Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. WEDNESDAY, THE 8TH DAY OF NOVEMBER 2023/17TH KARTHIKA, 1945 MACA NO. 3486 OF 2015 AGAINST THE AWARD DATED 27.02.2015 IN OP(MV) 553/2013 OF MOTOR ACCIDENT CLAIMS TRIBUNAL PALA APPELLANT/PETITIONER: SASI, S/O.GOPALAN, VATTUKKULANGARA HOUSE, KIDANGOOR SOUTH KARA & POST, KIDANGOOR VILLAGE. BY ADVS. SRI.MATHEW JOHN (K) SRI.DOMSON J.VATTAKUZHY RESPONDENT/RESPONDENTS:
1 SYJAN, S/O.PACHY, KOCHUKARIKKARA HOUSE, KUTTOOR VILLAGE & POST, THALAYAR MURI, THIRUVALLA TALUK, 689106. 2 THE MANAGING PARTNER GAYATHRI ENTERPRISES, TC.21/1860/6, ATTUKAL ROAD,KILIPALAM, KARAMANA POST, TRIVANDRUM-695002. 3 THE MANAGER, NEW INDIA ASSURANCE CO.LTD., DIVISIONAL OFFICE, IIND FLOOR, REMA PLAZA, NEAR AYYAPPAN COIL, SS COIL ROAD, THAMPANOOR, KERALA-695001. BY ADVS. SRI.V.P.K.PANICKER - SC THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR
ADMISSION ON 08.11.2023, ALONG WITH MACA.122/2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: :2 : ,
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. WEDNESDAY,THE 8TH DAY OF NOVEMBER 2023/17TH KARTHIKA, 1945 MACA NO. 122 OF 2016 AGAINST THE AWARD DATED 27.02.2015 IN OP(MV) 553/2013 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, PALA APPELLANT/3RD RESPONDENT: THE NEW INDIA ASSURANCE CO. LTD. REGIONAL OFFICE, KANDAMKULATHY TOWERS, M.G.ROAD,ERNAKULAM, REPRESENTED BY ITS ADMINISTRATIVE OFFICER. BY ADV SRI.VPK.PANICKER RESPONDENT/PETITIONER: SASI S/O.GOPALAN, VATTAKKULANGARA (H), KIDANGOOR SOUTHP.O., KIDANGOOR SOUTH KARA, KIDANGOOR VILLAGE, MEENACHIL TALUK, KOTTAYAM DISTRICT - 686 572. BY ADVS. SRI.DOMSON J.VATTAKUZHY SRI.MATHEW JOHN K THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 08.11.2023, ALONG WITH MACA.3486/2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: :3 : ,
JUDGMENT
[MACA Nos.3486/2015, 122/2016] These appeals are arising from the award passed by the
Motor Accident Claims Tribunal, Pala in O.P.(M.V.) No.553/2013. M.A.C.A. No.3486/2015 was filed by the petitioner in the claim petition, whereas M.A.C.A. No.122/2016 was filed by the insurer of the vehicle involved in the accident. (For convenience, the parties in these appeals are hereinafter referred to based on their respective ranks in the claim petition).
2. The facts which led to the filing of these appeals are as follows: The claim petition was submitted by the petitioner seeking compensation for the injuries sustained to him in a motor accident
that occurred on 29.07.2013. According to him, while walking through the road, he was hit by a pickup van bearing Registration No.KL 01 W 7687, driven by the 1 st respondent. The said vehicle was owned by the 2 nd respondent and was insured with the 3 rd
respondent. Due to the impact of the accident, he sustained severe injuries, and it ultimately resulted in amputation of his leg. :4 : , According to the petitioner, he was working as a mason at the relevant time with a monthly income of Rs.20,000/-, and he was 40 years old. The claim petition was submitted in such circumstances.
3. The 3rd respondent alone contested the matter by filing
a written statement wherein they admitted the coverage policy regarding the vehicle but disputed the liability on various grounds. The negligence, as well as the quantum of compensation, was also disputed by them.
