N. Vijayakumar v. The National Insurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE N.NAGARESH** **FRIDAY, THE 05TH DAY OF JUNE 2020 / 15TH JYAISHTA, 1942** ## **MACA.No.1468 OF 2014** **AGAINST THE AWARD IN OP(MV)NO.926/2007 DATED 12-08-2013 OF MOTOR ACCIDENT CLAIMS TRIBUNAL , PALAKKAD** ## **APPELLANT:** **N.VIJAYAKUMAR AGED 55 YEARS S/O. THANKAPPAN NAIR @ VELAYUDHAN NAIR, RESIDING AT PRANAVAM, EDATHARA, PALAKKAD.** **BY ADV. SRI.JACOB SEBASTIAN** ## **RESPONDENT:** **THE NATIONAL INSURANCE CO.LTD. DIVISIONAL OFFICE, NO.10, FLAT 101-106, NIBMC HOUSE, CONNSAUGHT PLACE, NEW DELHI-110001.** **R1 BY ADV. SRI.P.G.GANAPPAN** **SRI. M.A. GEORGE** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 01-06-2020, THE COURT ON 05-06-2020 DELIVERED THE FOLLOWING:** **MACA. No.1468 OF 2014** **2** ## **J U D G M E N T** ~ ~ ~ ~ ~ ~ ~ ~ ~ ## _**Dated this the 5[th] day of June, 2020**_ The petitioner in OP(MV) No.926/2007 of the Motor Accidents Claims Tribunal, Palakkad, has filed this MACA aggrieved by the Award dated 12.08.2013 of the Tribunal. 2. The appellant was hit by a car while he was on the road at Mankara Junction. The appellant suffered serious injuries. The accident was on 19.03.2007. The disability was assessed at 33%. The appellant had to be hospitalised for 24 days. Consequent to his disability, the appellant, who was officiating as a Station Master in Southern Railway, was decategorised and accommodated in a supernumerary post. The appellant approached the Tribunal claiming ₹19 lakhs towards compensation. 3. Respondents 1 and 2 in the OP(MV) admitted the accident. The 2[nd] respondent in the OP(MV)-Driver asserted **MACA. No.1468 OF 2014** **3** that there was no negligence on his part. The respondentInsurer admitted insurance cover over the offending vehicle. 4. The appellant examined PWs 1 and 2 and produced Exts.A1 to A13. Court Exts.X1 series, X1(a) and X1(b) were marked. The Tribunal, after examining the evidence, awarded a compensation of ₹3,84,634/- under the following heads:- |**Sl.**<br>**No.**|**Head under which**<br>**compensation is claimed**|**Amount**<br>**claimed**<br>**(Rs.)**|**Amount**<br>**allowed**<br>**(Rs.)**|**Basis on which**<br>**allowed/ disallowed**<br>**with reasons in a nut-**<br>**shell**| |---|---|---|---|---| |1|Loss of earnings|1,00,000||Not proved| |2|Partial loss of earnings/<br>physiotherapy|20,000||| |3|Medical expenses|2,00,000|1,05,984|Ext.A6 series| |4|Bystander expenses|5,000|2,400|24 days| |5|Damage to clothing etc.|1,000|250|Nominal amount| |6|Transportation|10,000|1,000|Nominal amount| |7|Extra-nourishment|5,000||| |8|Pain and Suffering|50,000|25,000|Fractures| |9|Loss of love and affection|||| |10|Loss of consortium|||| |11|Loss of estate|||| |12|Loss of dependency/<br>economic benefits|||| |13|Loss of amenities and<br>conveniences of life|10,000|1,00,000|| |14|Loss of earning power|10,00,000||| |15|Funeral expenses|||| **MACA. No.1468 OF 2014** **4** |**Sl.**<br>**No.**|**Head under which**<br>**compensation is claimed**|**Amount**<br>**claimed**<br>**(Rs.)**|**Amount**<br>**allowed**<br>**(Rs.)**|**Basis on which**<br>**allowed/ disallowed**<br>**with reasons in a nut-**<br>**shell**| |---|---|---|---|---| |16|Disfigurement/deformity|||| |17|Any other head/disability<br>Future medical expenses|5,00,000<br>50,000|1,50,000|33% functional disability| ||**Total**|19,00,000|**3,84,634**|9% p.a. Interest from<br>date of petition| The Tribunal awarded interest at the rate of 9% per annum on the awarded amount. The respondent-insurer was directed to deposit the awarded amount with interest. Dissatisfied by the amount of compensation awarded, the appellant is before this Court invoking Section 173 of the Motor Vehicles Act, 1988. 