Surendran S/o Rayirukutty v. National Insurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **FRIDAY, THE 13TH DAY OF MARCH 2020 / 23RD PHALGUNA, 1941** ## **MACA.No.4105 OF 2016(C)** **AGAINST THE AWARD IN OPMV 8/2009 DATED 19-05-2016 OF MOTOR ACCIDENT CLAIMS TRIBUNAL VADAKARA** ## **APPELLANT/S:** **SURENDRAN S/O. RAYIRUKUTTY, AGED 53 YEARS, KUNEEMMAL HOUSE, AYANIKKAD AMSOM DESOM, AYANIKKAD P.O, KOYILANDY TALUK, KOZHIKODE DISTRICT, REPRESENTED BY WIFE GUARDIAN SANDHYA, AGED 39 YEARS, W/O. SURENDRAN, KUNEEMMAL HOUSE, AYANIKKAD AMSOM DESOM,AYANIKKAD P.O, KOYILANDY TALUK, KOZHIKODE DISTRICT** **BY ADVS. SRI.ABRAHAM P.GEORGE SMT.M.D.BEENA SRI.M.P.JAYAN SMT.M.SANTHY** **RESPONDENT/S:** **NATIONAL INSURANCE CO. LTD. DIV. NO 10,FLAT NO 101-106,N-1,BMC HOUSE, CANNAUGHT PLACE, NEW DELHI 110 001** **R1 BY ADV. SMT.DEEPA GEORGE** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 13.03.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA. No. 4105 of 2016 -2- ## **JUDGMENT** The appellant is the claimant in O.P(MV)No.8 of 2009 on the file of the Motor Accidents Claims Tribunal, Vatakara, a claim petition filed under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of the injuries sustained by him in a motor accident, which occurred on 04.03.2008, while he was riding a motorcycle bearing registration No.KL-11/K-6307. At the place of accident, the motorcycle was hit by a car bearing registration No.PY-03/5663 owned by the 1[st] respondent, driven by the 2[nd] respondent and insured with the 3[rd] respondent. In the accident, he sustained injuries. Alleging that the accident occurred due to the rash and negligent driving of the car by the 2[nd] respondent driver, claim petition was filed before the Tribunal claiming a total compensation of Rs.2,00,000/- under various heads. 2. Before the Tribunal, the 1[st] respondent did not file any written statement. The 2[nd] respondent remained absent and he was set ex parte. 3. The 3[rd] respondent insurer filed written statement admitting insurance coverage of the car involved in the accident; however, denying negligence alleged against its driver. The insurer MACA. No. 4105 of 2016 -3- contended that the accident occurred due to the rash and negligent riding of the motorcycle by the claimant. The insurer disputed the age, occupation, monthly income, etc. stated in the claim petition. The insurer contended that the compensation claimed is highly excessive. 4. Before the Tribunal, Exts.A1 to A17 were marked on the side of the claimant and PWs.1 to 3 were examined. On the side of the respondents, the insurance policy of the offending vehicle was marked as Ext.B1. The document marked as Exts.C1 and C2 are the disability certificates issued by the Medical Board. 5. After considering the pleadings and materials on record, the Tribunal arrived at a conclusion that the accident occurred due to the rash and negligent driving of the car by its driver. Since insurance coverage of the said vehicle was not in dispute, the insurer was held liable to indemnify the insured. Under various heads, the Tribunal awarded a total compensation of Rs.7,33,759/-, together with interest at the rate of 9% per annum from the date of petition, i.e., 23.12.2008 till date of deposit, with proportionate cost, and the insurer was directed to satisfy the award. 6. Dissatisfied with the quantum of compensation awarded MACA. No. 4105 of 2016 -4- by the Tribunal, the appellant/claimant is before this Court in this appeal. 7. Heard the learned counsel for the appellant/claimant and also the learned Standing Counsel for the 3[rd] respondent insurer. 8. The issue that arises for consideration in this appeal is as to whether the appellant is entitled for enhancement of the compensation awarded by the Tribunal under various heads. 9. In **State of Haryana v. Jasbir Kaur [(2003) 7 SCC 484]** the Apex Court held that the Tribunal under Section 168 of the Motor Vehicles Act, 1988 is required to make an award determining the amount of compensation which is to be in the real sense 'damages' which in turn appears to it to be 'just and reasonable'. It has to be borne in mind that compensation for loss of limbs or life can hardly be weighed in golden scales. But at the same time it has be to be borne in mind that the compensation is not expected to be a windfall for the victim. Statutory provisions clearly indicate that the compensation must be 'just' and it cannot be a bonanza; not a source of profit; but the same should not be a pittance. ## 10. In **National Insurance Company Ltd. v. Pranay** MACA. No. 4105 of 2016 -5- **Sethi [(2017) 16 SCC 680]** a Constitution Bench of the Apex Court held that, Section 168 of the Motor Vehicles Act, 1988 deals with the concept of 'just compensation' and the same has to be determined on the foundation of fairness, reasonableness and equitability on acceptable legal standard because such determination can never be in arithmetical exactitude. It can never be perfect. The aim is to achieve an acceptable degree of proximity to arithmetical precision on the basis of materials brought on record in an individual case. The conception of 'just compensation' has to be viewed through the prism of fairness, reasonableness and non-violation of the principle of equitability. 