SEBI v. Prameela Sadanandan, Shihab & National Insurance Company Limited

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE C.S. SUDHA MONDAY, THE 8[TH] DAY OF APRIL 2024 / 19TH CHAITHRA, 1946** ## **MACA NO. 2877 OF 2019** **AGAINST THE AWARD DATED 08.06.2016 IN O.P.(MV)NO.676 OF 2008 OF** ## **IV ADDL.MOTOR ACCIDENTS CLAIMS TRIBUNAL, THRISSUR.** ## **APPELLANT/PETITIONER:** **==> picture [70 x 116] intentionally omitted <==** **SEBI, S/O.JOSE, AGED 40 YEARS, RESIDING AT KUTTIKKAT HOUSE, P.O. KAKKASSERY, (VIA) CHITTATTUKARA, THRISSUR DISTRICT. BY ADVS. T.C.SURESH MENON SRI.P.S.APPU SRI.A.R.NIMOD** ## **RESPONDENTS/RESPONDENTS:** |**1**|**PRAMEELA SADANANDAN,**| |---|---| ||**W/O. JOHN SADANANDAN, RESIDING AT 34/326,**| ||**MAMATHA HOUSE, MALAPARAMBU, KOZHIKODE - 673 009.**| |**2**|**SHIHAB,**| ||**S/O. SAIDUMUHAMMED, RESIDING AT AMBALATHUVEETTIL**| ||**HOUSE, PALUVAI DESOM, CHAVAKKAD TALUK,**| ||**THRISSUR - 680 522.**| |**3**|**NATIONAL INSURANCE COMPANY LIMITED,**| ||**DIVISION NO.10, FLAT NO.101-106, NIRMC HOUSE,**| ||**NO.1, BMC HOUSE, CANNAUGHT PLACE,**| ||**NEW DELHI - 110 001.**| ||**BY ADVS.**| ||**SRI.V.S.CHANDRASEKHARAN**| ||**DEEPA GEORGE**| ||**SRI.M.V.DAS**| ||**SMT.LEKSHMI SWAMINATHAN**| ||**SMT.K.P.AMRUTHA**| **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR HEARING ON 08.04.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** M.A.C.A. No.2877 of 2019 2 ## **C.S. SUDHA, J.** **------------------------------------------------------------M.A.C.A. No.2877 of 2019 ----------------------------------------------------------Dated this the 08[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.676/2008 on the file of the Motor Accidents Claims Tribunal, Thrissur, (the Tribunal), aggrieved by the amount of compensation granted by Award dated 08/06/2016. 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 claimant/injured, on 25/01/2008 at 08:30 p.m. he was walking through the side of ChavakkadKanjany road and when he reached in front of the Pavaratty church, car bearing registration No. KL-11/Z 1935 driven by the second respondent in a rash and negligent manner knocked him down as a result of which he sustained serious injuries. The first M.A.C.A. No.2877 of 2019 3 respondent owner, the second respondent driver and the third respondent insurer of the offending vehicle are jointly and severally liable to compensate the petitioner. Hence the petitioner claimed an amount of ₹3,50,000/- as compensation under various heads. 3. The second respondent driver remained _ex parte._ 4. The first respondent filed written statement admitting ownership of the offending car, but denied any negligence on the part of the driver. 5. No written statement was filed by the third respondent insurer. 6. Before the Tribunal, PWs1 and 2 were examined on the side of the petitioner and Exts.A1 to A24 were marked. No oral or documentary evidence was adduced by the respondents. 7. The Tribunal on a consideration of the oral and 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 ₹3,13,800/- with interest @ 7.5% per annum from 30/04/2008 the date of the M.A.C.A. No.2877 of 2019 4 petition till realisation along with proportionate costs. Aggrieved, the petitioner has come up in appeal. 8. 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. 9. Heard both sides. 10. The learned counsel for the claimant/injured challenges the Award of the Tribunal under the following heads - 11. **Notional income** – The petitioner, a cement worker met with the accident on 25/01/2008. The Tribunal has fixed his notional income at ₹4,000/- per month. Reference was made to the dictum in **Ramachandrappa v. Manager, Royal Sundaram Allian.Co.Ltd, (2011) 13 SCC 236** , to canvas the point that the notional income fixed is too low. There is certainly force in the argument advanced. Hence following the dictum in **Ramachandrappa** ( _Supra_ ) coupled with an increase of ₹500/- per year, the notional income of the petitioner in the year 2008 is fixed at ₹6,500/- per month. M.A.C.A. No.2877 of 2019 5 12. **Loss of future prospects** - It is submitted that though as per Ext.A17 disability certificate, the claimant has suffered 15% whole body disability, his functional disability is much more, which was not appreciated or taken into account by the Tribunal. In addition, no future prospects were taken into account while awarding disability compensation which is against the dictum in **National Insurance Company Ltd. v. Pranay Sethi, (2017) 16** **SCC 680** . On the other hand, it was submitted by the learned counsel for the respondents, that just compensation has been awarded and hence no interference is called for. 12.1. The petitioner is stated to be a cement worker. The Tribunal in paragraph 11 at page 9 of the impugned award states thus – “ ……. _All the documents, I have no doubt, proved that the petitioner had sustained severe injuries in the accident. The medical records reveals that the petitioner was advised not to do any heavy work….”