National Insurance Co. Ltd. Alappuzha vs Rajesh S/o Vallabhan

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR** **&** **THE HONOURABLE MRS. JUSTICE MARY JOSEPH** **FRIDAY, THE 22ND DAY OF SEPTEMBER 2017 / 31ST BHADRA, 1939** **MACA.No. 2648 of 2012** **AGAINST THE AWARD IN OPMV 1332/2006 of MOTOR ACCIDENT CLAIMS TRIBUNAL ALAPPUZHA DATED 28-03-2012** ## **APPELLANT:** **NATIONAL INSURANCE CO.LTD ALAPPUZHA, REP.BY THE MANAGER, KOCHI REGIONAL OFFICE, M.G.ROAD, ERNAKULAM-682 035.** **BY ADV. SRI.E.M.JOSEPH** ## **RESPONDENTS:** **1 RAJESH S/O. VALLABHAN, PADIPPURACKAL VEEDU, ALISSERY WARD, ALAPPUZHA-688001.** * **2 SAVAD S/O. KAMARUDHIN, PARASSERRY VEEDU, NEAR CHERIUM LP SCHOOL, UDAYANALLUR P.O., THAZHATHALA VILLAGE, KOLLAM-689001.(DELETED)** * **3 LEELAMMA CHENNAYADI KIZHAKKEKUTTU, PUNUKANNON, PERUMPUZHA, KOTTARAKKARA-689014. (DELETED)** * [R2 & R3 DELETED FROM THE PARTY ARRAY AT THE RISK OF THE APPELLANT AS PER ORDER DATED 18.07.17 IN I.A.2343/17 IN M.A.C.A.2648/2012] **BY ADVS. SMT.ANILA PETER SMT.P.P.BLESSY MOL** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 22.09.2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ========================= ## C.T. Ravikumar & Mary Joseph, JJ. ## M.A.C.A. No.2648 of 2012 ========================= Dated this the 22[nd] day of September, 2017 ## J U D G M E N T ## C. T. Ravikumar, J. This appeal is filed against the judgment and award dated 28.03.2012 in OP(MV) No.1332/2006 passed by the Motor Accidents Claims Tribunal, Alappuzha. The accident involved was a collision between a Scooter and a Lorry. The first respondent herein, the scooterist sustained severe injuries and hence, he filed the above claim petition, under Section 166 of the Motor Vehicles Act seeking an amount of Rs.8,79,000/- as compensation. The Tribunal granted an amount of Rs.8,34,699/- as compensation with interest at the rate of 7.5% per annum from the date of petition till realisation. 2. The appellant, the insurer of the lorry involved in the accident bearing Reg. No.KL-03/C-1273, was made to indemnify its insured owner viz., the second respondent as per the impugned judgment. The appellant who was therein M.A.C.A. No.2648 of 2012 2 assails the award on various grounds. The Core contention is that the Tribunal went wrong in awarding an amount of Rs.4,00,000/- towards the loss of earning power after granting an amount of Rs.1,50,000/- as compensation for disability. It is submitted by the learned counsel appearing for the appellant that in the light of a Full Bench decision of this Court in Oriental Insurance Co. Ltd. v. Hariprasad [2005(4) KLT 977 (FB)] the Tribunal ought to not have granted compensation for loss of earning power in addition to compensation granted for permanent disability. The appellant also contends that the fixation of the monthly income as Rs.6,000/- also cannot be sustained as the first respondent had not adduced any evidence to establish his claim of income and occupation. It is further submitted that the Tribunal granted exorbitant amount of compensation and therefore the award invites appellate interference. As per order dated 18.07.2017 in I.A. No.2343/2017 in the captioned appeal, respondents 2 and 3 were deleted from the array of parties. Obviously, the appellant is not M.A.C.A. No.2648 of 2012 3 disputing its liability to indemnify the insured/owner of the offending vehicle. 3. We have heard the learned counsel for the appellant and the learned counsel appearing for the respondent. As noticed herein-before the first respondent, the injured was riding his scooter at the time of the accident. He was then aged 29 years. In the claim petition, it was averred that he was a tailor by profession and was earning Rs.10,000/- per month. In a bit to establish the said contention he got himself examined besides getting examined one Roy Thomas as his employer. Ext.A16 Salary Certificate issued by the said Roy Thomas, who was examined as PW2, was produced to substantiate his contention regarding occupation and income. A scanning of the impugned judgment would reveal that the Tribunal had declined to accept and act upon the oral testimonies of the first respondent as PW3 as also the evidence of PW2, Roy Thomas in this regard. The Tribunal did not act upon Ext.A16 salary certificate, as well. There is nothing on M.A.C.A. No.2648 of 2012 4 record to show that the second respondent was keeping a wage register to show that the third respondent was his employee and also that he had been paid Rs.9,000/- per month, as claimed by PW2. But it is to be noted that in the claim petition, the contention of the first respondent/claimant was that he was getting Rs.10,000/- as a tailor. Thus, it is evident that there is a incongruity between PW2 and PW3 with respect to salary. Add to it, as already noticed, the second respondent got no case that he was keeping a wage register to show that the injured was his employee. When that be the position obtained in this case with respect to the occupation and income of the first respondent, the injured we do not find any reason to hold that the Tribunal had committed an error in not accepting and acting upon Ext.A16 as also the oral testimonies of PW2 and PW3. 