Soman v. Jinesh James and Ors

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **TUESDAY, THE 04TH DAY OF AUGUST 2020 / 13TH SRAVANA, 1942** **M.A.C.A.No.1024 OF 2014(C)** **AGAINST THE AWARD IN OP(MV) NO.158/2012 DATED 23-12-2013 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, WAYANAD, KALPETTA** ## **APPELLANT/ PETITIONER:** **SOMAN, AGED 37 YEARS, S/O.CHINDAN, CHELODE ESTATE, CHUNDALE PO, VYTHIRI TALUK, WAYANAD DISTRICT** **BY ADV. SRI.MATHEW KURIAKOSE** ## **RESPONDENTS/ RESPONDENTS:** - **1 JINESH JAMES, AGED 47 YEARS, S/O.JAMES, ALUKKAL HOUSE, CHENGAL, PO KALADY,PIN 683 574 (DRIVER OF THE CAR NO. KL-7 AJ TEMP. 5433)** - **2 JOSE.C.P., [AGE AND FATHER'S NAME NOT KNOWN TO THE APPELLANT], CHELLIKKUNNEL HOUSE, MALAYATTOOR PO, VIMALAGIRI, ERNAKULAM DISTRICT, PIN 683 587, (OWNER OF THE CAR KL -7 AJ TEMP 5433)** - **3 ROYAL SUNDHARAN ALIANCE INSURANCE CO.LTD. REPRESENTED BVY ITS BRANDH MANAGER, ERNAKULAM BRANCH, 6TH FLOOR, AMRUTHA TOWERS JUNCTION, OPPOSITE MAHAREAJA'S GROUND, M.G.ROAD,COCHIN 682 011. R3 BY ADV. SRI.MATHEWS JACOB (SR.) R3 BY ADV. SRI.P.JACOB MATHEW** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 04.08.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **- 2 -** **MACA.1024 of 2014** ## **"C.R"** ## **K.Vinod Chandran,J.** **-------------------------M.A.C.A.No.1024 of 2014 -------------------------Dated, this the 4[th] day of August, 2020** ## **JUDGMENT** **The appellant was travelling in an autorickshaw on 31.12.2010 when a car driven rashly and negligently by the 1[st] respondent hit against the autorickshaw. The appellant sustained serious injuries, resulting in amputation based on which disability was assessed at 51% by Exhibit C1 certificate issued by the Medical Board. It is also submitted by the learned Counsel for the appellant that the amputation was made above knee, evidenced by Exhibit A9 certificate issued by the doctor in the Medical College Hospital. Negligence was found on the driver of the car and the car is covered by a valid Insurance policy. There is no allegation of violation of policy conditions. The appeal is only for enhancement of compensation.** **2. The learned Counsel for the appellant submits that since amputation above knee has been made, the appellant should have been assessed with more disability than what has been certified. It is also contended that the income adopted by the Tribunal is very low, at Rs.3000/-.** **- 3 -** **MACA.1024 of 2014** **The learned Counsel would also submit that the appellant had suffered hospitalisation for 226 days and he should have been granted more amounts for extra nourishment as also for bystander expenses. Also a contention is raised that considering the fact of inpatient treatment for 226 days, extending to 7½ months, the loss of earning has to be computed for at least one year.** ## **3. The learned Counsel for the Insurance Company** **would contend that the amputation occurred after three years. It is further contended that the Tribunal has fixed the notional income correctly and awarded amounts perfectly considering the various decisions of the Hon'ble Supreme Court.** **4. In fact, even an amputation as per the Workmen Compensation Act would have enabled assessment of disability only at 50%. Since the Tribunal has adopted the disability assessed at as per Exhibit C1 certificate, there is no scope for any further enhancement.** **5. The Tribunal assessed the income of the appellant, who asserted to be a coolie, at Rs.3000/- in the year 2010. A coolie was fixed with a notional income of Rs.4,500/- per month in the year 2004, in** _**Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited**_ **- 4 -** **MACA.1024 of 2014** **[** _**(2011) 13 SCC 236**_ **]. The Hon'ble Supreme Court has also recognized the principle that there would be incremental enhancement in the case of even self-employed individuals in the un-organized sector (** _**National Insurance Co. Ltd. vs. Pranay Sethi (2017) 16 SCC 680**_ **) and with respect to an unspecified job of a coolie considering the increase in cost of living and economic advancements over the years, it can be safely assumed that even a coolie would be eligible for incremental addition of at least Rs.500/- in every subsequent year. In such circumstances, the appellant who is a coolie, is entitled to be fixed with a notional income of Rs.7500/- as on the year of accident, which is 2010. Considering the long hospitalization, there is scope for further enhancement, for extra nourishment and bystander expenses, which are granted as per the table below. The loss of earnings also ought to be granted for 10 months, since the appellant was hospitalized for more than seven months. In the context of awarding compensation for loss of earning, there is no question of further grant of compensation of loss of earning (partial), which is deleted.