Preetha D.B. v. Sadanandan K. & others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR** **&** **THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH** **THURSDAY, THE 11TH DAY OF AUGUST 2016 / 20TH SRAVANA, 1938** **MACA.No. 2095 of 2007** **AGAINST THE AWARD IN OPMV 141/2005 of MOTOR ACCIDENT CLAIMS TRIBUNAL, OTTAPPALAM DATED 15-09-2007** ## **APPELLANT/APPELLANT/PETITIONER:** **PREETHA D.B., W/O SANKARANARAYANAN, DEVASWAMPARAMBIL HOUSE, MANNANNUR POST,, KAVALAPPARA (VIA), PALAKKAD.** **BY ADV. SRI.R.SREEHARI** ## **RESPONDENT/S:** - **1 SADANANDAN K.@ SANAL S/O.APPUNNI, KANOKKOTT HOUSE, AYOOR POST, PERUMBADAPPA, MALAPPURAM DISTRICT-679580** - **2 I.C.SHAJIL IRUDUKAVIL HOUSE SUKAPURAM, EDAPAL, MALAPPURAM DIST-679576** - **3 UNITED INDIA INSURANCE CO.LTD. BRANCH OFFICE, WESTERN WING, AMBADI BUILDING,, PONNANI POST, MALAPPURAM DISTRICT-679571** - **4 SUNILKUMAR.K.N. S/O.NARAYANAN KOTTILINGAL HOUSE, KADANASSERI, KUNNAMKULAM, POST, THRISSUR DIST.** - **5 JOSEPH, S/O.T.L.THOMAS THAIKKADAN HOUSE, R.V.PURAM POST, THRISSUR DISTRICT.** - **6 ORIENTAL INSURANCE CO.LTD. DIVISIONAL OFFICE, 3RD FLOOR, MAHESWARI BUILDING,, M.G.ROAD, THRISSUR.** **BY ADVS. SRI.A.R.GEORGE SRI.GEORGE CHERIAN (SR.)** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON** **11.08.2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA.No. 2095 of 2007 2** ## **JUDGMENT** ## C.T.RAVIKUMAR,J. It is dissatisfied with the quantum of compensation granted in O.P.(MV) No.141/2005 passed by the Motor Accident Claims Tribunal, Ottapalam that the petitioner therein preferred this appeal. She sustained injuries in a motor vehicle accident occurred on 14.06.2004 and the same has resulted in permanent disability. A bus bearing registration No.KL 10 J 1341 dashed against the bus in which petitioner was a passenger and consequently, she sustained injuries. She was immediately taken to Al-shifa Hospital, Perinthalmanna and she had been an inpatient there for three days. In the claim petition it is stated that she was then a Higher Secondary School Teacher drawing a salary of Rs.8,965/- per month and the accident had occurred only due to the rashness and negligence on the part of the driver of the bus bearing registration No.KL 10 J 1341. She has also taken necessary averments to make **MACA.No. 2095 of 2007 3** the 2[nd] respondent vicariously liable and the 3[rd ] respondent insurer of the said bus to indemnify the 2[nd] respondent who is its insured owner. Before the Tribunal no evidence, either oral or documentary was adduced by the respondents. The Tribunal had considered the documentary evidence consisting of Exts.A1 to A13 and the oral testimonies of PWs1 and 2 and the rival contentions advanced, to pass the impugned award. As per the impugned award the Tribunal had granted a compensation of Rs.57,800/- with interest at the rate of 7% per annum from the date of petition along with a cost of Rs.1000/-. As noticed hereinbefore, it is soliciting enhancement of the compensation that the captioned appeal has been preferred. 2. We have heard the learned counsel appearing for the appellant and the learned counsel appearing for the 3[rd] respondent. It is submitted by both sides that the only question to be considered in this appeal is whether or not the appellant is entitled to get enhanced compensation. **MACA.No. 2095 of 2007 4** 3. The learned counsel appearing for the appellant contended that it is the culmination of the erroneous estimation of compensation under different heads that deprived 'just compensation' to the appellant. It is contended that the Tribunal had declined to accept Ext.A8 disability certificate and to grant compensation for the permanent disability incurred by the appellant in the accident. It is further contended that virtually the Tribunal, without granting compensation separately under the head 'compensation for permanent disability' granted a consolidated sum of Rs.8,000/- under the combined heads of 'disability and loss of amenities in life'. The learned counsel further contended that the amount granted towards 'loss of earning' is also liable to be interfered with as the Tribunal without assigning any reason declined to take the entire salary mentioned in Ext.A13 in that regard. It is also contended that compensation granted under different heads such as 'loss of amenities', 'transportation', 'by- **MACA.No. 2095 of 2007 5** stander expenses', 'pain and suffering' etc. are also on the lower side and therefore compensation under all such heads calls for upward modification. 4. Per contra, the learned counsel appearing for the 3[rd] respondent submitted that a scanning of the impugned award itself would reveal that the Tribunal had granted just compensation. It is also submitted that the Tribunal cannot be found fault with in not granting compensation under the separate head 'compensation for permanent disability' as the disability certificate viz; Ext.A8 is not a certificate issued by a duly constituted Medical Board. In short, the contention is that the impugned award invites no appellate interference at the instance of the appellant. 