4. At the same time, what is disheartening and causing concern is the manner in which the Tribunal arrived at the amount of compensation payable to the first M.A.C.A. No.2648 of 2012 5 respondent. A perusal of the impugned judgment would reveal that virtually the Tribunal had not specifically fixed any amount as the monthly income of the first respondent, either notionally or otherwise. But, at the same time, on perusing the compensation granted towards loss of earning for the period fixed in that regard viz., 12 months, it would suggest that the Tribunal must have taken monthly income as Rs.6,666.66/-. There is absolute absence of any discussion as to how the said amount was fixed as the monthly income. If it is taken that compensation under this head was calculated without giving due regard to the income which he would have earned but for being debarred to earn his living due to the injuries and the period consequently spent for treatment and convalescence. It can only be said that it was a speculative assessment impermissible as regards assessment of fiduciary damages. There can be room for any doubt that pecuniary damages are generally designed to make good. The pecuniary loss which is capable of being calculated in terms of money. It is to be noted a M.A.C.A. No.2648 of 2012 6 further scrutiny of the impugned judgment would reveal that the recognized method of calculation of compensation for permanent disability and compensation for loss of earning power due to disability was also deviated. At the outset, the position settled by the Full Bench in Hariprasad's case (supra) was deviated by granting Rs.4,00,000/- under this head. Loss of earning power after granting an amount of Rs.1,50,000/- as compensation for disability. Going by the decision in Hariprasad's case (supra) compensation for loss of earning power cannot be granted separately after granting compensation for disability and also vice versa. What is more improper is that compensation under both heads were indisputably calculated based only on speculation, without following the recognized method for calculating compensation under those heads. Evidently, the Tribunal had not fixed compensation for permanent disability as also compensation for loss of earning power, without fixing the monthly or annual income and without applying the appropriate multiplier with reference to the age of the M.A.C.A. No.2648 of 2012 7 deceased at the time of the accident. 5. In this case, in the absence of clear evidence regarding his occupation as also taking into account the extent of disability we are of the considered view that the first respondent ought to have been granted compensation for permanent disability and not for loss of earning power due to disability. In such circumstances, we are of the view that it is only proper to fix the monthly income and assess the compensation payable for loss of earnings and compensation for permanent disability under different heads and also to consider the adequacy or exorbitancy of the quantum of compensation granted under other heads to answer the contention that the Tribunal had granted exorbitant compensation to the first respondent. 6. The accident occurred on 31.12.2005. At the time of the accident the age of the first respondent was 29 years. We have already found that the oral evidence of PW2 and PW3 and Ext.A16 cannot be relied on for the purpose of fixation of the monthly income as also for ascertaining the M.A.C.A. No.2648 of 2012 8 avocation of the first respondent at the time of the accident. At the same time, even in the absence of cogent evidence the monthly income of the injured can be fixed notionally, by taking into account the twin factors viz., the year of the accident as also the age of the injured at the time of the accident, and also taking into account the decision of the Apex Court in Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Co.Ltd. [2011(13)SCC 236], for guidance. In Ramachandrappa's case, in respect