11. In the instant case, the compensation awarded by the Tribunal under various heads reads thus; |Sl.<br>No.|Head of claim|Amount<br>claimed<br>(in Rs.)|Amount<br>allowed<br>(in Rs.)|Basis/vital<br>details in a<br>nutshell| |---|---|---|---|---| |1|Loss of earning|70,000/-|84,000/-|(3,500 x24)| |2|Permanent disability|5,00,000/-|3,15,000/-|Para No.10| |3|Transport to hospital|10,000/-|5,000/-|Para N.12| |4|Medical expenses|1,00,000/-|1,70,459/-|(Ext.A10 &<br>A14 series)| |5|Pain and sufferings|2,00,000/-|50,000/-|Para No.15| |6|Bystander's expense|5,00,000/-|18,800/-|Para No.18| |7|Loss of earning power<br>(not specified)|5,00,000/-|30,000/-|Para No.19| |8|Mental shock and<br>agony|1,00,000/-|25,000/-|Para No.17| MACA. No. 4105 of 2016 -6- |9|Damage to clothing|500|500|| |---|---|---|---|---| |10|Loss of inconvenience|1,00,000/-|15,000/-|Para No.16| |11|Extra nourishment|50,000/-|20,000/-|Para No.13| ||Total<br>limited to|21,80,500/-<br>20,00,000/-|7,33,759/-|| 12. The accident occurred on 04.03.2008. At the time of accident, the appellant was aged 43 years. The appellant claimed a monthly income of Rs.10,000/- as self-employed. The wife and next friend of the appellant, who was examined as PW1, deposed that he was earning a monthly income of Rs.10,000/-. She filed proof affidavit, wherein she has stated that, at the time of accident, the appellant was earning a sum of Rs.15,000/- as mason and also from the contract works undertaken with the assistance of other workers. No reliable materials were produced before the Tribunal to prove the monthly income of the appellant. The Tribunal fixed his monthly income notionally, as Rs.3,500/-, for the purpose of assessing compensation under various heads. 13. In **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited [(2011) 13 SCC 236]** the Apex Court reckoned the monthly income of a coolie (manual labourer), who met with a road accident in the year 2004, at the age of 35 years, notionally as Rs.4,500/-. The Apex Court held that, the claimant who was working as a coolie cannot be MACA. No. 4105 of 2016 -7- expected to produce any documentary evidence to substantiate his claim. In the absence of any other evidence contrary to the claim made by the claimant, in the facts of the said case, the Tribunal should have accepted the claim of the claimant. The Apex Court made it clear that, in all cases and in all circumstances, the Tribunal need not accept the claim of the claimant, in the absence of supporting material. It depends on the facts of each case. In a given case, if the claim made is so exorbitant or if the claim made is contrary to ground realities, the Tribunal may not accept the claim and may proceed to determine the possible income by resorting to some guess work, which may include the ground realities prevailing at the relevant point of time. 14. In **Syed Sadiq v. Divisional Manager, United India Insurance Co. Ltd. [(2014) 2 SCC 735]** , taking note of the earlier decision in **Ramachandrappa's case (supra)** , the Apex Court reckoned the monthly income of a vegetable vendor, who met with a road accident in the year 2008, at the age of 24 years, notionally as Rs.6,500/-. In the said decision, the Apex Court held that, a labourer in an unorganised sector doing his own business cannot be expected to produce documents to prove his monthly income. Therefore, there was no reason for the Tribunal and the MACA. No. 4105 of 2016 -8- High Court to ask for evidence to prove his monthly income. Going by the state of economy prevailing at that time and the rising prices in agricultural products, the Apex Court accepted his case that a vegetable vendor is reasonably capable of earning Rs.6,500/- per month. 15. In the absence of any reliable evidence, considering the economic conditions prevailing at the time of accident, i.e., during the year 2008, and taking note of the fixation of notional monthly income by the Apex Court in the decisions referred to supra, and also the evidence of PW1, this Court deem it appropriate to re-fix the monthly income of the appellant notionally, as Rs.6,750/-, for the purpose of assessing compensation under various heads. 