5. As noticed hereinbefore, the main contention of the appellant is that the Tribunal had gone wrong in granting only a meagre sum of Rs.8,000/- under the combined heads of 'compensation for permanent disability and loss of amenities'. The **MACA.No. 2095 of 2007 6** contention is that taking into account the fact that the injuries sustained in the accident had resulted in permanent disability and that the said disability is one which would prevent her from enjoying life as before, the Tribunal ought to have granted compensation under the heads 'loss of amenities' and 'compensation for permanent disability', separately. The learned counsel appearing for the 3[rd] respondent contended that the petitioner being an aided school teacher paid by the State Government, is not entitled to make any claim towards functional disability as there is no case for the appellant that owing to the disability resulted from the injuries sustained in the accident she was terminated from the job. It is further contended that going by the nature of her occupation and permanent disability there could not be any functional disability for her till her retirement as it would not adversely affect her capabilities to function as a teacher. The learned counsel for the 3[rd] respondent further contended that being **MACA.No. 2095 of 2007 7** an employee paid by the State Government the appellant could not claim any compensation for permanent disability as well. In short, it is contended that for the disability which she had incurred in the accident the appellant need be compensated only under the head of, 'loss of amenities'. The learned counsel for the appellant resisted the contentions and submitted that loss of amenities and loss of earning power owing to permanent disability cannot be treated as one and the same and they are liable to be compensated separately. The learned counsel appearing for the 3[rd] respondent relied on a decision of the Honourable Apex Court in Rajkumar v. Ajaykumar [2011(1) KLT 620 (SC)] to buttress its contentions. Virtually, the arguments of the learned counsel for the 3[rd] respondent are founded on paragraphs 8 to 10 of the said decision. True that in the decision the Honourable Apex Court had laid down the manner in which an assessment of future loss of earnings due to permanent disability has to be made. The Apex Court held that **MACA.No. 2095 of 2007 8** ascertainment of the effect of permanent disability on the actual earning capacity has to be done in three steps. Since, in this case, no specific averment was made by the appellant to the effect that the permanent disability had actually reduced the earning capacity of the appellant, we are not called upon to consider that question in the light of the decision of the Honourable Apex Court in Rajkumar's case (supra). But, at the same time, the submission of the learned counsel for the 3[rd] respondent is that the said decision is relied on to canvass the point that being a person paid by the State Government the appellant is not entitled to get compensation for the permanent disability under a separate head and in the light of the said decision injured like the appellant is entitled only to get compensation under the head 'loss of amenities' taking note of the permanent disability. 6. In the light of the rival contentions, the question to be decided is whether an employee being paid by the Government, on ## **MACA.No. 2095 of 2007 9** sustaining injuries resulting in permanent disability/permanent disablement is disentitled to claim compensation for permanent disability even if it had not resulted in reduction of earning power capacity under a separate head, in addition to compensation for loss of amenities. Obviously, in paragraph 10 of Rajkumar's case (supra), the Honourable Apex Court exemplified the findings taking the case of a clerk in Government service. The Apex Court held “ if the claimant was a clerk in Government service, the loss of left hand may not result in loss of employment and he may still continue as a clerk as he could perform his clerical function; and in that event the loss of earning capacity will not be 100% as in case of a driver or carpenter, nor 60% which is the actual physical disability, far less. In fact, there may not be any need to award any compensation under the head of 'loss of future earnings', if the claimant continues in Government service though he may be awarded compensation under the head of loss of amenities as a consequence of losing his **MACA.No. 2095 of 2007 10** hand. Evidently, by this finding that was relied on by the learned counsel to canvass the point that in such circumstances a person like the appellant who sustained permanent disability in an accident could claim only compensation under the head of loss of amenities in case of continuance in service. We are afraid, the judgment of the Honourable Apex Court cannot be construed in such a manner to deprive compensation for disability to a person who actually incurred permanent disability as a result of the injuries sustained in a motor vehicle accident though the permanent disability did not make any reduction in his/her earning capacity and also to canvass the position that in such eventuality, the permanently disabled person could seek for compensation only for loss of amenities. We do not think that a detailed probe is required to decide the said question. In fact, that question is no more res integra in the light of the decision of a Division Bench of High