The Oriental Insurance Co. Ltd. v. Joji Agastin (MACA No. 2881/2016 & Cross Objection No. 75/2019)

MACA.No.2881/2016 **`& CROSS OBJECTION No.75 OF 2019`** 1 ``` IN THE HIGH COURT OF KERALA AT ERNAKULAM ``` ``` PRESENT ``` ``` THE HONOURABLE MR.JUSTICE BASANT BALAJI ``` ``` FRIDAY, THE 5[TH] DAY OF AUGUST 2022 / 14TH SRAVANA, 1944 ``` ``` M.A.C.A. NO.2881 OF 2016 ``` ``` (AGAINST THE AWARD DATED 23.04.2016 IN OP(MV)No.744/2013 OF ADDITIONAL MOTOR ACCIDENTS CLAIMS TRIBUNAL, PATHANAMTHITTA) ``` ## **`APPELLANT/3[RD] RESPONDENT:`** ``` THE ORIENTAL INSURANCE CO.LTD., KOTTARAKKARA, REPRESENTED BY ITS REGIONAL MANAGER, REGIONAL OFFICE, ERNAKULAM NORTH, KOCHI-18. ``` ``` BY ADVS. SRI.GEORGE CHERIAN (SR.) SMT.LATHA SUSAN CHERIAN SMT.K.S.SANTHI ``` ## **`RESPONDENT/CLAIMANT:`** ``` JOJI AGASTIN, S/O. P.A.AGASTIN, PADAMUTTOM, PULIKUNNU P.O., ALAPPUZHA. BY ADV SRI.A.N.SANTHOSH ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL ALONG WITH CROSS OBJECTION HAVING COME UP FOR ADMISSION ON 19.07.2022, THE COURT ON 05.08.2022 DELIVERED THE FOLLOWING: ``` MACA.No.2881/2016 **`& CROSS OBJECTION No.75 OF 2019`** 2 ``` IN THE HIGH COURT OF KERALA AT ERNAKULAM ``` ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE BASANT BALAJI FRIDAY, THE 5[TH] DAY OF AUGUST 2022 / 14TH SRAVANA, 1944 ``` **==> picture [210 x 9] intentionally omitted <==** ``` (AGAINST THE AWARD DATED 23.04.2016 IN OP(MV)No.744/2013 OF ADDITIONAL MOTOR ACCIDENTS CLAIMS TRIBUNAL, PATHANAMTHITTA) ``` ## **`CROSS OBJECTOR/RESPONDENT:`** ``` JOJI AGASTIN, PULIKUNNU P.O., ALAPPUZHA. ``` ``` BY ADV SRI.A.N.SANTHOSH ``` ## **`RESPONDENT/APPELLANT:`** ``` THE ORIENTAL INSURANCE CO.LTD., KOTTARAKKARA, REPRESENTED BY ITS REGIONAL MANAGER, REGIONAL OFFICE, ERNAKULAM NORTH, KOCHI- 18. ``` ``` BY ADVS. SRI.GEORGE CHERIAN (SR.) SMT.LATHA SUSAN CHERIAN SMT.K.S.SANTHI ``` ``` THIS CROSS OBJECTION ALONG WITH MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 19.07.2022, THE COURT ON 05.08.2022 DELIVERED THE FOLLOWING: ``` MACA.No.2881/2016 **`& CROSS OBJECTION No.75 OF 2019`** 3 ## **JUDGMENT** (Dated: 5[th] August, 2022) The 3[rd] respondent in O.P.(M.V.) No.744 of 2013 on the file of the Motor Accidents Claims Tribunal, Pathanamthitta is the appellant (the parties are referred to as they are arrayed in the petition). The appeal is filed being aggrieved by the amount of compensation awarded to the respondent/claimant as excessive. 2. Brief facts of the case are as follows: On 14.03.2013 at about 03.00 p.m., while the petitioner was walking from east to west along the Thiruvalla - Kozhenchery public road and when he reached the place Theepany, a tanker lorry bearing Reg.No.KL-03/L-3973 driven by the first respondent from west to east in a rash and negligent manner, knocked down the petitioner and the front left wheel of the lorry ran over the petitioner’s left leg causing severe injuries. The petitioner was admitted to Pushpagiri Medical College Hospital and his left MACA.No.2881/2016 **`& CROSS OBJECTION No.75 OF 2019`** **==> picture [9 x 8] intentionally omitted <==** leg was amputated above the knee. He underwent three surgeries. The accident occurred solely due to the rash and negligent driving of the 1[st] respondent. The 2[nd] respondent is the registered owner and the 3[rd] respondent is the insurer of the offending vehicle. The respondents are therefore jointly and severally liable for the compensation to the petitioner. 3. 1[st] and 2[nd] respondents remained ex-parte. The 3[rd] respondent/insurance company alone filed a written statement contending as follows: The petition is not maintainable, the entire case is fabricated and the records prepared by the police are not admissible, the accident occurred as a result of the careless and negligent manner in which the petitioner tried to cross the road. The policy of the offending vehicle/tanker lorry was admitted. The injury sustained is minor and the amount claimed is exorbitant. The Tribunal relying on Exts.A1 to A12 and the oral evidence of PW1 awarded compensation of MACA.No.2881/2016 **`& CROSS OBJECTION No.75 OF 2019`** 5 Rs.20,41,130/- against the claim of Rs.67,76,000/- with 9% interest from the date of the original petition. The appeal is filed being aggrieved by the amount of compensation awarded by the Tribunal. 