SIVAN T.R S/O.KUNJIRAMAN @ CHANDRAN KUNJUMON v. K.M ABBAS KODATHAPPILLY HOUSE, PALLARIMANGALALM P.O., KOTHAMANGALAM; KASIM C.P. S/O.PAREETH, CHULLIKATTU HOUSE, PALLARIMANGALAM P.O., KOTHAMANGALAM; THE BRANCH MANAGER THE NEW INDIA INSURANCE COMPANY LTD. MUVATTUPUZHA

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** **THE HONOURABLE MRS. JUSTICE M.R.ANITHA TUESDAY, THE 5[TH] DAY OF APRIL 2022 / 15TH CHAITHRA, 1944 MACA NO. 1388 OF 2014** **AGAINST THE AWARD DATED 20.01.2014 IN OPMV 260/2009 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, MUVATTUPUZHA** ## **APPELLANT/APPELLANT:** SIVAN T.R S/O.KUNJIRAMAN @ CHANDRAN KUNJUMON, RESIDING AT THADATHIL HOUSE, VENDUVAZHY, KOTHAMANGALAM. BY ADVS. SMT.ANEY PAUL SRI.PHILIP J.VETTICKATTU ## **RESPONDENTS/RESPONDENTS:** 1 K.M ABBAS KODATHAPPILLY HOUSE, PALLARIMANGALAM P.O., KOTHAMANGALAM, PIN: 686 691. 2 KASIM C.P. S/O.PAREETH, CHULLIKATTU HOUSE, PALLARIMANGALAM P.O., KOTHAMANGALAM,PIN 686 691. 3 THE BRANCH MANAGER THE NEW INDIA ASSURANCE COMPANY LTD. MUVATTUPUZHA, PIN: 686 661. BY ADVS. SRI.P.JAYASANKAR SRI.M.M IRSHAD MOOPAN-R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 16.03.2022, THE COURT ON 05.04.2022 DELIVERED THE FOLLOWING: M.A.C.A.No.1388/2014 2 ## **M.R.ANITHA, J** ****************** M.A.C.A.No.1388 of 2014 --------------------------------------------Dated this the 5[th] day of April, 2022 ## **JUDGMENT** The appeal has been filed against the award in O.P.M.V No.260/2009 on the file of Motor Accidents Claims Tribunal, Muvattupuzha (in short 'Tribunal'). The claim petition has been filed under Section 166 of Motor Vehicles Act, 1988 (in short the Act) for the injury sustained by the appellant/claimant in a motor accident occurred on 04.12.2008 while he was riding a motor cycle through Mathirapally – Venduvazhy public road due to hit with jeep bearing Reg.No.KL-11/F 527 at Venduvazhy. It is alleged that the accident occurred due to the rash and negligent driving of the second respondent, the driver of the jeep. 1[st] respondent is the registered owner of the jeep and 3[rd] respondent is the insurer. The appellant claimed a total compensation of Rs.6,00,000/-. M.A.C.A.No.1388/2014 3 2. Before the Tribunal, respondents 1 and 2 remained ex parte. The third respondent insurer filed written statement denying the accident and injuries sustained by the appellant/claimant. Policy coverage with respect to the offending vehicle is admitted. The appellant/claimant is put to strict proof regarding age, income and occupation of the appellant. Rashness and negligence on the part of the second respondent is also denied. 3. There was no oral evidence from either side. Exts.A1 to A26, Ext.C1 and Ext.X1 were marked from the side of the appellant/claimant (hereinafter be referred as the claimant). 4. The Tribunal, on evaluating the pleadings as well as the documents found that the accident happened due to the rash and negligent driving of the jeep by the second respondent. Third respondent/insurer was held liable to indemnify the insured/the first respondent. A total compensation of Rs.4,44,617/- was awarded by the Tribunal. 5. Dissatisfied with the quantum of compensation awarded by the Tribunal, claimant approaches this Court in M.A.C.A.No.1388/2014 4 appeal for the various grounds stated in the memorandum of appeal. 6. Adv.M.M.Irshad Mooppan appeared on behalf of the third respondent. Heard learned counsel for the appellant as well as the learned counsel for the third respondent. Lower court records were called for and perused. 7. According to the learned counsel for the claimant, the claimant sustained serious injuries including skull fracture and had undergone in-patient treatment for a total period of 65 days in the hospital and had undergone several surgeries. Comparing the injuries sustained by the claimant, the amount awarded by the Tribunal is very low and no amount was awarded towards future medical expenses. She would also contend that no amount was awarded towards compensation for permanent disability. The claimant was a Lineman in KSEB and he sustained permanent disability of 23%. So, reasonable amount ought to have been awarded towards loss of earning power. No amount was awarded towards shortened expectation of life due to the accident. Hence learned counsel seeks for enhancement of compensation on the M.A.C.A.No.1388/2014 5 above heads. 8. Learned counsel for the insurer/third respondent on the other hand, would contend that the claimant was a Lineman in KSEB and he continued in service inspite of the accident and the injuries sustained by him and hence he is not entitled to get any compensation towards disability since there is no loss of his earnings. He would also contend that just and reasonable compensation has been awarded on all heads and hence the appeal is only to be dismissed. 