of a coolie who met with an accident in the year 2004, an amount of Rs.4500/- was taken notionally as his monthly income for calculation purpose. Considering all such relevant aspects, it is only just and proper to fix the monthly income as Rs.6,000/- for calculation purpose. It is fixed accordingly. In the light of the schedule given in the decision of the Apex Court in Sarla Verma v. Delhi Transport Corporation [2010(2) KLT 802 (SC)] in respect of a person aged 29 years at the time of the accident the multiplier applicable is the one applicable to the age group of '26 to 30' viz., '17'. Ext.X1 is the disability M.A.C.A. No.2648 of 2012 9 certificate issued by a duly constituted Medical Board. It would reveal the extent of disability of the first respondent was assessed as 22%. Since it is a disability certificate issued by a duly constituted Medical Board and there is absolutely no reason is forthcoming to doubt its genuineness. We do not find any reason to accept and act upon Ext.XI. Evidently, the Tribunal has also taken note of the extent of disability certified under Ext.X1 though it was not reckoned appropriately for calculating compensation either for permanent disability or for earning power due to disability. On such assessment, taking into account all relevant factors the first respondent would be entitled to get an amount of Rs.2,69,280/- (6,000 x 12 x 17x 22/100). 7. We have already upheld the contention of the appellant that the Tribunal went wrong in granting compensation for loss of earning power after granting compensation for permanent disability. In this case, under the aforesaid two heads, the Tribunal has granted a total compensation of Rs.5,50,000/- To be precise, after M.A.C.A. No.2648 of 2012 10 granting an amount of Rs.1,50,000/- for disability the Tribunal has granted an amount of Rs.4,00,000/- towards loss of earning power. Therefore, it can be taken that an amount of Rs.2,80,720/- (Rs.5,50,000-2,69,280) was given in excess as compensation for the disability. 8. Even while upholding the aforesaid contention and finding that an amount of Rs.2,80,720/- was given in excess, as compensation reckoning the disability, we are of the view that it cannot by itself be a reason for interfering with the award impugned. This is because, in the light of Section 168 of the Motor Vehicle's Act, the Tribunal or Court is bound to adjudicate the just compensation commensurate with the injuries sustained by the claimant in a motor vehicle accident. Therefore, even if under a particular head excess compensation was granted cannot be a reason for interfering with the ultimate award of compensation in case it is just compensate commensurate with the injuries sustained. Hence, we will proceed to consider that question. 9. The learned counsel appearing for the first M.A.C.A. No.2648 of 2012 11 respondent submitted that the Tribunal has not granted any amount whatsoever under the heads 'bystanders expenses', 'extra nourishment' and 'loss of amenities'. That apart, it is contended that the Tribunal had not properly taken into consideration the fact that the first respondent had to undergo 19 surgeries and to remain as an inpatient for a period of 199 days while granting compensation for 'pain and sufferings'. Only a meagre amount of Rs.20,000/- was granted thereunder. It is the further contention that the fixation of the period for quantifying compensation for loss of earning also invites interference. The learned counsel appearing for the appellant countered these contentions and submitted that taking into account the fact that under the combined heads of compensation for disability and loss of earning power a total amount of Rs.5,50,000/- was granted and even if compensation was enhanced or granted under the aforesaid heads against which the first respondent got grievance either of non-granting or inadequate granting, the amount of compensation granted by the Tribunal will still be M.A.C.A. No.2648 of 2012 12 exorbitant. 10. As noticed hereinbefore the total compensation granted under the combined heads of compensation for disability and loss of earning power by the Tribunal is Rs.5,50,000/- we have already found that an amount of Rs.2,69,280/- was payable to the first respondent if the monthly income was fixed as Rs.6,000/- and the multiplier was correctly taken as 17, taking into account the percent of disability incurred by him due to the injuries sustained to him. Therefore, the question is whether the balance amount of Rs.2,80,720/- can be said to be exorbitantly granted. While considering the said question the fact obtained from the impugned judgment that the first respondent was not granted any amount towards bystanders expense, extra nourishment and loss of amenities has to be taken note of. The fact that the first respondent had undergone 19 surgeries and he remained as an inpatient for 199 days is specifically mentioned in the impugned judgment. This fact is not seen disputed in the memorandum of appeal. The M.A.C.A. No.2648 of 2012 13 question, whether the said aspect was duly weighed for granting compensation under the relevant heads is also to be considered in that regard. 