4. Adv.George Cherian, learned senior counsel appearing for the insurance company submits that as per the disability certificate produced by the petitioner, it is only 60%, whereas the Tribunal assessed the permanent functional disability as 80% without any reasoning. Moreover, an addition of 30% for future prospects is also added to the monthly income. The respondent/claimant filed a Cross Objection No.75 of 2019, claiming enhancement of compensation against the award of the Tribunal. He contended that the petitioner was a mason by profession and he produced Ext.A11 certificate issued by the Chairperson of Pulimkunnu Grama Panchayath Welfare Standing Committee to prove that MACA.No.2881/2016 **`& CROSS OBJECTION No.75 OF 2019`** 6 he was engaged as a mason by them. The Tribunal has taken the monthly notional income as Rs.10,000/- per month. Going by the decision reported in _**Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Co.Ltd. [(2011) 13 SCC 236]**_ , for an accident which happened in the year 2013, the monthly notional income to be taken for a coolie worker is Rs.9,000/-, but Ext.A11 issued by the Chairperson of the Pulimkunnu Grama Panchayath Welfare Standing Committee shows that he was engaged as a mason. A mason is a skilled worker when compared to a coolie. There is no error in taking Rs.10,000/- as monthly notional income for a mason. Relying on the decision reported in _**National Insurance Company Ltd.**_ _**v. Pranay Sethi [(2017) 16 SCC 680]**_ the future prospects for a self-employed person between the age group of 40-50 can only be 25%, but the Tribunal has taken 30% additional as future prospects to be added to the monthly income which is against MACA.No.2881/2016 **`& CROSS OBJECTION No.75 OF 2019`** 7 the principles laid by the Apex Court in the decision cited supra. Hence the addition of 30% is to be reduced to 25%. As far as the percentage of disability is concerned, the Medical Board attached to the General Hospital, Alappuzha, has issued Ext.A10 disability certificate showing that the permanent disability is 60%. The Tribunal has taken the permanent functional disability of the petitioner at 80%. Taking into consideration the decision of _**Sayed Sadiq and Others v. Divisional Manager, United India Insurance Co. Ltd. [(2014)**_ _**2 SCC 735].**_ It is seen that the petitioner’s left leg was amputated above the knee and which disables him from doing his employment as a mason. The permanent disability of the whole body will be different from the functional disability of the limb. As far as the petitioner is concerned, he was a mason by profession and amputation of the leg above the knee will impair him from doing the said work permanently. The Apex MACA.No.2881/2016 **`& CROSS OBJECTION No.75 OF 2019`** 8 Court in _**Rajkumar and Another v. Ajay Kumar [(2011) 1 SCC 343]**_ has held that the percentage of permanent disability with reference to the whole body of a person cannot be assumed to be the percentage of loss of earning capacity. To put it differently, the percentage of loss of earning capacity is not the same as the percentage of permanent disability (except in a few cases where the Tribunal on the basis of evidence concludes that the percentage of loss of earning capacity is the same as the percentage of permanent disability). 5. The permanent disability may result in different percentages of loss of earning capacity in different persons depending upon the nature of profession, occupation/job, age, education and other factors. In the case on hand, it is seen that the amputation of the left leg above the knee level, is also a scheduled injury under the Workmen’s Compensation Act. As per the said schedule, the loss of earning capacity for MACA.No.2881/2016 **`& CROSS OBJECTION No.75 OF 2019`** 9 amputation below the hip with stump not exceeding 5 inches from the tip of the greater trochanter is taken as 80%. The Tribunal has taken the functional disability as 80%. Ongoing through the schedule attached to the Workmen’s Compensation Act, as well as the disability certificate issued by the Medical Board, I am of the opinion that the Tribunal was right in taking the percentage of functional disability as 80%. Since the petitioner was in the age group of 46-50, the multiplier taken as 13 is correct. The Tribunal has committed a mistake in taking 30% of the income as future prospects which have already been reduced to 25%, hence the loss of earning capacity can be reworked as 10000+2500x12x80x13/100 = 15,60,000/-. 