16. The document marked as Ext.A3 is the wound certificate; Ext.A6 is the treatment book; and Ext.A7 is the neuro surgery report. As evident from medical records, in the accident, the appellant sustained multiple hemorrhagic contusion involving right external capsule lentiform nucleus region (measuring 14x10x7mm), bilatiral frontallobes and left temporal region; subarachnoid hemorrahage right parietal cortical sulci and anterior interhemispheric fissure; subdural hemorrahage in right frontotempor parietal region measuring maximum thickness of MACA. No. 4105 of 2016 -9- 4.6mm with frontal region with mass effect in the form of effacement of adjacent cortical sulci; fracture left posterior partial bone with adjacent thin extra haematoma; fracture involving left squamous temporal bone extending to greater wing of sphenoid bone; fracture light parietal bone; fracture sphenoid bone with hemosinus; multiple hemorrhagic contusion with perilesional edema in left external capsule; bleed into left lateral ventricle, middle line shift of 5.4mm towards left with right lateral ventricle and multiple revolving hemorrhagic contusion with parilesional edima in right basifrontal region and left external capsule. He had undergone inpatient treatment at Medical College Hospital, Kozhikode from 04.03.2008 to 13.04.2008; and from 28.07.2008 to 30.07.2008. He had undergone inpatient treatment at MIMS hospital, Calicult from 18.09.2013 to 21.09.2013. While undergoing inpatient treatment at Medical College Hospital, Kozhikode, he underwent surgeries on 06.03.2008 and at MIMS Hospital on 19.09.2013. The appellant had undergone inpatient treatment for a total period of 44 days. Ext.A10 series of medical bills are for a sum of Rs.84,950/-. Ext.A14 series of medical bills are for a further sum of Rs.88,544/-. The marking of Ext.A10 series of bills for Ayurvedic treatment was objected by the learned MACA. No. 4105 of 2016 -10- counsel for the insurer. The Ayurvedic doctor, who treated the appellant, was examined as PW2, who has deposed that out of the aforesaid bills, a bill for Rs.3,000/- was towards advance amount. Therefore, after deducting a sum of Rs.3,000/- covered by the said bill, the Tribunal awarded a sum of Rs.1,70,459/- towards medical expenses. 17. The document marked as Ext.A17 is the disability certificate, in which the permanent disability of the appellant, on account of the injuries sustained in the accident is taken as 50%. The Medical Board at the Government Medical College Hospital, Kozhikode issued Ext.C1 disability certificate, in which the permanent disability of the appellant, on account of the injuries sustained in the accident, is assessed as 25%. Thereafter, Ext.C2 disability certificate was issued, in which his permanent disability is assessed as 30%. 18. During the pendency of this appeal, the appellant was referred to Medical Board at the Government Medical College Hospital, Kozhikode, in order to assess his permanent disability. The report of the Medical Board dated 23.01.2020 is placed on record along with a covering letter dated 05.02.2020 of the Superintendent of that hospital, who is the Chairman of the MACA. No. 4105 of 2016 -11- Medical Board. In the disability certificate dated 23.01.2020, the permanent disability of the appellant, on account of the injuries sustained in the accident, is assessed as 70.50%. 19. The behavioural observations, test findings, impressions, etc. by the Medical Board in the disability certificate dated 23.01.2020 read thus: **“Behavioral Observations:** Patient was conscious and came walking ( with help of bystander) to the testing room. He was alert and oriented to person and time not to place. Patient was moderately kempt. Eye contact was maintained. The rapport was able to be established easily. The patient was showing over familiarity to the examiner. He could understand and follow the instructions given to him. His reaction time and psychomotor activity was within normal limit. His mood appeared to be euthymic. He was less motivated for the assessment but cooperated with the examiner throughout the assessment. During the assessment, his attention seemed to shift rapidly without any external stimuli. He was talking more about his past life events and was showing over familiarity and over talkativeness toward the examiner. ## **Test Findings** The findings from current neuropsychological assessments are discussed below: NIMHANS Neuropsychology Battery |Sl.<br>No|Functions|Test|Variable|Patients<br>score|Percentile|Remarks| |---|---|---|---|---|---|---| |1.|Motor<br>Speed|Finger<br>tapping|Right hand-<br>average|37|10*|Impaired| ||||Left hand-<br>average taps|29|5*|Impaired| |2.|Mental<br>speed|Digit<br>symbol|Total time|780 s|˂3*|Impaired| MACA. No. 4105 of 2016 -12- |3.|Focused<br>Attention|Color<br>trials-1|Total time|Total time|195 s|5*|Impaired| |---|---|---|---|---|---|---|---| |||Color<br>trials-2|Total time||297|12- 15*|| |4.|Verbal<br>Fluency|Controlled<br>Oral word<br>Association<br>test|Average new<br>words||5|15 – 30|Adequate| |5.|Sustained<br>attention|Digit<br>Vigilance|Total time||880 s|19-21|Adequate| ||||No. of errors||100|<2*|Impaired| |6.|Category<br>fluency|Animal<br>names test|Total<br>new<br>words||4|<5*|Impaired| |7.|Design<br>fluency|Free<br>condition|Total novel<br>designs||4|15-20|Adequate| |||Fixed<br>condition|Total Novel<br>Designs||2|<5*|Impaired| |8.|Verbal<br>working<br>memory|Verbal n<br>back|1 back hits||5|<5*|Impaired| ||||1 back errors||3|19|| ||||2 back hits||3|<5*|| ||||2 back errors||7|8-14*|| |9.|Visual<br>working<br>memory|Spatial<br>span<br>(WMS-iii<br>ind)|Forward||5||| ||||Backward<br>Total score||5<br>10||| |10<br>.