Premavally P. v. Ramakrishnan, Suresh K., Oriental Insurance Company Limited

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN MONDAY, THE 31ST DAY OF JULY 2017/9TH SRAVANA, 1939 MACA.No. 425 of 2012 () -----------------------AGAINST THE AWARD IN O.P(M.V)1272/2009 of IST ADDL.M.A.C.T, KOZHIKODE DATED 25-11-2011 APPELLANT/PETITIONER: --------------------------- PREMAVALLY.P W/O.CHANDRAN, BINCY NIVAS, POOCHERIKUNNU, P.O.MANNUR, VIA KADALUNDI, KOZHIKODE. BY ADV. SRI.AVM.SALAHUDDEEN ## RESPONDENTS/RESPONDENTS: ---------------------------------- 1. RAMAKRISHNAN, AGE AND FATHER'S NAME NOT KNOWN, CHAGARATH HOUSE, AYYANTHOLE P.O., THRISSUR-68003. 2. SURESH K., S/O.AYYAPPAN, KOZHIKUNNATH VEEDU, IRUMBASSERY P.O., NELLAYA, PALAKKAD-679335. 3. THE ORIENTAL INSURANCE COMPANY LIMITED DIVISIONAL OFFICE, JYOTHI SUPER BAZAR, THODUPUZHA-685584. R3 BY ADV. SRI.VPK.PANICKER R BY SRI.GEORGE CHERIAN (THIRUVALLA) THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 31-07-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **C.T. RAVIKUMAR & ANIL K. NARENDRAN, JJ. --------------------------------------------** ## **M.A.C.A.No.425 of 2012** **------------------------------------------Dated this the 31[st] day of July, 2017** ## **JUDGMENT** ## **Anil K. Narendran, J.** This appeal arises out of the award passed by the First Addl. Motor Accidents Claims Tribunal, Kozhikode dated 14.11.2011 in O.P. (M.V)No.1272 of 2009, a claim petition filed under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of the injuries sustained by the appellant/claimant in a motor accident which occurred on 4.4.2009, while she was walking in front of a bus stand. At the place of accident, she was knocked down by a bus bearing Reg.No.KL-08/Y-7080, owned and driven by respondents 1 and 2 respectively and insured with the third respondent. As a result of the accident, she sustained injuries. Alleging that the accident occurred due to the rash and negligent driving of the bus by the second respondent driver, claim petition was filed before the Tribunal claiming a total compensation of 5,57,000/-, under different heads. ₹ 2. Before the Tribunal, Exts.A1 to A19 series were marked on the side of the appellant/claimant. The disability certificate issued by the Medical Board was marked as Ext.C1. The respondents have not chosen to adduce any oral or documentary evidence. M.A.C.A.No.425/2012 2 3. After considering the materials on record, the Tribunal arrived at a finding that the accident occurred due to the rash and negligent driving of the offending bus by the second respondent driver. Since the said vehicle was covered by a valid insurance policy at the time of accident, the third respondent insurer was held liable to indemnify the first respondent owner. Under different heads, the Tribunal awarded a total compensation of 3,46,384/- and directed the₹ third respondent insurer to deposit the said amount before the Tribunal, together with interest at the rate of 8% per annum from the date of petition till realisation, with a cost of 6,000/-. ₹ 4. Dissatisfied with the quantum of compensation awarded by the Tribunal under different heads, the appellant/claimant is before this Court in this appeal. 5. We have heard arguments of the learned counsel for the appellant/claimant and also the learned counsel for the 3[rd] respondent insurer. 6. The sole issue that arises for consideration in this appeal is as to whether the appellant/claimant is entitled for enhancement of the compensation awarded by the Tribunal under different heads. 7. The accident is of the year 2009 and at the time of accident M.A.C.A.No.425/2012 3 the appellant was aged 53 years. She claimed a monthly income of ₹6,000/- as a tailor. In order to substantiate the said claim she relied on Ext.A9 welfare card issued by All Kerala Tailors Association Charitable Trust (AKTA Charitable Trust). In the absence of any reliable materials, the Tribunal fixed the monthly income of the appellant notionally at 3,500/-, for the purpose of assessing compensation₹ under different heads. 