** 7. Learned counsel for the appellant submitted that the appellant was employed in Defence Service and was earning ₹27,500/- per month. He was aged 25 years at the time of the accident. The appellant had to undergo treatment as in-patient for 62 days. The Standing Disability Assessment Board fixed the disability of the appellant as 30%, as per Ext.A19. However, the Tribunal erroneously fixed appellant's physical disability as 25%. The Tribunal relied on the judgment of this court in _**Mery Augusty v. Junaid** [2016 (4) KLT 253]_ to reduce the permanent physical disability from 30% to 25% for the purpose of compensation. The learned counsel for the appellant contended that the Tribunal committed a grave error in relying on the judgment of this Court reported in _**Mery Augusty** (supra)_ . The said judgment was in respect of a case where the claimant refused to appear before Medical Board in spite of the directions of the Tribunal/Court. Here, in this case, the Standing Disability Assessment Board, General Hospital, Pathanamthitta, has assessed the **MACA. No.4217 OF 2019(B)** **6** permanent disability of the appellant as 30%. There was no reason for the Tribunal to depart from the percentage of disability fixed by the Medical Board. 8. The counsel for the appellant further contended that he was to retire at the age of 35 years from Defence Service. Therefore, the Tribunal should have adopted the multiplier of 15 or 16, instead of 11. The fact that the appellant was permitted to continue in Defence Service in spite of his physical disability, cannot be treated as a justifiable reason to adopt the multiplier of 11. The learned counsel for the appellant relied on the judgment in _**Raj Kumar v. Ajay Kumar** [2011 (1) KLT 620 (SC)]_ to contend that the Tribunal has to assess the loss of earning capacity of the injured to arrive at future loss of earning and cited the judgment in _**Kajal v. Jagdish Chand** [2020 (1) KLT 743 (SC)]_ to urge that the court, while assessing the compensation, should have regard to the degree of deprivation and loss caused by such deprivation. **MACA. No.4217 OF 2019(B)** **7** 9. It was further contended by the learned counsel for the appellant that the amount awarded by the Tribunal towards compensation for pain and suffering is negligible. Considering the sever injuries suffered by the appellant, the appellant had claimed ₹5 lakhs towards compensation for pain and suffering. It is against the said claim that the Tribunal awarded only ₹50,000/-. The learned counsel for the appellant further contended that going by the evidence adduced by the appellant as PW1, it is evident that due to the severe injuries suffered by the appellant and the disability arising therefrom, the appellant had suffered substantial loss of amenities in his life. The appellant had claimed ₹3 lakhs towards loss of amenities and enjoyment of life. The Tribunal, however, awarded only a meager amount of ₹15,000/- under this head. The compensation awarded by the Tribunal is therefore liable to be enhanced. 10. The learned Standing Counsel for the respondent opposed the arguments of the appellant. The Standing **MACA. No.4217 OF 2019(B)** **8** Counsel for the respondent submitted that though the Medical Board has fixed the disability at 30%, none of the Doctors, who certified Ext.A19, were examined. There is nothing on record to assess the reduction in earning capacity of the appellant. To the contrary, it is an admitted position that in spite of the injuries suffered by the appellant in the accident, he was permitted to continue in Defence Service, though in a different post and that too, without any reduction in salary. Therefore, there is no rhyme or reason for the Tribunal to award any compensation for permanent disability. 11. To the said contention of the Standing Counsel for the respondent-Insurance Company, the learned counsel for the appellant contended that though the appellant was shunted to a post having inferior duties consequent to the physical disability and though the salary of the appellant in respect of the post which he did hold at the time of accident was protected, the appellant will definitely suffer inasmuch **MACA. No.4217 OF 2019(B)** **9** as his career opportunities in Defence Service are affected by the accident and consequential disability. 12. I have heard the learned counsel for the appellant and learned Standing Counsel for the respondent. 13. The prime contention of the appellant is that the Claims Tribunal erred in fixing the percentage of physical disability at 25% when the Standing Disability Assessment Board has certified the same to be 30%. It is a settled proposition that Tribunal shall not mechanically apply the percentage of permanent disability as the percentage of economic loss or loss of earning capacity. For ascertaining the effect of permanent disability on loss of earning capacity, the Tribunal has to first ascertain the 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 Tribunal should then ascertain his avocation, profession and nature of work before the accident, as also his age. The Tribunal is required to assess the loss of earning capacity in **MACA. No.4217 OF 2019(B)** **10** terms of a percentage of the income. 