Selvaraj P. v. Joseph E.J. and Ors

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **THURSDAY, THE 31[ST] DAY OF MARCH 2022 / 10TH CHAITHRA, 1944** ## **MACA NO. 2197 OF 2012** **AGAINST THE ORDER/JUDGMENT IN OPMV 2697/2006 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL** ## **ERNAKULAM** ## **APPELLANT/PETITIONER:** **SELVARAJ P. AGED 53 YEARS S/O. PONNAYYAN, PUZHAKKARA THUMBIYIL HOUSE, NANDAN KARA, VADAKKEMURI VILLAGE, VAIKOM TALUK, NOW RESIDING AT C/O. P. REGHUNATHAN, ATTUPURATHU HOUSE VETTICKAPPILLY, UDAYAMPEROOR.P.O., ERNAKULAM DISTRICT. BY ADVS. SRI.P.M.JOSHI SMT.SIJI K.PAUL SRI.K.T.SAJU** ## **RESPONDENTS/RESPONDENTS:** **1 JOSEPH E.J. AGED NOT KNOWN,S/O. NOT KNOWN, JOS NIVAS, PLOT NO.3, M.K.K. NAIR NAGAR, THRIPUNITHURA.P.O., NADAMA VILLAGE, ERNAKULAM DISTRICT, KOCHI-01. 2 THE UNITED INDIA INSURANCE COMPANY LTD. 3RD PATY CELL, VETTUKATTIL BUILDINGS M.G. ROAD, ERNAKULAM KOCHI-16. 3 THE ORIENTAL INSURANCE COMPANY LTD. 3RD PARTY CELL, METRO PLAZA R.S. ROAD, ERNAKULAM KOCHI. BY ADVS. SRI.P.JACOB MATHEW SRI.MATHEWS JACOB SR. SRI.P.MURALEEDHARAN SRI.GEORGE CHERIAN (THIRUVALLA) SRI.JOHN JOSEPH VETTIKKAD** ## **OTHER PRESENT:** **SRI.P.MURALEEDHARAN-R2** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON** **31.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA No.2197/2012 2 ## **JUDGMENT** Appellant is the claimant in O.P.(M.V.)No.2697/2006 on the file of Motor Accidents Claims Tribunal, Ernakulam (in short, the Tribunal). Claim petition has been filed under Section 166 of the Motor Vehicle Act, 1988 (in short, the Act) for compensation of Rs.7,00,000/- for the injury sustained by the claimant in a motor accident occurred on 25.5.2006 while he was riding a motorcycle due to hit with a car bearing Reg.No.KL-7/AH-1340 at Thripunithura. 2. It is alleged that the accident happened due to the rash and negligent driving of the first respondent, the owner cum driver of the car. Second respondent is the insurer of the offending vehicle. Third respondent is the insurer of the motorcycle in which the appellant was travelling. 3. Before the Tribunal first respondent remained ex parte. Second and third respondents filed separate written MACA No.2197/2012 3 statements admitting the policy coverage. But the rashness and negligence attributed against the first respondent is denied. 4. Exts.A1 to A16 marked from the side of the claimant. There was no oral evidence from either side. 5. Tribunal, on evaluating the pleadings as well as the documents, awarded a total compensation of Rs.3,82,829/- and the second respondent was held liable to make good the loss sustained by the first respondent. 6. Dissatisfied with the quantum of compensation awarded by the Tribunal appellant approaches this Court for the various grounds stated in the memorandum of appeal. 7. Notice to first respondent was dispensed with and second and third respondents appeared through Standing Counsel. 8. Heard the learned counsel for the appellant as well as the learned Standing Counsel for second and third MACA No.2197/2012 4 respondents respectively. Lower court records were called for and perused. 9. According to the learned counsel for the appellant, the appellant was a Clerk in Cochin Port Trust and he has sustained very grievous injuries and had undergone 55 days inpatient treatment and also undergone three surgeries inspite of that compensation awarded by the Tribunal is very low and hence he seeks for enhancement of compensation on all heads. 10. The learned Standing Counsel for the second respondent on the other hand would contend that a just and reasonable compensation has already been awarded by the Tribunal and no interference is called for at the instance of this Court. Accident, injury sustained and liability are not disputed. The only dispute is with regard to the quantum of compensation awarded. 