Zakeer Hussain v. Jayakumar & S. Ram General Insurance Company Limited

**'CR'** **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MR.JUSTICE BASANT BALAJI SATURDAY, THE 18[TH] DAY OF DECEMBER 2021 / 27TH AGRAHAYANA,** ## **1943** **MACA NO. 1949 OF 2020** **OPMV 995/2014 OF ADDITIONAL MACT – IV, THIRUVANANTHAPURAM APPELLANT/S:** ZAKEER HUSSAIN AGED 55 YEARS S/O. IQBAL MOHAMMED NAINA, NOUSHAD MANZIL, TC 63/968 TRIVENI JUNCTION, PUTHANPALLI WARD, PARUTHIKUZHI, POONTHURA P.O.THIRUVANANTHAPURAM 695 026. BY ADVS. A.R.NIMOD SRI.M.A.AUGUSTINE ## **RESPONDENT/S:** 1 JAYAKUMAR S/O. MOHANDAS, THAMARAVILAPUTHEN VEEDU, KEEZHKOLLA, C.S.I CHURCH, AMARAVILA P.O. NEYYATTINKARA, THIRUVANANTHAPURAM 695 122. 2 SRI RAM GENERAL INSURANCE COMPANY LIMITTED, E8, RII CO INDUSTRIAL AREA SITAPURA, JAIPUR, RAJASHTHAN 302022, REPRESENTED BY BRANCH MANAGER. BY ADV SRI.P.JACOB MATHEW THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 18.12.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **MACA NO. 1949 OF 2020** ## **JUDGMENT** (Dated this the 18[th] day of December 2021) This appeal is filed by the applicant/appellant against the award in O.P.(M.V.) No.995 of 2014 dated 14.8.2018 of Additional Motor Accident Claims Tribunal - IV, Thiruvananthapuram. 2. The brief facts of the case is as follows:On 20.2.2014 at 8.45 p.m., when the petitioner was walking through Killippalam - Attakkulangara road and when he reached near public Attakkulangara Junction, a lorry bearing Reg.No.KL 20-A-5252 driven by the first respondent in a rash and negligent manner and in over speed, hit the petitioner from behind and thereby he fell down and sustained serious injuries. 3. The first respondent/ owner of the vehicle was set ex-parte. The 2[nd] respondent Insurance company filed ## **MACA NO. 1949 OF 2020** -3- a written statement contending that the petition is not maintainable. It was admitted that the lorry bearing Reg.No.KL 20 A 5252 was validly insured at the time of accident. There was no negligence on the part of the first respondent and the accident occurred only because of the negligence on the part of the petitioner. The Tribunal, relying on Ext.A1 to A11 and the oral evidence of PW1, awarded a compensation of Rs.15,91,600/- with 9% interest from the date of petition. Aggrieved by the same, this appeal is filed. 4. The main contention raised by the learned counsel for the appellant is regarding the notional income taken. The Tribunal took the income as Rs.6,000/-. Relying on the decision reported in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited [2011 (13) SCC 236],** the notional income of the appellant is taken as Rs.9,500/- instead of Rs.6,000/- as the accident happened in the year 2014. The Tribunal took 75% as loss of earning capacity, though the Medical Board issued **MACA NO. 1949 OF 2020** -4- certificate showing permanent disability as 45% because being a foot path footwear seller and due to the amputation of leg below knee, there is substantial reduction in his earning capacity. Going by the schedule to the Employees Compensation Act, the percentage of disability for amputation of leg below knee is 50%. Taking into consideration of all these facts, the Tribunal fixed the loss of earning capacity as 75%. I am also in agreement with the Tribunal in fixing the percentage of earning capacity at 75% due to the amputation of leg below knee. The appellant was aged 48 years. So the multiplier applicable as per the decision reported in **Sarla Verma v. Delhi Transport Corporation & Another (2010 (2) KLT 802),** is 13. 5. In **National Insurance Company Ltd., v. 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%, **MACA NO. 1949 OF 2020** -5- 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. 6. The question whether in a case of permanent disablement incurred as a result of a motor accident, the claimant can seek apart from compensation for future loss of income, amounts for future prospects too came up for consideration before the Apex Court reported in **Pappu Deo Yadav v. Naresh Kumar and others (AIR 2020 SC 4424).