Vijayan Warrier (deceased) Kailasamandiram, KottaKKal, Malappuram District and others v. The National Insurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **THURSDAY, THE 11[TH] DAY OF AUGUST 2022 / 20TH SRAVANA, 1944 MACA NO. 417 OF 2010** **AGAINST THE JUDGMENT AND AWARD DATED 14.10.2008 IN OPMV 2969/2003 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, THRISSUR** ## **APPELLANT/PETITIONER:** - 1 VIJAYAN WARRIER (DIED) KAILASAMANDIRAM, KOTTAKKAL, MALAPPURAM DISTRICT. *LEGAL HEIRS IMPLEADED* - 2 RATI VIJAYAN AGED 59 YEARS WIDOW OF VIJAYAN WARRIER, AGED 59 YEARS, RESIDING AT KALIASA MANDIRAM, KOTTAKKAL P.O., MALAPPURAM - 676503. - 3 DEEPAK VIJAYAN WARRIER, S/O VIJAYAN WARRIER, AGED 39 YEARS, RESIDING AT KALIASAMANDIRAM, KOTTAKKAL P.O., MALAPPURAM - 676503. - 4 VIVEK VIJAYAN S/O VIJAYAN WARRIER, AGED 34 YEARS, RESIDING AT KALIASA MANDIRAM, KOTTAKKAL P.O., MALAPPURAM - 676503. - 5 P. KRISHNA WARRIER (DIED) S/O K.T. SREEDHARAN NAMBOOTHIRI, AGED 99 YEARS, RESIDING AT KAILASA MANDIRAM, KOTTAKKAL P.O., MALAPPURAM - 676503 *SUPPLEMENTARY APPELLANTS 2 TO 5 ARE RECORDED AS LEGAL HEIRS OF DECEASED SUPPLEMENTARY APPELLANT 5, AS PER ORDER DATED 10/08/2022 IN MEMO DATED 06/08/2022 IN MACA 417/2010* BY ADVS. T.C.SURESH MENON P.S.APPU A.R.NIMOD M.A.C.A.No.417/2010 2 ## **RESPONDENTS:** 1 P.NALLAMUTHU (DELETED) S/O. PARAMASIVAN, 23/11, ANUPAMA HOUSE, KANATTUKARA, THRISSUR. (deleted) 2 T.J.TONY SO. JOHN (DELETED) THATTIL HOUSE, PARAVATTANI, THRISSUR. (DELETED) 3 THE NATIONAL INSURANCE CO. LTD. AMBIKA ARCADE, M.G.ROAD, THRISSUR. *R1 AND R2 DELETED FROM PARTY ARRAY AT THE RISK OF APPELLANT VIDE ORDER DATED 27/8/2019 IN IA 1/2019.* BY ADVS. DEEPA GEORGE M.A.GEORGE THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 01.08.2022, THE COURT ON 11.08.2022 DELIVERED THE FOLLOWING: M.A.C.A.No.417/2010 3 **M.R.ANITHA, J** ****************** M.A.C.A.No.417 of 2010 ------------------------------------------------------Dated this the 11[th] day of August, 2022 ## **JUDGMENT** The appeal has been filed against the award passed in O.P.M.V No.2969/2003 on the file of Motor Accidents Claims Tribunal, Thrissur (in short 'Tribunal') which arose out of an accident occurred to the appellant/petitioner on 30.08.2003 at 7.20 a.m due to hit by bus bearing Reg.No.KL-8/W 1683 driven by the 2[nd] respondent at Mundur while he was travelling in a car bearing Reg.No.KL-10/E 4444. It is alleged that the accident happened due to the rash and negligent driving of the bus by the 2[nd] respondent. 1[st] respondent is the owner of the offending vehicle and the 3[rd] respondent is the insurer. The claim petition has been filed under Section 166 of Motor Vehicles Act, 1988 (in M.A.C.A.No.417/2010 4 short the Act) seeking a total compensation of Rs.3,00,000/-. 2. Before the Tribunal 3[rd] respondent alone contested the matter by filing the written statement denying the allegation regarding the negligence on the part of the driver of the bus. Policy coverage with respect to the offending vehicle is admitted. The averments regarding age, income, injury sustained, treatment undergone by the claimant etc. are also denied. 3. PW1 examined and Exts.A1 to A15 marked from the side of the appellant. Ext.B1 marked from the side of the respondent. Application filed by the third respondent under Section 170 of the Act is allowed. 4. On evaluating the evidence adduced from either side, Tribunal found that the accident happened due to the rash and negligent driving of the 2[nd] respondent. A total compensation of Rs.1,23,200/- was awarded which was allowed to be realised with interest @ 7% per annum with effect from 06.07.2003 till the date of payment. M.A.C.A.No.417/2010 5 5. Dissatisfied with the quantum of compensation awarded by the Tribunal, appellant/claimant approaches this Court in appeal on various grounds stated in the memorandum of appeal. Pending the appeal, appellant died and the legal heirs of the appellant were impleaded as supplementary appellants 2 to 5. Supplemental appellant No.5 also subsequently died and memo has been filed to the effect that his legal heirs and appellant Nos.2 to 4. As per the order in I.A.No.01/2019, respondents 1 and 2 were also deleted from the party array. 