Royal Sundaram Alliance Insurance Company Limited v. Abdul Gafoor (deceased) and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **TUESDAY, THE 25TH DAY OF FEBRUARY 2020 / 6TH PHALGUNA, 1941** **MACA.No.1022 OF 2016(A)** **AGAINST THE AWARD IN O.P.(MV) NO.91/2013 DATED 30-11-2015 OF ADDITIONAL MOTOR ACCIDENTS CLAIMS TRIBUNAL-I, KASARAGOD** ## **APPELLANT/3RD RESPONDENT:** **ROYAL SUNDARAM ALLIANCE INSURANCE COMPANY LIMITED NOW REPRESENTED BY THEIR ZONAL HEAD, SUBRAMANIAM BUILDING, CLUB HOUSE ROAD, ANNASALAI, CHENNAI-600 002.** **BY ADVS.SRI.MATHEWS JACOB (SR.) SRI.P.JACOB MATHEW** ## **RESPONDENTS/PETITIONER & RESPONDENTS 1 & 2:** **1 ABDUL GAFOOR (DIED) S/O MOIDEEKUTTY, MARAKAPPU KADAPPURAM, OZHINHAVALAPPU P.O., HOSDURG TALUK, PIN-671 314.** **2 ABDUL SALAM T.M., S/O ABDULLA M., THEKINI MADATHIL, PATTOLI, PETTIKUNDU P.O., CHEEMENI, HOSDURG TALUK, PIN-671 313.** **3 MADHU A., S.O KARTHIYAYANI, AVARONAM HOUSE, PETTIKUNDU P.O., HOSDURG TALUK, PIN-671 313.** - **RESPONDENTS 4 TO 7 IMPLEADED** - **4 RUKHIYA C. H., AGED 45 YEARS, W/O. ABDUL GAFOOR (LATE) MARAKKAPPU KADAPPURAM, OZHINHAVALAPPU P.O., HOSDURG TALUK.** **5 RAMSEEDHA C H., AGED 25 YEARS, D/O. ABDUL GAFOOR (LATE) MARAKKAPPU KADAPPURAM, OZHINHAVALAPPU P.O., HOSDURG TALUK.** MACA No.1022 of 2016(A) -2- **6 RAMSEENA C H., AGED 20 YEARS, D/O. ABDUL GAFOOR (LATE) MARAKKAPPU KADAPPURAM, OZHINHAVALAPPU P.O., HOSDURG TALUK. 7 RIZWAN C H., AGED 17 YEARS, D/O. ABDUL GAFOOR (LATE) REPRESENTED BY MOTHER RUKHIYA C.H., D/O ABDUL GAFOOR (LATE) MARAKKAPPU KADAPPURAM, OZHINHAVALAPPU P.O., HOSDURG TALUK. R1,R4-R7 BY ADV. SRI.A.ARUNKUMAR R2-R3 BY ADV. SMT.NEETHU PREM R2-R3 BY ADV. SRI.RAHUL SASI** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 25.02.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA No.1022 of 2016(A) -3- ## **JUDGMENT** The appellant is the 3[rd] respondent insurer in O.P.(MV) No.91 of 2013 on the file of the Additional Motor Accidents Claims Tribunal-I, Kasaragode, a claim petition filed under Section 166 of the Motor Vehicles Act, 1988 by the 1[st] respondent, claiming compensation on account of injuries sustained by him in a motor accident, which occurred on 01.05.2012, while he was travelling in a car bearing registration No.KL-60/D-1011 driven by the 2[nd] respondent, owned by the 3[rd] respondent and insured with the appellant. At the place of accident, the car hit on a lorry bearing registration No.KA-20/C-4994. In the accident, the claimant sustained injuries. Alleging that the accident occurred due to the rash and negligent driving of car by the 2[nd] respondent driver, claim petition was filed before the Tribunal claiming a total compensation of Rs.38,08,000/-, which was limited to Rs.35,00,000/- for the purpose of payment of Court Fee. 2. The Tribunal, by the impugned award, awarded a total compensation of Rs.19,26,710/-, together with interest at the rate of 9% per annum from 19.02.2013, till realisation, with proportionate cost and the appellant insurer was directed MACA No.1022 of 2016(A) -4- to satisfy the award. 3. Contending that the compensation awarded by the Tribunal under the head permanent disability is on the higher side, the appellant insurer is before this Court in this appeal. 4. During the pendency of this appeal, the 1[st] respondent/claimant died, on 03.08.2018, and his legal heirs are impleaded as additional respondents 4 to 7 by the order dated 29.10.2019 in I.A.No.1 of 2018. 5. Heard the learned Senior Counsel for the appellant insurer, the learned counsel for the 2[nd] respondent and also the learned counsel for additional respondents 4 to 7, who are the legal heirs of the deceased 1[st] respondent/claimant. 6. The issue that arises for consideration in this appeal is as to whether the compensation awarded by the Tribunal under the head permanent disability is on the higher side, as contended by the learned counsel for the appellant insurer. 7. The learned Senior Counsel would contend that the Tribunal went wrong in fixing the notional monthly income of the claimant as Rs.12,000/- and the percentage of permanent disability as 60%, for the purpose of awarding compensation under the head permanent disability. Per contra, the learned MACA No.1022 of 2016(A) -5- counsel for additional respondents 4 to 7 would contend that the compensation awarded by the Tribunal under the head permanent disability is not on the higher side, warranting any interference in this appeal. 