11. The nature of the injuries sustained by the first respondent is evident from Ext.A3 wound certificate and Ext.A5 discharge card, A6 to A11 (series), A14 discharge summaries and X2 case sheet. They would go to show that the first respondent has sustained following injuries:- “8. Issue No.2:- The petitioner was 29 years old, Tailor, getting Rs.10,000/- per month. He sustained the following injuries. 1. Compound fracture both bone left leg. 2. Open wound 1x1cm, 2x2cm, 4x3cm, 2x2cm on left leg. 3. Fracture middle 1/3[rd] of tibia. Fracture with tissue loss. 4. Lacerated wound on posterior left leg with tissue loss. 5. Lacerated wound on lower 1/3[rd] leg 7x3cm. 6. 5x5cm lacerated wound anteriomedial aspect m/3 left leg with fracture tibia appeared. 7. 25x8cm extensive skin loss posterior aspect of left leg. 8. Abnormal mobility m/3. 9. Comminuted fracture left tibia.” 12. The aforesaid documents would also go to show that the hospitalisation of the first respondent was under different spells and that altogether he had been an M.A.C.A. No.2648 of 2012 14 inpatient for 199 days. The nature of the injuries and its ultimate impact evident from Ext.X1 would constrain us to hold that the period of loss of earnings taken by the Tribunal is too short and 6 more months ought to have taken in that regard. If reimbursement is to be made towards bystander expenses taking the rate of Rs.150/- per day, for a period of 199 days, the amount payable will be Rs.29,850/- At the rate of Rs.100/- per day, for the said period, an amount of Rs.19,900/- can be granted towards expenses for extra nourishment. The nature of the injuries as also the fact that the first respondent had to undergo 19 surgeries and had to remain as an inpatient for 199 days would constrain us to hold that the Tribunal was not at all justified in declining to grant compensation for loss of amenities. The nature of the injuries would definitely indicate that even after discharge from the hospital the first respondent must have been constrained to take rest. These matters also would become relevant for the purpose of considering the adequacy or inadequacy of the compensation granted towards pain and M.A.C.A. No.2648 of 2012 15 suffering. The Tribunal has granted only an amount of Rs.20,000/- presumably taking note of the fact that the first respondent had claimed only the said amount. 13. But at the same time, taking into account the fact that the first respondent was a person who had to undergo 19 surgeries and had to remain as an inpatient for a period of 199 days, it is evident that he must have deprived of enjoyment of his life for a pretty long period. He was aged only 29 years at the time of the accident. If on the body of a person, who was aged only 29 years, 19 surgeries were made, a further explanation is not called for to realise his miseries and deprivement of enjoyment during the period of treatment and the post treatment period. If reasonable compensations are granted under those heads whereunder the first respondent was declined compensation and if reasonable enhancement is made in towards pain and sufferings taking into account all the afore said aspects, we have no hesitation to hold that it would cover and adjust the amount allegedly granted excess amount viz., M.A.C.A. No.2648 of 2012 16 Rs.2,80,720/-. When that be the position obtained from the discussion, it is only befitting to decline invocation of appellate interference as the necessary corollary is that any such interference with make the compensation short of 'just compensation'. The long and short of the discussion is that the first respondent who sustained severe injuries in the motor accident was granted only just compensation and the amount of Rs.8,34,699/- granted to him by way of compensation cannot be said to be exorbitant to invite an interference. In the result, this appeal must fail and accordingly, it is dismissed. There will be no order as to costs. Sd/- ## C.T. RAVIKUMAR, JUDGE Sd/- ## MARY JOSEPH, JUDGE Skk/260917