14. Ext.A19 report of the Standing Disability Assessment Board on the history and clinical examination of the appellant, states as follows:- _“History Road Traffic Accident on 07.12.2014 sustained Type-II open Supracondylar Intercondylar fracture Right femur, Type-II open Comminiuted Proximal Tibia fracture. The femur fracture was treated by LISS plating and bone grafting. The Proximal Tibial fracture was treated by wound debrident, Illizarrov ring fixation application at 6.5 mm cancellous screws. Patient developed severe Right knee joint stiffness for which Quadriceps plasty and Arthrolysis was done twice. Now the fracture has united. He has an ugly scar on the anterior aspect of Right knee and lateral aspect of Right thigh. The amount of flexion at the right knee is from 0 to 80[0] .”_ On that basis, the Board assessed the permanent disability of the appellant as 30% (Thirty Percentage). **MACA. No.4217 OF 2019(B)** **11** 15. The Tribunal relying on the judgment in _**Mery Augusty** (supra)_ , observed that the disability certificate issued by the Medical Board is not binding upon the Tribunal and proceeded to fix the disability at 25%, for the reason that disability certificate did not disclose the details of injury and Board's conclusions. 16. The fact that the appellant was a Combatant Soldier who joined Military Service as Signal Man, is proved. Consequent to the injury, the flexion of his right knee is from 0 to 80[0] , as assessed by the Board. The . range of Knee Flexion of a young human adult is up to 140[0] Therefore, it is evident that the appellant, who was a Combatant personnel, cannot effectively discharge the duties and functions of a normal Soldier, due to the injury and consequential permanent disability. Though after the accident and treatment, the appellant was not discharged from Military Service due to disability, but was accommodated in another post, the disability has indeed **MACA. No.4217 OF 2019(B)** **12** affected appellant's promotional prospects and career advancement as deposed by PW1. If the long years of remaining service of the appellant is considered, it is fairly discernible that the appellant will suffer substantial loss in future salary and pensionary benefits. These factors are not seen taken note of by the Tribunal while fixing the percentage of disability. In the circumstances, this Court finds that at least 5% increase is warranted on the percentage of disability arrived at by the Tribunal. 17. The further argument of the counsel for the appellant is that normal retirement age of the appellant is 35 years and after the accident, the appellant was only 'permitted' to continue in service. The Tribunal therefore ought to have adopted the multiplier of 15 or 16, taking note of the lower retirement age or at least, should have applied multiple multipliers. The argument does not find any factual support from the pleadings or in the appeal memorandum. At the same time, the appellant himself as PW1, has **MACA. No.4217 OF 2019(B)** **13** deposed that in the ordinary course, he can continue in service till the age of 52. There is no reduction in wages due to the transfer from the post he had occupied, after the accident. In the circumstances, I find no force in the argument of the counsel that the multiplier adopted by the Tribunal is unjustified. 18. As regards the claim made by the counsel for the appellant for award of higher compensation for pain and suffering, it is seen that the appellant was to remain as in-patient for treatment for a period of 62 days. The Tribunal has awarded ₹50,000/- compensation towards pain and suffering. Taking note of the year of accident, the nature of injuries and surgical procedures undergone by the appellant, this Court holds that the compensation for pain and suffering should be enhanced to ₹62,000/-. 19. As regards the compensation for loss of amenities, the Tribunal has awarded ₹15,000/-, which is reasonable. Compensation granted by the Tribunal under **MACA. No.4217 OF 2019(B)** **14** other heads, does not warrant interference, except to the extent indicated hereinabove. In the result, the appeal is partly allowed. The appellant is held entitled to additional compensation of ₹1,12,200/- (₹17,000/- x 12 x 11 x 30/100 minus ₹5,61,000/already awarded) towards loss of earning capacity consequent to permanent disability and ₹12,000/- towards pain and suffering. The total additional compensation of ₹1,24,200/- will also carry interest at the rate of 9% per annum. The 3[rd] respondent is directed to remit the additional compensation amount in the Tribunal within 30 days. Sd/- **N. NAGARESH, JUDGE** aks