4. The evidence in this case consists of the oral testimony of PW1 and as documentary evidence, Exts.A1 to A11 from the
side of the petitioner. The disability certificate issued by the Medical Board was produced and marked as Ext.X1. No evidence was adduced from the side of the respondents. After the trial, the Tribunal came to the conclusion that the accident occurred due to the negligence on the part of the driver of the pickup van and
being the insurer of the said vehicle, the 3 rd respondent was held
liable to pay compensation. The quantum of compensation was fixed as Rs.21,87,450/- and the said amount was directed to be deposited by the 3rd respondent with interest @ 9% per annum :5 :
, from the date of the petition within a period of three months from the date of the award and failing which the rate of interest shall be 11%. They were also directed to deposit proportionate costs as well. M.A.C.A. No.3486/2015 was filed by the petitioner seeking enhancement of compensation, whereas M.A.C.A. No.122/2016 was filed by the 3rd respondent Insurance Company challenging the quantum of compensation.
5. Heard Sri. Mathew John, learned counsel for the petitioner and Sri. V.P.K. Panicker, learned counsel appearing for the 3rd respondent Insurance Company.
6. The main dispute is relating to the quantum of compensation. The petitioner contends that the amount awarded
by the Tribunal is inadequate. The 3 rd respondent Insurance Company contends that the same is exorbitant and requires interference. In this case, the main contest relates to the quantum of compensation awarded under the head of loss of earning capacity owing to physical disablement. As per the Ext.X1 certificate, the Medical Board certified the percentage of disability as 50%. The contention put forward by the learned counsel for the appellant in this regard is that, considering the fact that the :6 :
, petitioner was working as a mason, which requires physical exertion, a higher percentage ought to have been taken by the Tribunal by taking note of the functional disability. The learned counsel relies on Basappa v. T. Ramesh [(2014) 10 SCC 789], wherein the Honourable Supreme Court took the percentage of functional disability as 85%, whereas the disability certified by the Doctor as 58% in similar circumstances.
7. The learned counsel appearing for the 3 rd respondent,
on the other hand, would point out that the decision relied on by the learned counsel for the petitioner cannot be made applicable to the facts and circumstances of the case as the injuries sustained to the claimant in the case dealt with by the Honourable Supreme Court included neurological disabilities as well, which prevented the said claimant from pursuing any other employment. As far as the present case is concerned, the nature of the injuries is such that the same is amputation of a leg, which would not preclude the petitioner from any other avocation which does not require physical exertion. Therefore, the percentage of disability as taken
in Basappa’s case (cited supra) need not be adopted in the facts
of this case. Besides the same, it is also contended by the :7 : , learned counsel for the 3 rd respondent that the injury sustained by the petitioner is a scheduled injury as per the Employees Compensation Act being amputation. As per the same, the percentage of loss of earning capacity is 60%, and in the absence of any other evidence, the same can be treated as a guideline, and compensation can be determined by adopting the percentage of disability as per the provisions thereof.
8. After considering the entire materials placed on record
and the decisions relied on by the parties concerned, I am of the view that, certainly, some enhancement needs to be granted under the head of disability by taking into account the functional disability. Of course, there is a serious dispute relating to the fact that the petitioner was a mason, as according to the learned counsel for the 3rd respondent Insurance Company, absolutely no material is there indicating the same. However, it is pointed out by the learned counsel for the petitioner that, even as per FIS, the petitioner was referred to as a construction worker, and therefore, there cannot be any dispute as to his avocation. Therefore, since the nature of employment is specifically referred to in the FIS itself, which was registered immediately after the accident, I am of the
:8 :
, view that there cannot be any doubt as regards the avocation of the petitioner as a construction worker. Therefore, the same being an employment, which requires physical exertion, a higher percentage than certified in the disability certificate is to be accepted taking note of the functional disability. As rightly pointed out by the learned counsel for the 3 rd respondent Insurance Company, the observations made by the Honourable Supreme Court in Basappa’s case (cited supra) were in respect of a person who sustained physical and neurological disabilities. Therefore, different treatment has to be given in such cases, and the percentage of disability would be higher in such cases as the victim would be prevented from pursuing the avocation which was engaged in at the time of the accident and in addition to that, options available before him for alternate employment would be much lesser on account of his neurological disabilities. As far as the present case is concerned, it is a case of amputation alone without any neurological disabilities, and therefore, it may be possible for him to pursue other avocations that do not require physical exertion. In such circumstances, I am of the view that the
percentage of disability as certified in the Employees :9 : , Compensation Act, relating to the nature of injuries sustained to the petitioner, can be accepted, which is 60%.
