P.V. Shilaja v. Sandhya Raju; Ajeesh; The New India Assurance Co. Ltd.

## IN THE HIGH COURT OF KERALA AT ERNAKULAM ## PRESENT ## THE HONOURABLE MRS. JUSTICE C.S. SUDHA MONDAY, THE 17[TH] DAY OF JANUARY 2022 / 27TH POUSHA, 1943 ## MACA NO. 3573 OF 2019 AGAINST THE AWARD DATED 30.6.2016 IN OP(MV)NO.1384/2009 ON THE FILE OF ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL, TRICHUR ## APPELLANT/PETITIONER: P.V.SHILAJA AGED 47 YEARS D/O VELAYUDHAN,RESIDING AT PADINJAREPURAKKAL HOUSE, AVANOOR.P.O, THRISSUR DISTRICT. BY ADVS.T.C.SURESH MENON SRI.P.S.APPU SRI.A.R.NIMOD ## RESPONDENTS/RESPONDENTS: - 1 SANDHYA RAJU W/O.RAJU FRANCIS,RESIDING AT KOKKAT HOUSE, AVITATHOOR.P.O,IRINJALAKUDA, THRISSUR-680683. - 2 AJEESH, S/O VARGHESE,RESIDING AT ARAKKAPRAMBIL HOUSE, MADAIKONAM VILLAGE,NEAR VARNA THEATRE,IRINJALAKUDA, THRISSUR-680121. - 3 THE NEW INDIA ASSURANCE COMPANY LIMITED, VELLANIKARAN BUILDING,MAIN ROAD, IRINJALAKUDA,THRISSUR-680121. BY ADVS.SRI.P.C.CHACKO, SC SRI.LAL K.JOSEPH THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 18.12.2021, THE COURT ON 17.01.2022 DELIVERED THE FOLLOWING: MACA No.3573 of 2019 :-2-: ## C.S.SUDHA, J. ---------------------MACA No.3573 of 2019 ---------------------------Dated this the 17[th] day of January, 2022 ## J U D G M E N T This is an appeal under Section 173 of the Motor Vehicles Act, 1988 (the Act) filed by the petitioner in OP(MV)No.1384/2009 on the file of the III[rd] Additional Motor Accident Claims Tribunal, Thrissur (the Tribunal). The appeal is against the award dated 30.06.2016. Respondents 1 to 3 herein are the respondents before the Tribunal also. The parties will be referred to as described in the proceedings before the Tribunal. 2. According to the petitioner, on 17.05.2009 at 8.30 a.m., while she was riding a scooter bearing registration No.KL-08/K-5956 through Thrissur-Perumbillissery Public Road, a bus bearing registration No.KL-45/5995 driven by the second respondent in a rash and negligent manner knocked her down, due to which she sustained grievous injuries. She was hospitalised for 14 days. The doctor has assessed her permanent physical disability at 28.78 %. The first respondent is the MACA No.3573 of 2019 :-3-: owner of the bus and the third respondent, the insurer. The petitioner is an M.Com Graduate and a teacher aged 37 years at the time of the incident. She was getting a monthly income of `10,000/- at the time of the incident. A reasonable amount of `9,37,000 was claimed as compensation. Though Tribunal found that the incident was due to the rashness and negligence of the second respondent-driver, it awarded a paltry sum of `2,78,414/- without proper application of mind. Hence, the present appeal. 3. The impugned order does not make it clear as to whether respondents 1 and 2 were set ex parte. The impugned award only says that the respondents 1 and 2 remained absent. The third respondent disputed the quantum of compensation and also contended that the incident happened due to the rash and negligent driving of the petitioner. 4. After completion of the pleadings, the Tribunal gave opportunity to the parties to adduce evidence. No oral evidence was adduced by either side. Exts.A1 to A11 were marked on the side of the petitioner. MACA No.3573 of 2019 :-4-: 5. The only point to be considered in this appeal is whether the compensation awarded to the claimant is just, fair and reasonable. ## Notional Income 6. According to the petitioner, she is an M.Com Graduate and a teacher earning a monthly salary of `10,000/- at the time of the incident. She had produced Ext.A10 certificate to establish her qualifications. However, the Tribunal ignored the certificate and without following the dictum laid down in Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Ltd. [2011 AIR SC 2951] has awarded a meagre sum of `4,000/- per month. 7. Though the petitioner contends that she is a teacher and that she was earning `10,000/- per month at the time of the incident, no evidence is seen to have been produced before the Tribunal. However, applying the yardstick laid down in Ramachandrappa 's case supra and Syed Sadaq vs. Divisional Manager, United India Insurance Co.Ltd. [2014(2) SCC 735] , the notional income of the claimant can be fixed as `7,000 per month. Therefore, I re-assess the notional income MACA No.3573 of 2019 :-5-: of the petitioner accordingly. ## Permanent disability and loss of earning capacity 8. The petitioner produced Ext.A8 disability certificate issued by Additional Professor, Neurosurgery, Medical College Hospital, Thrissur, who assessed the whole body permanent disability of the petitioner at 28.78%. The Tribunal after taking into account the injuries sustained and the profession of the petitioner, fixed the functional disability at 22%. This is challenged by the petitioner who contends that there was no reason for the Tribunal to have reduced the percentage of disability to 22%. Further, the Tribunal had also failed to take into account the loss of future prospects by computing the compensation towards disability, which according to the learned counsel is against the dictum in National Insurance Co. Ltd. v. Pranay Sethi (2017(5) . KHC 350) 9. Here I refer to Raj Kumar vs. Ajay Kumar [2011(1) KLT 620] wherein the Hon'ble Supreme court held that what needs to be looked into in relation to compensation in injury cases is the functional MACA No.3573 of 2019 :-6-: disability of the claimant. Paragraphs 6 to 9 of the said judgment read thus - “6. Disability refers to any restriction or lack of ability to perform an activity in the manner considered normal for a human-being. Permanent