Raju v. K.K. Abdul Kareem, Biju and The Manager National Insurance Co. Ltd.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN MONDAY, THE 29[TH] DAY OF MAY 2023 / 8TH JYAISHTA, 1945** **MACA NO. 2461 OF 2012** **AGAINST THE AWARD DATED 29.06.2012 IN OPMV 900/2007 OF MOTOR** **ACCIDENT CLAIMS TRIBUNAL , IRINJALAKUDA** ## **APPELLANT/PETITIONER:** **RAJU, S/O. ABDUL KHADER, PALAKKATTUKARAN HOUSE, KIZHAKKEKODALI DESOM, VELLIKULANGARA VILLAGE, THRISSUR DISTRICT.** **BY ADVS. SRI.P.V.BABY SRI.A.N.SANTHOSH** ## **RESPONDENTS/RESPONDENTS 1 TO 3:** **1 K.K.ABDUL KAREEM S/O. KOCHU MOHAMMED, KOTHUKIL HOUSE, MURIKKINGAL P.O., THRISSUR DISTRICT-680 669.** **2 BIJU, S/O. PAULOSE, KANNOOKADAN HOUSE, MATTATHOOR, THRISSUR-680 692.** **3 THE MANAGER NATIONAL INSURANCE CO. LTD., AMBIKA ARCADE, M.G.ROAD, THRISSUR-680 001.** **BY ADVS. SMT.SARAH SALVY, SC** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 29.05.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA NO. 2461 OF 2012 :2:** ## **JUDGMENT** The appellant is the claimant in OP(MV)No. 900 of 2007 on the files of the Motor Accidents Claims Tribunal, Irinjalakuda. He has filed this appeal aggrieved by the amount of compensation awarded by the Tribunal for the personal injuries sustained by him in a motor accident. The parties are referred to as per their status in the claim petition. 2. According to the petitioner, on 25.04.2007, while he was a motor an riding cycle, autorickshaw bearing Registration No. KL-8/AB 3972, driven by the 2[nd] respondent rashly and negligently, hit the motor cycle and the petitioner sustained serious injuries. The 1[st] respondent is the owner of the autorickshaw and the 3[rd] respondent is the insurer. The petitioner claimed an amount of Rs.5,00,000/- as total compensation for the **MACA NO. 2461 OF 2012 :3:** injuries sustained in the accident. 3. Before the Tribunal, respondents 1 and 2 were set _ex parte_ . Exts.A1 to A11 were marked and PWs 1 and 2 were examined, on the side of the petitioner. Ext.B1 insurance policy was marked on the side of the respondents. 4. The Insurance Company filed a written statement admitting the policy; but disputing the age, occupation and income of the petitioner. It was also contended that the injuries are not at all serious and the accident happened due to the negligence of the petitioner and that the compensation claimed is exorbitant. 5. The Tribunal, on consideration of the evidence on record and the rival contentions, held that the accident happened due to the negligence on the part of the 2[nd] respondent and awarded an amount of Rs.2,44,503/- with 7.5% interest per annum from the date of petition till realisation with proportionate costs. The compensation **MACA NO. 2461 OF 2012 :4:** ## awarded by the Tribunal under various heads is as follows: |**Sl.**<br>**No**|**Head of Claim**|**Amount**<br>**claimed**|**Amount**<br>**awarded**| |---|---|---|---| |1|Loss of earning<br>(Total)|40000|9000| |2|Medical and<br>miscellaneous|130000|43003| |3|Transportation<br>expenses|5000|500| |4|Pain and suffering|40000|25000| |5|Permanent disability|200000|162000| |6|Damage to clothing|5000|--| |7|Extra nourishment|5000|5000| |8|Loss of amenities and<br>conveniences etc.|100000|--| |9|Loss of earning<br>power|200000|--| |10|Future medical<br>expenses|50000|--| ||**Total**||**244503**| **MACA NO. 2461 OF 2012 :5:** 6. Soliciting enhancement of the quantum of compensation, the petitioner has come up in appeal. 7. According to the petitioner, he was a butcher by profession and was earning an amount of Rs.10,000/- per month. The Tribunal, in the absence of any other evidence regarding the income, fixed the notional income of the petitioner as Rs.3,000/- per month and adopted the multiplier '15'. 8. In the light of the decision of the Hon’ble Supreme Court in _v_ . **Ramachandrappa Manager, Royal Sundaram Alliance Insurance Company Limited** [2011 (13) SCC 236], the notional monthly income of the petitioner can be fixed as Rs.6,000/-. Accordingly, I re-fix the monthly income of the petitioner as Rs.6,000/-. 9. The Tribunal found that the was petitioner incapacitated to do work for three months due to the injuries sustained in the accident and awarded an amount **MACA NO. 2461 OF 2012 :6:** of Rs.9,000/- (3000x3 months) under the head compensation for loss of earnings. Since I have re-fixed the monthly income of the petitioner as Rs.6,000/-, he is entitled for an amount of Rs.18,000/- (6,000 x 3 months) under the said head. On deducting the amount already awarded, he is entitled for an enhanced amount of **Rs.9,000** /- (18,000-9,000). 