Sreenivas Kamath v. Abdul Basheer and Zeenath Beevi and United India Insurance Co. Ltd.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **FRIDAY, THE 19TH DAY OF MARCH 2021 / 28TH PHALGUNA, 1942** ## **MACA.No.2619 OF 2012** **AGAINST THE AWARD IN OPMV 23/2010 DATED 17-05-2012 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, KASARAGOD** ## **APPELLANT/CLAIMANT:** **SREENIVAS KAMATH AGED 40 YEARS S/O. LATE DEVADAS B.KAMATH, RESIDING AT MARATHANGADI, SANOOR POST, SANOOR VILLAGE, KARKALA TALUK, KARNATAKA STATE.** **BY ADVS. SHRI.JAWAHAR JOSE SMT.CISSY MATHEWS** ## **RESPONDENTS/RESPONDENTS:** **1 K.A.ABDUL BASHEER, AGED 33 YEARS, S/O. ABDULRAHIMAN, RESIDING AT ABT HOUSE, KATTIKULAM, UDMA VILLAGE AND POST, HOSDURG TALUK, KASARGODE DISTRICT, PIN 671 121. 2 K.M. ZEENATH BEEVI, D/O. K.MUHAMMED ALI, RESIDING AT BEKAL HOUSE, PALLIKARE VILLAGE AND POST, HOSDURG TALUK, KASARGODE DISTRICT. PIN 671 121. 3 THE MANAGER UNITED INDIA INSURANCE COMPANY LTD., PB NO.29, 2ND FLOOR, NITHYANANDA BUILDING (LIC BUILDING), KOTTACHERRY, BALLA VILLAGE, KANHANGAD POST, HOSDURG TALUK, KASARGODE DISTRICT. PIN 671 121.** **R1, R3 BY ADV. SMT.P.K.SANTHAMMA SRI.P.K.SANTHAMMA FOR R3** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 19.03.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA.No.2619 OF 2012** **2** ## **JUGMENT** ## **Dated this the 19th day of March 2021** The appellant is the petitioner in O.P.(MV)No.23/2010 on the file of Motor Accidents Claims Tribunal, Kasargod. It is a claim petition filed under Section 166 of the Motor Vehicles Act, claiming compensation for the personal injury sustained by the appellant. (Hereinafter the parties are mentioned in accordance to their rank before the Tribunal). 2. The above O.P.(MV)No.23/2010 was tried along with O.P.(MV)No.24/2010. 3. Short facts are like this: on 18.09.2008 the petitioner in O.P.(MV)No.23/2010 loaded goods in an Auto Tempo vehicle bearing Reg.No.KL–14D 6495 and accompanied the goods to Thalassery. When the goods vehicle reached at a place by name Karivellur, Palakkunnu, in Kannur District, a car having Reg.No.KL-11V 695 came from the opposite side in a rash and negligent manner and hit the tempo, wherein the petitioner was travelling. The Auto Tempo Goods Vehicle KL14D 6495 was driven by the petitioner in O.P. (MV)No.24/2010. Due to the impact of hit by the car, the **MACA.No.2619 OF 2012** **3** petitioners sustained serious injuries. According to the claimants the accident happened because of the rash and negligent driving of the 1[st] respondent. Second respondent is the owner and the 3[rd] respondent is the insurer of the above car. Therefore, the petitioner contended that the respondents are jointly and severally liable to compensate the petitioner. 4. To substantiate the case Exts. A1 to A11 were marked on the side of the petitioner. Exts. X1 and X2 are marked as Court Exhibits. After going through the evidence and materials on record, the Tribunal passed an award of Rs.4,58,000/- with interest at the rate of 8% per annum from the date of application till the realisation. Aggrieved by the quantum of compensation this appeal is filed. 5. Heard the counsel for the appellant and the learned counsel for the 3[rd] respondent. 6. The learned counsel for the appellant submitted that the appellant is working as a coolie and the accident happened on 18.09.2008. The appellant was aged 38 years at the time of accident. The counsel submitted that the Tribunal fixed the monthly income of the appellant as Rs.4,000/-. The learned counsel relied on the judgment of Apex Court in **MACA.No.2619 OF 2012** **4** ## _**Ramachandrappa v. The Manager, Royal Sundaram [2011(13) SCC**_ _**236]**_ and contended that the Apex Court fixed an amount of Rs.4,500/- as monthly income for a coolie in the year 2004. Taking that principle, the learned counsel submitted that this Court may kindly fix the monthly income as 6,500/- per month. There is force in the argument. Relying the judgment of the Apex Court in _**Ramachandrappa**_ (supra) the monthly income can be fixed as 6,500/-. In the light of the decision of the Apex Court in _**National Insurance Co. Ltd v. Pranay sethi [2017(4) KLT 662],**_ 40% increase can be made towards the future prospects while assessing monthly income. Hence the monthly income can be safely fixed as Rs.9,100/-. 