SUNEETHY D/O. C.K. GOPALAN v. ROYAL SUNDARAM ALLIANCE INSURANCE CO. LTD

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN** **FRIDAY, THE 28[TH] DAY OF APRIL 2023 / 8TH VAISAKHA, 1945** **MACA NO. 1940 OF 2016** **AGAINST THE JUDGMENT IN OPMV 1607/2011 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, ERNAKULAM** ## **APPELLANT/PETITIONER:** SUNEETHY D/O. C.K. GOPALAN, 28/2488B,CHARUVIL VEEDU, CHILAVANNOOR ROAD, KADAVANTHRA P.O., KOCHI-682020. BY ADV SRI.JACOB ABRAHAM ## **RESPONDENT/3RD RESPONDENT:** THE ROYAL SUNDARAM ALLIANCE INSURANCE CO.LTD AMRITHA TOWER, D.C.C. JUNCTION, KOCHI-682011. BY ADVS. SRI.P.JACOB MATHEW SRI.MATHEWS JACOB SR. THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 01.09.2022, THE COURT ON 28.04.2023 DELIVERED THE FOLLOWING: MACA 1940/2016 :2: ## **JUDGMENT** The appellant is the petitioner in O.P.(MV)No.1607/2011 on the file of the Motor Accidents Claims Tribunal, Ernakulam. The parties are referred to as per their status in the claim petition unless otherwise specifically mentioned. 2. The petitioner was a Collection Agent of the Kerala State Financial Enterprises Ltd., ‘KSFE’, for short. On 14.01.2011, while she was riding a Hero Honda scooter bearing Reg. No. KL-07/BK 3362, a car bearing Reg. No. KL41/C5768, owned by the 1[st] respondent, driven by the 2[nd] respondent and insured with the 3[rd] respondent, came in a rash and negligent manner and hit her vehicle and she sustained severe injuries. She claimed an amount of Rs.35,00,000/- as compensation for the personal injuries sustained in the accident. 3. Before the Tribunal, Exts.A1 to A17 were marked on the side of the petitioner. The Manager of KSFE, Poochakkal Branch was examined as PW1. The respondents did not MACA 1940/2016 :3: adduce any evidence. Ext.C1 is the report of the Medical Board which shows that the petitioner has sustained 75% disability. 4. Respondents 1 and 2 entered appearance before the Tribunal and filed written statements admitting the accident, but contending that the accident was not due to the negligence of the 2[nd] respondent. It was also contended that the 2[nd] respondent was having a valid driving license at the time of the accident and that the amount claimed is excessive. 5. The 3[rd] respondent insurer filed a written statement admitting that the offending vehicle was having a valid policy of insurance at the time of the accident. However, they contended that the accident happened due to the negligence of the rider of the scooter and the amount claimed is excessive. They also disputed the age, occupation and monthly income of the petitioner. 6. The petitioner was aged 41 years at the time of the MACA 1940/2016 **==> picture [14 x 10] intentionally omitted <==** accident. She was a Collection Agent of KSFE. She claimed that she was having a monthly income of Rs.20,000/- at the time of the accident. Ext.A12 is the certificate issued by the Manager of KSFE, Poochakkal Branch which shows that the petitioner was a Collection-cum-Canvassing Agent of the said branch and she earned an amount of Rs.1,32,840/- towards commission during the period from 01.01.2010 to 31.01.2011, with an average monthly income of Rs.10,218/-. 7. The Tribunal found that the petitioner is not a permanent employee of KSFE and based on the evidence of PW1, found that there was considerable reduction in her income after the accident. She cannot do door-to-door collection after the accident and can work only as a canvassing agent. Therefore, the Tribunal took the monthly income of the petitioner as Rs.6,000/- for the purpose of calculation of compensation for disability. The multiplier was taken as '14' and the percentage of disability was taken as 75% based on Ext.C1 report. MACA 1940/2016 :5: 8. The Tribunal found that the accident happened due to the negligence of the 2[nd] respondent, the driver of the car and awarded an amount of Rs.19,02,600/- as total compensation for the personal injuries sustained by the petitioner and directed the insurer to satisfy the award with interest at 8% per annum from the date of petition till realisation, with proportionate costs. 9. The Tribunal awarded the compensation under the following heads:- |**Heads**|**Amount**<br>**claimed**|**Amount**<br>**awarded**<br>**(In Rs.)