V. J. Thankachan @ John v. Deputy Director of Transport, State Health Transport Organization, Department of Health Service, Thiruvananthapuram; C. Saseendran S/o. GOPALAN, Academy of Medical Sciences, Pariyaram P.O., Talipparamba Taluk, Kannur District; Oriental Insurance Company Ltd. (Branch Manager, Direct Agents' Branch)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **&** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR** **WEDNESDAY, THE 7[TH] DAY OF DECEMBER 2022 / 16TH** ## **AGRAHAYANA, 1944** **RP NO. 1094 OF 2017** ## **REVIEW PETITIONER/APPELLANT:** **V. J. THANKACHAN @ JOHN AGED 47 YEARS, S/O.JOSEPH, VATTANKIYIL HOUSE, CHERIYA AREEKKAMALA, CHATHURAMPUZHA P.O.,ERUVESSI AMSOM DESOM, TALIPARAMBA TALUK, KANNUR DISTRICT.** **BY ADV. SRI.C.P.PEETHAMBARAN** ## **RESPONDENTS/RESPONDENTS:** - **1 THE DEPUTY DIRECTOR OF TRANSPORT STATE HEALTH TRANSPORT ORGANIZATION, DEPARTMENT OF HEALTH SERVICE, THIRUVANANTHAPURAM.** **2 C.K.SASEENDRAN S/O.GOPALAN, ACADEMY OF MEDICAL SCIENCES, PARIYARAM P.O., TALIPARAMBA TALUK, KANNUR DISTRICT.** **3 THE BRANCH MANAGER DIRECT AGENTS' BRANCH ORIENTAL INSURANCE CO. LTD., UNITY COMPLEX, 2ND FLOOR, S.N.PARK ROAD, KANNUR-1.** **SRI N.S.NAJEEB- RESPONDENT ; SMT DEVISHRI R- GOVERNMENT PLEADER** 2 RP No.1094 of 2017 in MACA No.410 of 2007 **THIS REVIEW PETITION HAVING COME UP FOR FINAL HEARING ON 10.11.2022, THE COURT ON 07.12.2022 DELIVERED THE FOLLOWING:** 3 RP No.1094 of 2017 in MACA No.410 of 2007 ## **O R D E R** ## P.G.Ajithkumar, J. This is a petition for review filed under Section 114 read with Order XLVII of the Code of Civil Procedure, 1908. The appellant in M.A.C.A No.410 of 2007 has filed this petition. 2. As per the judgment dated 08.04.2016, this court allowed the appeal. An additional compensation of Rs.2,06,000/- was ordered to be paid. The compensation ordered by the Motor Accidents Claims Tribunal, Thalassery was Rs.2,19,055/-. The tribunal after quantifying the compensation eligible by the petitioner as Rs.2,92,074/-, holding that there was contributory negligence and the proportion of negligence on the part of the petitioner as 25%, 75% of the quantified compensation was ordered to be paid. This court reversed the said finding and held that there was no contributory negligence and the petitioner was entitled to get the whole of the compensation he was found entitled to. This court further allowed the insurer, the 3[rd] respondent to recover the amount of compensation from the insured after making payment. 4 RP No.1094 of 2017 in MACA No.410 of 2007 3. The petitioner would contend that as a consequence of the injury sustained by the petitioner in the accident in question, he became incapable of doing any work. But that fact was not considered by this court while allowing the appeal. Now the functional disability of the appellant is 100% and he could not do any work. He is practically bedridden and requires assistance from another throughout his life. The monthly income reckoned by this court for computing the compensation was incredibly low. Pointing out that such errors had occurred while rendering the judgment dated 08.04.2016, the petitioner seeks to review the said judgment and reassess the amount of compensation. 4. As per the order dated 15.12.2021, this court condoned the delay of 605 days in filing this review petition. 5. The 3[rd] respondent alone has contested. After considering the fact that the petitioner has not been in a position to move about and his physical condition was deteriorated further, this court directed examination of the petitioner by a medical board to be constituted by the Medical Superintendent, Government Medical college, Kannur. We 5 RP No.1094 of 2017 in MACA No.410 of 2007 thought it appropriate that such an assessment of the physical condition and ability of the petitioner to work was necessary in order to assess the just compensation entitled by him. The Medical Board placed on record a report after assessing the physical condition and disability. It was reported by the Medical Board that the petitioner has a permanent disability of 79%. We received in evidence the said report. 6. Taking into account the submission of the learned counsel that the petitioner is not in a position to travel, we have requested the Secretary, Legal Services Authority, Thalassery to depute a competent person to personally visit the petitioner and make a report regarding his physical condition. In terms of the said direction, a report was placed on record by the Secretary, Legal Services Authority, Kannur. We have also verified his physical condition online. We noticed that his gait was not steady. He was on crutches and not in a position to move about on his own. 7. Heard the learned counsel appearing for the petitioner and the learned counsel appearing for the 3[rd] respondent. 