Shirafudheen v. K.K. Haridas and K.K. Sivakumar and Oriental Insurance Company Ltd

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN`** ``` MONDAY, THE 20[TH] DAY OF MAY 2024 / 30TH VAISAKHA, 1946 ``` ``` MACA NO. 4403 OF 2019 ``` ``` [AGAINST THE AWARD DATED 14.06.2019 IN OP(MV) NO.11 OF 2017 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, OTTAPPALAM] ``` ## **`APPELLANT/PETITIONER:`** ``` SHIRAFUDHEEN AGED 29 YEARS S/O.SIDDIQUE,PUTHENPEEDIKAYIL HOUSE, PO KAVALAPPARA,NUMBRAM,SHORNUR, PALAKKAD-679523. BY ADVS. SHEJI P.ABRAHAM SRI.O.K.MURALEEDHARAN ``` ## **`RESPONDENTS/RESPONDENTS:`** ``` 1K.K.HARIDAS S/O.K.R.KELI(LATE),KUNDUPARAMBIL HOUSE, KINAVALLUR,PARALI,PALAKKAD-678612. 2K.K.SIVAKUMAR, S/O.K.S.KRISHNAN,NO.31/285,ERNAKOTTIL STREET,PALAKKAD- 678014. 3ORIENTAL INSURANCE COMPANY LTD, DIVISIONAL OFFICE,3RD FLOOR,BUILTECH FOUNDATION,CHITTUR ROAD,PALAKKAD-6780001,REP.BY ITS BRANCH MANAGER. BY ADVS. SRI.R.AJITH KUMAR (128/84) K.S.SANTHI ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 20.05.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` M.A.C.A.NO.4403 OF 2019 ``` ``` :-2-: ``` ## **`JUDGMENT`** ``` The appellant, the claimant in O.P(MV) No.11/2017 on the file of the Motor Accidents Claims Tribunal, Ottappalam (for short 'the Tribunal') is aggrieved by the amount of compensation granted by the Tribunal as per the Award dated 14/06/2019. The respondents herein are the respondents before the Tribunal. ``` ``` 2. According to the appellant/petitioner, on 23.07.2016 at about 10.50 am, while he was standing at SMP Junction on the side of Shornur-Cheruthuruthy public road, a lorry bearing regn.No.KL-09/AC 7557 driven by the first respondent in a rash and negligent manner with excessive speed dashed against the petitioner. As a result of the heavy impact in the hit, the petitioner has sustained grievous injuries. The second respondent being the RC owner of the vehicle is vicariously liable for the negligence of the first respondent in his lawful employment. The liability is indemnified by the third respondent ``` ``` M.A.C.A.NO.4403 OF 2019 ``` ## **`:-3-:`** ``` under the policy. Hence, the petitioner claimed an amount of Rs.75,00,000/- as compensation under various heads. ``` ``` 3. Before the Tribunal, the second respondent remained absent from the proceedings in spite of due notice and was set ex parte. ``` ``` 4. The first respondent filed written statement denying the negligence of the first respondent. The third respondent admitted the policy but challenged the quantum of compensation claimed. ``` ``` 5. Before the Tribunal, PWs.1 and 2 were examined and Exts.A1 to A13 were marked on the side of the petitioner. No oral and documentary evidence was adduced by the respondents. ``` ``` 6. The Tribunal, on a consideration of the oral and documentary evidence and after hearing both sides, came to the conclusion that the accident occurred due to the negligence on the part of the first respondent resulting in the incident and being ``` ## **`M.A.C.A.NO.4403 OF 2019`** ## **`:-4-:`** ``` the insurer, the third respondent was held liable to pay the compensation. The quantum of compensation was fixed as Rs.14,90,965/- and the said amount was directed to be deposited with interest @ 9% per annum from the date of petition, on 03.01.2017 till the date of realisation with proportionate costs. The appellant/petitioner/claimant has come up before this court seeking enhancement of compensation. ``` ``` 7. Heard the learned counsel for the petitioner as well as Smt.K.S.Santhi, the Standing Counsel for the third respondent- Insurance Company. ``` ``` 8. The main challenge in this case relates to the quantum of compensation. ``` **`9. Learned counsel for the petitioner claims`** **`enhancement under the following heads.