3[rd] respondent appeared through Adv.Deepa George. Lower court records were called for and perused. Both sides were heard. 6. Accident, negligence on the part of the 2[nd] respondent, injury sustained to the appellant etc are not in dispute. The main challenge is with regard to the quantum of compensation awarded by the Tribunal with respect to the future loss of earning power. 7. Deceased appellant was an Ayurvedic doctor at Kottakkal Arya Vaidyasala. Ext.A11 salary certificate dated 03.10.2005 would show the details of salary for the month of September, 2003. The date of retirement is shown as 23.04.2007. The Tribunal M.A.C.A.No.417/2010 6 accepted the monthly income as Rs.13,138.50/- and there is no challenge by the respondent and hence the monthly income taken by the Tribunal as Rs.13,138.50/- can very well be approved. 8. The main contention of the learned counsel for the third respondent is that the deceased/appellant was practicing as an Ayurvedic Doctor and had no loss of income as such during the period of service and hence notional income alone can be taken for computing future loss of income in view of the dictum laid down in **Raju Sebastian v. United India Insurance Co.Ltd : 2021 (5) KHC 662 : 2021 (6) KLT 136 : ILR 2022 (1) Ker 79.** 9. Learned counsel for the appellant, on the other hand, would contend that in **Rajkumar v. Ajay Kumar and Anr. [(2011) 1 SCC 343 : 2011 ACJ 1 : 2010 KHC 5021** , a two Judge Bench of the Apex Court laid down general principles with regard to the assessment of compensation in case of injury matters. In paragraph 10 of the said judgment, it has been held M.A.C.A.No.417/2010 7 by the Apex Court that ascertainment of the effect of permanent disability on the actual earning capacity involve three steps. The Tribunal has to first ascertain what activities the claimant could carry on inspite of the permanent disability and what he could not do as a result of the permanent disability. Second step is to ascertain his avocation, profession and nature of work before the accident, and also his age. Third step is to find out whether the claimant is totally disabled from earning any kind of livelihood or whether inspite of permanent disability the claimant could still effectively carry on the activities and functions which he was earlier carrying on and 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. 10. In this case, learned counsel for the 3[rd] respondent would contend that being an Ayurvedic Doctor the deceased/appellant could have continued his avocation as a doctor and hence there will not be any loss of income as such 8 M.A.C.A.No.417/2010 even after retirement. 11. Undisputedly, the deceased appellant was an Ayurvedic doctor. It has also come out in evidence that at the age of 63 he died pending the proceedings also, of course, not due to the injury sustained out of the accident. Disability certificate produced from the side of the appellant would certify 20% permanent disability and the doctor who issued the certificate was examined as PW1 and he proved Ext.A12 the disability certificate issued by him. The injury sustained are fracture clavicle (L), Galeazzi fracture dislocation (L), fracture superior and inferior public ramus (L), head injury rupture urethra. Doctor would depose that the appellant had malunited fracture clavicle with 20 degree torsion and hypertrophic callus with subjective thoracic outlet syndrome 6% and partial ankylosis shoulder (L) with painful limitation of terminal shoulder, abduction and flexion is last 10 degree – (2%), United fracture radius (L) with painful limitation of rotation of forearm is last 15 M.A.C.A.No.417/2010 9 degree of supination and pronation from mid prone position. He has to undergo further surgery for removal of implants -4%, malunited fracture left public rami (L) with tenderness and chronic sacroiliac pain – 6%, urgency of urination suggestive of urinary retension and infection and subjective impairment of sexual function – 6%. 