Nissam K.S. v Premji Joy.V & ors (MACA No.1335 of 2011)

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN WEDNESDAY, THE 7TH SEPTEMBER 2011 / 16TH BHADRA 1933 MACA.No. 1335 of 2011() ----------------------OPMV.673/2007 of MOTOR ACCIDENT CLAIMS TRIBUNAL, PALA .................... APPELLANT : CLAIMANT ---------------------- NISSAM.K.S, KOCHUKANNAMKARA HOUSE, MUNDAKKAYAM PANCHAYAT, WARD NO.12, MUNDAKKAYAM. BY ADV. SRI.LIJI.J.VADAKEDOM ## RESPONDENTS : RESPONDENTS --------------- 1. PREMJI JOY.V, S/O.JOY, 28/1218, KACHERIVEETTIL,CALICUT 673 001. 2. RAJEEV, S/O.SREEDHARAN NAIR, THAZHEMANAKADU HOUSE, KUNDAMANGALAM PANCHAYAT, WARD NO.11,KOZHIKODE DISTRICT 673 001. 3. THE ORIENTAL INSURANCE CO.LTD., EDAPPALLY BRANCH OFFICE, EBENEZER GARDEN, COCHIN 682 024. SRI.GEORGE CHERIAN(THIRUVALLA) FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 07/09/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **R.BASANT & K.SURENDRA MOHAN, JJ. ************************* ## **M.A.C.A No.1335 of 2011 ******************************* Dated this the 7[th] day of September, 2011 ## **JUDGMENT** ## BASANT, J. In a claim for compensation for loss of earnings and reduction in earning capacity consequent to physical disability, is the Tribunal justified in deducting from the monthly earnings any portion as personal expenses of the victim? This question is raised in this appeal. 2. The claimant/injured is the appellant. He claimed compensation for personal injuries suffered by him in a motor accident which took place on 06.09.2006. He was working as a Meter Reader when he suffered the injuries. While undergoing treatment, he was promoted as a Sub Engineer under the Kerala State Electricity Board. He had suffered multiple injuries including multiple fractures. Fracture of the right temporal bone with extradural haematoma and subarachnoid haemorrhage is the main injury. There was fracture of the neck of left femur. There was fracture of ribs 3 to 9 on the left side. There was fracture of scapula also. He had to undergo treatment as an 2 M.A.C.A No.1335 of 2011 inpatient for 41 days in two spells. He allegedly suffered permanent disability, which was quantified and assessed as 11% in Ext.A10 disability certificate. The Tribunal, against a total claim of Rs.8,33,000/-, awarded an amount of Rs.4,15,339/- as per the details given in para.9, which we extract below: |**_Sl.No._**|**_Heads of award_**|**_Amount awarded_**| |---|---|---| |1|Medical expenses|Rs.2,04,100.00| |2|Loss of earnings|Rs.1,28,619.00 (1,92,929X2/3)| |3|Bystander expenses|Rs. 10,000.00| |4|Extra nourishment|Rs. 1,000.00| |5|Damages to clothing|Rs. 500.00| |6|Transport to hospital|Rs. 20,000.00| |7|Pain and suffering|Rs. 20,000.00| |8|Permanent partial disability resulting in loss of<br>earning capacity|Rs. 21,120.00 (3000 X 12 X<br>2/3 X 8)| |9|Loss of amenities|Rs. 10,000.00| ||**Total**|**Rs.4,15,339.00**| 3. We have heard the learned counsel for the appellant and the learned counsel for the insurance company. The insurance company has been made entirely liable under the impugned award. The challenge is raised only against the quantum of compensation awarded. 4. Called upon to explain and be specific, the learned counsel for the appellant assails the impugned award on various grounds. First of all it is contended that the amount of M.A.C.A No.1335 of 2011 3 Rs.20,000/- awarded under the head of pain and suffering is too inadequate. Considering the nature of injuries including fractures, to which reference has already been made above and the fact that he was an inpatient for a total period of 41 days, we are satisfied that the amount of Rs.20,000/- awarded under this head is fair and reasonable and the same does not warrant appellate interference. 