MANI K., S/O KUMARAN v. SAJEEV, S/O NARAYANAN; ANVAR T. SALAM; THE RELIANCE GENERAL INSURANCE CO. LTD.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH TUESDAY, THE 14TH DAY OF JUNE 2016/24TH JYAISHTA, 1938 MACA.No. 2327 of 2012 () ------------------------AGAINST THE AWARD IN O.P.(M.V)No.254/2009 of MOTOR ACCIDENTS CLAIMS TRIBUNAL, PALA DATED 23.3.2012 APPELLANT/ PETITIONER: ---------------------------- MANI K, S/O KUMARAN, PUTHUPARAMBIL HOUSE, CHETTIKUZHY BHAGAM, MUNDAKAYAM KARA, MUNDAKAYAM VILLAGE. BY ADV. SRI.ABRAHAM MATHEW (VETTOOR) ## RESPONDENTS/RESPONDENTS: ---------------------------------- 1. SAJEEV, S/O.NARAYANAN, VAZHAYIL HOUSE, KUZHIMAVU BHAGAM, KUZHIMAVU KARA, ERUMELI NORTH VILLAGE, PIN-686 509. 2. ANVAR.T.SALAM, S/O.ABDUL SALAM, THEKKUMKATTIL HOUSE, MUNDAKKAYAM P.O, PIN- 686513. 3. THE RELIANCE GENERAL INSURANCE CO. LTD, REPRESENTED BY ITS MANAGER, 2ND FLOOR, JACKSON'S MANORAMA, JUNCTION, CHELLIYUZHUKKAM ROAD, KOTTAYAM 686 001. R3 BY ADV. SMT. K.S.SHANTI THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 14-06-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **C.T.RAVIKUMAR & K.P.JYOTHINDRANATH, JJ.** ------------------------------- M.A.C.A.No.2327 of 2012 -------------------------------Dated 14[th] June, 2016 ## **JUDGMENT** ## **Ravikumar, J.** This appeal is directed against the award dated 23.3.2012 in O.P.(M.V)No.254 of 2009 passed by the Motor Accidents Claims Tribunal, Pala. The appellant who was a coolie met with a motor vehicle accident on 23.10.2008. While travelling in an autorickshaw bearing Reg.No.KL-5/V 9312 driven by the first respondent, owing to the rash and negligent driving of the autorickshaw by the first respondent, it hit against the rear side of a lorry parked on the road side. In the accident the appellant sustained serious injuries. It is seeking compensation for the said injuries that he filed the aforementioned claim petition under Section 166 of the Motor Vehicles Act, for a total compensation of 6,00,000/-. The Tribunal as per the₹ impugned award granted a total compensation of 1,52,885/- with₹ interest at the rate of 7.5% per annum from 26.3.2009 till realisation along with a cost of 3,000/-. It is dissatisfied with the quantum of₹ compensation that the captioned appeal has been preferred. MACA.No.2327/2012 2 ## 2. Head both sides. 3. Essentially, the appellant raised manifold contentions to mount challenge against the impugned award. It is contended that the Tribunal erred in fixing the monthly income of the appellant only at ₹ 4,000/- per month. It is also contended that despite Ext.X1 disability certificate issued by the Medical Board attached to Medical College Hospital, Kottayam certifying permanent neurological disability as 17% and visual disability as 30% the Tribunal took only 15% as the disability for the purpose of considering compensation towards loss/reduction in earning capacity. It is the further submission that though he incurred permanent disability as mentioned above, the Tribunal granted only a meagre amount under the head loss of amenities. Evidently, as against a claim of 2,00,000/- the Tribunal grated only an amount of₹ ₹ 7,500/- under that head. It is the further contention that despite serious injuries sustained by the appellants which also resulted in permanent disability as mentioned hereinbefore, the Tribunal granted only an amount of 10,000/- as against a claim of 50,000/- towards₹ ₹ pain and suffering. It is contended that it is too low. Towards bystander expenses an amount of 10,000/- was claimed. Ext.A6₹ discharge certificate would reveal that the appellant had been an MACA.No.2327/2012 3 inpatient for a period of 25 days. The Tribunal granted only an amount of 1,000/- under that head. Towards extra nourishment only a₹ meagre amount of 1,500/- was granted as against a claim of₹ ₹ 3,000/-, it is contended. It is in the said circumstances that the appellant seeks for enhancement of the amount of compensation granted under the aforesaid heads. Per contra, the learned counsel for the third respondent insurance company contended that the monthly income notionally fixed by the Tribunal cannot be said to be on the lower side. At the same time, it is contended that the adoption of `16' as the multiplier is incorrect in the light of the decision of the Hon'ble Apex Court in **Sarla Verma** v. **Delhi Transport Corporation (2010** **(2) KLT 802 (SC)).