|Planning|Tower of<br>London<br>Tower of<br>London<br>test|2<br>mov<br>es|Mean<br>time|11 s|13- 18|Adequate| |||||Mean<br>moves|2|100|| |||||No of<br>proble<br>ms<br>solved<br>with<br>min<br>moves|2|10-95|| ||||3<br>mov<br>es|Mean<br>time|17|28-31|| |||||Mean<br>moves|3|40-95|| |||||No of<br>proble<br>ms<br>solved<br>with|4|95|| MACA. No. 4105 of 2016 -13- |||||min<br>moves|||| |---|---|---|---|---|---|---|---| ||||4<br>mov<br>es|Mean<br>time|18|61|| |||||Mean<br>moves|4|100|| |||||No of<br>proble<br>ms<br>solved<br>with<br>min<br>moves|4|90-95|| ||||5<br>mov<br>es|Mean<br>time|49|11-13*|| |||||Mean<br>moves|8|34-42|| |||||No of<br>proble<br>ms<br>solved<br>with<br>min<br>moves|0|<5*|| ||||Total no of<br>problems<br>solved with<br>minimum no<br>of moves||12|33-50|| |11<br>.|Set<br>shifting|Wisconsin<br>card<br>sorting test|Number of<br>trials||128|82|Impaired| ||||No of correct<br>responses||49|5-10*|| ||||No of errors||80|11-15*|| ||||Percentage of<br>errors||63|11-15*|| ||||Perseverative<br>responses||69|4*|| ||||Percentage of<br>perseverative<br>responses||54|4*|| ||||Perseverative<br>errors||67|4-7*|| MACA. No. 4105 of 2016 -14- ||||Percentage of<br>perseverative<br>errors|52|4-7*|| |---|---|---|---|---|---|---| ||||Non<br>perseverative<br>errors|13|89|| ||||Percentage of<br>non<br>perseverative<br>errors|10|93|| ||||Conceptual<br>level<br>responses|37|5-10*|| ||||Percentage of<br>conceptual<br>level<br>responses|29|5-10*|| ||||No<br>of<br>categories<br>completed|3|40-50|| ||||Trails<br>to<br>complete<br>category1|11|88|| ||||Failure to<br>maintain set|0|100|| |12<br>.|Response<br>inhibition|Stroop test|Stroop effect|397|11*|Impaired| |13<br>.|Visual<br>compreh<br>ension|Token test|Total score|21|30|Adequate| |14<br>.|Verbal<br>learning<br>&<br>memory|Auditory<br>verbal<br>learning<br>test|Trial 1 no.<br>correct|5|10-15|Impaired| ||||Trial 2 no.<br>correct|5|10*|| ||||Trial 3 no.<br>correct|7|15*|| ||||Trial 4 no.<br>correct|6|5-15*|| ||||Trial 5 no.<br>correct|6|<5*|| ||||Total no<br>correct|29|<5*|| ||||List B no<br>correct|2|10*|| ||||Immediate<br>recall no<br>correct|5|<5*|| MACA. No. 4105 of 2016 -15- ||||Delayed<br>recall no<br>correct|5|<5*|| |---|---|---|---|---|---|---| ||||Long term<br>percent<br>retention|83|<5*|| ||||No of hits|15|70-95|| ||||No of misses|0|100|| ||||No of false<br>alarm|7|7-13*|| |15<br>.|Visuospat<br>ial<br>constructi<br>on|Complex<br>figure test|Copying|20|5-10*|Impaired| |16<br>.|Visual<br>learning<br>and<br>memory|Complex<br>figure test|Immediate|2|<5*|Impaired| ||||Delayed|2|<5*|| Note: * impaired function ## **Summary of Test Findings** His over-familiarity, fluctuating attention, working memory, decreased response inhibition (as evidenced on Stroop Test) are indicatives of frontal lobe impairment. The patient has difficulty in encoding and retention of both visual and verbal materials (AVLT and Complex figure Test) indicative of temporal lobe impairment. The patient also has difficulty in visual construction (Complex Figure Test), indicative of parietal involvement. ## **Impression** The current neuropsychological assessment is suggestive of diffused involvement (though the major difficulties were in frontal lobe functions). The disability percentage of cognitive impairment is 63% (10/16) in the current assessment. ## **Recommendation** Feedback regarding findings to the patient and caregivers Patient may benefit from cognitive retraining Psychoeducation.” 20. During the course of arguments, the learned Standing MACA. No. 4105 of 2016 -16- Counsel for the respondent insurer has not raised any objections as to the assessment of disability made by the Medical Board in the disability certificate dated 23.01.2020. 21. In **Mekala v. Malathi M. [(2014) 11 SCC 178]** the appellant/claimant before the Apex Court was a student of 11th Standard, when the accident took place on 11.04.2005. She was holding first rank in her school. She had an excellent career ahead of her, but for the accident in which she sustained grievous injuries, and became a permanently disabled. In Ext.P12 disability certificate, the doctor - PW2 certified a permanent disability of 70% on account of the fractures sustained to both the legs. Upon examination PW2 opined that the appellant is not able to squat. She is not able to sit with cross legged comfortably on the floor and the right range of movement (goniometer) - Fixed Flexion Deformity (FFD) of 850 - ligament instability on account of grievous injuries. PW2 deposed that the appellant has sustained fracture of both bones in both the legs. The knee folding is restricted between 25 degree to 85 degree and the legs could not be stretched fully and the knee bones are mal-united and she cannot walk without crutches. PW2 deposed further that the appellant is suffering from severe pain while walking and the MACA. No. 4105 of 2016 -17- thickness of her both legs are reduced. The High Court of Judicature at Madras awarded compensation under the head loss of earning, taking