Prince Jose v. New India Assurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **THURSDAY, THE 7[TH] DAY OF APRIL 2022 / 17TH CHAITHRA, 1944** ## **MACA NO. 1898 OF 2014** **AGAINST THE ORDER/JUDGMENT IN OPMV 113/2011 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL** ## **WAYANAD,KALPETTA** ## **APPELLANT/PETITIONER:** **PRINCE JOSE S/O JOSE, THANNITTAMMAKKIL HOUSE, VARAMBATTA PO, PADINJARATHARA, PADINJARATHARA VILLAGE, VYTHIRI TALUK, WAYANAD DISTRICT. BY ADV SMT.CELINE JOSEPH** ## **RESPONDENT/RESPONDENT NO.3:** **NEW INDIA ASSURANCE CO.LTD. DIVISION OFFICE, 2ND FLOOR, RAMAPLAZA, NEAR AYYAPPAN KOVIL, S.S.KOVIL ROAD, THAMBANOOR, THIRUVANANTHAPURAM BY ADV SMT.T.C.SOWMIAVATHY** ## **OTHER PRESENT:** **SMT.T.C SOWMIAVATHY-RESPONDENT** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON** **07.04.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA No.1898/2014 2 ## **JUDGMENT** Appellant is the claimant in O.P.(MV).113/2011 on the file of Motor Accidents Claims Tribunal, Wayanad, Kalpetta (in short, the Tribunal). The claim petition has been filed under Section 166 of the Motor Vehicles Act, 1988 (in short, the Act) claiming compensation of Rs.5,00,000/-, on account of the injury sustained by the appellant/claimant in a motor accident occurred on 21.08.2010. 2. It is alleged that on 21.08.2010 while the appellant/claimant was travelling in a KSRTC bus bearing Reg.No.KL 15/6514 (RRE 329) from Kozhikode to Wayanad, driven by the first respondent, suddenly it swerved and his hand was hit on an electric post resulting in serious injuries to him. It is alleged that the accident happened due to rashness and negligence on the part of the first respondent, driver. Second respondent is the Managing Director, owner of KSRTC bus. Third respondent is the insurer. 3. Respondents 1 & 2 filed written statement denying the rashness and negligence on the part of the first MACA No.1898/2014 3 respondent. It is also contended that the bus was insured with the third respondent. 4. Third respondent filed separate written statement admitting the policy coverage with respect to the offending vehicle. The rashness and negligence on the part of the first respondent is denied. 5. Exts.A1 to A11 series and Ext.C1 marked and PW1 examined from the side of the appellant/claimant. There was no evidence from the side of the respondents. 6. Tribunal, on evaluating the evidence and facts and circumstances, found that the accident happened due to the rash and negligent driving of the bus by the first respondent and third respondent was directed to pay the amount as per the contract of insurance. A total compensation of Rs.2,70,780/- was awarded, which was allowed to be realized with interest at the rate of 7.5% per annum. 7. Dissatisfied with the quantum of compensation awarded by the Tribunal appellant/claimant approaches this MACA No.1898/2014 4 Court in appeal for the various grounds stated in the memorandum of appeal. 8. Adv. Smt. T.C. Sowmiavathy, learned Standing Counsel, appeared on behalf of the respondent, insurer. 9. Lower court records were called for and perused and both sides were heard. 10. The accident, injuries sustained and the liability of the respondent is not in dispute. The only challenge is with regard to the quantum of compensation awarded by the Tribunal. According to the learned counsel for the appellant, the appellant/claimant (hereinafter be referred as the claimant), sustained serious injuries due to the accident. The claimant was aged 22 years old and was a T.T.R. in Indian Railway and was earning of Rs.16,000/- per month. She would also contend that the accident and the injuries sustained has considerably reduced his future prospects for promotion. He actually secured the job in sports quota in Indian Railways. The claimant produced Exts.A8 to A10 to prove that he MACA No.1898/2014 5 secured medals and other certificates in all India level in sports. But due to this accident and injuries now he is not in a position to participate in any of the sports competitions representing the State. But the Tribunal taken the income notionally as Rs.5,000/- per month for computing the compensation towards permanent disability. It is also contended that though 12% permanent disability was assessed by the Medical Board as per Mc Bride Scale and as per National Institute of Orthopedically Handicapped Scale (NIOH) and certificate has been produced, the Tribunal adopted the multiplier as '7' taking into account the fact that his retirement age is 62 years. Hence the learned counsel claims enhancement of compensation on the head of loss of future earning on the ground of permanent disability and also sought for enhancement of compensation under the head of pain and suffering, bystander expenses as well as loss of amenities. 