disability refers to the residuary incapacity or loss of use of some part of the body, found existing at the end of the period of treatment and recuperation, after achieving the maximum bodily improvement or recovery which is likely to remain for the remainder life of the injured. Temporary disability refers to the incapacity or loss of use of some part of the body on account of the injury, which will cease to exist at the end of the period of treatment and recuperation. Permanent disability can be either partial or total. Partial permanent disability refers to a person's inability to perform all the duties and bodily functions that he could perform before the accident, though he is able to perform some of them and is still able to engage in some gainful activity. Total permanent disability refers to a person's inability to perform any avocation or employment related activities as a result of the accident. The permanent disabilities that may arise from motor accidents injuries, are of a much wider range when compared to the physical disabilities which are enumerated in the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (`Disabilities Act' for short). But if any of the disabilities enumerated in section 2(i) of the Disabilities Act are the result of injuries sustained in a motor accident, they can be permanent disabilities for the purpose of claiming compensation. MACA No.3573 of 2019 :-7-: 7. The percentage of permanent disability is expressed by the Doctors with reference to the whole body, or more often than not, with reference to a particular limb. When a disability certificate states that the injured has suffered permanent disability to an extent of 45% of the left lower limb, it is not the same as 45% permanent disability with reference to the whole body. The extent of disability of a limb (or part of the body) expressed in terms of a percentage of the total functions of that limb, obviously cannot be assumed to be the extent of disability of the whole body. If there is 60% permanent disability of the right hand and 80% permanent disability of left leg, it does not mean that the extent of permanent disability with reference to the whole body is 140% (that is 80% plus 60%). If different parts of the body have suffered different percentages of disabilities, the sum total thereof expressed in terms of the permanent disability with reference to the whole body, cannot obviously exceed 100%. 8. 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, percentage of loss of earning capacity, arising from a permanent disability will be different from the percentage of permanent disability. Some Tribunals wrongly assume that in all cases, a particular extent (percentage) of permanent disability would result in a corresponding loss of earning capacity, and MACA No.3573 of 2019 :-8-: consequently, if the evidence produced show 45% as the permanent disability, will hold that there is 45% loss of future earning capacity. In most of the cases, equating the extent (percentage) of loss of earning capacity to the extent (percentage) of permanent disability will result in award of either too low or too high a compensation. What requires to be assessed by the Tribunal is the effect of the permanently 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 terns of money, to arrive at the future loss of earnings (by applying the standard multiplier method used to determine loss of dependency). We may however note that in some cases, on appreciation of evidence and assessment, the Tribunal may find that 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 (see for example, the decisions of this court in Arvind Kumar Mishra v. New India Assurance Co.Ltd. - 2010(10) SCALE 298 and Yadava Kumar v. D.M., National Insurance Co. Ltd. - 2010 (8) SCALE 567). 9. Therefore, the Tribunal has to first decide whether there is any permanent disability and if so the extent of such permanent disability. This means that the tribunal should consider and decide with reference to the evidence: (i) whether the disablement is permanent or temporary; (ii) if the disablement is permanent, whether it is permanent total disablement or permanent partial disablement, (iii) if the disablement percentage is expressed with reference to any specific MACA No.3573 of 2019 :-9-: limb, then the effect of such disablement of the limb on the functioning of the entire body, that is the permanent disability suffered by the person. If the Tribunal concludes that there is no permanent disability then there is no question of proceeding further and determining the loss of future earning capacity. But if the Tribunal concludes that there is permanent disability then it will proceed to ascertain its extent. After the Tribunal ascertains the actual extent of permanent disability of the claimant based on the medical evidence, it has to determine whether such permanent disability has affected or will affect his earning capacity.” (Emphasis supplied) 10. Therefore, from the aforesaid judgment it is clear that it is the functional disability that needs to be taken into account for assessing the loss of income. The assessment of computation under the head of loss of earnings will depend upon the effect and impact of the permanent disability on the earning capacity of the petitioner. The Tribunal cannot and should not mechanically apply the percentage of permanent disability as the percentage of economic loss or loss of earning capacity. In the instant case, the petitioner is stated to be a teacher by profession. In Raj Kumar 's case supra, the Hon'ble Supreme Court sounded a note of caution to the Tribunals in