12. Evaluating all, the doctor certified 20% permanent disability to the deceased/appellant. Even though he was subjected to cross-examination, his evidence could not be discredited in the aspect of certification of 20% permanent disability and that has been rightly adopted by the Tribunal also. Actually, there is no dispute with regard to the percentage of disability assessed by the Doctor to the third respondent and the dispute is with regard to the multiplicand to be adopted. According to the third respondent, since the deceased appellant could continue the practice as a doctor and receive income, the amount of Rs.2,000/- taken by the tribunal notionally to compute the compensation for permanent disability is reasonable and no M.A.C.A.No.417/2010 10 enhancement is required in that regard. 13. Ext.A7 certificate dated 04.10.2005 issued by Doctor K.Muraleedharan, Deputy Chief Physician, Arya Vaidyasala certifies that in view of the recited disability, on completion of the course of treatment, the injured appellant was advised to continue the medication on a regular basis. Ext.A8 certificate issued by Dr.Balachandran, Superintendent, Kottakkal Arya Vaidyasalai would also certify that the injured has got difficulty in sitting for a long time and for squatting and this is a sequelae of RTA in which he had fracture pubic rami. But Exts.A7 and A8 could not be proved by the appellant by examining the doctors who issued the certificates. However, it has come out from the evidence of PW1 about the permanent disability of 20% suffered by the injured out of the road traffic accident. Evaluation of injuries sustained to the pubic rami would probabilise the difficulty to the injured for sitting long. Being a doctor, it would have been necessary for him to sit long continuously for consultation of patients. So, definitely, rupture of urethra which M.A.C.A.No.417/2010 11 is one of the injuries sustained by him as borne out from Ext.A6 reference card issued from Kozhikode District Co-operative Hospital and 20% permanent disability suffered by him would make it clear that the injured could not have continued the practice conveniently as before due to the injuries and resultant permanent disability sustained by him. So, the contention of the learned counsel for the third respondent that being an Ayurvedic Doctor, he may not have sustained any loss of income due to the accident and permanent disability, cannot at all be accepted. 14. Learned counsel for the appellant in this context drew my attention to **Dinesh Singh v. Bajaj Allianz General Insurance Co.Ltd & Another : CDJ 2014 SC 413** . That was a case in which 24 years old Quality Engineer in Hospet Steels Ltd sustained injury with a whole body disability of 60%. Due to the injuries and permanent disability, he resigned the job of Quality Engineer and took up desk job in Industrial Development Bank of India. Hence it was held by the Apex Court that the reasoning of the High Court that the appellant has not suffered any financial M.A.C.A.No.417/2010 12 loss due to permanent disability since he took up a job in Industrial Development Bank of India is not at all sustainable. It is also held that once permanent disability is fixed, taking into consideration its impact on the employment/profession of the claimant the compensation has to be awarded. In the present case also, as found earlier, the accident and 20% permanent disability suffered by the deceased/appellant would cause loss to his earning capacity as a doctor considerably. So, Rs.2,000/taken as the multiplicand by the Tribunal, according to me, is very low. Having regard to the facts and circumstances and the income which had been derived by him as Rs.13,138.50/-, I find it just and proper to fix the monthly income for the purpose of computation of future loss of earning capacity as Rs.8,000/-. No evidence to prove that he was terminated from service or discontinued from service after the accident and injury sustained. So, it can reasonably be presumed that he would have continued in service upto the age of 56 years as borne out from salary certificate wherein his date of retirement is shown as M.A.C.A.No.417/2010 13 23.04.2007. If that be so, he might have retired at the age of 56. So, as per **Sarla Verma v. Delhi Transport Corporation (2010 (2) KLT 802)** approved by **National Insurance Company Limited v. Pranay Sethi and Ors (2017(4) KLT** **66)** , the suitable multiplier would be 9. Hence, compensation towards future loss of earning capacity can be taken as Rs.8,000 x 12 x 20 x 9/100 = Rs.1,72,800/-. From that, the amount already awarded by the Tribunal has to be deducted. The balance amount would be Rs.1,20,000/- (Rs.1,72,800 – Rs.52,800). 