9. The main argument of the learned counsel for the claimant was with respect to the award passed under the head of disability. According to the learned counsel, the claimant was 40 years old and he sustained very serious injuries but no compensation was awarded towards future loss of earning power. 10. In **Raj Kumar v. Ajay Kumar and Another : 2011(1) SCC 343 : 2010 KHC 5021 : 2011(1) KLT 620** , a two Judge Bench of the Apex Court dealt with in detail regarding the general principles relating to compensation in injury cases. In paragraph 7 of the said judgment, the percentage of M.A.C.A.No.1388/2014 6 permanent disability and assessment of compensation thereof has been discussed which reads as follows: _“7. The percentage of permanent disability is expressed by the Doctors with reference to the whole body, or more often than not, with reference to a particular limb. When a disability certificate states that the injured has suffered permanent disability to an extent of 45% of the left lower limb, it is not the same as 45% permanent disability with reference to the whole body. The extent of disability of a limb (or part of the body) expressed in terms of a percentage of the total functions of that limb, obviously cannot be assumed to be the extent of disability of the whole body. If there is 60% permanent disability of the right hand and 80% permanent disability of left leg, it does not mean that the extent of permanent disability with reference to the whole body is 140% (that is 80% plus 60%). If different parts of the body have suffered different percentages of disabilities, the sum total thereof expressed in terms of the permanent disability with reference to the whole body,_ M.A.C.A.No.1388/2014 7 ## _cannot obviously exceed 100%.”_ 11. In paragraph No.9 it has been discussed that the Tribunal has to first decide whether there is any permanent disability and if so the extent of said permanent disability. The Tribunal has to consider and decide with reference to 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. 12. In paragraph No.10, it has been discussed that 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. The second step is to ascertain his avocation, profession and nature of work before the accident, as M.A.C.A.No.1388/2014 8 also his age. The third steps is to find out (i) whether the claimant is totally disabled from earning any kind of livelihood or (ii) whether inspite 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. It is also found that 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 the accident. 13. An example has also been shown in the said paragraph by the Apex Court by stating that 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 M.A.C.A.No.1388/2014 9 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 per form 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 found suitable for discharging the duties attached to the post or job which he was earlier holding, on account of is 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. M.A.C.A.No.1388/2014 10 14. In the present case, the injuries sustained by the claimant are: comminuted fracture frontal parietal bone with superior sagittal sinus injury and subdural hematoma. He also sustained fracture of tibia and fibula right leg. He had undergone 65 days in-patient treatment at various hospitals. He had undergone two surgeries as part of his treatment. In connection with leave availed and loss of pay, the Tribunal already awarded compensation and there is no further dispute in that regard. Ext.C1 disability certificate issued by the Medical Board has been produced certifying 23% permanent partial disability. The Tribunal has found that the petitioner can continue in service till attaining the age of superannuation and hence he is entitled to get full salary upto the age superannuation. There is also no evidence to show that the accident, resultant injury and the permanent disability has caused any degradation in his post or job which he was earlier holding and thereby he sustained any shortage of income than that has been received earlier. As rightly found by the Tribunal, even after the accident, he has been continuing in service as earlier and has no case of any loss of M.A.C.A.No.1388/2014 11 earning due to the accident and disability sustained. However, finding that the disability caused, to a certain extent, will adversely affect his earning power after retirement, the monthly income for the post retirement period has been notionally fixed by the Tribunal as Rs.5,000/- and an amount of Rs.1,10,400/has been awarded. 