7. Then the next question to be decided is about, the disability of the appellant. Admittedly, the appellant was working as a coolie. Ext.X1 is the medical certificate issued by the District Disability Board, Kanhangad, in which it is stated that the petitioner is having 85% permanent physical impairment in relation to his right lower limb and right upper limb. Based on the above, the Tribunal fixed the disability to the whole body as 50%. The finding of the Tribunal is extracted hereunder:- “ _19. Rs.4,03,200/- is claimed as compensation_ **MACA.No.2619 OF 2012** **5** _for continuing or permanent disability. Petitioner has produced Ext.X1 a medical certificate issued by District Disability Board, Kanhangad. In this document, it is stated that the petitioner is having 85% (Eight Five Percent) permanent physical impairment in relation to his right lower limb and right upper limb. It is also stated that the petitioner has got limitation of range of motion of right hip and knee. He has also shortening of 2cm of right lower limb. Petitioner was present before me on 26.04.12. He was limbing while waking. His right limb is shortened. However, he is not using any special chappals. His right arm is having full of scars. Considering all these aspect, the whole body disability of petitioner is considered as 40% (forty percent). The age of petitioner at the time of accident was 38 years.”_ 8. The counsel for the petitioner relied on the judgment of the Apex Court in _**Nagarajappa v. Divisional Manager, Oriental Insurance Company Limited [2011(13) SCC 323]**_ and _**Syed Sadiq and others v. Divisional Manager, United India Insurance Company Limited [2014(2) SCC 735]**_ . 9. As I observed earlier, admittedly the petitioner was working as a coolie. As per Ext.X1, there is 85% permanent physcial impairment in relation to his right lower limb and right upper limb. The petitioner was present before the Tribunal personally and the Tribunal also noted that the petitioner having limbing while walking. His right limb is shortened. It is also noted that his right arm is full of scars. The disability is to be decided based on the facts and **MACA.No.2619 OF 2012** **6** circumstances of each case. There cannot be any formula for fixing the disability. 10. The Apex Court in _**Pappu Deo Yadav v. Naresh Kumar and others**_ [AIR 2020 SC 4424] after considering a plethora of decisions on a point 'permanent disability' has held that the inquiry that has to be conducted by the Court is the resultant loss of income generating capacity of the claimant. The principle to be followed by the court in assessing motor vehicles compensation claims is to place the victim in the same position as he was before the accident. The Bench referred to the earlier decisions in _**Syed Sadiq and others v.**_ _**Divisional Manager, United India Insurance Company**_ [2014 (2) SCC 735] and _**Raj Kumar v. Ajay kumar and anr.**_ [2011 (1) KLT 620 (SC)] and held that the court should not adopt a stereotypical or myopic approach, but instead, view the matter taking into account the realities supplied, both in the assessment of extent of disabilities and compensation under various heads. 11. In _**Nagarajappa's case**_ the Apex Court considered the decision in _**Raj Kumar's case (supra).**_ In _**Nagarajappa's case**_ the injured was having disability of 23% of the whole body. **MACA.No.2619 OF 2012 7** After going through the entire facts and circumstances of the case and also considering the dictum in Raj Kumar's case, the Apex Court held that for the purpose of loss of future income the disability can be taken as 68%. The relevant Paragraphs in Nagarajappa's case is extracted hereunder:- “ _8. In reaching our decision, we are drawn to, if we may so, a very well-considered judgment of this Court in Raj Kumar v. Ajay Kumar, wherein the Bench, comprising of Hon'ble Raveendran and Gokhale, JJ., has propounded the law on compensation in motor accident claims case resulting in disability in a comprehensive manner. The relevant portions of the judgment are extracted below:(SCC pp.349-51, paras 10-11, 13-14 and 16)_ _“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. The Tribunal should not mechanically apply the percentage of permanent disability as the percentage of economic loss or loss of earnings capacity. In most of the cases, the percentage of economic loss, that is, the percentage of loss of earning capacity, arising from a permanent disability will be different form the percentage of permanent disability...._ _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 arrived 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 case, on appreciation of evidence and assessment, the Tribunal may find that the percentage of loss earning capacity as a result of the permanent disability, is_ **MACA.No.2619 OF 2012** **8** _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 (See for example, the decisions of this Court in Arvind Kumar Mishra v. New India Assurance Co. Ltd. And Yadava Kumar v. National Insurance Co. Ltd)_ ## _12. xxx