11. The learned counsel for the insurer on the other hand would contend that the claimant is a Central Government MACA No.1898/2014 6 employee and the accident and the injuries will not cause any loss of earning to him and hence in view of the New India Assurance Company Ltd. v. Satish Chandra Sharma & Anr. [Civil Appeal No.1579/2022 in SLP (C)No.14350/2019], no amount can be awarded towards future loss of earning on the ground of disability to the appellant. That was a case in which the claimant was 56 years old and had four years of service left for retirement. He has suffered 75% disability to the lower limbs. It has come out that he can move around and sometime requires assistance and it has been found that he is not immobilized and he can perform and undertake daily chores without help and assistance. It was also found that he continued to earn the monthly salary which he was earlier drawing, including increments, except some allowances given due to the nature of posting. It was also taken into account that 75% disability is to the lower limbs and is not to the entire body. The Tribunal awarded only Rs.6,21,000/- towards compensation. The High Court, in appeal, enhanced the compensation to Rs.56,44,378/-. So the Apex Court taking into MACA No.1898/2014 7 account the above factors though found that claimant is not entitled to get any amount towards future loss of earning, taking into account the fact that he had undergone operation and an implant has been fixed on his vertebra causing him physical pain, discomfort and possible decrease in lifespan and though he is entitled to pension and retirement benefits, has lost the opportunity to take up post-retirement employment, enhanced the compensation awarded by the Tribunal from Rs.6,21,000/- to Rs.10,00,000/-, giving an enhancement of Rs.3,79,000/- in total. (Enhancement to Rs.56,44,378/- by the High Court was deprecated). 12. Claimant in this case was aged 22 years old at the time of accident. It is not in dispute that he was appointed in Indian Railways in sports quota. Ext.A5, wound certificate, would prove that he sustained injury on his elbow. X-ray showed open fracture of radius (right) and dislocation of elbow joint. As per Ext.A6 series, discharge summaries, the diagnosis is open comminuted monteggia fracture (R) forearm on exfix & K-wire. Procedures are : (1) EXFIX + K-wire removal and MACA No.1898/2014 8 debridement (R) forearm, square nail (R) ulna (2) STSG (R) forearm (3) Exchange square nailing (R) ulna+ bone grafting and tension band wiring. He had undergone open reduction radial head with radio capitullar K wire and fasciotomy. The culture sent from the wound grew acinectobacter which was sensitive to Netilmicin. One week later, he also underwent skin grafting of the fasciotomy wound on the right elbow. Ten days after the skin grafting, he underwent exchange square nailing ulna + bone grafting and tension band wiring. It would also show that he had been counselled about the severity of the injury and the guarded prognosis for his (R) elbow ROM and he had undergone inpatient treatment from 27.08.2010 to 30.09.2010 at Baby Memorial Hospital, Kozhikode and from 02.09.2012 to 05.09.2012 in the same hospital and would show his admission and treatment for implant removal of right elbow. He had undergone total 37 days of inpatient treatment. Ext.C1 is the disability certificate issued by the District Medical Board, Wayanad, in which it has been certified that he had been treated at Government General Hospital, Kozhikode MACA No.1898/2014 9 initially and thereafter at Baby Memorial Hospital, Kozhikode and he has got difficulty in eating, putting on shirt, combing of hairs, lifting overhead object and an ugly puckered scar right elbow of skin grafting and partial ankylosis right elbow with 20 degree restriction of flexion. Permanent disability is assessed at 12% based on Mc Bride scale. As per National Institute of Orthopedically Handicapped Scale (NIOH), his permanent disability is assessed as 20%. 13. The claimant was examined as PW1. He deposed that he had been working as TTR in Indian Railways in Bombay during the time of accident. He also would depose that he had obtained the job in Indian Railways on the ground that he was a national level sportsman and he is a Member of Indian Athletics Federation. He represented Kerala State in National Games in 2007 and secured third place. Ext.A8 certificate would prove that the claimant secured first place in Men's high jump representing Western Railway in All India Railway Championship in 2009-10. Ext.A9 certificate shows that he had represented the State of Kerala as Official Player MACA No.1898/2014 10 in Athletics on 50th National School Games organized by the Directorate of Sports & Youth Service Govt. of Maharashtra. Ext.A10 attested copy of certificate issued from the Department of Physical Education, Mahatma Gandhi University, certifies that claimant represented M.A. College, Kothamangalam and participated in the Inter Collegiate Athletics Meet for the year 2006-07 held at Kalamassery and he secured the second place in high-jump. He would also depose that now he could not participate in National Games and hence it affected his promotion adversely and he could not participate in prize competitions and on every occasion when he secured the medal, Government used to advance money to him and all those emoluments have been lost. He is also a bachelor and he could not lift weight and could not do any exercise with the right hand and could not participate in sports activities and is