9. Another aspect to be noticed is relating to the monthly
income of the petitioner. The learned counsel for the Insurance Company stoutly opposes the finding of the Tribunal in fixing the monthly income as Rs.12,000/-. According to the learned counsel, the said monthly income ought not to have been taken by the Tribunal in the absence of any evidence indicating the skilled nature of employment of the petitioner. However, as observed above, FIS would indicate that the petitioner was a person engaged in construction work. The accident occurred in the year
2013. When considering the realities and the possible income a
construction worker might have earned in the year 2013 in the State of Kerala, under no circumstances the said amount of Rs.12,000/- could be treated as unreasonable. It is a probable monthly income, and in the absence of any material indicating the irrational nature of the said figure, I do not find any necessity to interfere in the said award. Thus, I reject the contention of the learned counsel for the 3 rd respondent Insurance Company in this regard.
: 10 : ,
10. Moreover, since the physical disability sustained by the
petitioner was as high as 50%, and now the functional disability is taken as 60%, the petitioner would be entitled to compensation, which is calculated taking into account the future prospects as well. The Tribunal calculated compensation without making any addition towards future prospects, which was not proper. As per the principles laid down in National Insurance Company Ltd. v. Pranay Sethi [2017(4) KLT 662], the addition of monthly income to be made in respect of a person comes within the age group of 40 to 50 is 25%, and in this case, the same has to be adopted. Thus while reassessing the compensation by fixing the monthly income Rs.12,000/- with 25% addition towards future prospects and taking the functional disability as 60%, the amount of compensation under the head of loss of earning power owing to physical disability would come to Rs.15,12,000/- [(12000+ 25%) x 12 x 14 x 60%] The amount already awarded by the tribunal under head is Rs.10,08,000/- and thus the additional amount would come to Rs.5,04,000/-.
11. Another head under serious dispute at the instance of : 11 : ,
the insurance company was towards loss of earnings. It was pointed out that the tribunal granted compensation of Rs.72,000/- which was calculated for a period of six months. According to the learned counsel for the 3 rd respondent, when compensation for physical disability is granted at high rates, compensation for loss of earnings for such a longer period was not necessary. However, the crucial aspect to be noticed is that this is a case in which the leg of the petitioner was amputated. The petitioner is a person engaged in an employment which requires physical exertion. In such circumstances, losing a leg would undoubtedly cause serious difficulties for him in earning his livelihood. Of course, it may be true that eventually he can be accommodated in some other employment, but the fact remains that even for getting accustomed to the changing circumstances owing to the physical disablement which he suffered, he has to get himself prepared mentally and physically. This process is likely to take some time, and during the said period, it may not be possible for him to earn any amount. This situation has to be addressed while calculating the compensation, and therefore, a reasonable period has to be taken into account as the transformation period, and he has to be
: 12 : , granted compensation for the said period. Therefore, considering the nature of the petitioner's disability and the time he may require to make himself suitable for any other employment, six months would be a reasonable period. Therefore, I do not find any infirmity in the finding of the tribunal in awarding compensation for loss of earnings for a period of six months.
12. The learned counsel for the 3 rd respondent further contended that the amount awarded towards loss of amenities is
exorbitant. It is to be noted that the tribunal awarded a compensation of Rs.5,40,000/- under this head despite the fact that a comparatively higher amount has been granted under the head of loss of earning capacity. The learned counsel for the 3 rd respondent insurance company places reliance upon the decision rendered by the Hon'ble Supreme Court in Rajkumar v. Ajaykumar and another [(2011) 1 SCC 343] wherein it was observed by the Hon'ble Supreme Court that when compensation is awarded by treating a 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 disappear, and as a result, only a token nominal amount may have
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, to be awarded under the head of loss of amenities, loss of expectation of life as otherwise there will be duplication in the award of compensation. Of course, it is true that in the light of the aforesaid observations, the amount of Rs.5,40,000/- would be on the higher side, and it requires reconsideration. This leads to the question as to what could be the reasonable amount which can be notionally granted under this head. Even while fixing a notional amount under this head, the ground realities faced by the victim cannot be ignored. It is a fact that the petitioner has to live with the disability throughout his life. As far as the compensation for loss of earning capacity is concerned, that is granted to address the loss of income owing to the physical disabilities and the
consequential depreciation in his ability to earn. As far as the compensation for loss of amenities is concerned, it is a compensation, which is entirely different, and it is for living with a physical disability and facing the challenges in his day-to-day life. Every aspect of his normal life, including worldly pleasures connected with the enjoyment of life, would be adversely affected seriously, and this is also something which he is required to be compensated for. Therefore, the loss of amenities is intended to
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, redress the said situation, and therefore, while fixing a notional amount, those aspects cannot be ignored completely. The leg of the petitioner was amputated at the age of 40, a comparatively younger age, and he has to move on with the remainder of his life with such severe disability and undergo suffering attached to it. Therefore, I am of the view that an amount of Rs.2,40,000/- would be a reasonable figure which can be granted as compensation for the loss of amenities in the facts and circumstances of the case.
