The Oriental Insurance Company Limited v. Jayarajan O.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE PIUS C.KURIAKOSE & THE HON'BLE MR. JUSTICE A.V.RAMAKRISHNA PILLAI** **MONDAY, THE 19TH DAY OF MARCH 2012/29TH PHALGUNA 1933** **MACA.No. 2291 of 2008 ( ) ------------------------OPMV.563/2004 of MOTOR ACCIDENTS CLAIMS TRIBUNAL TRICHUR** **APPELLANT(S)/3RD RESPONDENT:** **---------------------------** **THE ORIENTAL INSURANCE COMPANY LIMITED, PALAKKAD NOW REPRESENTED BY ITS ASSISTANT, MANAGER REGIONAL OFFICE, METRO PALACE, KOCHI-18.** **BY ADVS.SR. ADV.SRI.MATHEWS JACOB SRI.P.JACOB MATHEW** ## **RESPONDENT(S)/PETITIONER:** **-------------------------** **JAYARAJAN.O., S/O.GOVINDANKUTTY NAIR, OTTAPPATHHOUSE, PADAVARAD ROAD, SWATHY NAGAR OLLUR P.O., THRISSUR DISTRICT.** **BY ADV. SRI.T.C.SURESH MENON BY ADV. SRI.JIBU P THOMAS BY ADV. SRI.P.S.APPU** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 19-03-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **jm** **C.R** ## **PIUS C. KURIAKOSE & A. V. RAMAKRISHNA PILLAI, JJ.** --------------------------------------------- MACA No.2291 of 2008. --------------------------------------------Dated this the 19[th] day of March, 2012. ## **JUDGMENT** **Ramakrishna Pillai, J** . Does the amputation of one of the legs above knee entitle a headload worker to claim compensation for 100% disability i.e. for total disablement, is the question we were called upon to answer in this appeal. Under challenge in this appeal is the quantum of compensation awarded by the Tribunal for permanent disability to a 35 year old headload worker, whose right leg was amputated above knee on account of a crush injury sustained in a road traffic accident on 18/01/2004. 2. The relevant facts can be briefly surveyed. 3. The claimant, hereinafter referred to as the respondent, while riding his motorcycle, was hit down by a car insured with the appellant insurance company. Evidently, the car driver was negligent. The respondent was hospitalised with fracture to both bones of his right forearm and crush injury on his right leg with evidence of fracture to right _**M.A.C.A No.2291 of 2008**_ -:2:- femur. Fracture to the right fronto parietal bone with sub arachnoid haemorrhage and diffused brain oedema were also noticed. His right leg had to be amputated above the level of knee. He was hospitalised for 11 days. He was confined to bed for a few months. 4. Against the claim of Rs.15,00,000/- preferred under Section 166 of the Motor Vehicles Act, the learned Tribunal awarded a sum of Rs.4,91,100/- as compensation, inclusive of a sum of Rs.3,84,000/-, awarded towards compensation for permanent disability. The learned Tribunal fixed the permanent disability of the respondent at 100%, though Ext.A9 disability certificate proved through PW1 doctor showed his permanent disability as 45%. This was on the reasoning that the respondent became totally disabled to perform his job as a headload worker. The said finding and the consequential award, according to the appellant insurance company, is not legally sustainable. Hence the appeal. 5. Rival submissions have been heard and the impugned award was perused. 6. The amount of compensation awarded by the learned Tribunal for permanent disability is exorbitant and it is not a just compensation, as ## _**M.A.C.A No.2291 of 2008**_ -:3:- contemplated under Section 168 of the Motor Vehicles Act: so submitted Mr. Mathews Jacob, the learned senior counsel for the appellant insurance company. According to him, as PW1 doctor fixed the disability of the respondent at 45%, the learned Tribunal was not justified in fixing 100% disability for granting disability compensation. 7. According to Mr. Mathews Jacob, as the injury and the consequential amputation has not rendered the respondent totally disabled to do any kind of work, there is no justification in awarding compensation for total disablement. The learned senior counsel took us to the decision of the Full Bench of this Court in _**Vanajakshan v. Joseph (2003 (2) KLT 462 FB)**_ , where the ambit and import of total disablement in the context of Sections 2 to 4 of the Workmen's Compensation Act, 1923, was considered. 8. In that case, a driver aged 33 years, who had suffered disability of 45% due to loss of vision on account of the injuries sustained during the course of employment, made a claim for a lump sum payment of Rs.68,060/- before the Workmen's Compensation Commissioner. The claim petition was amended after the closing of evidence claiming to have _**M.A.C.A No.2291 of 2008**_ -:4:- suffered 100% disability and praying for enhanced compensation of Rs.1,51,745/-. The Authority under the Workmen's Compensation Act awarded a compensation of Rs.45,374/-, as it was found that the disability of the claimant workman was only 45% as per the medical evidence. On appeal by the claimant workman the Full Bench considered the following question for consideration: “Does the statute provide for the award of compensation on the basis of loss of earning capacity with reference to the ability to do the work which the claimant was actually doing at the time of the accident?” 9. After considering the relevant provisions of the statute and the various decisions covering the subject, the following propositions were laid by the Full Bench: a) The competent authority has to award compensation on the basis of the evidence adduced by the parties during the proceeding. b) The compensation has to be assessed with reference to loss in earning capacity and not on the basis of the ability to perform the duties of the particular job, which was being performed by the workman. If in a given case, a workman is able to prove that he was incapable of doing any ## _**M.A.C.A No.2291 of 2008**_ -:5:- other job, the competent authority shall consider and decide the matter in the light of the evidence as adduced by the parties. 