ShyLaja Babu @ ShailaJa Nanadan v. S. Kannan S/o Sekharan and The New India Assurance Co. Ltd.

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **THURSDAY, THE 1ST DAY OF FEBRUARY 2018 / 12TH MAGHA, 1939** **MACA.No. 1773 of 2014** **AGAINST THE AWARD IN OP(MV) NO. 1557/2007 of ADDL.MACT,ALAPPUZHA. DATED 26-11-2013** ## **APPELLANT/PETITIONER** **SHYLAJA BABU @ SHAILAJA NANADAN,** **(SHYLAJA), AGED 50 YEARS, PUTHUVEEDU, CHOOLA BHAGOM, KUMARAKOM PO, KOTTAYAM DISTRICT.** **BY ADVS.SRI.A.T.ANILKUMAR SMT.V.SHYLAJA** ## **RESPONDENTS/RESPONDENTS:** **1. S. KANNAN S/O SEKHARAN, MATTAPARAMBIL HOUSE, MUHAMMA PO, KANJIKUZHY GRAMA PANCHAYATH, WARD NO.XI, ALAPPUZHA DISTRICT, PIN - 688021** **2. THE NEW INDIA ASSURANCE CO. LTD., REP. BY ITS BRANCH MANAGER, BRANCH OFFICE, NEAR TOWN HALL, ALAPPUZHA, PIN- 688001** **R2 BY ADV. SRI.P.K.BABU** **BY SRI.A.A.ZIYAD RAHMAN** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 01-02-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **bng** ## **P.D.RAJAN, J** **- - - - - - - - - - - - - - - - - - -** M.A.C.A No.1773 of 2014 **- - - - - - - - - - - - - - - - - - - - - - - - - - -** Dated this the 1[st] day of February, 2018 ## **JUDGMENT** This appeal is preferred against the award in O.P(MV) No.1557/2007 of the Motor Accidents Claims Tribunal, Alappuzha by the injured. The appellant sustained serious injuries in a motor accident on 22.08.2007 at 10 am at south of Kavunkal Temple, Mannanchery and the learned Tribunal awarded a sum of Rs.5,70,923/- as compensation. Being dissatisfied by that amount, the injured preferred this appeal. 2. The learned counsel appearing for the appellant contended that the injured is an LIC agent and was earning Rs.14,000/- per month. The Manager was examined as PW2 and his evidence shows that the disability affected her earning capacity. The learned Tribunal considered 20% as the disability for calculating compensation. But the evidence of PW3 and 4, who issued the disability certificate show that, the appellant has a permanent disability of 34% and 15% in neurological and ## **M.A.C.A. No. 1773 of 2014** **-2-** physical disability respectively. In the absence of any contra evidence, the reduction of disability from 49% to 20% is illegal. Hence, interference is necessary by invoking the appellate jurisdiction. 3 _._ Apex court in _**R.D Hattangadi v. Pres Control India (Pvt.) Ltd (1995 ACJ 366)**_ held as follows: _“damages to be assessed separately as pecuniary and special damages - the object is to compensate injury so far as money can compensate - when compensation is to be awarded for pain, suffering and loss of amenity of life special circumstances of claimant have to be taken into account - amount of compensation for non-pecuniary loss not easy to determine but award must reflect that different circumstances have been taken into consideration”._ 4. The medical evidence, wound certificate Ext.A7 shows that, the appellant sustained serious injuries in a motor accident. Ext.A9 discharge summary corroborated the evidence of the appellant. Ext.A10 treatment certificate and evidence of PW3 and 4, the doctors, who treated and issued the disability certificates also corroborated the case ## **M.A.C.A. No. 1773 of 2014** **-3-** of the appellant. Ext.A13, Disability Certificate issued by the Professor and HOD of Neuro Surgery, Medical College Hospital, Kottayam shows that 34% of neurological problem as follows: 1. Easily getting angry, forgetfulness, uncontrollable laughter, dyscalculia ….................... 