8. The accident occurred on 01.05.2012. At the time of accident, the claimant was aged 42 years. He claimed a monthly income of 4200 Dirham equivalent to Rs.50,000/-, as a cook (sandwich maker) in Morning Star Hotel at Abu Dhabi, UAE. The document marked as Ext.A5 is a copy of the employment visa. In the claim petition, it was averred that all documents relating to his employment abroad, passport, visa, etc. were lost in the accident. The Tribunal took the monthly income of the claimant as Rs.12,000/-, for the purpose of awarding compensation under various heads. 9. The document marked as Ext.X1 is the disability certificate issued by the Medical Board, in which the permanent disability of the claimant, on account of the injuries sustained in the accident, is assessed as 91% in relation to his left lower limb and right upper limb. Before the Tribunal, the insurer contended that the disability assessed in Ext.X1 is not whole body disability. Though the claimant may not be able to MACA No.1022 of 2016(A) -6- do his earlier job as a cook (sandwich maker), he may be able to do some other job, which doesn't require physical exertion. After considering the objections raised by the insurer, the Tribunal took the percentage of whole body disability as 60%. Taking the monthly income of the claimant as Rs.12,000/- and applying the multiplier of 15, the Tribunal awarded a total compensation of Rs.12,96,000/- (12,000 x 12 x 15 x 60/100) under the head permanent disability. 10. The document marked as Ext.A2 is the wound certificate and Ext.A4 is the discharge summary. As evident from medical records, in the accident, the claimant sustained posterior dislocation left hip; ulnar artery injury right wrist; right carpal instability; contusion of middle lobe of right lung with haemothorax. The claimant had undergone inpatient treatment for a period of 56 days. 11. The document marked as Ext.X1 is the disability certificate issued by the District Medical Board, Kanhangad. The nature of disabilities noted in Ext.X1 are as follows; “Posterior dislocation (Left) hip, ulnar artery injury (Right) wrist, (Right) carpal instability, middle lobe of right lung contusion with haemothorax. Undergone treatment for ARDS, splenic laceration and MACA No.1022 of 2016(A) -7- haemothorax. xxx xxx xxx The permanent physical impairment is 91% (Ninety one percent) in relation to Left Lower Limb and Right Upper Limb. Additional weightage for dominant upper limb is 4% (four percent).” After considering the objections raised by the insurer, the Tribunal took the percentage of whole body disability as 60%. 12. In **Raj Kumar v. Ajay Kumar [(2011) 1 SCC 343]** , the Apex Court laid down the principles governing assessment of future loss of earning due to permanent disability. The Apex Court held that where the claimant suffers a permanent disability as a result of the injuries, the assessment of compensation under the head 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. What requires to be assessed by the Tribunal is the effect of permanent disability on the earning capacity of the injured; and after assessing the loss of earning capacity in terms of a percentage of income, it has to be quantified in MACA No.1022 of 2016(A) -8- terms of money, to arrive at the future loss of earnings (by applying the standard multiplier method used to determine loss of dependency). 13. In **Raj Kumar** , the Apex Court held that, if the Tribunal concludes that there is permanent disability as a result of the injuries, 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. 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 disability. 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 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 MACA No.1022 of 2016(A) -9- (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. When compensation is awarded by treating the loss of future earning capacity as 100% (or even anything more than 50%), the need to award compensation separately under the head of loss of amenities or loss of expectation of life may disappear or a token or nominal amount may have to be awarded under that head. 14. Going by the averments in the claim petition, at the time of accident, the claimant was working as cook (sandwich maker) in Morning Star Hotel at Abu Dhabi, UAE. The fact that, on account of the disabilities noted in Ext.X1 the claimant may not be able to do his earlier job as a cook (sandwich maker), is admitted by the appellant insurer. Considering the nature of disabilities noted in Ext.X1, in the light of the law laid down by the Apex Court in **Raj Kumar** , the permanent disability of 60% taken by the Tribunal for the purpose of assessing compensation under the head