Court of Gujarat in Gurdipsingh v. Chauhan Bhupendrakumar Udesingh and another **MACA.No. 2095 of 2007 11** [AIR 1980 (Gujarat) 44] and a decision of the Honourable Apex Court in Kavitha v. Deepak [AIR 2012 SC 2893]. In Gurdipsingh's case (supra) a Division Bench of the Gujarat High Court held thus:the loss of bodily integrity gives right to damages even if there is no damage at all to the earning capacity or even to enjoyment of life. But damages then are considered commensurate with the extent, gravity and duration of injury. The test is whether the physical integrity of the injured is broken, whether it is temporary or permanent and the extent to which it will be reflected in his earning capacity. In fact, that question was more specifically considered by the Honourable Apex Court in Kavitha's case (supra). In unambiguous terms the Honourable Apex Court held that the head of loss of earning capacity is distinct from loss of enjoyment of life. In the contextual situation, we will have to consider what exactly is loss of amenities. Loss of amenities is non-pecuniary damages. It is a broad and amorphous category which embraces a **MACA.No. 2095 of 2007 12** hotchpotch of disabilities such as interference with or prevention of the pursuits of former activities and it would embrace everything which reduces the enjoyment of life of a permanently disabled person. It is to be noted that Kavitha's case (supra) was rendered by the Honourable Apex Court after referring to its earlier decision in Rajkumar's case (supra). After considering the decision in Rajkumar's case(supra) in detail and holding that the head of 'loss of earning capacity' is different and distinct from the head of 'compensation for loss of enjoyment in life' in that decision the Honourable Apex Court granted compensation of an amount of Rs.3,67,200 towards loss of future earnings on account of permanent disability (taking note of the fact that disability was 90%) and an amount of Rs.3 lakhs towards loss of amenities and loss of expectation of life. In the light of the above said decision, it cannot be said that when a permanently disabled person in a motor vehicle accident was granted with compensation for loss of future earnings **MACA.No. 2095 of 2007 13** on account of permanent disability he would not be entitled to get compensation under the head loss of amenities. In the contextual situation, it is also apposite to note that compensation for permanent disability and compensation for loss of earning capacity on account of permanent disability are also different and distinct. They cannot be said to be one and the same. This decision is very much evident from the decision of the Honourable Apex Court in Rajkumar's case (supra) itself. The Apex Court held that even in a case of a person who sustained 60% permanent disability depending upon his nature of avocation the functional disability may go upwards or downwards by making the assessment. In the case of a driver or a carpenter loss of a hand would certainly result in permanent disability of 60% and may result in assessment of 100% functional disability but, the very same permanent disability would not be even equal to the percentage of permanent disability and it would be much less than the permanent disability when it occurred **MACA.No. 2095 of 2007 14** in the case of a clerk in a Government service. The long and short of the discussion is that though disability is a common factor to decide the compensation for disability as also to decide whether a person is entitled to get compensation for loss of earning power grant of compensation under any of those heads would not and could not deprive a person to get compensation for loss of amenities, if he is otherwise entitled to get compensated under that head. 7. Having answered the aforesaid question in that manner, we will now proceed with the consideration as to whether the appellant is entitled to enhanced compensation under any of the heads in this case. 8. The learned counsel for the 3[rd] respondent contended that the appellant is not entitled to contend that she had established the fact that due to the accident she had incurred permanent disability. It is submitted that Ext.A8 disability ## **MACA.No. 2095 of 2007 15** certificate issued to the appellant is not a certificate issued by a duly constituted Medical Board, it is issued by a doctor who treated her. It is contended that since it was issued to her by the doctor who treated her despite the fact that the doctor who issued was examined before the Tribunal, the appellant is not entitled to contend that she had satisfactorily established the fact that due to the accident she incurred permanent disability. In the contextual situations, it is only apropos to refer to paragraph 12 of the decision of the Honourable Apex Court in Rajkumar's case. It reads as follows:- “The Tribunal should also act with caution, if it proposed to accept the expert evidence of doctors who did not treat the injured but who give 'ready to use ' disability certificates, without proper medical assessment. There are several instances of unscrupulous doctors who without treating the injured, readily giving liberal disability certificates to help the claimants. But where the disability certificates are given by duly constituted