New India Assurance Co Ltd v Excel Timbers Pvt Ltd & Others (MACA No. 2834 of 2014; CO No. 13 of 2015)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **WEDNESDAY,THE 29TH DAY OF AUGUST 2018 / 7TH BHADRA, 1940** ## **MACA.No. 2834 of 2014** **AGAINST THE AWARD IN OPMV 971/2006 of M.A.C.T., THALASSERY DATED 20-02-2014** ## **APPELLANT/S:** **THE NEW INDIA ASSURANCE CO LTD REGIONAL OFFICE, KANDAMKULATHY TOWERS, M.G ROAD, ERNAKULAM, REPRESENTED BY ITS DULY AUTHORISED OFFICER** **BY ADV. SRI. VPK. PANICKER** ## **RESPONDENT/S:** - **1 M/S EXCEL TIMBERS PVT LTD, KODAMPUZHA ROAD, PETTA P.O, FEROKE, KOZHIKODE DISTRICT 673631** - **2 K.K. RAFEEQUE DRIVER, S/OSOOPPI, KALLIKKANDI HOUSE, P.O, VANIMEL, VATAKARA 673506** - **3 RATHEESAN P.K AGED 42 YEARS S/O CHANDRAN, PUTHANKANDATHIL HOUSE, EDAKKANAM P.O, KEEZHOOR, IRITTY 670703** **BY ADVS. SRI.A.S.BENOY SRI. A.K. SRINIVASAN** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 29.08.2018, ALONG WITH CO. 13/2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 MACA.No. 2834 of 2014 & C.O. No.13 of 2015 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **WEDNESDAY,THE 29TH DAY OF AUGUST 2018 / 7TH BHADRA, 1940** **CO.No. 13 of 2015 IN MACA. 2834/2014** **AGAINST THE AWARD IN OP[MV] NO.971 OF 2006 OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, THALASSERY DATED 20.02.2014** ## **PETITIONER/S:** **RATHEESAN P.K AGED 42 YEARS S/O CHANDRAN, PUTHANKANDATHIL HOUSE, EDAKKANAM P.O, KEEZHOOR, IRITTY, KANNUR.** **BY ADV. SRI.A.K.SRINIVASAN** **RESPONDENT/S:** **THE NEW INDIA ASSURANCE CO LTD KANNUR-670001** ## **BY ADV. SRI.VPK.PANICKER** **THIS CROSS OBJECTION/CROSS APPEAL HAVING BEEN FINALLY HEARD ON 29.08.2018, ALONG WITH MACA.2834/2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 3 MACA.No. 2834 of 2014 & C.O. No.13 of 2015 ## **JUDGMENT** **Both the Insurance Company and the injured are in Appeal and Cross Appeal from the award of the Tribunal. Negligence has been found on the 2[nd] respondent, who was the driver of a lorry, which collided with the bus driven by the injured. The injured suffered injuries as seen from Ext.A7 Wound Certificate, which are as below:** _**“1. Laceration right leg with fracture both bones tibia and fibula at two points and skin loss.**_ _**2. Laceration over face with cerebral concussion [concussional head injury].”**_ **2. Admittedly, the injured was treated as an inpatient for 42 days. The petitioner's right leg was shortened by two inches and he finds difficulty even in walking let alone, carrying on his avocation as a driver. The total compensation claimed was Rs.8 lakhs. The Tribunal awarded** 4 MACA.No. 2834 of 2014 & C.O. No.13 of 2015 **Rs.7,45,600/- under various heads with 8% interest from the date of application.** **3. The Insurance Company is in appeal contending that the Tribunal has assessed the disability at 50%, which is against the disability assessed by the Medical Board at 20%. To reject the contention, this Court need only refer to the decision of the Hon'ble Supreme Court in** _**Rajkumar v. Ajay Kumar & Another [(2011) 1 SCC 343].**_ **Reference can be usefully made to paragraph 13, which is extracted here under:** _**“13. Ascertainment of the effect of the 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 (this is also relevant for awarding compensation under the head of loss of amenities of life). The second step is to ascertain his avocation, profession and nature of work before the accident, as also his age. The third step is to find out whether**_ 5 MACA.No. 2834 of 2014 & C.O. No.13 of 2015 _**(i) the claimant is totally disabled from earning any kind of livelihood, or (ii) whether in spite 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.”**_ **In such circumstance, the contention is not available to the Insurance Company that the disability should be confined to that shown in the Medical Certificate. The Hon'ble Supreme Court has accepted the proposition that functional disability may vary from the physical disability, the latter of which alone is assessed by the Medical Board.