`** ``` 10. Permanent Disability - Learned counsel for the petitioner submits that the compensation of Rs.8,71,080/- awarded by the Tribunal is not sufficient enough. It is also argued that Ext.A1- the ``` ## **`M.A.C.A.NO.4403 OF 2019`** ``` :-5-: ``` ``` disability certificate issued by Dr.Jyothish.K., reveals that permanent physical disability shown is 61%, and the loss of earning capacity as per the disability certificate is 100%. The appellant was aged only 27 years at the time of accident and had been working as a manual labourer. After the accident, the appellant could not do any work due to paraplegia stage. Hence, the compensation deserves enhancement. ``` ``` 10.1 Per Contra, the learned Standing Counsel for the third respondent, submits that disability certificate was issued by only one Doctor and when examined, he admits that permanent disability is only 61% and hence, the petitioner is not entitled to claim compensation for loss of earning capacity at 100%. ``` ``` 10.2 In the deposition of PW1, the Doctor has admitted that claimant's physical disability is 61% as well as the loss of earning capacity is 100%. Learned counsel for the petitioner relied on a ``` ``` M.A.C.A.NO.4403 OF 2019 ``` ## **`:-6-:`** ``` decision reported in Raj Kumar v. Ajay Kumar and another [(2011)1 SCC 343] wherein it is stated as follows:- ``` ``` “8. Disability refers to any restriction or lack of ability to perform an activity in the manner considered normal for a human being. Permanent disability refers to the residuary incapacity or loss of use of some part of the body, found existing at the end of the period of treatment and recuperation, after achieving the maximum bodily improvement or recovery which is likely to remain for the remainder life of the injured. Temporary disability refers to the incapacity or loss of use of some part of the body on account of the injury, which will cease to exist at the end of he period of treatment and recuperation. Permanent disability can be either partial or total. Partial permanent disability refers to a person's inability to perform all the duties and bodily functions that he could perform before the accident, though he is able to perform some of them and is still able to engage in some gainful activity. Total permanent disability refers to a person's inability to perform any avocation or employment related activities as a result of the accident. The permanent disabilities that may arise from motor accident injuries, are of a much wider range when compared to the physical disabilities which are enumerated in thePersonswithDisabilities(Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (“the Disabilities Act”, for short). But if any of the disabilities enumerated in Section 2(i) of the Disabilities Act are the result of injuries sustained in a motor accident, they can be permanent disabilities for the purpose of claiming compensation. ``` ## **`M.A.C.A.NO.4403 OF 2019`** ## **`:-7-:`** ## _**`9. xxxxxx`**_ ``` 10. 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. xxxxx ``` ``` 11. What requires to be assessed by the Tribunal is the effect of the permanent 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). xxxxxx ``` ``` 12. 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 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 thereisno question of proceeding further and determining the loss of future earning capacity. But if the Tribunal concludes that there is permanent ``` ## **`M.A.C.A.NO.4403 OF 2019`** ## **`:-8-:`** ``` 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. ``` ``` 13. 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 (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 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. ``` ``` 14. 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 per cent, 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 ``` ``` M.A.C.A.NO.4403 OF 2019 ``` ## **`:-9-:`** ``` 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, by 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.“ ``` ``` Due to the injury, the appellant is in a stage of paraplegia. There is no dispute on the fact that the claimant was a manual labourer. As per Ext.A1 disability certificate, the loss of earning capacity of the appellant is 100%. Learned counsel for the appellant relies on the decision of the Supreme Court in Kajal v. Jagdish Chand and others [(2020)4 SCC 413], wherein the Apex Court, after considering the loss of earning capacity, has taken the compensation for permanent disability at 100%. On going through the afore judgment in Rajkumar (supra) and Kajal (supra), the functional capacity of the appellant, ``` ## **`M.A.C.A.NO.4403 