permanent disability cannot be said to be on the higher side. MACA No.1022 of 2016(A) -10- ## 15. In **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited [(2011)** **13 SCC 236]** the Apex Court reckoned the monthly income of a coolie (manual labourer), who met with a road accident in the year 2004, at the age of 35 years, notionally as Rs.4,500/-. The Apex Court held that, the claimant who was working as a coolie cannot be expected to produce any documentary evidence to substantiate his claim. In the absence of any other evidence contrary to the claim made by the claimant, in the facts of the said case, the Tribunal should have accepted the claim of the claimant. The Apex Court made it clear that, in all cases and in all circumstances, the Tribunal need not accept the claim of the claimant, in the absence of supporting material. It depends on the facts of each case. In a given case, if the claim made is so exorbitant or if the claim made is contrary to ground realities, the Tribunal may not accept the claim and may proceed to determine the possible income by resorting to some guess work, which may include the ground realities prevailing at the relevant point of time. 16. In **Syed Sadiq v. Divisional Manager, United India Insurance Co. Ltd. [(2014) 2 SCC 735]** , taking note MACA No.1022 of 2016(A) -11- of the earlier decision in **Ramachandrappa's case (supra)** , the Apex Court reckoned the monthly income of a vegetable vendor, who met with a road accident in the year 2008, at the age of 24 years, notionally as Rs.6,500/-. In the said decision, the Apex Court held that, a labourer in an unorganised sector doing his own business cannot be expected to produce documents to prove his monthly income. Therefore, there was no reason for the Tribunal and the High Court to ask for evidence to prove his monthly income. Going by the state of economy prevailing at that time and the rising prices in agricultural products, the Apex Court accepted his case that a vegetable vendor is reasonably capable of earning 6,500/- per month. 17. Considering the economic conditions prevailing at the time of accident, i.e., during the year 2012, and taking note of the fixation of notional monthly income by the Apex Court in the decisions referred to supra, the notional monthly income of a coolie (manual labourer), who met with a road accident in the year 2012, can be taken as Rs.8,500/-. In the instant case, as per Ext.A5 employment visa, at the time of accident, the claimant was employed abroad as a cook MACA No.1022 of 2016(A) -12- (sandwich maker). 18. In **Syed Sadiq v. Divisional Manager, United India Insurance Co. Ltd. [(2014) 2 SCC 735]** , the Apex Court granted disability compensation to the injured, adding 50% future prospects to the notional monthly income, based on the principle laid down in **Santosh Devi v. National Insurance Company Limited [(2012) 6 SCC 421]** . A reading of the said decision would show that the injured before the Apex Court were having higher percentage of functional disability, on account of permanent disability, which had resulted in higher extent of loss of future earning capacity, and it was in such circumstances that the Apex Court granted them disability compensation by adding future prospects. 19. In Ext.X1 disability certificate issued by the Medical Board, the permanent disability of the claimant, on account of the injuries sustained in the accident, is assessed as 91% in relation to his left lower limb and right upper limb. After considering the objections by the insurer, the Tribunal took the percentage of whole body disability as 60%. Considering the nature of injuries sustained and the permanent disability arising therefrom, the claimant can be treated as an injured MACA No.1022 of 2016(A) -13- having higher percentage of functional disability, on account of permanent disability, which had resulted in higher extent of loss of future earning capacity. Therefore, the claimant is entitled for grant of compensation under the head permanent disability, adding **25%** future prospectus to his notional monthly income, since he was **between the age of 40 to 50 years** , in view of the decision of the Apex Court in **National Insurance Company Ltd. v. Pranay Sethi [(2017) 16 SCC 680]** . Therefore, it cannot be contended that, the disability compensation awarded by the Tribunal, fixing notional monthly income of the claimant as Rs.12,000/-, is on the higher side. In the result, this appeal fails and the same is accordingly dismissed. No order as to costs. Sd/- **ANIL K. NARENDRAN JUDGE** bpr