Medical Boards, they may be accepted subject to evidence regarding the genuineness of such certificates. The Tribunal may invariably make it a point to require the evidence of the Doctor who treated the injured or who assessed the permanent disability. Mere production of a disability certificate or Discharge Certificate will not be proof of the extent of disability stated therein unless the Doctor who treated the claimant or who medically examined and assessed the extent of disability of claimant, is tendered for cross-examination with reference to the certificate. If the Tribunal is not satisfied with the medical evidence produced by the claimant, it can constitute a Medical Board (from a panel maintained by it in consultation with reputed local Hospitals/Medical Colleges) and refer the claimant to such Medical Board for assessment of the disability.” ## **MACA.No. 2095 of 2007 16** In the light of the said decision in Rajkumar's case (supra) it cannot be said that the appellant had failed to prove Ext.A8 disability certificate and in other words, the fact that the accident caused permanent disability to her. True that, it was issued by PW1 who examined the appellant and in Ext.A8 he certified that the permanent disability of the appellant is 10%. In the light of the decision in Rajkumar's case in view of the position obtained in this case that the doctor who issued Ext.A8 was examined as PW1 before the Tribunal it cannot be said that the appellant had not established the fact that she had incurred permanent disability. But, then the question is whether the entire percentage of disability is to be taken into account. The learned counsel for the appellant contended that since it is an evidence by an expert, the assessment of disability has been taken into account in total. We are afraid, the said contention cannot be accepted. In this case, it is evident from Ext.A8 disability certificate that PW1 has not specifically stated as to **MACA.No. 2095 of 2007 17** what exactly is the percentage of permanent disability as also functional disability. In such circumstances, it was open to the Tribunal to make an assessment as the validity of Ext.A8 is only that of an expert evidence. But, at the same time, in the light of the fact that Ext.A8 certificate was proved through PW1, we are of the view that the Tribunal was not justified in declining to grant compensation under the separate head compensation for loss of permanent disability incurred in the accident, to the appellant. Having going through the evidence of PW1 and perusing Ext.A8 disability certificate we are of the view that for calculation purpose the permanent disability of the appellant can be taken as 5%. The appellant claimed the monthly income as Rs.8,965/-on the strength of Ext.A13 Salary Certificate. True that, an amount of Rs.8,965/was shown as the net income of the appellant. But conspicuously the deductions were not at all shown in the said certificate. Therefore, we are of the considered view that the entire income **MACA.No. 2095 of 2007 18** stated therein cannot be taken as the carry home salary of the appellant. Taking into account all such circumstances, we are inclined to fix Rs.6,000/-as the monthly income of the appellant for calculation purpose. The appellant was aged 32 years and in such circumstances, in the light of the decision of the Apex Court in Sarla Verma V. Delhi Transport Corporation [2010 (2) KLT 802 SC] the multiplier applicable is 16. In such circumstances, the amount payable for the permanent disability has to be assessed. On such assessment, the appellant would be entitled to get an amount of Rs.57,600/- under the said head (6000x12x16x5/100). Though the learned counsel for the appellant made persuasive arguments to the effect that compensation granted under other heads also calls for upward modification we are of the considered view that the only head under which the appellant is entitled to get enhancement is the compensation granted under the head 'pain and sufferings'. Taking note of the nature of the injuries referred hereinbefore, we **MACA.No. 2095 of 2007 19** are of the view that the appellant is entitled to get Rs.7,000/- more under that head, it is granted. In the result, the appellant is entitled to get an amount of Rs.64,600/- over and above the amount of compensation granted under the impugned award. It is granted. The said amount 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 said amount along with interest within a period of two months from the date of receipt of a copy of this judgment. It is to be noted that earlier, this court passed an order on 20.05.2016 in C.M.Appln.No.1080/2016 in MJC No.129/2016 in MJC No.528/2009 in MACA No.2095/2007 whereby it was ordered :- “we also make it clear that, if the appellant ultimately succeeds in getting enhanced compensation, the appellant will not be entitled to get interest for the period from 23.11.2009 till today”. As noticed hereinbefore, that order was passed on **MACA.No. 2095 of 2007 20** 20.05.2016. Therefore, it is made clear that the appellant will not be entitled to get interest for the aforesaid period from 23.11.2009 till 20.05.2016. There will be no order as to costs. ## **Sd/-** ## **C.T.RAVIKUMAR** ## **JUDGE** **Sd/-** **K.P.JYOTHINDRANATH JUDGE** rmm