11. To prove the income, appellant/claimant produced Ext.A11 pay slip during the relevant time, which would prove his gross income as Rs.13,243/-. Ext.A10 certificate issued by MACA No.2197/2012 5 the Dredging Superintendent, Cochin Port Trust would certify that the appellant availed 149 days of half pay leave and 159 days of extra ordinary leave (loss of pay) due to the accident happened on 25.05.2006. But the Tribunal awarded only Rs.93,454/- towards loss of earnings though the claim was Rs.1,65,000/-. Calculating the amount towards 159 days of loss of pay and 149 days of half pay by taking the salary as borne out from Ext.A11, the total amount would be Rs.1,03,071/-. Deducting the amount already awarded balance would be Rs.9,617/-. 12. Towards attendant expenses, Tribunal awarded Rs.6,000/-. The claimant was treated as inpatient for 55 days. The accident was in the year 2006. So Rs.200/- per day can be taken towards attendant expenses. Hence, towards attendant expenses, claimant will be entitled to get Rs.11,000/[200x55]. Deducting the amount already awarded by the Tribunal, balance would be Rs.5,000/- [11,000-6,000]. Towards permanent disability, according to the learned counsel, the amount awarded by the Tribunal is very low i.e. Rs.96,000/-. MACA No.2197/2012 6 13. As stated earlier, claimant is a Clerk in Cochin Port Trust having fixed income. As per Rajkumar v. Ajay Kumar and Anr. [(2011) 1 SCC 343 : 2011 ACJ 1 : 2010 KHC 5021] the Apex Court has dealt with the general principles relating to compensation in injury cases. In paragraph 10 of the said judgment, the ascertainment of the effect of permanent disability on the actual earning capacity has been dealt with in detail which is relevant in this context to be extracted and it reads as follows: “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 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 MACA No.2197/2012 7 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 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. …...................................................” 14. Since the claimant in this case continues in service, as per the above principles there may not have any loss of earning capacity to the claimant. In New India Assurance Company Ltd. v. Satish Chandra Sharma and Another : Civil Appeal No.1579 of 2022 @ S.L.P (c) No.14350 of 2019 , the two Judge Bench of the Apex Court dealt with a case of award of compensation of a claimant who sustained injury and continued in service even after his accident. As per the MACA No.2197/2012 8 certificate issued by the Doctor 75% disability in the lower limb has been certified and it was admitted during hearing that the claimant can move around but sometimes he requires assistance. It was taken note of by the Apex Court that the injury certificate did not relate to permanent disability in the entire body and certified 75% disability in the lower limbs and it was further noted that the claimant is not immobilized and can perform and undertake daily chores without help and assistance. In that case, the Tribunal awarded a total compensation of Rs.6,21,000/- and the High Court in appeal enhanced the compensation of Rs.56,44,378/-. But, taking into account the fact that the claimant in that case lost opportunity to take post-retirement employment the compensation was enhanced from Rs.6,21,000/- awarded by the Tribunal to Rs.10,00,000/- in total. 15. Ext.A7 discharge summary would prove his inpatient treatment from 25.05.2006 to 19.06.2006 and the diagnosis; Type III compound comminuted fracture supra condylar right femur, quadricapus tear right leg, ACL tear right knee, MACA No.2197/2012 9 compound fracture medial malleolous right. Ext.A8 discharge would reveal that again he was admitted on 13.12.2006 and was discharged on 04.01.2007 at Lisie Hospital after referred from the Port Trust Hospital, Cochin and X ray showed right femur with knee :- non-union distal femur with DCS insitu. Diagnosis and treatment is shown as non union right distal femur, bone grafting right distal femur done and again he was admitted on 25.08.2008 to 08.09.2008. The history and clinical features showed as operated case of comminuted supracondylar fracture (R) femur (initially operated outside and later here) presented with restriction of movements over Rt. Knee and pain over Rt. Knee. Quadrupeplasty and removal of 1 distal screw and locking compression screw was done on 28.08.2008. Post operatively patient's knee was mobilized in CPM. Review after one month in O.P. was suggested. 