a monthly notional income of Rs.6,000/-, in the absence of any document on record, as she was a student. The Apex Court held that, the fact that the appellant was a brilliant student at the time of the accident should also be taken into consideration while awarding compensation to her. Therefore, taking Rs.6,000/- as monthly notional income for the purpose of awarding compensation under the head loss of earning is too meager an amount. Considering the fact that the appellant is a brilliant student, as she has secured first rank in the 10 th Standard, she would have had a better future in terms of educational career to acquire basic or master degrees in the professional courses and she could have got a suitable public or private employment. But, on account of the permanent disablement she suffered due to injuries sustained in the accident, that opportunity is lost to her and therefore, she is entitled to compensation as per law laid down by the Court in the cases of **Raj Kumar v. Ajay Kumar [(2011) 1 SCC 343], R.D. Hattangadi v. Pest Control (India) Pvt. Ltd. [(1995) 1 SCC 551]** and **Govind Yadav v. New India Insurance Company** MACA. No. 4105 of 2016 -18- **Limited [(2011) 10 SCC 683]** . Further, having regard to the undisputed fact that there has been inflation of money in the country since the occurrence of the accident, the same has to be taken into account by the Tribunal and the High Court while awarding compensation to the appellant as per the principle laid down in the case of **Govind Yadav** , which has reiterated the position of **Reshma Kumari v. Madan Mohan [(2009) 13 SCC 422]** . The Apex Court noticed that the appellant has undergone and undergoing substantial pain and suffering due to the accident, which has rendered both her legs dysfunctional. This has reduced the scope of her future prospects including her marriage substantially. It has been held in the case of **Reshma Kumari** that certain relevant factors should be taken into consideration while awarding compensation under the head of future prospect of income. In the light of the principles laid down in the said case and keeping in mind the past results of the appellant, the Apex Court took her monthly income as Rs.10,000/-, for the purpose of computation of just and reasonable compensation under the head of loss of earning. The Apex Court held that the appellant is entitled for 50% increase, taking into consideration the future prospects, as per the principle laid down in **Santosh Devi v.** MACA. No. 4105 of 2016 -19- **National Insurance Company Ltd. [(2012) 6 SCC 421]** . 22. In **Syed Sadiq v. Divisional Manager, United India Insurance Co. Ltd. [(2014) 2 SCC 735]** , the Apex Court granted disability compensation to the injured, adding 50% future prospects to the notional monthly income, based on the principle laid down in **Santosh Devi v. National Insurance Company Limited [(2012) 6 SCC 421]** . A reading of the said decision would show that the injured before the Apex Court were having higher percentage of functional disability, on account of permanent disability, which had resulted in higher extent of loss of future earning capacity, and it was in such circumstances that the Apex Court granted them disability compensation by adding future prospects. 23. Considering the nature of injuries sustained and the permanent disability arising therefrom, which is assessed as 70.50% by the Medical Board in the disability certificate dated 23.01.2020, the appellant can be treated as an injured having higher percentage of functional disability, on account of permanent disability, which had resulted in higher extent of loss of future earning capacity. Therefore, the appellant is entitled for grant of compensation under the head permanent disability, adding future MACA. No. 4105 of 2016 -20- prospects to his notional monthly income. 24. In **Pranay Sethi [(2017) 16 SCC 680]** the Constitution Bench held that, while determining the income, an addition of **50%** of actual salary to the income of the deceased towards future prospects, where the deceased had a **permanent job** and was **below the age of 40 years** , should be made. The addition should be **30%** , if the age of the deceased was **between 40 to 50 years** . In case the deceased was between the age of **50 to 60 years** , the addition should be **15%** . Actual salary should be read as actual salary less tax. The Apex Court held further that, in case the deceased was **self-employed** or on a **fixed salary** , an addition of **40%** of the established income should be the warrant where the deceased was **below the age of 40 years** . An addition of **25%** where the deceased was **between the age of 40 to 50 years** and **10%** where the deceased was **between the age of 50 to 60 years** should be regarded as the necessary method of computation. The established income means the income minus the tax component. 