completely withdrawn from sports activities and now he has to work Full Time for Railway and could not work as a Coach. As a sportsman he ought to have discharged only half duty and that benefit has been lost due to MACA No.1898/2014 11 this accident. He used to get four months leave as a sportsman and that also has been lost. Due to this accident, his career as sportsman has been lost. During cross examination it has come out that three years before the accident he joined in service and after joining in Railways he participated in games and he obtained increment out of it. It has also come out that up to the age of 30, he can participate in games items in national level and he has not obtained a promotion till date. Now he has chances only to obtain promotion on the basis of seniority only. 14. On evaluating the evidence of the claimant it is clear that the accident and the resultant injuries to his right hand has considerably affected his career as a sportsman. The certificates produced from his side also would reveal that he had represented Kerala State in National School Games. The fact that he secured job in sports quota is also not seen disputed. His disability is assessed at 12% as per Mc Bride Scale and 20% as per National Institute of Orthopedically Handicapped Scale (NIOH). MACA No.1898/2014 12 15. In Raj Kumar v. Ajay Kumar [2011 (1) KLT 620 (SC)], the Apex Court dealt with general principles relating to compensation in injury cases and the assessment of future loss of earning due to permanent disability with respect to different categories of persons. In paragraph No.8 it has been discussed that 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 the 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, percentage of loss of earning capacity, arising from a permanent disability will be different from the percentage of permanent disability. 16. In paragraph No.10, while examplifying left hand amputation where permanent physical or functional disablement may be assessed around 60%, but if the claimant MACA No.1898/2014 13 is a driver or carpenter, the actual loss of earning capacity may virtually be hundred percent. If the claimant is a Clerk in Government service, the loss of his left hand may not result in loss of employment and he may still be continued as a Clerk as he could perform his clerical functions and in that event the loss of earning capacity will not be 100% as in the case of a driver or carpenter, nor 60% which is the actual physical disability, but 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 hand. 17. The learned counsel for the insurer advanced specific arguments relying on the above position. But, in this case, the evidence tendered by PW1 as well as the documents produced from his side would prove in abundance that he secured the job in Indian Railways in sports quota and he was an athlete who represented the Kerala State in national level and he has deposed during evidence the loss sustained by him MACA No.1898/2014 14 due to the accident and injuries since he could not participate in national games and that affected his promotion adversely. Government also used to award money to him when he secure medal on each occasion and that also has been lost. He also categorically states about his facility to obtain four months' leave in every year as a sportsman and now since he is not participating in sports activities he has to work for Railways through out the year and he could not work as a Coach. So the injury sustained by the claimant due to the accident and the permanent disability has affected the future career of the claimant considerably. He was only 22 years old at the time of accident. At the time of accident he gets Rs.16,000/- per month but the Tribunal took it notionally as Rs.5,000/- for awarding compensation towards disability. If at all he could continue as a sportsman in Indian Railway, his future prospects in getting promotion as well as securing prizes in national level games representing the Railway and his prospects for working as a Coach and getting income and all has been lost due to the permanent disability sustained by him MACA No.1898/2014 15 due to the accident. So taking into account the totality of the facts and circumstances even though he is continuing in Indian Railway his entire future prospects for promotion and achieving other prizes by participating in sports in national level etc has been lost. So he has to be adequately compensated for all those losses though he could continue in service in Indian Railway. 