15. Learned counsel for the third respondent would contend that since the injured is no more, the legal heirs are not entitled to get any compensation towards pain and suffering since it is an injury claim. To support the contention, learned counsel brought to my attention the decision in **The Oriental Insurance Company Limited v. Kahlon through his Legal Representative Narinder Kahlon Gosakan and Ors. : AIR 2021 SC 3913 : 2021 ACJ 2576** wherein a two Judge Bench of the Apex Court, while dealing with an identical matter has held M.A.C.A.No.417/2010 14 that compensation under the head of pain and suffering being a personal injury is held to be unsustainable and compensation awarded under that head was disallowed. Taking into account the fact that he was hospitalised for a considerable period of six months and no amount was awarded by the Tribunal towards medical expenses despite hospitalization, an amount of Rs.1,00,000/- was awarded towards medical expenses. In this case, Tribunal awarded Rs.20,000/- as compensation towards pain and suffering to the deceased/appellant. As per the dictum laid down in the above decision, being a claim for personal injuries and injured is no more, the legal heirs are not entitled to get any amount towards pain and suffering. Hence, the amount of Rs.20,000/- awarded towards pain and suffering is hereby disallowed. 16. The injured in this case, initially undergone treatment at Kozhikode District Co-operative Hospital. Ext.A6 is the reference card issued from the said hospital which would prove that the date of admission is 31.08.2003 and date of discharge is M.A.C.A.No.417/2010 15 05.09.2003. Ext.A6 is the discharge summary issued from Malabar Hospitals, Calicut which would prove his in-patient treatment from 16.10.2003 to 17.10.2003 and also another admission on 21.10.2003. The Tribunal had found that the petitioner had undergone 66 days in-patient treatment. But the petitioner has not produced any medical bills and the tribunal however granted Rs.2,000/- towards treatment expenses. Taking into account the nature of injuries sustained and the procedures of treatment undergone by him, I am of the view that an amount of Rs.15,000/- can be awarded towards treatment expenses though no medical bills have been produced. From that Rs.2,000/- already awarded by the Tribunal can be deducted. So, the balance amount would be Rs.13,000/-. 17. The appellant has no dispute with regard to the compensation awarded under other heads. On going through the award passed also, it appears that a just and reasonable compensation has already been awarded on all other heads. Hence, no interference is called for under those heads. So, in M.A.C.A.No.417/2010 16 total, the claimant is entitled to get Rs.1,20,000 + Rs.13,000 – Rs.20,000 = Rs.1,13,000/-. 18. In the result, appeal allowed by enhancing compensation to an amount of Rs.1,13,000/- (Rupees one lakh thirteen thousand only) which will carry interest @ 6.5% per annum from the date of petition excluding the period of delay of 289 days in filing the appeal. The 3rd respondent, the Insurance Company, shall satisfy additional compensation granted in this appeal together with interest within a period of two months from the date of receipt of certified copy of this judgment, deducting the amount due towards balance court fee, if any, from the claimant The disbursement of additional compensation to the appellants/claimants shall be made taking note of the law on the point and in terms of the directives issues by this Court in Circular No.3 of 2019 dated 6.9.2019 and clarified further in Official Memorandum No.D1-62475/2016 dated 7.11.2019. Remaining appellants shall provide the Bank account details M.A.C.A.No.417/2010 17 (attested copy of relevant page of bank pass book, Bank Account number and IFSC code of the branch) before the Tribunal with a copy to the learned Standing Counsel for the insurer, within one month from the date of receipt of certified copy of this judgment. (sd/-) **M.R.ANITHA, JUDGE** jsr True Copy P.S to Judge