Sara v. Anandkumar, P. Sajeevan & Oriental Insurance Company Limited

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE C.S. SUDHA** **FRIDAY, THE 5[TH] DAY OF APRIL 2024 / 16TH CHAITHRA, 1946** **MACA NO. 4467 OF 2019** **AGAINST THE JUDGMENT DATED 26/07/2019 IN OPMV NO.539 OF 2014 ON THE FILE OF THE ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL -III, PALAKKAD.** **APPELLANT/PETITIONER:** ## **SARA** **AGED 53 YEARS, D/O.ABOOBACKER, COOLIE WORKER, MELEKALAVARA HOUSE, KALLADIKKODE, MANNARKKAD TALUK, PIN-678 596.** **BY ADVS. ABDUL JAWAD K. SRI.U.MUHAMMED MUSTHAFA SMT.A.GRANCY JOSE** ## **RESPONDENTS/RESPONDENTS:** - **1 MR.ANANDKUMAR AGED ABOUT 45 YEARS, FATHER'S NAME (NOT KNOWN), 14/512, PAYYA ROAD, MUDAPPALLUR POST, ALATHUR TALUK, PALAKKAD-678 705, (RC OWNER OF HPMV-S/C BUS BEARING REGN.NO.KL-49-4757 ASHOK LEYLAND).** - **2 MR.P.SAJEEVAN, AGED 46 YEARS** - **S/O.PRABAKARAN, KORANAMKODE HOUSE, VAVULLIYAPURAM POST, KAVASSERY, ALATHUR TALUK, PALAKKAD-678 543, (DRIVER OF HPMV-S/C BUS BEARING REGN.NO.KL-49-4757 ASHOK LEYLAND).** - **3 THE ORINETAL INSURANCE COMPANY LIMITED, DIVISIONAL OFFICE, SHOBHA TSM COMPLEX, RS ROAD, OPP.TOWN RAILWAY STATION, PALAKKAD-678 002, REPRESENTED BY ITS DIVISIONAL MANAGER (INSURER OF HPMV S/C BUS BEARING REGN.NO.KL-49-4757. ASHOK LEYLAND-POLICY NO.442000/31/2013/22135 VALID FROM 06.03.2013 TO 05.03.2014.)** **BY ADV SRI.TITUS MANI** **SC-SMT. K.S. SANTHI** ## **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR HEARING** **ON 05.04.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** M.A.C.A.No.4467 of 2019 2 ## **C.S.SUDHA, J.** **-----------------------------------M.A.C.A.No.4467 of 2019 ---------------------------------------------------Dated this the 5[th] day of April 2024** ## **J U D G M E N T** This appeal under Section 173 of the Motor Vehicles Act, 1988 (the Act) has been filed by the claimant in O.P. (MV)No.539/2014 on the file of the Motor Accidents Claims Tribunal-III, Palakkad, (the Tribunal), aggrieved by the amount of compensation granted by Award dated 26/07/2019. The respondents herein are the respondents before the Tribunal. The parties and the documents will be referred to as described in the original petition. 2. According to the petitioner, on 30/10/2013 at 19:00 hours while she was standing by the side of the National Highway at Kuzhalmannam, she was knocked down by a bus M.A.C.A.No.4467 of 2019 3 bearing registration No.KL-49/4757, negligently driven by the second respondent, due to which she sustained very severe injuries. The first respondent is the registered owner of the offending vehicle, the second respondent is the driver and the third respondent, the insurer. The respondents are jointly and severally liable to compensate the petitioner. Hence, the petitioner claimed an amount of ₹12 lakhs as compensation under various heads. 3. . Respondents 1 and 2 remained _ex parte_ 4. The third respondent insurer filed written statement admitting the existence of a valid policy but disputing the liability. The third respondent also contended that the compensation claimed was exorbitant and unreasonable. 5. Before the Tribunal, no oral evidence was adduced by either side. Exts.A1 to A10 series were marked on the side of the petitioner. Ext.B1 was marked on the side of the 3[rd] respondent. The report of the Medical Board has been marked as Ext.X1. M.A.C.A.No.4467 of 2019 4 6. The Tribunal on a consideration of the documentary evidence and after hearing both sides, found negligence on the part of the second respondent resulting in the accident and hence awarded an amount of ₹7,97,260/- with interest @ 9% per annum from the date of the petition till realisation along with proportionate costs. Aggrieved, the petitioner has come up in appeal. 