** The Apex Court in paragraph No.7 of the said decision held thus:- **MACA NO. 1949 OF 2020** -6- “Two questions arise for consideration: one, whether in cases of permanent disablement incurred as a result of a motor accident, the claimant can seek, apart from compensation for future loss of income, amounts for future prospects too: and two, the extent of disability. On the first question, the High Court no doubt, is technically correct in holding that **Pray Sethi (Supra)** involved assessment of compensation in a case where the victim died. However, it went wrong in saying that later, the three – Judge bench decision in **Jagdish (supra)** was not binding, but rather that the subsequent decision in **Anant (supra)** to the extent that it did not award compensation for future prospects, was binding. This Court is of the opinion that there was no justification for the High Court to have read the previous rulings of this Court, to exclude the possibility of compensation for future prospects ## **MACA NO. 1949 OF 2020** -7- in accident cases involving serious injuries resulting in permanent disablement. Such a narrow reading of **Pranay Sethi (Supra)** is illogical, because it denies altogether the possibility of the living victim progressing further in life in accident cases – and admits such possibility of future prospects, in case of the victim's death.” 7. The Apex Court, after considering a series of decisions, came to a finding that in case of permanent disablement incurred as a result of motor accident, the claimant can seek apart from compensation of future loss of earning, amount of future prospects too. 8. In paragraph No.16 of **Pappu Deo Yadav** (supra), it was held as follows: “16. In **Raj Kumar v. Ajay Kumar [Raj Kumar v. Ajay Kumar, 2010 KHC 5021 : 2011 (1) SCC 343 : 2011 (1) SCC (Civ) 164 : 2011 (1) SCC** - **(Cri) 1161],** this Court laid down the heads under **MACA NO. 1949 OF 2020** -8- which compensation is to be awarded for personal injuries: (SCC p.348, para 6) 6. The heads under which compensation is awarded in personal injury cases are the following: Pecuniary damages (Special damages) (i) Expenses relating to treatment, hospitalisation, medicines, transportation, nourishing food, and miscellaneous expenditure. (ii) Loss of earnings (and other gains) which the injured would have made had he not been injured, comprising: (a) Loss of earning during the period of treatment; (b) Loss of future earnings on account of permanent disability. (iii) Future medical expenses. Non – pecuniary damages (General damages) (iv) Damages for pain, suffering and trauma as a consequence of the injuries. (v) Loss of amenities (and/or loss of prospects of marriage). ## **MACA NO. 1949 OF 2020** (vi) Loss of expectation of life (shortening of normal longevity) In routine personal injury cases, compensation will be awarded only under heads (i), (ii)(a) and (iv). It is only in serious cases of injury, where there is specific medical evidence corroborating the evidence of the claimant, that compensation will be granted under any of the heads (ii)(b), (iii), (v) and (vi) relating to loss of future earnings on account of permanent disability, future medical expenses, loss of amenities (and / or loss of prospects of marriage) and loss of expectation of life.” 9. In the case on hand, the appellant's leg below the knee level has been amputated which resulted in loss of earning capacity at 75% as fixed by the Tribunal. Since the injury sustained is a serious one and the percentage of loss of earning capacity is 75% being a footpath footwear seller whose mobility is restricted, I am inclined to grand amounts for future prospects too. ## **MACA NO. 1949 OF 2020** -10- I have already taken Rs.9,500/- as the notional income of the appellant. In view of the decisions in **Pranay Sethi (supra)** as well as in **Pappu Deo Yadav (supra),** a self employed person between the age group of 40-50 years is entitled to 25% more as future prospects. Though the Tribunal has taken 30% for future prospects, I am inclined to take it as only 25%. Thus, the notional income can be refixed at Rs.11,875/- (9500 + 2375). Therefore, relying on the said decisions, the compensation for loss of permanent disability can be worked out to 11875 x 12 x 13 x 75/100 = Rs.13,89,375/-. The Tribunal has already granted Rs.9,12,600/- under the head of permanent disability, so the balance will come to Rs.4,76,775/-. 10. As far as the loss of earning is concerned, the Tribunal took monthly income as Rs.6,000/- and for one year the appellant was granted Rs.72,000/- as loss of earning. Since I am inclined to take Rs.9,500/- as the monthly income, the loss of earning will come to Rs.1,14,000/-, less Rs.72,000/- already granted by the **MACA NO. 1949 OF 2020** Tribunal, which comes to Rs.42,000/-. Thus, the total compensation will come to Rs.5,18,775/-(Rs.4,76,775 +Rs.42,000). In the result, the appeal is allowed and the impugned award is modified and the 2[nd] respondent is ordered to deposit the enhanced compensation of Rs.5,18,775/- with interest at 9% from the date of petition till the date of deposit, before the Tribunal within a period of two months from the date of receipt of a certified copy of this judgment. The Tribunal shall disburse the enhanced compensation to the appellant/petitioner in accordance with law. **SD/ BASANT BALAJI, JUDGE** _dl/_