cases where it proposed to accept the expert evidence of doctors who had not treated MACA No.3573 of 2019 :-10-: the injured but who issued disability certificates. In such cases, the Apex Court held that 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 would 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 the 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. However, the Apex Court also, taking into account the difficulties faced by the claimants in securing the presence of Surgeons or Doctors treating them or who had treated them, held that if the certificates are not contested by the respondents, they may be marked by consent thereby dispensing with the oral evidence. MACA No.3573 of 2019 :-11-: 11. In the instant case, the respondents do not seem to have objected to the marking of Ext.A8 disability certificate. Therefore, Ext.A8 can be relied on for assessing whole body permanent disability. The disabilities noted as per Ext.A8 are – 1) paresthesia over forehead along the trigeminal sensory cranial nerve, 2) painful restriction of movement of right shoulder and upper arm, 3) impaired central vision in the right eye, 4) complications due to malunited fracture on clavicle affecting impairment of upper limb and shoulder. Therefore, the functional disability of the claimant taking into account her profession, can be fixed at 25% in the place of 22% fixed by the Tribunal. There is no dispute relating to the multiplier adopted. Therefore, the amount due to the petitioner under this head would be `3,15,000/(`7,000x12x15x25/100). Loss of earnings 12. The petitioner claimed an amount of `60,000/- towards loss of earnings for four months. The Tribunal awarded an amount of `16,000/- under this head. The four months' time given for recuperation MACA No.3573 of 2019 :-12-: and convalescence appears to be reasonable. I have already re-assessed the notional income as `7,000/- per month. Therefore, the amount to which the petitioner is entitled under this head is `28,000/- (`7,000x4). ## Medical expenses and future treatment expenses 13. The petitioner claimed an amount of `1,25,000/- towards medical expenses. However, Ext.A10 medical bill showed an amount of ₹66,213.43/-. Hence the Tribunal awarded the said amount of 66,214/-₹ towards medical expenses. The petitioner also claimed an amount of ₹25,000/- towards future treatment expense. As no materials were produced to substantiate the same, the said claim was disallowed. In Raj Kumar 's case supra, the Apex Court held that award under the head of future medical expenses depends upon the specific medical evidence regarding the need for further treatment and the cost thereof. Hence, the Tribunal cannot be found fault for disallowing the said claim. ## Pain and sufferings 14. The petitioner claimed an amount of `60,000/- under this head. The said amount according to the Tribunal is not reasonable and MACA No.3573 of 2019 :-13-: therefore taking into account the nature of injuries and the treatment taken, an amount of `12,000/- was awarded. The petitioner contends that while awarding such a paltry sum, the Tribunal lost sight of the fact that the petitioner had sustained very serious injuries including fracture of skull, clavicle, severe head and optical nerve injury. Therefore according to her, a higher amount ought to have been awarded under this head. Ext.A3 wound certificate shows that the following injuries have been sustained by the petitioner - (i) Polytrauma head injury, (right) frontotemporal acute sub-dural haematoma and temporal hemorrhagic contusion brain, (ii) fracture of right temporal bone, (iii) fracture of right clavicle and (iv) right 3[rd] nerve palsy. In the light of the grievous injuries sustained by her, I am of the opinion that an amount of `20,000/- under this head would be reasonable. 15. With respect to other heads of claims, I find that the Tribunal has awarded reasonable, fair and just compensation, which does not call for any interference. 16. Hence, I hold that the appellant/petitioner is entitled to MACA No.3573 of 2019 ## :-14-: ## enhanced compensation, at the rates as given in the table below. |Sl.<br>No.|Head of Claim|Amount<br>awarded by the<br>Tribunal (in`)|Amount<br>modified by this<br>Court (in`)|Amount which<br>the appellant/<br>petitioner<br>is<br>entitled to (in<br>`)| |---|---|---|---|---| |1|Loss of earning|16,000/-|28,000/-|28,000/-| |2|Transportation to hospital|1,000/-|-|1,000/-| |3|Extra nourishment|1,000/-|-|1,000/-| |4|Damage to clothings and<br>articles|1,000/-|-|1,000/-| |5|Medical expense|66,214/-|-|66,214/-| |6|Personal assistance|2,800/-|-|2,800/-| |7|Future treatment expense|-|-|-| |8|Pain and suffering|12,000/-|-|12,000/-| |9|Permanent disability and<br>loss of earning power|1,58,400/-|3,15,000/-|3,15,000/-| |10|Amenities of life|20,000/-|-|20,000/-| ||Total|2,78,414/-||4,47,014/-| In the result, the appeal is partly allowed with costs. The appellant/petitioner is awarded a total compensation of ` 4,47,014/with interest at the rate of 9% per annum from the date of the claim petition till the date of deposit, after deducting the interest for a period of 713 days, viz., the period of delay in filing the appeal (as ordered by MACA No.3573 of 2019 :-15-: this Court on 10.10.2019 in C.M.Appln.No.1 of 2019). The third respondent is ordered to deposit the compensation with interest and costs before the Tribunal within a period of 60 days from the date of receipt of a certified copy of this judgment. On deposit of the amount, the Tribunal shall disburse the compensation amount to the appellant in accordance with law. Sd/C.S.SUDHA JUDGE ami/