**|| |---|---|---|---| |Loss of earnings|126000|120000|10000x12| |Partial<br>loss<br>of<br>earnings|0|0|| |Transport<br>to<br>hospital and back to<br>home|25000|10000|| |Extra nourishment|50000|10000|| |Damage to clothes<br>and articles|2000|500|| |Attendant expenses|50000|35000|| |Medical expenses|800000|771100|| |Compensation for|150000|100000|| MACA 1940/2016 :6: |pain and sufferings|||| |---|---|---|---| |Compensation for<br>continuing<br>and<br>permanent/partial<br>disability|1500000|756000|6000x12x75/100<br>x14| |Compensation for<br>disfiguration|50000|0|| |Compensation for<br>loss of earning<br>power|0|0|| |Compensation for<br>future<br>treatment<br>expenses|400000|100000|| |Compensation for<br>expectation of life|0|0|| |Compensation for<br>loss of expectation<br>of life/amenities and<br>enjoyment in life|400000|0|| |**Total**|**3553000**|**1902600**|| 10. According to the petitioner, though Ext.C1 certifies that she is having only 75% disability, for the purpose of calculation of compensation for permanent disability, the percentage of disability has to be taken as 100%. According to her, the notional monthly income taken by the Tribunal is too low. It is also contended that she is entitled to 30% increase in her total income. Further, the Tribunal went MACA 1940/2016 :7: in not amount under the head wrong awarding any ‘compensation for loss of amenities'. She also contended that huge amounts have been spent on her treatment after the award and she needs future treatment including revision hip replacement. 11. Smt.Kochumol Koduvath, the learned counsel for the petitioner, relied on the decisions of the Hon'ble Supreme Court in v. **Raj Kumar Ajay Kumar [2011 (1) KLT 620: (2011) 1 SCC 343], Santosh Devi** v. **National Insurance Company Limited & Ors [2012 (4) SCALE 559: AIR 2012 SC 2185]** , **Pappu Deo Yadav** _v_ . **Naresh Kumar and others [AIR 2020 SC 4424]** and the decision of this Court in **United India Insurance Company Limited** v. **Dilna Dineshan [2022 (2) KHC 396:ILR 2022 (2) Ker. 353]** in support of her contentions in the appeal. 12. Sri. Mathews Jacob, the learned senior counsel for the insurance company submits that there is no evidence that the petitioner has sustained 100% loss of earning capacity MACA 1940/2016 :8: and she is pursuing her job after the accident and the amount awarded is just and reasonable. 13. Regarding compensation for permanent disability, the Tribunal has taken the percentage of disability shown in Ext.C1 as the percentage of loss of earning capacity. Since the Medical Board has certified the permanent disability of the petitioner as 75%, this Court has to consider the effect and impact of such permanent disability on her earning capacity. The Hon'ble Supreme Court, in **Raj Kumar** (supra) considered in detail the correlation between the permanent disability suffered in an accident and the loss of earning capacity resulting therefrom. The Court held as under:- “8. 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 MACA 1940/2016 :9: permanent disability will be different from the percentage of permanent disability. Some Tribunals wrongly assume that 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 permanently 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 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 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.....” “9. Therefore, the Tribunal has to first decide whether there is any permanent disability and if so the extent of such permanent disability. This means that the tribunal should consider and decide with reference to the evidence: (i) MACA 1940/2016 :10: 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. If the Tribunal concludes that there is no permanent disability, then there is no question of proceeding further and determining the loss of future earning capacity. But if the Tribunal concludes that there is permanent disability then it will proceed to ascertain its extent. After the Tribunal ascertains the actual extent of permanent disability of the claimant based on the medical evidence, it has to determine whether such permanent disability has affected or will affect his earning capacity. 10. 