5. The learned counsel for the appellant pointed out that the appellant suffered severe injuries consequent to which his disability is assessed as 33%. The appellant was hospitalised for 24 days. After the accident, the appellant, who was a Station Master, was reverted to a lower post. The amount of ₹25,000/- awarded by the Tribunal as compensation for pain and suffering is insufficient. The Tribunal did not grant any amount towards extra nourishment. The by-stander expenses allowed by the Tribunal is **MACA. No.1468 OF 2014** **5** insufficient. Transportation expense of ₹1,000/- is also insufficient. The Tribunal, in spite of serious disability of the appellant, did not grant any amount towards the disability resulting in reduction of future earning capacity post retirement. The impugned Award therefore is liable to be sufficiently modified granting a much higher compensation, contended the learned counsel for the appellant. 6. _Per contra_ , the Standing Counsel submitted that the Tribunal has granted ₹1,00,000/- to the appellant towards loss of amenities, when the claim of the appellant was only ₹10,000/-. Similarly, compensation towards disability amounting to ₹1,50,000/- has been granted taking into account his 33% functional disability. Therefore, the appellant is adequately compensated and no revision of awarded amount is necessary and the appeal is liable to be rejected. 7. I have heard learned counsel for the appellant and Standing Counsel for the respondent. 8. The appellant sustained fracture of acetabulum **MACA. No.1468 OF 2014** **6** right, both bones of left forearm and neck of left scapula. The appellant had malunion of fracture of the scapula, malunion of fracture right radius, stiffness of right shoulder and stiffness of left elbow, malunion of right acetabulum, flexion limitation of right hip, rotation stiffness of right hip and traumatic arthritis of right hip. Evidently, the appellant was decategorised in his employment, as his disability was assessed 33% as per Ext.A12. 9. Taking into account the serious injuries and disability suffered by the appellant, it is indeed necessary to grant compensation to the appellant towards his physical disability. The Tribunal granted a consolidated amount of ₹1,50,000/- towards appellant's disability. The sufficiency or otherwise of this amount is in question. 10. The Tribunal found that the disability incurred by the appellant has affected his career. But, the Tribunal noted that the appellant even after decategorisation in service, will be paid the same scale and pay and service benefits as **MACA. No.1468 OF 2014** **7** enjoyed before decategorisation and accordingly found that there is no danger that appellant's monetary prospects have been affected by the disability. At the same time, after making an observation that appellant's careerwise prospects have been affected, the Tribunal awarded ₹1,50,000/- as compensation towards disability. 11. In the judgment in _**Raj Kumar v. Ajay Kumar and another** [(2011) 1 SCC 343]_ , the Apex Court summarised the principles in awarding compensation for loss of earning capacity arising out of disabilities, as follows:- _“ We may now summarise the principles discussed above:_ _(i) All injuries (or permanent disabilities arising from injuries), do not result in loss of earning capacity._ _(ii) The percentage of permanent disability with reference to the whole body of a person, cannot be assumed to be the percentage of loss of earning capacity. To put it differently, the percentage of loss of earning capacity is not the same as the percentage of permanent disability (except in a few cases, where the Tribunal on the basis of evidence, concludes that percentage of_ **MACA. No.1468 OF 2014** **8** _loss of earning capacity is the same as percentage of permanent disability)._ _(iii) The doctor who treated an injuredclaimant or who examined him subsequently to assess the extent of his permanent disability can give evidence only in regard the extent of permanent disability. The loss of earning capacity is something that will have to be assessed by the Tribunal with reference to the evidence in entirety._ _(iv) The same permanent disability may result in different percentages of loss of earning capacity in different persons, depending upon the nature of profession, occupation or job, age, education and other factors.”