** **6. The learned Counsel for the appellant urged that since there was amputation above the knee, there** **- 5 -** **MACA.1024 of 2014** **should also be future prospects granted in awarding the compensation for loss of future earning capacity. The learned Counsel has relied on the following decisions of the Hon'ble Supreme Court to contend that in cases of serious disability there could be future prospects awarded.** _**Syed Sadiq & Others v**_ **.** _**Divisional Manager, United India Insurance Co**_ **. [** _**(2014) 2 SCC 735**_ **] was a case in which a vegetable vendor and a lorry cleaner assessed with a disability of 85% was allowed an addition on future prospects. In** _**Manjegowda N v**_ **.** _**Manager, United India Insurance Company Ltd**_ **. [** _**(2014) 3 SCC 584**_ **], it was held that functional disability requires determination on the basis of nature of disability in the light of the career or profession which the injured was pursuing in life. Therein, a young advocate, aged 36, sustained whole body disability of 50%. In** _**Mekala v**_ **.** _**Malathi M**_ **[** _**(2014) 11 SCC 178**_ **], a brilliant student who obtained First Class in her 10[th] Standard, sustained 70% permanent disability, in which case factors like inflation of money and the loss of future prospects like promotion in job, pay revision, etc. was considered as loss of future prospects to award compensation.** _**Jagdish v**_ **.** _**Mohan**_ **[** _**(2018) 4 SCC 571**_ **] was a case of a skilled carpenter, who lost both his hands in an** **- 6 -** **MACA.1024 of 2014** **accident. A decision of this court in** _**M.A.C.A.No.434 of 2014**_ **dated 09.03.2020 [** _**The United India Insurance Co. Ltd**_ **.** _**v**_ **.** _**Dhanesh**_ **] was also relied on, wherein the injured was an Engineer who was a Concrete Technologist, whose employment required him to carry out inspection of the sites in which construction is being carried out. The injured was certified as suffering from 57% permanent disability. The principle as can be discerned from the above decisions is that the functional disability as also the loss of future income has to be assessed looking at the nature of employment and the prospects the injured had. Casual employees who had more than 80% disability, a carpenter who could not carry out his profession due to amputation of both his hands, an Advocate who could not carry on her profession, a bright student whose future prospects were snuffed out and an Engineer who could not discharge his duties effectively; all by reason of an accident were found to be affected functionally to a large extent above the disability assessed and future prospects were computed for the purpose of determining compensation for loss of future earnings. This cannot be applied in every case. The specific contention taken in the above case is that the injured was a coolie which is often the employment** **- 7 -** **MACA.1024 of 2014** **asserted, where there is no evidence to substantiate even an employment. The injured who suffered 51% disability has also been granted compensation for loss of future earnings. In the overall circumstances there is scope for only adding a marginal percentage of 10% for future prospects; since the assertion is of employment as a coolie.** ## **7. In the above circumstances, following modification is made to the award of the Tribunal:** |**Sl.**<br>**No.**|**Head of Claim**|**Amount**<br>**awarded by**<br>**the**<br>**Tribunal**<br>`|**Total amount**<br>**after**<br>**enhancement in**<br>**appeal**<br>`| |---|---|---|---| |**1**|**Loss of earning (total)**|**18000**<br>**(3000x6)**|**75000**<br>**(7500x10)**| |**2**|**Loss of earning (partial)**|**4500**<br>**(1500x3)**|**Nil**| |**3**|**Medical and miscellaneous**<br>**expenses**|**25000**|**25000**| |**4**|**Bystander expenses**|**33,900**<br>**(150x226)**|**56500**<br>**(250x226)**| |**5**|**Transportation expenses**|**10000**|**10000**| |**6**|**Extra nourishment**|**5000**|**10000**| |**7**|**Damage to clothing, etc.**|**1000**|**1000**| |**8**|**Pain and suffering**|**50000**|**50000**| |**9**|**Loss of amenities**|**10000**|**50000**| |**10**|**Compensation for permanent**<br>**disability**|**275400**<br>**(3000x12x15**<br>**x51/100)**|**757350**<br>**([7500+750]**<br>**x12x15x51/100)**| ||**Total**|**432800**|**1034850**| **- 8 -** **MACA.1024 of 2014** **8. Considering the fact that more than six years have elapsed from the date of the award, there is no requirement to deposit any amounts in fixed deposit. The payment as per the modification made herein shall be made within three months with interest as directed by the Tribunal @ 7.5% per annum. The appellant shall produce a copy of a cancelled cheque of the Bank Account in a Nationalized Bank in his name, with copy of AADHAAR or acceptable identification, before the Tribunal within one month, with copy to the Insurance Company. The Insurance Company shall credit the amounts through NEFT/RTGS mode to the said account, failing which the appellant can approach the Tribunal.** **The appeal is allowed as indicated above. There shall be no order as to costs.** **Sd/K.VINOD CHANDRAN JUDGE** ## **Vku/-** ## **[ TRUE COPY ]**