10. Towards compensation for permanent disability, the Tribunal has awarded an amount of Rs.1,62,000/- which according to the petitioner is too low. To arrive at this amount, the Tribunal has taken the functional disability of the petitioner as 30%, based on Ext.A4 disability certificate. The right foot of the petitioner was amputated at the level of tarso metatarsal joints as evident from Ext.A4 disability certificate and Ext.A9 discharge summary. _**v**_ The Hon'ble Supreme Court, in **Raj Kumar . Ajay Kumar and another [2010 KHC 5021: 2011 (1) KLT 620:** **MACA NO. 2461 OF 2012 :7:** **(2011) 1 SCC 343]** , considered in detail the correlation between the permanent disability suffered in an accident and the loss of earning capacity of the victim resulting therefrom. The Court held as under: “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 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 **MACA NO. 2461 OF 2012 :8:** 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 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.....” “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 **MACA NO. 2461 OF 2012 :9:** disablement, (iii) if the disablement percentage is expressed with reference to any specific 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. 10. 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 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 **MACA NO. 2461 OF 2012 :10:** 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..” The said yardstick in determining the extent of permanent disability for assessment of loss of earning capacity has been reaffirmed by the Hon'ble Supreme Court in **Pappu Deo Yadav** _**v**_ **. Naresh Kumar and others** [AIR 2020 SC 4424] and reiterated in **Jithendran** _**v**_ **. New India Assurance Co. Ltd. And another** [2021 KHC 6653: 2021 (4) KLJ 646: AIR 2021 SC 5382]. 11. The petitioner was a butcher by profession and the disability incurred by him as a result of the accident would have impact on his job. The functional disability of the **MACA NO. 2461 OF 2012 :11:** petitioner in the nature of the injuries has to be treated as 50%, going by the I Schedule of the Employees Compensation Act, 1923. Accordingly, I take the functional disability of the petitioner as '50%' for calculation of compensation for permanent disability. Since the petitioner had suffered injuries leading to the amputation of his foot, he is entitled for an addition of 40% of the monthly income towards future prospects and therefore, his monthly income would come to Rs.8,400/- (6,000+2,400). Accordingly, the compensation for permanent disability is reworked as Rs.7,56,000/- [8400x12x15x50/100]. Since the petitioner was already awarded an amount of Rs.1,62,000/-, he is entitled for an additional amount of **Rs.5,94,000/-** [7,56,000-1,62,000] under the said head. 12. No amount has been awarded by the Tribunal under the head compensation for loss of amenities and conveniences. Taking note of the nature of the injuries and **MACA NO. 2461 OF 2012 :12:** the disability, I find that the petitioner can be awarded an amount of **Rs.1,00,000/-** , as claimed by him, under the said head. 13. Towards bystander's expenses, no amount has been awarded by the Tribunal. The Tribunal ought to have awarded reasonable amount under the said head. The petitioner was hospitalised for 31 days. I find that he is entitled for an amount of **Rs.4,650/-** @ Rs.150/- per day under the above head. Accordingly, the same is granted. 14. The compensation awarded by the Tribunal under the other heads is just and reasonable. In the result, the petitioner is entitled for an enhanced amount of **Rs.7,07,650/-** [9,000 + 5,94,000 + 1,00,000 + 4,650] (Rupees seven lakhs seven thousand six hundred and fifty only). The 3[rd] respondent insurance company shall deposit the amount with 7.5% interest per annum from the date of petition till realisation with proportionate costs **MACA NO. 2461 OF 2012 :13:** before the Tribunal, within a period of two months from the date of receipt of a copy of this judgment. Appeal is disposed of. **Sd/MURALI PURUSHOTHAMAN JUDGE** SB