5. The learned counsel for the appellant next contends that only an amount of Rs.1,28,619/- has been awarded under the head of loss of earnings. This was the earnings which he could have made by his employment under the K.S.E.B for the period during which he was involuntarily unemployed on account of the injuries suffered. He was on leave without allowance during this period as per the certificates issued by his employer, K.S.E.B. The Tribunal, after finding that Rs.1,92,929/- is the actual loss of earnings suffered by the appellant, reduced 1/3 towards the personal expenses of the appellant. The learned counsel for the appellant argues that this procedure/method adopted by the Tribunal is wholly unjustified. The Tribunal erred in assuming that from the actual loss of earnings, 1/3 can be deducted for the personal expenses of a victim/injured. The M.A.C.A No.1335 of 2011 4 learned counsel for the appellant argues that obviously the Tribunal was under the mistaken impression that the principle of one third deduction for personal expenses in the case of a deceased person when compensation is claimed for death can be imported into a claim for permanent disablement and loss of earnings. The rationale permitting deduction of 1/3 for the personal expenses of a deceased person cannot be blindly imported while ascertaining the quantum of compensation payable for loss of earnings or for compensation for permanent disability. In the case of a deceased person, he is not living and therefore there is no personal expenses for such a deceased person. The contribution to the family could only have been such portion of the earnings of the deceased after deducting personal expenses incurred by the deceased on himself. But when the claim is for loss of earnings or loss of earning capacity in a case of permanent disablement, there is absolutely rhyme, reason or logic in deducting 1/3 towards the personal expenses of the victim. The victim is living. He has to continue to incur expenditure on himself. In these circumstances, the learned counsel for the appellant argues that deduction of 1/3 from the actual loss of earnings in the instant case is unjustified. M.A.C.A No.1335 of 2011 5 6. We are in complete agreement with the learned counsel for the appellant. We are unable to find any logic or reason in deducting 1/3 as personal expenses while ascertaining the compensation payable for actual loss of earnings or while ascertaining compensation payable for reduction in earning capacity. As rightly pointed out by the learned counsel for the appellant, the deduction for personal expenses is permissible in a case where no expenses are to be incurred for the maintenance of the person of the victim. In a case of death, there is no living victim and therefore there is no personal expenses. But in the case of a living victim, he has to continue to live and whatever personal expenses are to be incurred by him prior to the accident will have to be incurred thereafter also. 7. We have seen some of the Tribunals deducting 1/3 towards personal expenses from actual loss of earnings as also reduction in earning capacity consequent to the disability suffered. We have not been able to trace any principle or precedent justifying such deduction. We requested the learned counsel for the insurance company to explain to us whether there is any principle or precedent to justify such deduction. Our attention has not been brought to any such principle or 6 M.A.C.A No.1335 of 2011 precedents. According to us, such deduction is totally unsustainable. 8. Of course in a case where to get the income or to earn such income, the claimant has to incur expenditure in connection with his employment, such expenses for employment unconnected with ordinary life can be held to be deductable from the earnings. But in the instant case, he was employed as a Meter Reader/Sub Engineer and there is absolutely nothing to indicate that the claimant/victim had to incur any expenditure other than living expenses for himself in connection with his employment to facilitate earning of his salary every month. We are, in these circumstances, certainly of the opinion that such mechanical deduction for personal expenses of a living victim from his earnings lost or compensation for reduction in earning capacity is not justified. We are unable to find any principle or precedent to justify such mechanical deduction of 1/3 towards the living/personal expenses of a victim in a case other than a case of death. 9. We are therefore of opinion that the entire amount of Rs.1,92,929/- is liable to be paid as loss of earnings. 