13. Another head which is under serious dispute is Rs.2
lakhs granted under future treatment expenses. The learned counsel for the petitioner would point out that the amount awarded is grossly inadequate, whereas the learned counsel appearing for the 3rd respondent insurance company contends that the said amount was granted without any materials. But it is a fact that the petitioner had sustained severe injuries which resulted in amputation of his one leg. Evidently, he has to depend upon an artificial limb to lead a normal life. It is common knowledge that when a person depends upon an artificial limb, he may incur expenses frequently for periodical maintenance. Therefore, some amount has to be awarded towards the expenses for treatment.
: 15 : , Considering those aspects, the amount of Rs.2 lakhs already awarded by the tribunal under the head cannot be treated as unreasonable. Therefore, I do not find any ground to interfere with the same.
14. The learned counsel for the 3 rd respondent insurance
company further disputes the amount of Rs.2 lakhs granted as compensation by the tribunal for fixing artificial limbs. The learned counsel for the petitioner, on the other hand, would rely upon
Annexure-A1, which is a quotation issued by one Sai Rehabilitation for an artificial limb and the price shown therein as Rs.10,35,125/-. The learned counsel for the 3 rd respondent insurance company opposed the said application by pointing out that, as far as Annexure A1 is concerned, it is only a quotation and the veracity of the amount mentioned therein cannot be ascertained without adducing evidence. It was also contended by the learned counsel for the 3 rd respondent insurance company that the accident in this case occurred in the year 2013, and even after the expiry of 10 years, no documents were produced by the appellant to substantiate that he had indeed purchased artificial limb with the description in Annexure-A1. Therefore, it was pointed
: 16 : , out that in the absence of any specific evidence, the figures shown in Annexure-A1 cannot be accepted.
15. After considering all the materials placed on record, I
am of the view that the figure as reflected in Annexure A1 as such cannot be accepted in the absence of specific evidence. There may be different types of artificial limbs, and prices may vary as
per the specifications. However, it is a fact that the petitioner would incur some expenses for arranging an artificial limb, and the same cannot be ignored. Therefore, even though I am not inclined to accept the amount as shown in Annexure-A1, I am inclined to grant some more amount under the said head to enable him to procure the artificial limb. The tribunal has already awarded Rs.2 lakhs under this head, and in the facts and circumstances of the case, I am inclined to grant a further amount of Rs.2 lakhs. Another contention highlighted by the learned counsel for the appellant is that the tribunal has awarded penal interest at the rate of 11% in the event of failure on the part of the insurance company to deposit the amount awarded within a period of three months. Such a penal interest is not contemplated under the scheme of the Act, and therefore, the same was unwarranted. Thus, the said
: 17 : , penal interest at the rate of 11% awarded by the tribunal is hereby set aside. Thus, in the light of the aforesaid observations, the total
additional compensation receivable by the appellant is determined as Rs.4,04,000/-[(5,04,000 + 2,00,000) - 3,00,000]. Accordingly, these appeals are disposed of by modifying the award dated 27.02.2015 passed by the Motor Accident Claims Tribunal, Pala in OP(MV) No. 501/2004 by awarding an additional compensation of Rs.4,04,000/-. (Rupees four lakhs four thousand only). The said amount shall be deposited by the insurance company along with interest at the rate as ordered by the tribunal and proportionate costs within a period of three months from the date of receipt of a copy of this judgment.
Sd/- ZIYAD RAHMAN A.A. JUDGE scs/ncd