8. There is nothing in Ext.A9 'welfare card' issued by AKTA Charitable Trust to prove the monthly income earned by the appellant at the time of accident. Further, such a 'welfare card' issued by the Tailors Association, without any statutory backing, cannot be acted upon, especially in the absence of proof. The appellant has also not chosen to mount the box. However, considering the fact that the accident is of the year 2009 and at the time of accident the appellant was an able bodied person aged 53 years, we deem it appropriate to re-fix her monthly income notionally at 5,500/-, for the purpose of₹ assessing compensation under different heads, as against her claim of ₹6,000/- per month. 9. The injuries sustained by the appellant, as borne out from M.A.C.A.No.425/2012 4 Ext.A2 accident register cum wound certificate, read thus:- - “(i) Open lacerated wound over lateral surface of right ankle with exposed bone fracture 10x10 c.m. - (ii) Skin abrasions over lateral surface of right leg extending to knee with loss of skin.” In Ext.C1 disability certificate issued by the Medical Board, a permanent disability of 50% has been assessed. In the said certificate, occupational disability as a tailor has also been assessed as 50%. As a result of the injuries sustained in the accident, the appellant had undergone inpatient treatment for a period of 61 days, which fact is not in serious dispute. Ext.A14 discharge summary dated 21.9.2010 would show that the appellant was a known diabetic since 6 years. Ext.A8 reference card dated 10.9.2009 would show that she is suffering from ankle arthrosis due to old fracture of lateral malleolus. 10. In **Raj Kumar v. Ajay Kumar [(2011) 1 SCC 343]** the Apex Court held that, 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 ability (this is also relevant for awarding compensation under the head of loss of amenities of life). The second M.A.C.A.No.425/2012 5 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 (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. 11. Going by the law laid down by the Apex Court in **Raj Kumar's case (supra)** , where the claimant suffers a permanent disability as a result of injuries, the assessment of compensation under the head of loss of future earnings would depend upon the effect and impact of such permanent disability on his earning capacity. The Tribunal should not mechanically apply the percentage of permanent disability as the percentage of economic loss or loss of earning capacity. In most of the cases, the percentage of economic loss, that is, the percentage of loss of earning capacity, arising from a permanent disability will be different from the percentage of permanent disability. What requires to be assessed by the Tribunal is the effect of the M.A.C.A.No.425/2012 6 permanent disability on the earning capacity of the injured; and after assessing the loss of earning capacity in terms of a percentage of the income, it has to be quantified in terms of money, to arrive at the future loss of earnings (by applying the standard multiplier method used to determine loss of dependency). In some cases, on appreciation of evidence and assessment, the Tribunal may find that the percentage of loss of earning capacity as a result of the permanent disability, is approximately the same as the percentage of permanent disability in which case, of course, the Tribunal will adopt the said percentage for determination of compensation. 12. In the instant case, going by medical records, the appellant who was a known diabetic as on the date of accident is suffering from ankle arthrosis due to old fracture of lateral malleolus. The disability noted in Ext.C1 disability certificate will not disable the appellant from earning any kind of livelihood. She can even carry on the very same activity of tailoring by installing an electric motor in her sewing machine or involve in some lesser scale of activities and functions so that she continues to earn her livelihood. Considering the nature of disability noted in Ext.C1 disability certificate, we find that assessment of occupational disability at 50% is on a higher side, which can be scaled M.A.C.A.No.425/2012 7 down to 40%, for the purpose of assessing compensation under different heads. 13. The compensation awarded by the Tribunal under different heads reads thus:- |Head|Amount<br>claimed|Amount<br>awarded.