16. Ext.A9 disability certificate issued by the Medical Board would show that his right ankle is malunited medial malleolus with osteopenic and right knee and thigh malunited comminuted SC fracture femur with OA pattella and knee. MACA No.2197/2012 10 Whole body permanent disability as per Mc Bride's scale is certified as 25%. So in view of the serious of nature of injuries and the lengthy procedures of treatment undergone by the claimant, 25% permanent disability assessed by the Medical Board can very well be accepted. 17. In the present case, the claimant was 53 years old at the time of accident. When the disability was assessed he was 55 years. He had undergone in-patient treatment for 55 days. He had undergone surgeries and bone grafting which have been described in detail in the previous paragraphs. 25% permanent disability assessed by the medical board is also whole body. So, the accident and the consequent disability would reduce his opportunities to take up post-retirement employment. So, fixing a notional income, claimant is entitled to get compensation towards loss of earning capacity for the post retirement period. The accident in this case was in the year 2006. As per Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited [(2011) 13 SCC 236] the income can notionally be taken as Rs.5,500/-. Hence, MACA No.2197/2012 11 the claimant is entitled to get Rs.1,48,500/- towards future loss of earning capacity for the post-retirement period. From that Rs.96,000/- already awarded by the Tribunal to be deducted. So, the balance amount would be Rs.52,500/-. Towards pain and suffering already Tribunal has awarded Rs.50,000/- and Rs.30,000/- also has been awarded towards loss of amenities and enjoyment in life. As per Ext.A9 disability certificate issued by the Medical Board, the present complaints are : Inability to bend (R) knee. Pain (R) ankle. Clinical findings are: Surgical scar anterior to (R) thigh, knee & leg. (R) knee in 180 degree extension. No flexion (16%). (R) ankle - from 90 degree to 125 degree plantar flexion (5%), (L) thigh-3cms short. (4%), Radiology:- (radiographs returned to person) : (R) ankle – malunited medial malleolus with osteopenic. (R) knee & thigh-malunited comminuted SC # femur with OA patella & knee. Whole body permanent physical disability as per McBride's scale 25%. 18. Assessing the above, Medical Board certified 25% whole body permanent disability. So, it would definitely cause MACA No.2197/2012 12 loss of amenities to the claimant though he continues in service. So, an amount of Rs.15,000/- is further awarded towards loss of amenities. 19. The learned counsel for the appellant seeks for enhancement of compensation towards pain and suffering. An amount of Rs.50,000/- has already been awarded by the Tribunal. So no further enhancement is required under that head. 20. In the result appeal allowed in part. The claimant is allowed to realise enhanced compensation of Rs.82,117/[5,000+9,617+52,500+15,000] rounded off to Rs.82,150/(Rupees eighty two thousand one hundred and fifty only) with interest at 6.5% from the date of petition till realisation (excluding the period of 428 days delay caused in filing the appeal). The second respondent insurer shall satisfy the additional compensation granted in this appeal, together with interest, within a period of two months from the date of receipt of certified copy of this judgment, after deducting the liability of the appellant/claimant towards balance Court Fee, MACA No.2197/2012 13 if any. Appellant/claimant shall provide her Bank Account details (attested copy of the relevant page of the Bank Passbook having details of the Bank Account Number and IFSC Code of the branch) before the Tribunal, with copy to the learned Standing Counsel for the insurer, within one month from the date of receipt of certified copy of this judgment. Parties shall bear their respective costs. Sd/- **M.R.ANITHA** **JUDGE** shg MACA No.2197/2012 14 ## **APPENDIX** ## **PETITIONER'S EXTS:** **ANNEXURE A1: MEDICAL REPORT DATED 24.11.2012 ISSUED FROM KIMS DDNMRC,** **THIRUVANANTHAPURAM**