15. 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** , a two Judge Bench of the Apex Court while dealing with an injury matter in a case filed under Section 166 of the Act by a Government servant who is continuing in work, it has been held that the High Court was not correct in awarding compensation by applying the multiplier to the net salary payable to the first respondent (claimant in that case). It is also found that the first respondent was continued to earn the monthly salary he was earlier drawing, including increments, except some allowances given due to the nature of posting. The first respondent, at the time of the injury, was 56 years old and had about four years of service till his retirement. M.A.C.A.No.1388/2014 12 It is also held that High Court failed to notice that the injury certificate did not relate to permanent disability in the entire body, and had certified 75% disability in the lower limb. In that context, it was found that first respondent (claimant) was not immobilized and can perform and undertake daily chores without help and assistance. However, taking into account the fact that the claimant in that case had undergone an operation and an implant had been fixed in his vertebrae causing him physical pain, discomfort and possible decrease in lifespan and though entitled to pension and retirement benefits, has lost the opportunity to take up post-retirement employment, compensation was enhanced from Rs.6,21,000/- and a total compensation in all was fixed at Rs.10,00,000/- instead of Rs.56,44,378/- awarded by the High Court. In **Sarla Verma** also, while exemplifying the loss of income due to amputation of hand in the case of Government servant has been described as far less than a driver or carpenter. 16. In this case, it has come out that the claimant undergone 65 days in-patient treatment in hospital. He had M.A.C.A.No.1388/2014 13 sustained comminuted fracture frontal parietal bone with superior sagittal sinus injury and subdural hematoma. He has also sustained fracture of tibia and fibula right leg and he had undergone two surgery as part of treatment. 17. Claimant was a Lineman in KSEB. He has 23% permanent disability. The injuries and disability caused would prevent him from taking any avocation after retirement as held 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** . Accident was in the year 2008. So, taking the income notionally as Rs.6,500/- by applying a multiplier of '9' as per the principles in **Sarla Verma** as approved in **Pranay Sethi** some compensation can be awarded towards loss of opportunity to take up employment during post retirement period. That will come to Rs.1,61,460/- (Rs.6,500 x 12 x 23 x 9/100). Deducting the amount already awarded by the Tribunal towards loss of earning power, the balance amount would be Rs.51,060/- (Rs.1,61,460 – Rs.1,10,400). M.A.C.A.No.1388/2014 14 18. Taking into account the serious nature of injuries and 65 days of inpatient treatment undergone by him, an amount of Rs.50,000/- can be awarded instead of Rs.40,000/- awarded by the Tribunal towards pain and suffering. Balance amount would be Rs.10,000/-. In view of the serious head injuries involving fracture frontal parietal bone with superior sagittal sinus injury and subdural hematoma, neurological disability as per the medical board certificate as Cosmetic 15% and memory (-10%) etc and the total permanent disability of 23% which is not certified as to a particular limb can be taken as 23% whole body disability. He had spent a total amount of Rs.2,07,390/- towards treatment charges. Towards loss of amenities, the amount of Rs.30,000/- awarded by the Tribunal seems to be very less and it is enhanced to Rs.60,000/-. Less the amount already awarded, the balance would be Rs.30,000/- (Rs.60,000 – Rs.30,000). So, in total, claimant would be entitled to get Rs.91,060/- rounded off to Rs.91,100/- (Rs.10,000 + Rs.30,000 + Rs.51,060) as enhanced compensation. M.A.C.A.No.1388/2014 15 19. In the result appeal allowed. The claimant is entitled to realise enhanced compensation of **Rs.91,100/-** (Rupees ninety one thousand and hundred only) with interest at 7.5% from the date of petition till realisation. The 3rd respondent, the Insurance Company, shall satisfy 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. The claimant shall provide the Bank account details (attested copy of relevant page of bank pass book, Bank Account number and IFSC code of the branch) before the Tribunal with a copy to the learned Standing Counsel for the insurer, within one month from the date of receipt of certified copy of this judgment. ## (sd/-) **M.R.ANITHA, JUDGE** jsr True Copy P.S to Judge