Rajan v Sheela Asokan and Others

# _`IN THE HIGH COURT OF KERALA AT ERNAKULAM`_ ## _`PRESENT`_ ``` THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN ``` ``` MONDAY, THE 26[TH] DAY OF JUNE 2023 / 5TH ASHADHA, 1945 ``` ## _`MACA NO. 2412 OF 2013`_ ``` AGAINST THE ORDER/JUDGMENT DATED 28.06.2023 IN OPMV 867/2009 OF MOTOR ACCIDENT CLAIMS TRIBUNAL , IRINJALAKUDA ``` ## _`APPELLANT/PETITIONER:`_ ``` RAJAN S/O.VALLOON,KANNOORU HOUSE,ERUMATHADOM DESOM,VADAKKUMKARA VILLAGE,VELLANGLLORE P.O,MUKUNDAPURAM TALUK,THRISSUR DISTRICT BY ADVS. SRI.P.V.BABY SRI.A.N.SANTHOSH ``` ## _`RESPONDENTS/RESPONDENTS:`_ ``` 1SHEELA ASOKAN W/O.ASOKAN,MANAKKATTUPADY HOUSE,ADICHILI KUNNAPPILLY P.O,THRISSUR 680 311 2SAJEEV DASAN S/O.KOCHAPPU DASAN,THANDASSERY HOUSE,POOLANI P.O,MELOOR THRISSUR DISTRICT 680 311 3ROYAL SUNDARAM ALLIANCE INSURANCE COMPANY LTD M.G ROAD,ERNAKULAM KOCHI 682 011 BY ADVS. SRI.P.JACOB MATHEW SRI.P.JACOB MATHEW SRI.MATHEWS JACOB SR. ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME ``` ``` UP FOR ADMISSION ON 26.06.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` M.A.C.A No. 2412 of 2013 2 ## **MURALI PURUSHOTHAMAN, J. --------------------------------------------M.A.C.A No. 2412 of 2013** **-------------------------------------------------** Dated this the 26[th] day of June, 2023 ## **JUDGMENT** The appellant is the petitioner in OP(MV).No.867 of 2009 on the file of the Motor Accidents Claims Tribunal, Irinjalakkuda. He filed this appeal on being aggrieved by the amount of compensation awarded by the Tribunal. The parties to this appeal will hereinafter be referred to as petitioner and respondents in accordance with their status in the claim petition. 2. On 22.03.2009, the petitioner sustained injuries when a lorry driven by the 2[nd] respondent, owned by the 1[st] respondent and insured with the 3[rd] respondent, hit against the motorcycle bearing registration No. KL-8/J 4720 which he was riding. The petitioner was hospitalized for 56 days. He M.A.C.A No. 2412 of 2013 3 sustained compound fracture on both bones at his right leg. He claimed an amount of Rs.5,00,000/- as compensation for the personal injuries sustained in the accident. 3. The Tribunal found that the accident happened due to the negligence of the 2[nd] respondent and awarded an amount of Rs.2,26,660/- as compensation with 7.5% interest per annum from the date of filing petition till realisation and proportionate costs. The insurance company was directed to satisfy the award. 4. This appeal is preferred by the petitioner contending that the amount of compensation awarded by the Tribunal under various heads are too low. 5. The petitioner was a quarry worker and was aged 35 years at the time of the accident. Exhibit A3 disability certificate would show the permanent disability of the petitioner as 14.30%. 4 M.A.C.A No. 2412 of 2013 6. The Tribunal has taken the notional income of the petitioner as Rs.3,500/-. In the absence of any other evidence as regards the income of the petitioner, only notional income can be taken for the purpose of calculation of compensation. Going by the guidelines in **Ramachandrappa v Manager, Royal Sundaram Alliance Insurance Company Limited** [ (2011) 13 SCC 236], the notional income of the petitioner can be taken as Rs.7,000/- per month. The multiplier adopted is 16. 7. Towards loss of earnings, the Tribunal has awarded a sum of Rs.21,000/-. The petitioner was hospitalized for 56 days. In the nature of injuries sustained, it has to be inferred that the petitioner was incapacitated to work atleast for 8 months. Accordingly, I refix the compensation for loss of earnings as Rs.56,000/- (Rs.7,000/- × 8 months). Therefore, he is entitled for an additional amount of Rs.35,000/- (5600021000) under the head loss of earnings. M.A.C.A No. 2412 of 2013 5 8. Towards compensation for permanent disability, the petitioner was awarded only an amount of Rs.53,760/-. Though the doctor who was examined as PW2 assessed the permanent disability of the petitioner as 14.30%, the Tribunal scaled down the same to 8% without assigning specific reason. Therefore, the permanent disability of the petitioner has to be taken as 14.30% as certified in Exhibit A3 disability certificate. Had the insurance Company any objection in accepting Exhibit A3, they could have sought for referring him to a medical board. Though the petitioner was a quarry worker, he has mounted the box and gave evidence as PW1. The evidence adduced by the petitioner and examination of PW2 Doctor and Exhibit A3 disability certificate would go to show that the petitioner has difficulty in squatting and his mobility of right knee and right ankle are restricted. The corelation of permanent disability with functional disability has been explained by the Hon’ble Supreme Court in **Raj kumar Vs. Ajay kumar and Another [2011 (1) SCC 343],** the Court held as follows; M.A.C.A No. 2412 of 2013 6 “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 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 terms 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 the percentage of loss of earning capacity as a result of the M.A.C.A No. 2412 of 2013 7 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).” This has been reiterated in **Pappu Deo Yadav v. Naresh Kumar and Others [2020 KHC 6547 (SC)]** . Accordingly, taking into account Exhibit A3 disability Certificate, the evidence of PW1 and PW2, I fix the functional disability of the petitioner as 25% for assessing the compensation for permanent disability. 9. The Tribunal has awarded an amount of Rs.53,760/towards compensation for permanent disability. Taking the functional disability as 25%, the compensation for permanent disability is re-calculated as Rs.3,36,000/- (7,000/- × 12 × 16 × 25/100). On deducting the amount already awarded, he M.A.C.A No. 2412 of 2013 8 is entitled for an enhanced compensation of Rs.2,82,240/under the said head. 10. Towards pain and suffering, the Tribunal has awarded an amount of Rs.18,000/-. Taking into account, the nature of injuries sustained by the petitioner and the period of hospitalisation, I fix the compensation for pain and suffering as Rs.30,000/-. Therefore, an additional amount of Rs.12,000/- is granted under the said head. 11. Towards loss of amenities and convenience, only an amount of Rs.10,000/- has been awarded. Taking into account the age of the petitioner the injuries sustained and the disability, I fix the compensation under the said head as Rs.28,000/-. Accordingly, he is entitled for an additional amount of Rs.18,000/- under the said head. 12. I find that the compensation awarded under other heads is just and reasonable. 9 M.A.C.A No. 2412 of 2013 Accordingly, the petitioner is entitled for an additional amount of Rs.3,47,240/-(Rs.2,82,240+12,000+18000+ 35,000). The 3[rd] respondent insurance company shall deposit the same with 7.5% interest per annum from the date of petition till deposit and proportionate costs before the Tribunal within 2 months from the date of receipt of copy of this judgment. The appeal is disposed of as above. **MURALI PURUSHOTHAMAN JUDGE** al/-.+