xxx xxx_ _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 or 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 carpenter, nor 60% which is the actual physical disability, but far less._ **MACA.No.2619 OF 2012** **9** _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 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._ ## _15. xxx xxx xxx_ _16. …....Sections 168 and 169 of the Act make it evident that the Tribunal does not function as a neutral umpire as in a civil suit, but as an active explore and seeker of truth who is required to 'hold an enquiry into the claim' for determining the 'just compensation'. The Tribunal should therefore take an active role to ascertain the true and correct position so that it can assess the 'just compensation'. While dealing with personal injury case, the Tribunal should preferably equip itself with a medical dictionary and a handbook for evaluation of permanent physical impairment....”_ ## _9. xxx xxx xxx_ _10. The appellant is working as a manual labourer, for which he requires the use of both his hands. The fact that the accident has left him with one useless hand will severely affect his ability to perform his work as a coolie or any other manual work, and this has also been certified by the doctor. Thus, while awarding compensation it has to be kept in mind that the appellant is to do manual work for the rest of his life without full use of his left hand, and this is bound to affect the quality of his work and also his ability to find work considering his disability. Hence, while computing loss of future income, disability should be taken to be 68% and not 20%, as was done by the Tribunal and the High Court. Our view is supported by the ratio in Raj Kumar and_ **MACA.No.2619 OF 2012** **10** _from the fact that the appellant is severely hampered and perhaps forever handicapped from performing his occupation as a coolie.”_ 12. Similarly, keeping in mind the above principle laid down by the Apex Court, I have to consider the disability factor in this case. Being a coolie worker, the petitioner may not be able to do his normal job after the accident. Considering the entire facts and circumstances of the case, according to me, the disability for the purpose of assessing the compensation for permanent disability can be taken as 65% instead of 40%. Consequently, the compensation for permanent disability is to be reassessed in the following manner. ## 9100 x 15 x 12 x 65/100=10,64,700/- From the above amount, Rs. 2,88,000/-, which is the amount already granted is to be deducted. Therefore, the balance amount will be is Rs.7,76,700/- (Rupees Seven Lakhs Seventy Six Thousand and Seven Hundred Only). 13. The learned counsel for the appellant submitted that towards pain and sufferings only an amount of Rs.15,000/- is awarded. It is fact that the petitioner **MACA.No.2619 OF 2012** **11** sustained very serious injuries and he was in hospital for 27 days. Considering the entire facts and circumstances of the case, another amount of Rs.15,000/- (Rupees Fifteen Thousand Only) can be awarded for pain and sufferings. 14. As far as bystander's expenses is concerned, only an amount of Rs.1,600/- is awarded by the Tribunal. The petitioner was hospitalised for 27 days. The total claim in the claim petition is Rs.5,000/-. Therefore, an additional amount of Rs.3,400/- (Rupees Three Thousand and Four Hundred Only) can be awarded towards bystander's expenses. 15. It is true that the amount claimed in the claim petition is only Rs.7,82,200/- (Rupees Seven Lakhs Eighty Two Thousand and Two Hundred Only). But in the light of the judgment of the Apex Court in **Nagappa v. Gurudayal Singh and Others [2003 (1) KLT 115]** and **Rajesh v. Rajbir Singh, [2013 (3) KLT 89],** this Court can award compensation in excess of what is claimed in the claim petition, in the facts and circumstances of each case. Therefore, the enhanced compensation entitled by the appellant can be summarised like this:- **MACA.No.2619 OF 2012** **12** **==> picture [321 x 191] intentionally omitted <==** **----- Start of picture text -----**<br> Head Amount<br>Compensation for Rs.7,76,700/-<br>disability<br>Pain and sufferings Rs.15,000/-<br>Bystanders’ expenses Rs.3,400/-<br>Total Rs.7,95,100/-/<br>**----- End of picture text -----**<br> Therefore, this appeal is allowed. The impugned award is modified and the appellant is entitled an enhanced compensation of Rs.7,95,100/- (Rupees Seven Lakhs Ninety Five Thousand and One Hundred Only) with interest at the rate of 8% p.a, from the date of petition till realisation. The 3[rd] respondent is directed to pay the enhanced compensation with interest. **Sd/P.V.KUNHIKRISHNAN JUDGE** VPK