Sivadasan v. Antony Joseph and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **TUESDAY, THE 29[TH] DAY OF MARCH 2022 / 8TH CHAITHRA, 1944** **MACA NO. 2218 OF 2014** **AGAINST THE AWARD DATED 31.08.2013 IN OPMV 113/2007 OF MOTOR** **ACCIDENTS CLAIMS TRIBUNAL, PERUMBAVOOR** ## **APPELLANT/PETITIONER:** **SIVADASAN AGED 46 YEARS S/O.NARAYANAN NAIR, IRUMBAL HOUSE, NORTH MAZHUVANNOOR686 689.** ## **BY ADV SRI.P.C.HARIDAS** ## **RESPONDENTS/RESPONDENTS:** - **1 ANTONY JOSEPH, S/O.A.J.JOSEPH, EZHUTHIL HOUSE, PEZHUMKAVALA, KATTAPPANA.P.O, IDUKKI DISTRICT-685 508.** - **2 K.C.RAMACHANDRAN, NEDUMBILLIL HOUSE, KODANADU.P.O, KOOVAPPADY, PERUMBAVOOR-683 544.** - **3 THE MANAGER, NATIONAL INSURANCE COMPANY LTD, DIVISIONAL OFFICE P.O.BOX NO.157, 1ST FLOOR, PARAMESWARAN PILLAI BHAVAN, HOSPITAL ROAD, QUILON-691 001.** - **4 RADHAKRISHNAN, S/O.NARAYANAN NAIR, IRUMBAL HOUSE, NORTH MAZHUVANNOOR686 689.** - **5 NATIONAL INSURANCE CO.LTD, PERUMBAVOOR BRANCH-683 542.** **BY ADV SRI.P.JACOB MATHEW** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 29.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA No.2218/2014 2 ## **JUDGMENT** Appellant is the claimant in O.P.M.V No.113/2007 on the file of Motor Accidents Claims Tribunal, Perumbavoor. The claim petition has been filed under Section 166 of Motor Vehicles Act, 1988 (In short the Act) for the injuries sustained by the appellant in a motor accident occurred on 18.11.2006 due to hit with bus bearing Registration No.KL-02 U 2454 at MES curve Vazhakkulam, driven by the 1[st] respondent while appellant was travelling in a jeep bearing Registration No.KLI/822. It is alleged that the accident happened due to the rash and negligent driving of the bus by the 1[st] respondent. The 2nd respondent is the owner of the bus. The 3rd respondent is the insurer. 4th respondent is driver cum owner of the jeep and 5th respondent is the insurer of the jeep. Total compensation of Rs.15,09,000/- has been claimed. 2. Before the Tribunal, the owner and driver of the bus as well as owner cum driver of the jeep remained absent. The insurers of both vehicles are same and they filed written statement admitting the policy coverage with respect to the vehicles. Accident is admitted. But it is contended that case was charged under Sections 308, 304 of IPC against the 1[st] respondent and hence they have no vicarious liability. This case was tried along with OPMV Nos.2101/2006, 2144/2006, 2176/2006, 114/2007, 128/2007, 129/2007, 133/2007, 154/2007, 155/2007 and 531/2007. 3. Exts. A1 to A32 were marked from the side of the MACA No.2218/2014 3 appellant/claimant. There is no oral evidence from either side. It is reported by the learned counsel that Ext.A9 to A12 are the medical records pertaining to the appellant/claimant in this case. On evaluation of the pleadings as well as documents produced from either side, Tribunal found that 1[st] respondent/driver of the bus responsible for the accident, hence the 3[rd] respondent is held liable to indemnify the 2[nd] respondent insured. Tribunal awarded a total compensation of Rs.4,62,750/- under various heads together with interest at the rate of 8% per annum. 4. Dissatisfied with the quantum of compensation awarded by the Tribunal, the appellant/claimant (hereinafter be referred as claimant) approaches this Court in appeal for the various grounds stated in the memorandum of appeal. Service is complete against respondents 1, 2 and 4. There was no appearance on behalf of respondents 1, 2 and 4. Adv.P.Jacob Mathew, the Standing Counsel appeared on behalf of respondents 3 and 5. 5. Accident and liability is not in dispute. The only challenge is with regard to the quantum of compensation awarded. Heard the learned counsel for the appellant and the learned Standing Counsel for respondents 3 and 5. Lower court records were called for and perused. 6. According to the learned counsel for the appellant, the accident was on 18.11.2006 and claimant sustained grievous injuries out of the accident. Exts.A9 to A11 show the following injuries 1) Lacerated crush injury right fore arm. 2) Crushed avulsed amputation (sub total) of right MACA No.2218/2014 4 distal part non viable. 3) Non viable not replantable crushed fore arm. 4) Below elbow amputation done. He was admitted in hospital for 15 days. Tribunal took 60% permanent partial disability as per Schedule I, Part II of Workmen's Compensation Act. 7. **Jithendran v. New India Assurance Co. Ltd. [2021 (6) KLT 1131 (SC)]** was relied on, wherein the Apex Court fixed loss of earning capacity at 100%. The impact on the earning capacity for the claimant by virtue of his 69% disability must not be measured as proportionate loss of his earning capacity. The earning life for the claimant is found to be over. 8. According to the learned counsel, in this case also functional disability has to be enhanced from 60%, than that has been taken by the Tribunal. It is also contended that Tribunal fixed his monthly income as Rs.3,500/- which is very low since the accident was in the year 2006. Hence he seeks for enhancement of compensation on all heads including bystander expenses. 