20% 2.Recurrent fits, Risk of post traumatic epilepsy on eption, need for long term anti-epileptic drug ….............9% 3.Occasional incontinence ….......................5% ## 5. Apex court in _**Raj Kumar v. Ajay Kumar**_ ## _**[2011(1) KLT 620 (SC)]**_ held as follows: “ _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. The Tribunal should not mechanically apply the percentage of permanent disability as the percentage of economic loss or loss of earning capacity. In most of the cases, the percentage of economic loss, that is, percentage of loss of earning capacity, arising from a permanent disability will be_ ## **M.A.C.A. No. 1773 of 2014** **-4-** _different from the percentage of permanent disability. Some Tribunals wrongly assuem tht in all cases, a particular extent (percentage) of permanent disability would result in a corresponding loss of earning capacity, and consequently, if the evidence produced show 45% as the permanent disability, will hold that there is 45% loss of future earning capacity. In most of the cases, equating the extent (percentage) of loss of earning capacity to the extent (percentage) of permanent disability will result in award of either too low or too high a compensation. 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 terns of money, to arrive at the future loss of earnings (by applying the standard multiplier method used to determine loss of dependency). We may however note that in some cases, on appreciation of evidence and assessment, the Tribunal may find that percentage of loss of earning capacity as a result of the permanent_ ## **M.A.C.A. No. 1773 of 2014** **-5-** _disability, is approximately the same as the percentage of permanent disability in which case, of course, the Tribunal will adopt the said percentage for determination of compensation”._ 6. The doctor, who issued Ext.A13 was examined as PW4. Dr.Jospeh Dickson, issued Ext.A14, who is the Consultant and Orthopedic Surgeon, Medical College Hospital, Alappuzha, which shows 15% permanent disability. The appellant was examined clinically and radio-logically for assessing 15% disability as per Mc bride's Table. The opinion of the doctors, who issued Exts.A13 and 14 is also relevant. No steps were taken in the lower court by the insurer to disbelieve Exts.A13 and 14. Ignoring the opinion of the doctor, the learned Tribunal reduced the disability to 20%, that reduction itself is against the direction issued in _**Raj Kumar's**_ case (Supra). Therefore, the appellant is entitled to get the certified disability for calculating compensation for the disability. 7. Appellant is an LIC agent by profession. PW2 ## **M.A.C.A. No. 1773 of 2014** **-6-** is the LIC officer, who opined that the injured was getting monthly commission from the Development Office, LIC of India, Aleppey. Ext.A16 is the commission statement. The commission statement pertaining to the subsequent years were not produced. In the absence of the such evidence, the income considered by the Tribunal is just and I take Rs.8,000/- for calculating the disability. If that be the position, the appellant is entitled to get an amount of Rs.6,58,560/- (Rs.8,000x12x14x49/100) as compensation for permanent disability. The learned Tribunal already awarded Rs.2,68,800/-. The balance amount is Rs.3,89,760/(Rs.6,58,560-2,68,800). Therefore, she is entitled to get additional compensation of Rs.3,89,760/-. In addition to that, she is entitled to get bystander expense additional amount of Rs.10,000/-, future medical expenses another Rs.15,000/-, for loss of amenities another Rs.10,000/- and pain and suffering another Rs.10,000/- as enhanced compensation. Therefore, the total amount is Rs.4,34,760/- ## **M.A.C.A. No. 1773 of 2014** **-7-** (Rs.389760+10,000+15,000+10,000+10,000).The appellant is entitled to get an additional compensation of Rs.4,34,760/with 7.5% interest and proportionate cost. 8. Hence, in addition to the amount of Rs.5,57,923/-, the insurer is directed to pay an additional compensation of Rs.4,34,760/- with interest and proportionate cost. The insurer is directed to satisfy the award within 30 days from the date of receipt of a copy of this judgment, failing which it will carry 12 interest from the date of default. This appeal is disposed of as above. Sd/- **P.D.RAJAN** **JUDGE** bng //True Copy// P.A to Judge