._ As held in **Raj Kumar v. Ajay Kumar, (2011)1 SCC 343** , all injuries (or permanent disabilities arising from injuries) do not result in loss of earning capacity. The percentage of permanent disability with reference to the whole M.A.C.A. No.2877 of 2019 6 body of a person, cannot be assumed to be the percentage of loss of earning capacity. To put it differently, the percentage of loss of earning capacity is not the same as the percentage of permanent disability (except in a few cases, where the Tribunal based on evidence, concludes that percentage of loss of earning capacity is the same as percentage of permanent disability). The doctor who treated the 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. The same permanent disability may result in different percentages of loss of earning capacity in different persons, depending upon the nature of profession, occupation or job, age, education, and other factors. 12.2. The Apex Court has also explained the manner in which the effect of permanent disability on the actual earning capacity has to be ascertained, which is 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 M.A.C.A. No.2877 of 2019 7 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 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 M.A.C.A. No.2877 of 2019 8 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 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 M.A.C.A. No.2877 of 2019 9 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. 12.3. As per Ext.A17, the petitioner has 15% permanent disability of the whole body. It was submitted by the learned counsel for the claimant that though as per Ext.A17, the permanent disabity is 15%, the actual functional disability is much more. PW2 is the doctor who issued Ext.A17. No evidence has been brought in regarding the percentage of functional disability caused. However, as noticed by the Tribunal the medical advice to the claimant was not to do any heavy work. The petitioner being a cement worker, the disability caused would certainly have affected his earning capacity, present as well as future. Therefore, going by the dictums in **Pranay Sethi and Raj Kumar** ( _Supra_ ), the method of calculation of compensation towards loss of future prospects would be thus – a) Annual income prior to the accident : ₹6,500 x 12 Months M.A.C.A. No.2877 of 2019 10 b) Loss of future earnings per annum ₹11,700/(15% of the prior annual income) c) Multiplier applicable with reference to age of claimant : 17 d) Loss of future earnings : 11,700 x 17 = 1,98,900/- 13. **Pain and Suffering** – It is further pointed out that in the light of the injuries and the fact that the claimant had to undergo a surgery, the amount of ₹30,000/- granted towards pain and suffering is inadequate. This submission is opposed by the learned counsel appearing for the respondents, who submitted that the amount granted is quite appropriate and adequate. 13.1 Exts. A5 to A18 and A21 are relied on by the claimant to substantiate his case regarding the injuries sustained and the consequent disability caused. It was pointed out by the learned counsel appearing for the first respondent owner of the offending car that the complaint of ‘Chronic Lumbago’ referred to in Ext.A17 was not caused due to the injuries sustained in the accident. Reference was also made to Ext.A6 discharge summary, as per which, the claimant had no such complaint at the time of M.A.C.A. No.2877 of 2019 11 discharge. Therefore, the argument is that the said injury ought not to have been taken into consideration while awarding compensation. On the other hand, it was submitted by the learned counsel for the claimant that the latter had developed Lumbago pursuant to the injuries sustained in the accident. ## 13.2 Ext.A17 disability certificate reads thus – ## “ **DISABILITY CERTIFICATE** _“ This is to certify that Sebi, 36 years, S/o K.I. Jose Kuttikat, Kakkassery, Pavaratty. was admitted with history of RTA in Amala Institute of Medical Sciences on 25-01-2008. As per the discharge card and wound Certificate, he sustained te following injuries_ _1. Fracture Cocсух_ _2. Fracture Medial condyle of femur ®_ _3. Pain over Lumbar Region, IVDP L5S1_ _Treatment:- He was treated in POP cylinder casts. He was discharged on 