OF 2019`** ## **`:-10-:`** ``` who was a manual labourer, is to be assessed as 100% and accordingly, the compensation for permanent disability has to be treated as 100%. ``` ``` 10.3 The monthly notional income has to be calculated on the basis of Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Ltd. [(2011) 13 SCC 236]. According to Ramachandrappa (supra), the income has to be taken as Rs.10,500/- and 40% has to be added to Rs.10,500/- towards future prospects, which will come to Rs.14,700/-. Following the decisions reported in National Insurance Co.Ltd. ``` ``` v. Pranay Sethi [2017(4) KLT 662(SC)] and Sarla Varma ``` ``` v. Delhi Transport Corporation [2010(2) KLT 802(SC)], considering the age, the multiplier is 17. Thus, the enhanced calculation will be Rs.14700/- x 12 x 17 x 100/100 = Rs.29,98,800/-(Rupees Twenty Nine Lakh Ninety Eight Thousand and Eight Hundred only). The Tribunal awarded an amount of Rs.8,71,080/- and the balance enhanced compensation will come to Rs.21,27,720/- (Rupees Twenty One Lakh Twenty Seven ``` ``` M.A.C.A.NO.4403 OF 2019 ``` ``` :-11-: ``` ``` Thousand Seven Hundred and Twenty only). ``` ``` 11. Future medical expenses – For the future medical expenses, the Tribunal has not awarded any amount since the claimant is not in a position to adduce any evidence. It is submitted that the appellant is having 61% permanent physical disability and hence, it is only reasonable that some amount is to be granted for his future expenses. Since he is suffering from paraplegia-grade 3 and numbness, parasthesiae over both lower limbs etc., in future also, he may need physiotherapy and other continued treatment. The Tribunal had not granted any compensation under the above head. Considering the sufferings of the claimant, an amount of Rs.1,00,000/- (Rupees One Lakh only) is awarded under the head 'future medical expenses' without interest. ``` ``` 12. Pain and suffering and loss of enjoyment and amenities of life - The next claim is for enhancement of compensation for pain and suffering and loss of enjoyment and amenities of life. Learned ``` ## **`M.A.C.A.NO.4403 OF 2019`** ``` :-12-: ``` ``` counsel for the appellant relied on the decision reported in Kajal v. Jagdish Chand and others [(2020)4 SCC 413] wherein a huge amount was awarded for pain and suffering. That was a case of 100% brain damage. Here in this case, the appellant does not have a situation like Kajal (supra). However, it is clear that since he is having 61% permanent disability, he will be having pain and suffering and also loss of enjoyment and amenities in life at the age of 27 years. The Tribunal only granted Rs.40,000/- (Rupees Forty Thousand only) each. ``` ``` 12.1 Considering the facts and circumstance of the case and the situation of the appellant, I am inclined to grant Rs.3,00,000/- (Rupees Three Lakh only) for pain and suffering as well as Rs.3,00,000/- (Rupees Three Lakh only) for loss of enjoyment and amenities of life. The Tribunal has awarded an amount of Rs.40,000/- each on the two heads, that amount has to be deducted and the respondent shall disburse an amount of Rs.2,60,000/- (Rupees Two Lakh Sixty ``` ## **`M.A.C.A.NO.4403 OF 2019`** ## **`:-13-:`** ``` Thousand only) each for pain and suffering as well as loss of enjoyment and amenities of life. ``` ## **`13. Future Bystander Expenses - The learned`** ``` counsel for the appellant also claims for compensation for future bystander. On a perusal of the award of the Tribunal, it is seen that though the petitioner had claimed an amount of Rs.10,00,000/-, no amount was awarded by the Tribunal. It is seen that the Tribunal has not considered the aspect of compensation for future bystander. It is an admitted fact that a person, who is in a paraplegia stage, needs support from the bystander whether it being his father or mother or siblings. Moreover, he is also a person, who is having loss of earning capacity. Hence, I am of the opinion that an amount of Rs.1,00,000/- (Rupees One Lakh only) without interest can be awarded to the appellant on that count. ``` ``` 14. Loss of enjoyment of life and marriage ``` ``` prospects - Next is regarding the enhancement of compensation for loss of enjoyment of life and ``` ## **`M.A.C.A.NO.4403 OF 2019`** ## **`:-14-:`** ``` marriage prospects. The appellant claimed an amount of Rs.5,00,000/- and no amount was awarded by the Tribunal on that head. However, it is true that at the age of 27, the appellant had an accident and suffered severe injuries. It is true that since the appellant is in a paraplegia stage, it would affect his loss of enjoyment in life as well as his marriage prospects. It is only reasonable to award the amount under this head also. Considering the circumstances of the case, I am inclined to grant an amount of Rs.2,00,000/- (Rupees Two Lakh only). ``` ``` 15.The impugned award is modified thus:- ``` |**Sl.**<br>**No.**|**Head of Claim**|**Amount**<br>**claimed (in**<br>**Rs.)**|**Amount**<br>**awarded by the**<br>**Tribunal (in**<br>**Rs.)**|**Modified in**<br>**appeal (in Rs.)**|**Total**<br>**compensation**| |---|---|---|---|---|---| |**1**|**Loss of earning**|**2,00,000**|**-**|**No**<br>**modification**|**-**| |**2**|**Partial loss of earnings**|**2,00,000**|**-**|**No**<br>**modification**|**-**| |**3**|**Transportation expenses**|**50,000**|**5,000**|**No**<br>**modification**|**5000**| |**4**|**Extra nourishment**|**1,00,000**|**16,800**|**No**<br>**modification**|**16800**| ## **`M.A.C.A.NO.4403 OF 2019`** ## **`:-15-:`** |**5**|**Personal assistance**<br>**expenses**|**2,00,000**|**16,800**|**No**<br>**modification**|**16800**| |---|---|---|---|---|---| |**6**|**Damage to clothing and**<br>**articles**|**20,000**|**1,000**|**No**<br>**modification**|**1000**| |**7**|**Medical expenses**|**10,00,000**|**4,50,285**|**No**<br>**modification**|**4,50,285**| |**8**|**Future medical expenses**|**5,00,000**|**-**|**1,00,000**|**1,00,000**| |**9**|**Compensation for pain and**<br>**suffering**|**3,00,000**|**40,000**|**2,60,000**|**3,00,000**| |**10**|**Compensation for loss of**<br>**enjoyment and amenities**<br>**of life**|**3,00,000**|**40,000**|**2,60,000**|**3,00,000**| |**11**|**Compensation for**<br>**permanent disability**|**30,00,000**|**8,71,080**|**21,27,720**|**29,98,800**<br>**(Rs.14700/-**<br>**x 12 x 17**<br>**x100/100)**| |**12**|**Compensation for loss of**<br>**earning power**|**6,00,000**|**50000**|**(No**<br>**modification)**|**50000**| |**13**|**Compensation for future**<br>**bystander**|**10,00,000**|**-**|**1,00,000**|**1,00,000**| |**14**|**Compensation for loss of**<br>**future prospects**|**15,00,000**|**-**|**(No**<br>**modification)**|**-**| |**15**|**Compensation for loss of**<br>**enjoyment of life and**<br>**marriage prospects**|**5,00,000**|**-**|**2,00,000**|**2,00,000**| |**16**|**Compensation for mental**<br>**agony**|**2,00,000**|**-**|**(No**<br>**modification)**|**-**| ||**Total**|**78,70,000**|**14,90,965**|**30,47,720**|**45,38,685**| ``` In the result, this appeal is allowed in ``` ``` part. The Award dated 14.06.2019 passed by the Motor Accidents Claims Tribunal, Ottapalam in O.P(MV) ``` ``` M.A.C.A.NO.4403 OF 2019 ``` ``` :-16-: ``` **`No.11/2017 is hereby modified by awarding additional compensation of` Rs.30,47,720/-** **`(Rupees Thirty Lakh Forty Seven Thousand Seven Hundred and Twenty only) over and above the compensation awarded by the Tribunal with interest`** @ **`8% per annum, to the appellant, from the date of petition till realization and proportionate costs excluding interest for the amount of Rs.1 lakh for future medical expenses and Rs.1 lakh for compensation for future bystander expenses. The third respondent-insurer shall deposit the said amount together with interest and costs within a period of two months from the date of receipt of a certified copy of this judgment. The appellant/claimant shall furnish copies of the PAN Card, ADHAAR Card and bank details before the third respondent-insurer within a period of one month so as to enable the insurance company to make the deposit as ordered above. In case of failure to furnish details as above, it shall be open for the insurance company to deposit the said amount before the Tribunal. Upon such deposit being made, the entire`** ``` M.A.C.A.NO.4403 OF 2019 ``` ``` :-17-: ``` ``` amount shall be disbursed to the appellant at the earliest, in accordance with law. ``` ``` sd/- ``` ``` SHOBA ANNAMMA EAPEN, JUDGE ``` ``` MBS/ ```