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 ability (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 MACA 1940/2016 :11: 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..” The said yardstick in determining the extent of permanent disability for assessment of loss of earning capacity has been reaffirmed by the Hon'ble Supreme Court in **Pappu Deo Yadav** (supra) and reiterated in **Jithendran** _**v**_ **. New India Assurance Co. Ltd. and another [2021 KHC 6653: 2021 (4) KLJ 646: AIR 2021 SC 5382]** . From the evidence adduced, it can be seen that the petitioner is working as a canvassing agent even after the accident though she cannot do door-to-door collection as a canvassing agent. It is to be noted that this is not a case where she cannot do any job after the accident. She is pursuing lesser scale of activities in the same field and continues to earn, though with a lesser income. Therefore, the percentage of disability cannot be MACA 1940/2016 **==> picture [20 x 10] intentionally omitted <==** taken as 100% for the purpose of calculation of loss of earning capacity. The Tribunal is right in taking the percentage of disability of the petitioner as 75% for calculating compensation for permanent disability. 14. As regards the monthly income of the petitioner, the Tribunal found that she is not a permanent employee of the KSFE. Based on the evidence adduced by PW1, the Tribunal found that the average monthly income of the petitioner was Rs.10,218/- and since she was working as a canvassing agent even after the accident, the Tribunal took her monthly income as Rs.6,000/- for the purpose of calculation of compensation for permanent disability. 15. In **Pappu Deo Yadav** (supra) **,** the Apex Court has held that, in cases of serious injuries resulting in permanent disablement incurred as a result of a motor accident, the claimant can seek, apart from compensation for future loss of income, amounts for future prospects too. However, since the petitioner was not permanently employed, only 25% can be MACA 1940/2016 **==> picture [20 x 10] intentionally omitted <==** added towards future prospects. Adding 25% towards future prospects, the monthly income of the petitioner will come to Rs.7500/- (Rs.6000+Rs.1500). Therefore, the compensation for continuing and permanent disability is reassessed as **Rs.9,45,000/-** (Rs.7500×12×75/100x14). Since the petitioner has already been awarded an amount of Rs.7,56,000/- towards compensation for continuing and permanent disability, she will be entitled to an enhanced amount of Rs. **1,89,000** /- under the said head. 16. Towards compensation for future treatment, the Tribunal has awarded an amount of Rs.1,00,000/-. Ext.A4 discharge summary would show that the petitioner has sustained transverse and posterior wall fracture left acetabulum with incarcerated bony fragment, fracture pelvis left, open wound left knee, scapula fracture left, 3[rd] , 4[th] and 5[th] rib fracture left, and posterior dislocation left hip and fracture head of left femur. The Medical Board has assessed her permanent disability as 75%. The petitioner has MACA 1940/2016 **==> picture [20 x 10] intentionally omitted <==** produced medical certificate dated 13.01.2022 along with I.A No.1/2022 in this appeal to the effect that she requires revision hip replacement to make her mobile and pain free. I find that the petitioner is entitled for an amount of Rs.2,00,000/- towards future treatment expenses. Since an amount of Rs.1,00,000/- is already awarded, the petitioner is entitled for an additional sum of **Rs.1,00,000/-** under the said head. 17. Towards compensation for loss of amenities, no amount has been awarded by the Tribunal. Considering the nature of injuries sustained by the petitioner and the disability, she is entitled to an amount of **Rs.1,00,000/-** under the said head. 18. I find that the amounts awarded under other heads by the Tribunal are just and reasonable. In the result, the petitioner is entitled for an enhanced compensation of **Rs.3,89,000/-** (1,89,000+1,00,000+1,00,000) with 8% interest p.a. from the date of petition till realisation MACA 1940/2016 :15: along with proportionate costs. The 3rd respondent insurance company shall deposit the additional compensation granted in this appeal along with interest and costs before the Tribunal within a period of two months from the date of receipt of a certified copy of this judgment. While calculating interest, the petitioner will not be entitled to interest for a period of 409 days as per order dated 01.04.2019 in C.M. Application No.2296/2016. It is also made clear that the petitioner will be entitled to interest on future treatment expenses only from the date of the award. The appeal is allowed to the above extent. Sd/- **MURALI PURUSHOTHAMAN JUDGE** spc/ MACA 1940/2016 :16: ## APPENDIX APPELLANT'S EXHIBITS: EXT.X1:MEDICAL CERTIFICATE DATED 13.01.2022 ISSUED FROM THE MEDICAL TRUST HOSPITAL.