27-01-08. As per the report given by treating Spine Surgeon, he had history of recurrent backache with 3 episodes of admission. He was admitted on 30-01-12 with severe backache. He was discharged on 02-02-12. He was again admitted on 03-02-12 with backache and numbness. He was diagnosed to have IVDP L5S1 with S1 radiolopathy ®. He was treated by Pelvic traction. He was discharged on 06-02-12. He was admitted on 09-04-12 and microendoscopic decompression was done. He was discharged on 15-04-12. He was again admitted for pain ® leg. He was discharged on 31-01-14_ _On 15-07-14, I have examined him to assess the disabilities. His present complaints are-_ - _1 Chronic Lumbago_ _2. Stiffness of lumber spine_ M.A.C.A. No.2877 of 2019 12 _3 Weakness of ® leg_ _On examination (Clinically and Radiologically X-ray on 15-0714)_ _1. United fracture of Coccyx_ _2. United fracture of medial condyle of femur ®_ _3. Healed scar in Lumber spine. There is restriction of fluxion and extension of Lumber spine_ _4. He has grade 4 power in Dorsiflexion of ® foot He has got temporary disability for 1[st] 6 months. Permanent disability for whole body is assessed as 15% (Fifteen percent)._ _Disability is as per MC Bride_ _- Disability evaluation_ _1. United fracture of Coccyx with pain -2_ _2. United fracture of medial condyle of femur ® with pain -3 3. IVDP L5S1 Sequelae pain, weakness of leggrade 4 Dorsiflexion Power. -6 4. Stiffness of Lumber spine -4 15_ _Identification MarksBlack mole (R) infearior.”_ Ext.A17 was marked through PW2, the doctor who had issued the same. On going through the testimony of PW2, I find no cross examination on the point now raised in the argument. The other documents evidencing the injuries were marked through PW1. No question(s) are seen put to PW1 challenging the said documents. In such circumstances, I find no reasons to reject any of the documents relied on by the Tribunal. Taking into account the injuries sustained and the fact that the claimant had to undergo a M.A.C.A. No.2877 of 2019 13 surgery, an amount of ₹50,000/- towards pain and suffering would be just compensation. - 14. **Compensation towards loss of amenities** The Tribunal has granted an amount of ₹25,000/- as against the amount of ₹50,000/- claimed. It is submitted by the learned counsel for the claimant that in the light of the injuries and the disability suffered by him, the amount of ₹50,000/- claimed by him ought to have been granted. The respondents on the other hand submitted that just compensation has already been awarded and hence no interference is called for. In the facts and circumstances of the case, an amount of ₹30,000/- for loss of amenities would be reasonable. ## 15. The impugned Award is partly modified thus - |Sl.<br>No.|Head of claim|Amount<br>claimed|Amount<br>awarded by<br>Tribunal|Modified<br>in<br>appeal| |---|---|---|---|---| |1.|Loss of earning|50,000/-|50,000/-|₹50,000/-<br>(No<br>modification)| |2.|Transportation to<br>hospital|2,000/-|2,000/-|₹2,000/-<br>(No<br>modification)| |3.|Extra Nourishment|2,000/-|2,000/-|₹2,000/-<br>(No| M.A.C.A. No.2877 of 2019 14 |||||modification)| |---|---|---|---|---| |4.|Damages to<br>clothing & articles|1,000/-|1,000/-|₹1,000/-<br>(No<br>modification)| |5.|Medical expenses|15,000/-|69,000/-|₹69,000/-<br>(No<br>modification)| |6.|Future medical<br>expense|50,000/-|5,000/-|₹5,000/-<br>(No<br>modification)| |7.|Miscellaneous<br>expenses/bystanders<br>expenses|10,000/-|7,400/-|₹7,400/-<br>(No<br>modification)| |8.|Pain and suffering|50,000/-|30,000/-|₹50,000/-<br>(₹30,000/- +<br>₹20,000/-)| |9.|Continuing or<br>permanent<br>disability|1,50,000/-|1,22,400/-|1,98,900/-<br>(11,700/- x 17)<br>(referpara -12.3.)| |10.|Compensation for<br>loss of earning<br>power|25,000/-|-|-<br>(No<br>modification)| |11.|Compensation for<br>loss of amenities|50,000/-|25,000/-|₹30,000/-<br>(₹25,000/- +<br>₹5,000/-)| |12.|Compensation for<br>loss of expectation|25,000/-|-|-<br>(No<br>modification)| ||**Total**<br>Limited to/Rounded<br>to|₹4,35,000/-<br>3,50,000/-|₹3,13,800/-|₹4,15,300/-| M.A.C.A. No.2877 of 2019 15 In the result, the appeal is allowed in part by enhancing the compensation by a further amount of **₹1,01,500/-** (total compensation ₹4,15,300/-, that is, ₹3,13,800/- granted by the Tribunal + ₹1,01,500/- 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 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 claimant/appellant at the earliest in accordance with law. The third respondent is entitled to recover the amount from the first and second respondents. Interlocutory applications, if any pending, shall stand closed. **SD/C.S. SUDHA JUDGE** ak