_ It is clear from the declaration of the Apex Court that the percentage of permanent disability cannot be assumed to be the percentage of loss of earning capacity. The loss of earning capacity is something that will have to be assessed by the Tribunal with reference to the evidence in entirety. 12. In the case on hand, the permanent disability of the appellant is assessed at 33%. It has come out that the appellant will not suffer any financial loss during his service in Railways since his pay and emoluments are protected. However, after retirement at the age of 60 years, the disability **MACA. No.1468 OF 2014** **9** suffered by the appellant will indeed affect his earning capacity. Taking note of Exts.A11, A12 and A13 and oral evidence adduced by PW1, this Court is of the opinion that the disability of the appellant for the purpose of loss of future earning capacity can be reasonably fixed as 10%. 13. The appellant's salary was ₹42,390/- at the time of accident. An increase of 10% is to be granted towards future prospects. Consequently, the notional income of the appellant is to be fixed as ₹46,629/- (₹42,390/- + ₹4,239/- ). Using the multiplier 7 (post retirement period), the compensation will be ₹3,91,683/- (₹46,629/- x 12 x 7 x 10/100). The appellant has been awarded an amount of ₹1,50,000/- by the Tribunal. Accordingly, the appellant will be entitled to additional compensation of ₹2,41,683/(₹3,91,683/- minus ₹1,50,000/-). 14. The appellant had claimed for ₹50,000/- for pain and suffering and the Tribunal had granted only ₹25,000/-. However, taking into consideration the fact that the Tribunal **MACA. No.1468 OF 2014** **10** has awarded an amount of ₹1,00,000/- towards loss of amenities as against the claim of the appellant for ₹10,000/-, I deem it not necessary to grant any increase in compensation for pain and suffering. 15. The Tribunal did not grant any amount towards extra nourishment. Since the accident is of the year 2007, the appellant shall be made eligible for an amount of ₹3,600/(₹150/- x 24 days) towards extra nourishment. Similarly, the by-stander expenses of ₹2,400/- granted by the Tribunal is liable to be enhanced to ₹4,800/-. Therefore, the appellant will be eligible for an additional compensation of ₹2,400/under this head. The appellant has been granted transportation expenses of ₹1,000/-. Taking note of the injuries, treatment and reviews that required in the case, an additional amount of ₹1,000/- is to be granted to the appellant under this head. 16. Thus, the appellant will be entitled to the following amounts towards additional compensation:- **MACA. No.1468 OF 2014** **11** |1|Compensation for disability affecting future earning|₹2,41,683/-| |---|---|---| ||capacity (₹3,91,683/- minus ₹1,50,000/- already|| ||granted by the Tribunal)|| |2|Additional compensation towards extra nourishment|₹3,600/-| ||(₹150/- x 24 days)|| |3|Additional compensation towards by-stander expenses|₹2,400/-| ||(₹200/- x 24 minus ₹2,400/- already granted by the|| ||Tribunal)|| |4|Additional compensation towards transportation (In|₹1,000/-| ||addition to ₹1,000/- already granted by the Tribunal)|| ||Total|₹2,48,683/-| Accordingly, MACA is allowed in part. The appellant is held to be entitled to an additional compensation of ₹2,48,683/- along with 9% interest per annum thereon from the date of the OP(MV) till realisation. The respondentinsurer shall deposit the amount within a period of one month. Sd/- **N. NAGARESH, JUDGE** aks/04/06/2020