** It is the submission that in the claim petition itself it is stated that the appellant was aged 40 years on the day of the accident. But, at the same time, no evidence was let in by the appellant to show whether he had crossed 40 years by then. In such circumstances, it is contended that the Tribunal ought to have adopted the multiplier for the age group 41-45 years. It is also contended that though in Ext.X1 neurological and visual disabilities have been recorded a perusal of the same would reveal that the Medical Board had failed to assess the whole body disability. In such circumstances, it is contended that the Tribunal cannot be found fault with in taking the whole body MACA.No.2327/2012 4 disability only at 15% for the purpose of computing the compensation under the head loss/reduction in earning capacity. In short, according to the learned counsel, the Tribunal had granted adequate compensation under all heads and therefore, no appellate interference is called for. 4. We will firstly consider the question whether the Tribunal was correct in taking only 15% disability for the purpose of computing compensation for loss/reduction in earning capacity. In the said context, it is relevant to refer to Ext.X1 disability certificate. In Ext.X1 it is recorded as hereunder:- “Present disabilities include; 1. Right brachial plexus injury - grip weakness, claw hand, and sensory impairement at C7, 8 and T1 dermatomes of right hand ------ 12% 2. Post traumatic headache, loss of memory, easily getting angry, and continued anti epileptic drugs medication - 5% ## **permanent Neurological disability - 17%** Ophthalmologic assessment showing left optic atrophy ## **Visual disability ----- 30%** ” True that, the whole body disability was not assessed by the Medical MACA.No.2327/2012 5 Board. A perusal of the impugned award would reveal that the Tribunal has granted compensation under the head loss/reduction in earning capacity taking into account the disability factor. There cannot be any doubt with respect to the position that when a person had incurred permanent disability owing to an accident he cannot be compensated under the head loss/reduction in earning capacity and at the same time, for incurring permanent disability. In other words, taking the disability factor he could either be compensated for loss/reduction in earning capacity or for the permanent disability incurred whichever is appropriate in the factual position obtained in the case. In this case, as noticed hereinbefore, the Tribunal granted compensation for loss/reduction in earning capacity. In the decision in **Raj Kumar** v. **Ajay Kumar (2011 (1) KLT 620 SC)** , the Hon'ble Apex Court held that the Tribunal should not mechanically apply the percentage of permanent disability as percentage of economic loss or loss of earning capacity. In paragraph 10 of the said decision it was held thus:- “10. 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 MACA.No.2327/2012 6 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. 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 loss of earning capacity to the extent (percentage) of permanent disability will result in award of either too low or too high a compensation.” It is thus obvious that merely because in a disability certificate issued by a Medical Board the percentage of permanent disability is certified that cannot simply be accepted in toto for the purpose of calculating the percentage of loss of earning capacity. Certainly, it has to be assessed in three steps as has been held by the Hon'ble Apex Court in **Raj Kumar's** case (supra). While considering the percentage of loss of earning capacity certainly, we will have to take note of the fact that the appellant was working as a coolie prior to the accident. Virtually, he lost the sight of his left eye. Besides the same, he had incurred permanent neurological disability as well. In such circumstances, his earning capacity as a coolie would be adversely affected rather, it would MACA.No.2327/2012 7 stand reduced. He would not be in a position to do the work of a coolie in the same manner as has been done prior to the accident. Since he was a coolie it cannot simply be said that he can engage in other activities. In such circumstances, taking into account the nature of the disabilities as also the percentage of disabilities as mentioned hereinbefore, we are of the view that for the purpose of calculating the amount of compensation for reduction in earning capacity the percentage of disability has to be taken as 40%. True that, in the light of the decision of