7. The only point that arises for consideration in this appeal is whether there is any infirmity in the findings of the Tribunal calling for an interference by this Court. 8. Heard both sides. 9. The impugned award is challenged by the petitioner on the following grounds- **– Notional Income** The petitioner aged 48 years is stated to have been a coolie at the time the incident took place on 30/10/2013. As no documents were produced to prove her income, the Tribunal fixed the notional income at ₹5,000/- per M.A.C.A.No.4467 of 2019 5 month. According to the learned counsel for the petitioner, this is too low an amount in the light of the dictum in **Ramachandrappa v. Manager, Royal Sundaram Allian. Co. Ltd, (2011) 13 SCC 236.** There is certainly force in the argument advanced on behalf of the petitioner. Based on the dictum in **Ramachandrappa** ( _Supra_ ) coupled with an addition of ₹500/- every year, the notional income of the petitioner in the year 2013 can be fixed at ₹9,000/- per month. 10. **Medical Bills** - According to the petitioner, Ext.A10 series medical bills would show that an amount of ₹2,33,212.66/had been incurred by her. The Tribunal awarded an amount of ₹1,68,210/-only after deducting the advance of ₹65,000/- paid by her. It is pointed out that the Tribunal's computation of the amount spent by the petitioner is incorrect as the total amount of ₹2,33,212.66/- had been incurred by her and therefore she is entitled to the entire amount. The claim is proved by Ext.A10 series and therefore I find that the petitioner is entitled to an M.A.C.A.No.4467 of 2019 6 amount of ₹2,98,212.66/- (₹2,33,212.66/- + ₹65,000/- paid as advance) rounded to ₹2,98,213/-. 11. **Loss of future earnings/future prospects** - It was pointed out by the learned counsel for the petitioner that due to the injuries sustained by the petitioner, she has become a complete invalid, which was noticed by the Tribunal and therefore the Tribunal ought to have fixed her functional disability at least at 60% if not at 100% based on the dictum in **Rajkumar v. Ajay Kumar, (2011) 1 SCC 343** . This argument is disputed by the learned counsel for the respondent insurer on the ground that though Ext.X1 disability certificate issued by the Medical Board shows that the petitioner had only 20% whole body disability, the Tribunal enhanced it to 30%, which itself is on the higher side and therefore, no further enhancement is called for. 11.1. On going through the impugned award, I find that the petitioner had appeared before the Tribunal and the learned judge M.A.C.A.No.4467 of 2019 7 after interacting with her has recorded thus in paragraph 18 of the impugned Award - _“The petitioner has practically became_ (sic) _incapable of doing anything after the incident..........”._ As held by the Apex court in **Raj Kumar** ( _Supra_ ), where the claimant suffers permanent disability because of the 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. What needs to be assessed by the Tribunal is the effect of the permanently disability on the earning capacity of the injured. The doctor who treated an injured / claimant or who examined him subsequently to assess the extent of his permanent disability can give evidence only regarding the extent of permanent disability. The loss of earning capacity is something that will have to be assessed by the . Tribunal with reference to the evidence in entirety 11.2. The manner in which the effect of permanent disability on the actual earning capacity has to be ascertained has M.A.C.A.No.4467 of 2019 8 been explained thus - the effect of the permanent disability on the actual earning capacity involves three steps- (i) 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). (ii) to ascertain his avocation, profession, and nature of work before the accident, as also