18. The learned counsel for the claimant in this context drew my attention to Dinesh Singh v. Bajaj Allianz General Insurance Co.Ltd. [2014 (9) SCC 241 : 2014 ACJ 1412 : 2014 KHC 4294]. In that case a three Judge Bench of the Apex Court dealt with a case of compensation to be awarded to a claimant who was bachelor, aged 24 years holding B.E. degree in Metallurgy and working as Quality Engineer in Hospet Steels Ltd., who suffered 60% whole body disability. Apex Court taking into account the fact that he subsequently resigned the job from Hospet Steels Ltd and took up a desk job in Industrial Development Bank of India because of permanent disability suffered by him in the accident and an Engineer by MACA No.1898/2014 16 profession cannot take up such profession which requires moving from place to place held that reasoning of the High Court that the appellant has not suffered any financial loss because of permanent disability having regard to the fact that he subsequently took up employment in Industrial Development Bank of India as Grade-B Officer is held to be unsustainable. It is held that once permanent disability is fixed, taking into consideration, its impact on the employment/profession of the claimant, the compensation has to be awarded. In that case since the disability suffered by the appellant is fixed at 60%, which is permanent in nature, impacted his employment and future prospects it was found that the Tribunal rightly determined compensation based on his income i.e. Rs.12,840/- and applying the suitable multiplier of '17' and granting Rs.26,19,360/- towards loss of future earnings. 19. In this case the claimant produced his salary certificate proving the income as Rs.16,000/-. It has come out that the accident and resultant injuries has adversely affected MACA No.1898/2014 17 his future prospects as a sportsman and the scope for promotion on that basis and financial benefits on that account etc have been lost. The disability certificate assessed 12% permanent disability (body as a whole) as per Mc Bride scale and 20% as per National Institute of Orthopedically Handicapped Scale (NIOH). He had undergone 37 days inpatient treatment and spent Rs.1,30,330/- towards medical expenses. So in view of the facts and circumstances, the disability assessed can be taken as 12% whole body permanent disability, since the accident and resultant injuries has considerably reduced his future prospects as a sportsman in Indian Railway. 20. The claimant was only 22 years at the time of accident. So as per Sarla Verma (Smt.) & Ors. v. Delhi Transport Corporation & Anr. [(2009) 6 SCC 121] the suitable multiplier is '18'. So on evaluating the totality of the facts and circumstances, the disability assessed as per Ext.C1 can be taken at 12% and the suitable multiplicand can be taken as Rs.16,000/- i.e. the salary of the claimant as on date of MACA No.1898/2014 18 incident. Hence towards compensation for permanent disability, the claimant will be entitled to get Rs.4,14,720/[16,000x12x18x12/100]. Deducting the amount already awarded by the Tribunal, balance would be Rs.3,64,320/[4,14,720-50,400]. 21. Towards bystander expenses, the Tribunal awarded only Rs.1,050/-. It has come out that the claimant already undergone 37 days inpatient treatment. The accident was in the year 2010. So Rs.250/- per day can be taken towards bystander expenses. So on that head the claimant is entitled to get Rs.8,200/[250x37 – 1,050 (amount awarded by the Tribunal)]. 22. Next contention of the learned counsel is with regard to the compensation awarded towards pain and suffering. Tribunal awarded only Rs.5,000/-. It has come out that the claimant had undergone 37 days inpatient treatment and he had also sustained serious injuries to his right hand. So taking into account the period of treatment and the nature of injuries sustained by him, an amount of Rs.5,000/ - more is MACA No.1898/2014 19 awarded towards pain and suffering. Towards loss of amenities, Tribunal already awarded Rs.20,000/-. So no enhancement is required under that head. 23. Even though the learned counsel contended about the disfigurement, the disability certificate also speaks about the disfigurement due to ugly puckered scar rightly elbow of skin grafting, already amount has been awarded to the claimant towards disability. So no separate compensation need be awarded towards disfigurement. 24. In the result, the appellant/claimant is allowed to realise enhanced compensation of Rs.3,77,520/- [3,64,320+ 8,200+5,000], rounded to Rs.3,77,500/- (Rupees three lakhs seventy seven thousand five hundred only), which will carry interest at the rate of 6% pe r annum from the date of petition till realisation (excluding the period of 173 days delay caused in filing the appeal). The respondent/3[rd] respondent, insurer, shall satisfy the additional compensation granted in this appeal, together with interest, within a period of two months from the date of receipt of certified copy of this judgment, MACA No.1898/2014 20 after deducting the liability of the appellant/claimant towards balance Court Fee. 25. The disbursement of additional compensation to appellant/claimant shall be made taking note of the law on the point and in terms of directives issued by this court in Circular No.3 of 2019 dated 06.09.2019 and clarified further in Official Memorandum No.D1-62475/2016 dated 07.11.2019. Appellant/claimant shall provide his Bank Account details (attested copy of the relevant page of the Bank Passbook having details of the Bank Account Number and IFSC Code of the branch) before the Tribunal, with copy to the learned Standing Counsel for the insurer, within one month from the date of receipt of certified copy of this judgment. Parties shall bear their respective costs. **Sd/-** **M.R.ANITHA** **JUDGE** shg