25. In the instant case, at the time of accident, the appellant was aged 43 years. He claimed monthly income as mason and also from undertaking contract works. The appellant MACA. No. 4105 of 2016 -21- can only be treated as self-employed. In view of the law laid down by the Apex Court in **Mekala** , **Syed Sadiq** and **Pranay Sethi,** an addition of **25%** of the notional monthly income of the appellant, as re-fixed in this appeal considering the economic conditions prevailing at the time of accident and taking note of the fixation of notional monthly income by the Apex Court in **Ramachandrappa** and in **Syed Sadiq** referred to supra, can be made towards future prospects, since the appellant was **between the age of 40 to 50 years** . 26. Therefore, for the purpose of re-fixing the compensation under the head permanent disability, **25%** of the monthly income of the appellant notionally re-fixed in this appeal as Rs.6,750/-, i.e., a sum of Rs.1,687/- (6,750 x 25/100) has to be added towards future prospects. In the result, the monthly income of the appellant, for the purpose of re-fixing the compensation under the head permanent disability, is reckoned as Rs.8,347/- (6,750 + 1,687). 27. In **Sarla Verma v. Delhi Transport Corporation [(2009) 6 SCC 121]** , the Apex Court, after referring to its earlier decisions in **Kerala State Road Transport Corporation v. Susamma Thomas [(1994) 2 SCC 176]** , **U.P. State Road** MACA. No. 4105 of 2016 -22- **Transport Corporation v. Trilok Chandra [(1996) 4 SCC 362]** and **New India Assurance Co. Ltd. v. Charlie [(2005) 10 SCC 720]** held that the multiplier to be used should be as mentioned in column (4) of the Table in paragraph 40 of the said decision [prepared by applying **Susamma Thomas** , **Trilok Chandra** and **Charlie** ], which starts with an operative multiplier of **18** [for the age groups of 15 to 20 and 21 to 25 years], reduced by one unit for every five years, i.e., multiplier of **17** for 26 to 30 years, multiplier of **16** for 31 to 35 years, multiplier of **15** for 36 to 40 years, multiplier of **14** for 41 to 45 years, and multiplier of **13** for 46 to 50 years, then reduced by two units for every five years, i.e., multiplier of **11** for 51 to 55 years, multiplier of **9** for 56 to 60 years, multiplier of **7** for 61 to 65 years and multiplier of **5** for 66 to 70 years. 28. In **National Insurance Company Ltd. v. Pranay Sethi [(2017) 16 SCC 680]** a Constitution Bench of the Apex Court held that, as far as the multiplier is concerned, the Claims Tribunal and the Courts shall be guided by Step 2 that finds place in paragraph 19 of **Sarla Verma** , read with paragraph 42 of the said judgment. 29. In the instant case, as on the date of accident, the MACA. No. 4105 of 2016 -23- appellant was aged 43 years. In the light of the decisions of the Apex Court in **Sarla Verma's case** and **Pranay Sethi's case** referred to supra, the multiplier of 15 applied by the Tribunal is not correct and the proper multiplier to be applied is **14** . 30. Towards compensation for permanent disability, the Tribunal awarded a sum of Rs.3,15,000/- (3,500 x 12 x 15 x 50/100). In this appeal, the monthly income of the appellant has already been re-fixed as Rs.6,7,50/-. Adding 25% of the notional monthly income of the appellant towards future prospects (6,750 + 1,687 = 8,347); applying the multiplier of 14 applicable to the age group of the appellant and the percentage of loss of earning capacity as 70.50%, the compensation under the head permanent disability is re-fixed as Rs.9,88,618/- (8,347 x 12 x 14 x 70.50/100), resulting an additional compensation of **Rs.6,73,618/-** (9,88,618 – 3,15,000). 31. After awarding compensation for permanent disability, the Tribunal awarded a sum of Rs.30,000/- under the head loss of earning power, relying on the decision of the Division Bench of this Court in **Kerala State Road Transport Corporation v. Peethambaran [1994 (2) KLT 717]** , wherein it was held that the claim for compensation under the head permanent disability is MACA. No. 4105 of 2016 -24- different from that towards loss of earning power. Both of these are different claims and cannot be considered of an overlapping nature. 32. The question whether whether compensation could be awarded separately on account of permanent disability and also on account of loss of earning capacity came up for consideration before a Full Bench of this Court in **Oriental Insurance Co. Ltd. v. Hariprasad [2005 (4) KLT 977]** . The Full Bench noticed that, loss of earning capacity does not come within the category of pecuniary damage in its broad sense. It is directly attributable to the injury and the extent of the irretrievable damage suffered. As the first step, therefore, items coming within the broad head for determining compensation for permanent disability are to be individually examined. Extent of loss of earning power is one of the ingredients. The sequence, if scrupulously followed, would avoid any confusion. Determination of loss of earning power does not prevent the Tribunal from further proceeding with its duty of