the Hon'ble Apex Court in **Sarla Verma's** case (supra) in the absence of any evidence as to whether the appellant had crossed the age of 40 years or within the age of 40 years for the purpose of identifying the multiplier it is to be taken that he belongs to the age group of 41-45 years. In such circumstances, the multiplier to be applied is `14'. With respect to the monthly income fixed by the Tribunal as 4,000/- we are of the view that the Tribunal has not₹ correctly fixed the monthly income. In this context it is to be noted that in respect of a coolie who met with an accident in the year 2004 for the purpose of assessing the compensation the Hon'ble Apex Court fixed the monthly income notionally at ₹ 4,500/in the decision in _**Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited ((2011) 13 SCC 236)**_ . The appellant MACA.No.2327/2012 8 herein is also a coolie. The accident for which he seeks compensation occurred in the year 2008. Taking into account the year of the accident and the age of the appellant on the day of the accident we are of the view that 5,000/- has to be fixed as the monthly income of the₹ appellant notionally for calculation purpose. With such modification in the aforementioned factors the amount of compensation payable under the head loss/reduction in earning capacity has to be re-assessed. On such re-assessment the appellant would be entitled to get an amount of ₹ 2,20,800/- additionally. It is awarded. We have already taken note of the nature of the injuries as also the permanent disability incurred by the appellant. Taking into account all relevant aspects borne out from records we are of the view that the learned counsel for the appellant is justified in contending that the Tribunal has granted only inadequate amount of compensation under the head loss of amenities. The Tribunal has granted only an amount of 7,500/-. Taking into account₹ all the aforementioned aspects viz., the appellant had incurred permanent neurological disability as well as vision lost of the left eye, there cannot be any doubt with respect to the fact that he would not be able to enjoy his life as before. In such circumstances, we are inclined to grant 50,000/- under that head. After deducting the amount₹ already granted by the Tribunal viz., 7,500/- the appellant would be₹ MACA.No.2327/2012 9 entitled to get an amount of 42,500/- additionally under that head.₹ While considering adequacy of amounts granted towards extra nourishment and bystander expenses the facts that the appellant had been an inpatient for a period of 25 days and that the accident occurred in the year 2008 have to be taken into account. In such circumstances, we are inclined to grant 200/- per day towards bystander expenses₹ and 100/- per day towards extra nourishment. Calculating in that₹ way, the appellant would be entitled to get an amount of 2,500/-₹ towards extra nourishment and the amount payable towards bystander expenses would be 5,000/-. After deducting the amounts granted by₹ the Tribunal the appellant would be entitled to get an amount of ₹ 1,000/- additionally under the head extra nourishment and an amount of 4,000/- additionally under the head bystander expenses. Towards₹ pain and suffering the appellant claimed an amount of 50,000/-. But,₹ the Tribunal granted only an amount of 10,000/-. Evidently, the₹ appellant had sustained five major fractures besides the injuries sustained on his head which led to visual disability. We have already found that he had incurred permanent neurological disability due to the accident. He had been an inpatient for a period of 25 days. Taking into account all such aspects we are of the view that the amount granted by the Tribunal is inadequate and therefore, we are inclined to grant an MACA.No.2327/2012 10 amount of 15,000/- more under that head. It is granted ₹ In the light of the enhancements made under the aforesaid heads the appellant is entitled to get a total enhanced compensation of ₹ 2,83,300/-. The said additional compensation will carry interest at the rate of 8% per annum from the date of petition till realisation. The 3[rd] respondent is directed to deposit the enhanced amount with interest within a period of two months from the date of receipt of copy of this judgment failing which the entire amount remaining to be paid will carry interest at the rate of 9% per annum from the date of petition. There will be no order as to costs. Sd/- **C.T.RAVIKUMAR Judge** Sd/- **K.P.JYOTHINDRANATH Judge** TKS