6. On coming to the Cross Objection, the counsel for the Cross objector submits that, though the certificate issued by the Medical Board shows only 60% as permanent disability, the functional disability is 100% as he was a mason and he is not MACA.No.2881/2016 **`& CROSS OBJECTION No.75 OF 2019`** 10 able to do the same work after the accident since the left leg is amputated above the knee level. As already stated above, taking into consideration of the scheduled injury in the Workmen’s Compensation Act, the percentage of loss of earning capacity is 80%. I am not inclined to accept the contention raised by the counsel for the Cross Objector that there is 100% functional disability. As far as the pain and suffering are concerned, though he claimed Rs.4,00,000/-, he was awarded only Rs.80,000/-. It is seen that he had undergone three surgeries and his left leg was amputated above the knee. He was admitted to the hospital on 14.03.2013 and discharged on 16.04.2013. Taking note of the injury sustained, and the fact of amputation of the leg above the knee, compensation awarded for pain and suffering is on the lower side and the same is enhanced to Rs.1,20,000/-. As far as loss of amenities is concerned against the claim of Rs.5,00,000/-, Rs.1,00,000/- is awarded. In Raj MACA.No.2881/2016 **`& CROSS OBJECTION No.75 OF 2019`** 11 Kumar’s case cited (supra) it was held that when compensation is awarded by treating the loss of future earning capacity as 100% (or even anything more than 50%, the need to award compensation separately under the head of loss of amenities or loss of expectation of life may disappear and as a result, only a token or nominal amount may have to be awarded under the head loss of amenities or loss of expectation in life as otherwise there may be duplication the award of compensation). In view of the said dictum, I am of the considered opinion that as far as loss of amenities is concerned, the amount awarded is just and reasonable. For future treatments and for expenses including the cost of an artificial leg, though the claim was Rs.4,00,000/-, an amount of Rs.30,000/- is granted by the Tribunal without any evidence. It is a fact that unless the petitioner is able to fix an artificial leg, his movement would be restricted and he cannot move about without the help of another MACA.No.2881/2016 **`& CROSS OBJECTION No.75 OF 2019`** 12 person. So definitely a person whose leg has been amputated will require an artificial leg for moving around without anyone’s help. The cost of artificial limbs may differ from product to product. Taking into consideration that the petitioner shall require an artificial limb of at least of the basic nature, an amount of Rs.30,000/- awarded by the Tribunal is on the lower side and taking into consideration the cost of the artificial limb as well as for future expenses for treatment, I am awarding a sum of Rs.50,000/- more on the said head. In the result, the appeal, as well as cross objection are allowed in part. The appeal filed by the insurance company is allowed and the percentage of future prospects taken as 30% is refixed at 25% and compensation worked out accordingly. As far as the Cross Objection is concerned, the Cross Objector is entitled to enhance the compensation of Rs.27,600/-. MACA.No.2881/2016 **`& CROSS OBJECTION No.75 OF 2019`** ## 13 |Sl. No.|Head of Claim|Amt. Awarded by<br>Tribunal (Rs.)|Amt. enhanced in<br>appeal (Rs.)| |---|---|---|---| |1.|Loss of earning|16,22,400/-|15,60,000/-| |2.|Pain and sufferings|80,000/-|1,20,000/-| |3.|Amputation of leg|30,000/-|80,000/-| ||Total|17,32,400/-|17,60,000/-| ||Amount enhanced = 17,60,000 – 17,32,400 = 27,600/-||| In the result, the appeal is allowed, and the Insurance Company shall pay interest for the amounts awarded by the Tribunal at the rate directed in the impugned award and for the enhanced amounts at the rate of 8% from the date of the petition. If any amounts have already been paid, the same shall be granted set off. The appellant/petitioner shall produce the details of the Bank account before the Insurance Company/Tribunal within one month from the date of receipt of a certified copy of this judgment and the amount shall be transferred to the Bank account directly through NEFT/RTGS MACA.No.2881/2016 **`& CROSS OBJECTION No.75 OF 2019`** 14 mode, within a period of one month thereafter. If the Bank account is not furnished within the time stipulated, it is made clear that no interest shall run on the enhanced amount after the period stipulated by this Court. _Sd/-_ **BASANT BALAJI, JUDGE** ss