9. The learned Standing Counsel for the 3rd respondent on the other hand contended that 60% disability fixed as per Workmen's Compensation Act according to him is loss of earning capacity. So any further enhancement in percentage of disability on the ground of functional disability is illegal. He would also contend that monthly income of Rs.3,500/- taken by the Tribunal is also reasonable in the absence of any evidence adduced to prove the income of the claimant, hence according to him no interference is called for in this appeal. MACA No.2218/2014 5 10. Claimant is found to be 40 years old at the time of accident. He also claimed to be an agriculturalist. Admittedly his right hand has been amputated below the elbow. 60% permanent disability fixed by the Tribunal as per Schedule I, Part II of Workmen's Compensation Act seems to be reasonable and proper. Since Schedule I, Part II of Workmen's Compensation Act state about loss of earning capacity, no further enhancement will be required towards functional disability since taking that into account, percentage of loss of earning power is fixed as per Workmen's Compensation Act. 11. In **Jithendran (supra),** 69% of disability was assessed by the Doctor. In that case, claimant was 21 years old and hospitalized for 191 days. Claimant suffered severe impairment of cognitive power with hemiparasis and total aphasia. He cannot perform everyday functions without assistance. It was in the above circumstances, the Apex Court taken the functional disability as 100% though physical disability assessed by the Doctor is 69%. Hence, principle laid down in that case cannot be made applicable in this case. The inpatient treatment in this case is 15 days. 60% disability fixed as per Schedule I, Part II of Workmen's Compensation can be taken as percentage of loss of earning capacity. However, claimant is entitled to get future prospects since the disability is fixed at 60% as per the dictum laid down in **Pappu Deo Yadav v. Haresh Kumar and others [AIR 2020 SC 4424]** . 12. In the present case, claimant is an agriculturalist and the accident MACA No.2218/2014 6 was in the year 2006. Following principles in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited [(2011) 13 SCC 236]** and **Syed Sadiq v. Divisional Manager, United India Insurance Co. Ltd. [(2014) 2 SCC 735],** monthly income of the appellant can be taken as Rs.5,500/- in the absence of any convincing evidence to prove the actual income of the claimant. 13. The claimant was 40 years of old at the time of accident. Hence the proper multiplier to be applied as held in **Sarla Verma(smt) v. Delhi Transport Corporation Anr. (2009 6 SCC 121)** followed by the Constitution Bench in **National Insurance Company Limited v. Pranay Sethi and Ors (2017 (4) KLT 662)** is '15'. Since the disability is 60%, claimant is entitled for 40% enhancement towards future prospects. Monthly income of the claimant already has been fixed as Rs.5,500/-. Total monthly earning would be 5,500+2,200(40% of 5,500)=7,700. So compensation towards future loss of earning power would be 7,700x12x15x60/100=8,31,600/-. From that the amount already awarded by the Tribunal to be deducted, the balance would **Rs.4,53,600/-** (8,31,600-3,78,000). 14. Tribunal awarded loss of earning for six months. It has come out that he had sustained crushed avulsed amputation of right for arm distal part. Taking into account that fact, loss of earning taken by the Tribunal can be approved. So, towards loss of earning, the claimant is entitled to get Rs.33,000/- (5,500x6). Deducting the amount already awarded, the MACA No.2218/2014 7 balance would be **Rs.12,000/-** (33,000-21,000). Towards the bystander expenses, the Tribunal awarded Rs.2,250/-. Since the accident was in the year 2006, towards bystander expenses, claimant is entitled to get Rs.200/- per day. On that head, claimant would be entitled to get Rs.3,000/-(200x15). Deducting the amount already awarded, the balance would be **Rs.750/-** (3,000-2,250). The learned counsel would contend that Tribunal awarded only Rs.30,000/- towards pain and suffering which is very low. Taking into account the nature of injuries and the age of the claimant, an amount of Rs.50,000/- can be awarded towards pain and suffering. Deducing the amount already awarded, the balance would be **Rs.20,000/-** (50,000-30,000). 15. In the result, claimant is allowed to realize an enhanced compensation of **4,86,350/- (4,53,600+12,000+20,000+750)** in this appeal, which will carry interest at the rate of 6% per annum from the date of petition till realization. Respondent No.3 is directed to pay the enhanced 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. 16. The appeal has been filed with a petition to condone delay of 106 days. While condoning the delay by order dated 29.03.2022 in CMA.No.2558/2014, it was made clear that, in case any enhancement of compensation is granted, the claimant will not be entitled to claim interest for the above said period. Hence, interest for the period of 106 days is excluded. MACA No.2218/2014 8 The disbursement of the amount to the appellants shall be in terms of the directives issued by this Court in Circular No.3 of 2019 dated 06.09.2019 and clarified further in Official Memorandum No.D162475/2016 dated 07.11.2019. Appellant/claimant shall provide his 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 Standing Counsel for 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** rps/