10. Though the aforesaid decision was rendered in the context of Workmen's Compensation Act, we can draw analogy from the said decision as it covered a fact situation more or less similar to the one in the present case. The same logic can be profitably followed in this case also. 11. In this case, medical evidence reveal that the respondent suffered a permanent disability of 45%. The respondent was a headload worker. Undoubtedly the respondent could not have continued his job as a headload worker after the accident. That does not mean that he is totally incapacitated to do any kind of work. Total disablement has to be considered with reference to the loss of ability to do any work, which the claimant was capable of doing. With the present disability of 45% the respondent can do some work which is conducive to his present body condition. There can be 100% disability only when the tolerance level of the human body reaches Zero. Total disability in relation to earning capacity in our considered view, is the incapacity to do any work and not the incapacity to do the particular job, which the claimant was performing _**M.A.C.A No.2291 of 2008**_ -:6:- before his incapacitation. 12. Mr. T. C. Suresh Menon, the learned counsel for the respondent, per contra, submitted that as the respondent lost one of his legs above knee, his life was completely changed and he had to start a new venture for his livelihood. Thus, he justified the award. 13. In support of his argument, Mr. Suresh Menon has referred to the decision of the Apex Court in _**Pallavan Transport Corporation Limited v. M. Jaganathan ((2002) 9 SCC 728)**_ . In that case, the claimant sustained very serious injuries in a motor occurrence resulting in 85% disability. Taking into account the peculiar circumstances of that case, the Apex Court refused to interfere with the findings of the Tribunal which awarded compensation for total disablement in view of the fact that the claimant's life was completely changed. We cannot read this judgment to mean that incapacity to do work has to be determined only with reference to the particular job for which the claimant was engaged. 14. Mr. Suresh Menon further pointed out that the scope of interference with the compensation awarded for permanent disability is limited, as the learned Tribunal has fixed a lesser monthly income _**M.A.C.A No.2291 of 2008**_ ## -:7:- (Rs.2,000/-) and adopted a lower multiplier (multiplier 16) for arriving at the quantum. Though,we see force in the said submission, we cannot uphold the disability compensation awarded by the learned Tribunal for the reasons stated above. As both sides have pointed out infirmities in the method adopted by the Tribunal, we have to re-fix the compensation for permanent disability to be awarded to the respondent. 15. As the accident was in the year 2004 and as it is an admitted fact that the respondent was a headload worker, it is only reasonable to presume that the respondent might have been earning atleast Rs.3,000/- per month during the relevant period. For adopting the multiplier we lean ourselves to the IInd Schedule of the Motor Vehicles Act. As the respondent was only 35 years on the date of the accident, the multiplier 17, which is applicable to the age group between 30 to 35, can be adopted. Recalculation of the disability compensation adopting the aforesaid multiplier and monthly income as well was the percentage of disability in Ext.A9 certificate (45%), will take us to the figure Rs.2,75,400/-. As the learned Tribunal has awarded a sum of Rs.3,84,000/- under that head, the disability compensation shall stand reduced by Rs.1,08,600/-. _**M.A.C.A No.2291 of 2008**_ -:8:- 16. Being the last court on facts, we feel it appropriate to make a quick reappraisal of the amount awarded by the learned Tribunal under other heads also. As we have refixed the monthly income of the respondent as Rs.3,000/-, the amount awarded towards loss of earning has to be revised. 17. We are of the definite view that on account of the injuries the respondent might not have been able to go for any work atleast for nine months. As the learned Tribunal has awarded only a sum of Rs.4,000/under that head, we hold that the respondent is entitled to get Rs.23,000/more on that count [(Rs.3,000/- x 9) - Rs.4,000/-]. 18. Also, we are of the view that the respondent is eligible to get Rs.5,000/- more towards loss of amenities in life during the period of treatment and convalescence, as he might have been compelled to take rest for a few months. 19. Further, the respondent is entitled to get bystanders expenses at the rate of Rs.200/- per day for eleven days during which, he was hospitalised, as the accident was in the year 2004. As the learned Tribunal has awarded Rs.1,100/- only towards bystanders expenses, the respondent _**M.A.C.A No.2291 of 2008**_ -:9:- will get a further sum of Rs.1,100/- under that head. Other heads of award do not call for any interference Thus, we find that the respondent is entitled to get an additional sum of Rs.29,100/-. 20. While offsetting this additional amount against the excess amount arrived at above, the total compensation awarded by the Tribunal shall stand reduced by Rs.79,500/- (Rs.1,08,600/- - Rs.29,100/-). That means the respondent will get only Rs.4,11,600/- (Rs.4,91,100/- - Rs.79,500/-) as compensation. The amount shall carry interest at the rate specified in the award. Appeal is allowed and the award shall stand modified as above. No costs. Sd/- **PIUS C. KURIAKOSE JUDGE** Sd/- **A. V. RAMAKRISHNA PILLAI JUDGE** //TRUE COPY// P.A TO JUDGE krj