assessing compensation for permanent disablement. But after adjudging quantum of compensation for the permanent disablement suffered, a fresh expedition therefore for fixing loss of earning power is not called for. The Full Bench held that, loss of MACA. No. 4105 of 2016 -25- earning power is one of the consequences that follows from a permanent disability. Permanent disability is a physical impairment which results in distinct personal, social and financial consequences to be classified as one head requiring compensation to be worked out as one entitling for non pecuniary damages. An injured, who sustained a disability is entitled to claim compensation under the head 'permanent disability'. If the resultant deprivation is categorised and claim is made under separate heads and compensation is awarded under the above heads, over and above the same, for the deprivation suffered compensation is not to be granted under the general head 'permanent disability'. All the eventualities that may surface on account of a disability, which deserve to be compensated may not be possible to be catalogued and essentially the Tribunal has to determine the claim bearing in mind the statutory mandate that what is payable is a just compensation. While awarding compensation under the head 'permanent disability', the Tribunal should take notice of the loss of earning power, in each individual case, in case a claim is made as one of the contributory to the total packet of compensation and shall not take into consideration the loss of earning power as a separate head after fixation of MACA. No. 4105 of 2016 -26- ## compensation for permanent disability. 33. In view of the law laid down by the Full Bench of this Court in **Hariprasad** , Rs.30,000/- awarded by the Tribunal under the head loss of earning power, after awarding compensation for permanent disability, cannot be sustained in law. Therefore, the impugned award of the Tribunal to that extent is set aside, resulting an **excess payment** of **Rs.30,000/-** , which has to be deducted from the additional compensation granted in this appeal. 34. As held by the Apex Court in **R.D. Hattangadi v. Pest Control (India) Private Limited [(1995) 1 SCC 551]** , compensation under the head loss of expectation of life can be granted in cases in which, the normal longevity of the person concerned is shortened, on account of the injuries sustained in an accident. Paragraph 9 of the said decision reads thus; “9. Broadly speaking while fixing an amount of compensation payable to a victim of an accident, the damages have to be assessed separately as pecuniary damages and special damages. Pecuniary damages are those which the victim has actually incurred and which is capable of being calculated in terms of money; whereas non pecuniary damages are those which are incapable of being assessed by arithmetical calculations. In order to appreciate two concepts pecuniary damages may include expenses incurred by the claimant: (i) MACA. No. 4105 of 2016 -27- medical attendance; (ii) loss of earning of profit up to the date of trial; (iii) other material loss. So far non pecuniary damages are concerned, they may include: (i) damages for mental and physical shock, pain suffering, already suffered or likely to be suffered in future; (ii) damages to compensate for the loss of amenities of life which may include a variety of matters, i.e., on account of injury the claimant may not be able to walk, run or sit; (iii) damages for the loss of expectation of life, i.e., on account of injury the normal longevity of the person concerned is shortened; (iv) inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life.” (underline supplied) 35. Considering the nature of injuries sustained and the disabilities noted by the Medical Board in the disability certificate dated 23.01.2020, resulting a permanent disability of 70.50%, this Court finds that the appellant can be granted compensation under the head loss of expectation of life. Accordingly, the appellant is granted a sum of **Rs.30,000/-** under the head loss of expectation of life. 36. Towards loss of earning, the Tribunal awarded a sum of Rs.84,000/-, at the rate of Rs.3,500/-, for a period of 24 months. Considering the nature of injuries sustained and the treatment the appellant had undergone, as borne out from medical records, the period of 24 months fixed by the Tribunal for granting loss of MACA. No. 4105 of 2016 -28- earning is just and reasonable. Since the monthly income of the appellant is re-fixed notionally as Rs.6,750/-, the compensation under the head loss of earning is re-fixed as Rs.1,62,000/- (6,750 x 24), resulting an additional compensation of **Rs.78,000/-** (1,62,000 – 84,000). 37. As compensation towards pain and suffering, the Tribunal awarded a sum of Rs.50,000/-. The Tribunal awarded a further sum of Rs.25,000/- towards mental shock and agony. 