** **4. The cross-appeal of the injured is for enhancement of compensation as awarded by the Tribunal. The Tribunal has awarded the** 6 MACA.No. 2834 of 2014 & C.O. No.13 of 2015 ## **compensation under the various heads as below:** |**Sl.**<br>**No.**|**Head of Claim**|**Amount**<br>**Claime**<br>**d (Rs)**|**Amout**<br>**Awarded**<br>**(Rs)**|**Basis-vital**<br>**details in a**<br>**nut shell**| |---|---|---|---|---| |**1**|**Loss of income**||**55200**|**(Rs.4600/-**<br>**x12)**| |**2**|**Pain and**<br>**suffering**||**80000**|| |**3**|**Loss of**<br>**amenities**||**40000**|| |**4**|**Bystander's**<br>**expense**||**8400**|**(Rs.200x42)**| |**5**|**Extra**<br>**nourishment**||**6000**|**(Rs.500x12**| |**6**|**Damage to**<br>**clothing**||**500**|| |**7**|**Transportation**||**20000**|| |**8**|**Medical**<br>**expense**||**93900**|| |**9**|**Disability**<br>**compensation**||**441600**|| ||**TOTAL**|**800000**|**745600**|| ## **5. This Court finds that the compensation** **awarded under the heads of pain and suffering,** **loss of amenities and bystander's expense is adequate and it requires no enhancement.** **Considering the injuries suffered by the claimant** 7 MACA.No. 2834 of 2014 & C.O. No.13 of 2015 **as also the long confinement, it is only proper that the compensation for extra nourishment be enhanced to Rs.1,000/- per month. The compensation shall stand enhanced to Rs.12,000/-. Damage to clothing shall stand enhanced to Rs.1,000/-. Medical expense has been awarded by the Tribunal as per the bills, which require no interference.** **6. On the aspect of transportation, the learned Counsel points out that, at first the injured was taken to a hospital near the accident site and since he was advised amputation, he was then shifted to a hospital at Mangalore, quite distant from his home town. The compensation granted at Rs.20,000/- is inadequate considering the various reviews carried out by the petitioner, is the specific contention. Having gone through the evidence, this Court finds that** 8 MACA.No. 2834 of 2014 & C.O. No.13 of 2015 **the compensation granted for transportation is more than adequate. The Tribunal has considered the aspect of various reviews as also the distance from the residence of the petitioner to the hospital at Mangalore. The clear evidence of the petitioner is that the hospital at Mangalore is about 220km away from his residence. He claims to have been taken to the hospital first in an ambulance and returned by Car. Though the receipts were not produced, the total expense claimed comes to around Rs.6,400/-. The further evidence is that he has been spending about Rs.1,750/- for each trip to Mangalore for review. This Court finds that even if he has travelled 5 to 6 times, the amount awarded would cover the entire travel expenses. In such circumstances, this court does not find any reason to interfere with the compensation awarded for transportation.** 9 MACA.No. 2834 of 2014 & C.O. No.13 of 2015 **7. The other compelling contention taken is with respect to the disability compensation, which has been assessed at Rs.4,41,600/-, taking the income of the petitioner at Rs.4,600/- as deposed by a witness examined as PW4. The petitioner's claim in the claim petition was that he was drawing a pay of Rs.210/- per day and engaged on contract for about 25 days. He also claimed 20% bonus from his employer. However, the employer was not examined. The claimant also chose to examine PW4, who stated the minimum wages of a bus driver to be Rs.4,579/-, based on which the Tribunal adopted the amount of Rs.4,600/- per month. It is to be noticed that the petitioner had made a specific claim of Rs.5,250/- in his claim petition and also claimed a bonus of 20% in the deposition. The claim of bonus is unsubstantiated. It has to be noticed** 10 MACA.No. 2834 of 2014 & C.O. No.13 of 2015 **that, the Hon'ble Supreme Court took the notional income of a coolie in** _**Ramachandrappa v. Royal Sundaram Alliance Insurance Company Limited**_ _**[(2011) 13 SCC 236]**_ **in the year 2004,to be Rs.4,000/- per month. The evidence of PW4 is only that the minimum wages for a bus driver is Rs.4,579/-. In such circumstances, it is only proper that the income of the injured be accepted as claimed in the claim petition at Rs.5,250/-,especially since the conductor of the bus, who was examined as PW2, also deposed in tandem with the pleadings and evidence of PW1, the injured.