his age. (iii) to find out whether (a) the claimant is totally disabled from earning any kind of livelihood, or (b) 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 (c) 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. For example, if the left hand of a claimant is amputated, the permanent physical or functional disablement may M.A.C.A.No.4467 of 2019 9 be assessed around 60%. If the claimant was a driver or a carpenter, the actual loss of earning capacity may virtually be hundred percent, if he is neither able to drive or do carpentry. On the other hand, if the claimant was 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. Sometimes the injured claimant may be continued in service, but may not be found suitable for discharging the duties attached to the post or job which he was earlier holding, on account of his disability, and may therefore be shifted to some M.A.C.A.No.4467 of 2019 10 other suitable but lesser post with lesser emoluments, in which case there should be a limited award under the head of loss of future earning capacity, taking note of the reduced earning capacity. It may be noted that 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 and as a result, only a token or nominal amount may have to be awarded under the head of loss of amenities or loss of expectation of life, as otherwise there may be a duplication in the award of compensation. 11.3. The petitioner in the case on hand was aged about 48 years at the time of the accident and is stated to be a widow. In the light of the dictum in **Rajkumar** ( _Supra_ ) and the finding of the Tribunal that the petitioner has become incapable of doing anything after the accident, the loss of earning capacity appears to be 100% and so I find that the functional disability M.A.C.A.No.4467 of 2019 11 ## should be fixed at 50%. ## 12. The impugned Award is partly modified thus - |Sl.<br>No.|Head of claim|Amount<br>claimed|Amount<br>awarded by<br>Tribunal|Modified in<br>appeal| |---|---|---|---|---| |1.|Loss of earning|-|₹50,000/-<br>(5,000 x 10)|₹90,000/-<br>(9,000 x 10<br>months)| |2|Medical and<br>miscellaneous<br>expenses|3,00,000/-|₹1,68,210/-<br>(2,33,212.66 –<br>65,000<br>=1,68,212.66)|₹2,98,213/-<br>(₹2,33,212.66/-<br>+ ₹65,000/-<br>paid as<br>advance)| |3.|Bystander<br>expenses|-|9,250<br>(250x37 days 1<br>person)|₹9,250/-<br>(No<br>modification)| |4.|Transportation<br>expenses|15000|30,000|₹30,000/-<br>(No<br>modification)| |5.|Extra nourishment|50000|8,000|₹8,000/-<br>(No<br>modification)| |6.|Damage to<br>clothing|5000|1,000|₹1,000/-<br>(No<br>modification)| |7.|Pain and suffering|2,00,000|2,00,000|₹2,00,000/-<br>(No<br>modification)| M.A.C.A.No.4467 of 2019 12 |8.|Loss of earning<br>capacity|3,30,000|2,80,800<br>(5,000+1,000=<br>6,000x12x13<br>x30/100)|₹7,02,000/-<br>(9,000 x 12 x<br>13 x 50%)| |---|---|---|---|---| |9|Loss of amenities<br>and conveniences|-|50,000|₹50,000/-<br>(No<br>modification)| ||**Total**|₹12,00,000/-|₹7,97,260/-|₹13,88,463/-| In the result, the appeal is allowed in part by enhancing the compensation by a further amount of ₹ **5,91,203** /- (total compensation ₹13,88,463/-, that is, ₹7,97,260/- granted by the Tribunal + ₹5,91,203/- granted in appeal) with interest at the rate of 7.5% per annum from the date of petition till date of realization and proportionate costs. The third respondent/insurer is directed to deposit the enhanced compensation with interest and costs before the Tribunal within a period of 60 days from the date of receipt of a copy of the judgment. On deposit of the compensation amount, the Tribunal shall disburse the amount to the petitioner/appellant at the earliest in accordance with law. 13 M.A.C.A.No.4467 of 2019 Interlocutory applications, if any pending, shall stand closed. **Sd/C.S. SUDHA JUDGE** Jms