10. The learned counsel for the appellant submits that the M.A.C.A No.1335 of 2011 7 Tribunal has committed the same error while ascertaining the quantum of compensation for loss of earning capacity and an amount of Rs.21,120/- has been awarded. The Tribunal reckoned Rs.3,000/- as the possible income after retirement of the appellant from his present employment. At present, he does not suffer any reduction in earnings consequent to the disability of 11% suffered by him. But for the post retiral period (after he retires on superannuation from his present employment at the age of 55 years), the Tribunal ascertained the quantum of compensation payable. 8 was reckoned as the multiplier. Rs.3,000/- was reckoned as the probable monthly income. It was thereafter held that Rs.21,120/- (3000 X 12 X 2/3 X 8) was the compensation payable. 11. The learned counsel for the appellant first of all contends that deduction of 2/3 for the personal expenses is not justified. We have already held that it is not justified. Such deduction is impermissible. 12. The learned counsel for the appellant then submits that following **Sarla Verma v. Delhi Transport Corporation** [(2009) 6 SCC 121], 9 and not 8 is the multiplier to be reckoned for a person aged 55 to 60 years. We agree that 9 has to be 8 M.A.C.A No.1335 of 2011 correctly reckoned as the multiplier following the dictum in **Sarla Verma** (supra). 13. The learned counsel for the appellant then contends that only an amount of Rs.10,000/- has been awarded as compensation for loss of amenities. Physical disability suffered by a person has two fold reflections on his life. It reduces the earning capacity. It also reduces and impairs the quality of enjoyment of life, which a person can aspire. The appellant in this case is a 35 year old young man. He has suffered permanent disability to the tune of 11%. Stiff left hip is the precise disability certified by the doctor in Ext.A10. We have no doubt that this disability would impair the quality of life. The trauma suffered results in shortened expectation of life. The appellant will have to suffer disability, inconvenience, discomfiture etc. for the entire rest of life consequent to the permanent disability suffered by him. Nay, we must note that, to perform his task of work effectively now with reduced physical ability, the appellant will have to strain harder to turn out the same amount of work which his occupation demands. With reduced physical ability, he will have to necessarily take greater rest and leave also. For all these dimensions taken together, only an amount of Rs.10,000/- 9 M.A.C.A No.1335 of 2011 is seen awarded under the head of loss of amenities. We are satisfied that an amount of Rs.25,000/- deserves to be awarded under that head. 14. The learned counsel for the appellant submits that the appellant has now been advised to undergo a further operation. There is absolutely no material in support of that, either before this Court or before the Tribunal. We do not, in these circumstances, agree that any enhancement of compensation deserves to be granted under that head. 15. The above discussions lead us to the conclusion that the appellant is entitled for a further amount of Rs.93,830/- in addition to the amount already awarded by the Tribunal. i) Loss of earnings : Rs.64,310.00 [Rs.1,92,929/-minus Rs.1,28,619/-] ii) Reduction in earning capacity : Rs.14,520.00 (3000 X 12 X 9 X 11/100 = 35,640 minus 21,120) iii) Loss of amenities : Rs.15,000.00 (25,000 minus 10,000) ------------------Total : Rs.93,830.00 ======== 16. We are not persuaded to agree that the amount 10 M.A.C.A No.1335 of 2011 awarded under any other head deserves modification/enhancement. 17. In the result: a) This M.A.C.A is allowed in part; b) The appellant is found entitled to a further amount of Rs.93,830/- (Rupees Ninety three thousand eight hundred and thirty only) in addition to the amount already awarded by the Tribunal under the impugned award; c) We direct that the enhanced amount shall carry interest at the rate and for the period mentioned in the impugned award except for the period of 735 days – of delay in filing this appeal; d) All other directions of the Tribunal are upheld. ## **(R.BASANT, JUDGE)** ## **(K.SURENDRA MOHAN, JUDGE)** rtr/