38. In **Govind Yadav v. New India Insurance Company Ltd. [(2011) 10 SCC 683]** , the Apex Court was dealing with the case of an unmarried person aged 24 years, who was working as helper. On account of the injuries sustained in the motor accident, his left leg was amputated above knee. Considering his age and also the fact that for the remaining life, he will suffer the trauma of not being able to do his normal work as helper, the Apex Court in order to meet the ends of justice, granted a sum of Rs.1,50,000/- in lieu of pain, suffering and trauma caused due to amputation of leg. 39. In the instant case, at the time of accident, the appellant was aged 43 years, who was earning his livelihood as a mason. On account of the injuries sustained in the accident and MACA. No. 4105 of 2016 -29- the disabilities noted by the Medical Board in the disability certificate dated 23.01.2020, the appellant will have to suffer from various kinds of handicaps, pain and suffering, etc., which he has to suffer for the rest of his life. He is unable to lead life as a normal man. Considering the aforesaid aspects of the matter, this Court deem it appropriate to re-fix the compensation under the head pain and suffering as Rs.75,000/-, resulting an additional compensation of Rs.25,000/- (75,000 – 50,000). The Tribunal, after awarding compensation under the head pain and suffering, awarded a further sum of Rs.25,000/- towards mental shock and agony, which cannot be sustained in law. Therefore, the impugned award of the Tribunal to that extent is set aside, resulting an excess payment of Rs.25,000/-, which is set off against Rs.25,000/- granted as additional compensation under the head pain and suffering. 40. Towards inconvenience (loss of amenities), the Tribunal awarded a sum of Rs.15,000/-. Considering the nature of injures sustained and 70.50% permanent disability on account of those injuries, the compensation under this head is re-fixed as Rs.70,000/-, resulting an additional compensation of **Rs.55,000/-** (70,000 – 15,000). MACA. No. 4105 of 2016 -30- 41. Towards transportation to hospital, the Tribunal awarded a sum of Rs.5,000/-. The accident is of the year 2008. On account of the injuries sustained in the accident, the appellant had undergone inpatient treatment for 44 days. Considering the nature of injuries sustained and the treatment the appellant had undergone, under three different spells, in two different hospitals, the compensation under this head is re-fixed as Rs.7,000/-, resulting an additional compensation of **Rs.2,000/-** (7,000 – 5,000). 42. Towards bystander expenses the Tribunal awarded a sum of Rs.18,800/-. Towards extra nourishment, the Tribunal awarded a further sum of Rs.20,000/-. The accident is of the year 2008. The appellant had undergone inpatient treatment only for 44 days. Considering the nature of injuries sustained, the treatment the appellant had undergone, and also his physical condition, the compensation awarded by the Tribunal under these heads represents just and reasonable compensation, which requires no enhancement in this appeal. 43. Towards damage to clothing, the Tribunal awarded a sum of Rs.500/-. The accident is of the year 2008. The compensation under this head is re-fixed as Rs.1,000/-, resulting MACA. No. 4105 of 2016 -31- an additional compensation of **Rs.500/-** (1,000 – 500). 44. Towards medical expenses, the Tribunal awarded a sum of Rs.1,70,459/-, covered by Exts.A10 and A14 series of medical bills. In the absence of any further materials, the compensation awarded by the Tribunal under this head represents just and reasonable compensation, which requires no enhancement in this appeal. 45. In the result, the appellant/claimant will be entitled for payment of an additional compensation of **Rs.8,09,118/-** (Rupees eight lakhs nine thousand one hundred and eighteen only) [(6,73,618 + 30,000 + 78,000 + 55,000 + 2,000 + 500) – 30,000] in this appeal, which will carry interest at the rate of **8%** per annum from the date of petition till realisation, excluding the period of delay of 116 days in filing this appeal, which was condoned by the order dated 10.08.2017 of the Division Bench in C.M.Appl.No.4794 of 2016, subject to the condition that the appellant will not be entitled to interest on the amount, if any, to be enhanced, for the period covered by the delay. The 3[rd] respondent insurer shall satisfy the additional compensation granted in this appeal, together with interest, within a period of two months from the date of receipt of a certified copy of this MACA. No. 4105 of 2016 -32- judgment, after deducting the liability, if any, of the appellant/ claimant towards Balance Court Fee and Legal Benefit Fund. The disbursement of additional compensation to the appellant/claimant shall be made taking note of the law on the point and 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. The appellant 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 learned Standing Counsel for the insurer, within one month from the date of receipt of a certified copy of this judgment. This appeal is disposed of as above. No order as to costs. Sd/- **ANIL K. NARENDRAN JUDGE** das