6 RP No.1094 of 2017 in MACA No.410 of 2007 8. The petitioner raised four grounds essentially for review of the judgment dated 08.04.2016: - (i) disability of the petitioner reckoned with was incorrect, - (ii) the fact that the petitioner has become totally incapable of doing any work as a result of the injury sustained in the accident was not duly considered, - (iii) the monthly income taken was low, and - (iv) no compensation for engaging an attendant/ bystander for the remainder period of his life was granted. 9. As far as the monthly income of the petitioner is concerned, the court fixed Rs.4,000/- notionally taking into account the fact that no evidence to prove that he was a skilled labour has been produced. The notional income taken as Rs.4,000/- is therefore correct and does not suffer from any error. ## 10. In **Raj Kumar v. Ajay Kumar and another,** **[(2011) 1 SCC 343]** , the Apex Court held as to how permanent disability has to be translated into the loss of earning power. It was held; - “Where the claimant suffers a permanent disability as a result of injuries, the assessment of compensation under 7 RP No.1094 of 2017 in MACA No.410 of 2007 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 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 terns of money, to arrive at the future loss of earnings (by applying the standard multiplier method used to determine loss of dependency).” 11. The Apex Court in **Manjegowda N. v. Manager,** **United India Insurance Company Limited [(2014) 3 SCC** **584]** held at paragraph No. 11; 8 RP No.1094 of 2017 in MACA No.410 of 2007 “11. In a recent judgment in **Rekha Jain v. National Insurance Co. Ltd. [(2013) 8 SCC 389]** this Court drew a very relevant distinction between permanent disability which was found to be 30% and functional disability which this Court held to be 100% on account of serious disfigurement of the face of the appellant because it was bound to cause loss of career for the appellant who in that case was an actress in films / TV features. Hence, it must be taken as a trite law that functional disability of an accident victim requires determination on the basis of nature of disability in the light of the career or profession which he or she was pursuing in life. It should not be computed mechanically only on percentage of physical disability his work as a result of the accident.” 12. The Medical Board certified that the petitioner has 79% permanent disability. The learned counsel appearing for the petitioner would submit that since the petitioner, a mason by profession became totally disabled and not able to engage in his avocation, his functional disability has to be taken as 100%. 13. Having considered the report of the Medical Board and the report of the officer attached to the District Legal Services Authority, Kannur, and also our observations during the online interaction with the petitioner, we hold that his 9 RP No.1094 of 2017 in MACA No.410 of 2007 functional disability is 85%. Applying that, the compensation entitled by the petitioner is liable to be re-assessed. 14. This court quantified the compensation for loss of earning capacity at Rs.3,45,600/- by applying 45% disability. Applying the disability as 85%, the compensation shall be 4000x12x16x85/100=6,52,800/-.Deducting the compensation already paid, the excess compensation for loss of earning capacity entitled by the petitioner is Rs.6,52,8003,45,600=Rs.3,07,200/-. 15. We noticed that the petitioner sustained injuries at the age of 32 years. On account of the head injury and the consequent complications, the petitioner is unable to discharge his daily pursuits even without the help of another. In **Nagappa v. Gurudayal Singh [(2003) 2 SCC 274]** the Apex Court held that in a case where injury to a victim requires periodical medical expenses, it is not possible for a fresh award to be passed or to review a previous award when the medical expenses are incurred after finalisation of the compensation proceedings. It was further held that the only alternative is that at the time of passing of the final award, 10 RP No.1094 of 2017 in MACA No.410 of 2007 the Tribunal should consider such eventuality and fix the compensation for his future treatment. This principle was reiterated in **Jakir Hussein v. Sabir and others [(2015) 7 SCC 252].** 16. In the light of the law laid down in the aforesaid decisions we are of the view that the petitioner is entitled to get additional compensation for meeting the expenses of engaging an attendant/bystander which we quantified the same as Rs.1,00,000/-. Accordingly, the judgment dated 08.04.2016 is reviewed and modified to the above extent. The petitioner is entitled to get additional compensation of Rs.4,07,200/-. The 3[rd] respondent shall pay the said amount along with interest at the rate of 7% per annum from the date of filing of the original petition. The 3[rd] respondent shall have the right to recover the sum from the insured after making payment. Sd/- ## **ANIL K.NARENDRAN** ## **JUDGE** Sd/- ## **P.G. AJITHKUMAR JUDGE** PV