| |---|---|---| |Transport charges|₹10,000/-|₹3,000/-| |Damages to clothing and articles|₹2,000/-|₹500/-| |Treatment expenses|₹75,000/-|₹59,234/-| |Bystander's expenses for 61 days|₹15,000/-|₹9,150/-| |Extra nourishment charges|₹5,000/-|₹6,000/-| |Pain and suffering|₹30,000/-|₹12,000/-| |Loss of amenities and enjoyment in life|₹10,000/-|₹5,000/-| |Loss of earning for a period of 3 months|₹40,000/-|₹10,500/-| |Compensation for disfiguration||₹10,000/-| |Compensation for permanent disability|₹3,70,000/-|₹2,31,000/-| |Total||₹3,46,384/-| 14. Towards damage to clothing, the Tribunal awarded a sum of ₹500/-. Considering the fact that the accident is of the year 2009, we deem it appropriate to re-fix the compensation payable under this head as 1,000/-, resulting an additional compensation of ₹ **500/-₹** . 15. Towards bystander's expenses, the Tribunal awarded a sum of 9,150/- at the rate of 150/- for 61 days. Under the head extra₹ ₹ nourishment, the Tribunal awarded a sum of 6,000/-. Since the ₹ M.A.C.A.No.425/2012 8 accident is of the year 2009, the appellant is entitled for bystander's expenses at the rate of 200/- per day and that under the head extra₹ nourishment at the rate of 100/- per day. Therefore, the compensation₹ under the head bystander's expenses is re-fixed as ₹12,200/(200x61), resulting an additional compensation of **₹ 3,050/-** . Similarly, the compensation under the head extra nourishment is re-fixed as ₹6,100/- (100x61), resulting an additional compensation of **₹ 100/-** . 16. Towards pain and suffering, the Tribunal awarded a sum of ₹12,000/-. Considering the nature of injuries sustained and the treatment the appellant had undergone, as borne out from medical records, we deem it appropriate to re-fix the compensation under this head as 20,000/-, resulting an additional compensation of ₹ **₹ 8,000/-** . 17. Towards loss of amenities, the Tribunal awarded a sum of ₹5,000/-. Considering the fact that as a result of the injuries sustained in the accident, the appellant has sustained permanent occupational disability, as borne out from Ext.C1 disability certificate, we deem it appropriate to re-fix the compensation under this head as 40,000/-,₹ resulting an additional compensation of **₹ 35,000/-** . 18. Towards loss of earning, the Tribunal awarded a sum of ₹10,500/-, at the rate of 3,500/- for a period of three months.₹ M.A.C.A.No.425/2012 9 Considering the nature of injuries sustained and the treatment the appellant had undergone, as borne out from medical records, we deem it appropriate to grant loss of earning to the appellant for a period of four months. Since we have already re-fixed the monthly income of the appellant notionally at 5,500/-, the compensation under the head loss₹ of earning is reworked as 22,000/- (5,500x4), resulting an additional₹ compensation of **₹11,500/-** . 19. Towards compensation for disfiguration, the Tribunal awarded a sum of 10,000/-. The compensation awarded by the₹ Tribunal, taking into consideration the disfiguration that has resulted out of the injuries sustained in the accident, represents just and reasonable compensation, which warrants no enhancement in this appeal. 20. Towards permanent disability, the Tribunal awarded a sum of 2,31,000/-, taking the notional monthly income as 3,500/-,₹ ₹ applying a multiplier of '11' applicable to the age group of the appellant, and the percentage of disability as 50%. Since we have already re-fixed the monthly income of the appellant notionally at 5,500/- and the₹ percentage of disability as 40%, the compensation under this head is re-worked as 2,90,400/- (5,500x12x11x40/100), resulting an₹ M.A.C.A.No.425/2012 10 ## additional compensation of **₹ 59,400/-** . 21. In the result, the appellant/claimant will be entitled for an additional compensation of **₹ 1,17,550/-** (500+3,050+100+8,000 +35,000+11,500+59,400) in this appeal, which will carry interest at the rate of 8% per annum from the date of petition till realisation. Since the insurance coverage of the offending vehicle is not in dispute, the third respondent insurer shall deposit the said amount before the Tribunal, within a period of two months from the date of receipt of a certified copy of this judgment. The appeal is disposed of as above. No order as to costs. TKS Sd/- **C.T. RAVIKUMAR Judge** Sd/- **ANIL K. NARENDRAN Judge** // true copy // P.S. To Judge