** **8. The functional disability, according to the claimant, has to be assessed at 100%, since he was unable to carry on the avocation of driving and was unable to walk. The learned Standing Counsel for the Insurance Company** 11 MACA.No. 2834 of 2014 & C.O. No.13 of 2015 **contended that even if the functional disability is assessed at a rate higher than that of physical disability found by the Medical Board, the Tribunal has to necessarily consider the prospect of the injured being employed in any other avocation for earning a livelihood, though earning lesser than that pursued by him before the accident. In this context, one has to again notice the judgment of the Hon'ble Supreme Court in** _**Raj Kumar**_ **[supra] and the paragraph extracted herein above.** **9. As a first step, it is to be ascertained as to the activities, the claimant could carry on, inspite of the permanent disability and as a second step, the avocation, profession or nature of work carried on, before the accident has to be found out. There is no dispute on these two counts, since the injured was admittedly carrying** 12 MACA.No. 2834 of 2014 & C.O. No.13 of 2015 **on his avocation as a driver, that too a heavy vehicle driver, at the time the accident occurred. The injuries suffered by him also incapacitated him from carrying on his chosen avocation. PW1 has specifically stated that he was unable to drive after the accident for reason of the shortening of his right leg. He also complained of pain, when he attempted to drive a heavy vehicle. The injured even went to the extent of stating that he attempted to carry on driving of an autorickshaw, which also he was prevented from, for reason of the excruciating pain while driving.** **10. The Doctor, who was examined as PW3, was one of the Doctors, who was in the Medical Board, which issued the disability certificate. PW3 has specifically deposed that the injured would not be able to carry on driving as an avocation after** 13 MACA.No. 2834 of 2014 & C.O. No.13 of 2015 **the accident. It was also categorically stated that, there is no chance of the injured recovering from his disability. The Doctor further deposed that the injured would have lifelong difficulty in walking. Taking all the above circumstances into consideration, this Court is of the opinion that the functional disability of the injured could be assessed at 75%, considering the profession he was carrying on before the accident as also taking into account the possibility of his earning a livelihood after the accident with the disability.** **11. On the above findings, the total compensation payable under the head of permanent disability would be 5,250x12x16x75%, which will come to Rs.7,56,000/-. The loss of income would also have to be enhanced on the enhanced** 14 MACA.No. 2834 of 2014 & C.O. No.13 of 2015 **determination of income as found by this Court. The loss of income hence would be assessed at 5,250x12, which would come to Rs.63,000/-. The total compensation payable hence would be Rs.10,74,300/-. Though the learned Standing Counsel argued that it is more than the compensation claimed by the injured, it is trite that in awarding just and reasonable compensation, this Court need not confine itself to the claim raised by the injured in the petition.** **On the aforesaid findings, the appeal of the Insurance Company is rejected and the Cross Objection of the injured is allowed, directing payment of the amount of Rs.10,74,300 /- after deducting what is already paid with 9% interest from the date of application till the date of payment. It is made clear that even the amounts** 15 MACA.No. 2834 of 2014 & C.O. No.13 of 2015 **already paid would carry interest @9% from the date of application till the date of payment. The Cross Objection of the injured is allowed to the above extent.** **Sd/-** **K.VINOD CHANDRAN Judge** **//True Copy// P.A. To Judge** sp/30/08/18