Shelton Padua vs The Managing Director
2022 Latest Caselaw 3797 Ker

          IN THE HIGH COURT OF KERALA AT ERNAKULAM
                          PRESENT
           THE HONOURABLE MRS. JUSTICE M.R.ANITHA
  TUESDAY, THE 5TH DAY OF APRIL 2022 / 15TH CHAITHRA, 1944
                   MACA NO. 2317 OF 2012
   AGAINST THE AWARD DATED 20.06.2012 IN OPMV 266/2006 OF
        MOTOR ACCIDENT CLAIMS TRIBUNAL, PERUMBAVOOR
APPELLANT/PETITIONER:

         SHELTON PADUA
         S/O.DUGGLES PADUA,ERANATTU
         HOUSE,PONNARYMANGALAM,MULAVUKAD,ERNAKULAM.
         BY ADVS.
         SRI.T.K.KOSHY
         SMT.V.V.RISANI


RESPONDENT/RESPONDENTS 1 & 2:

    1    THE MANAGING DIRECTOR
         KSRTC,TRANSPORT BHAVAN,EAST
         FORT,THIRUVANANTHAPURAM,PIN-695001.
    2    RAVI
         S/O.KUMARAN,PURAPPIYIL
         HOUSE,KAPRASSERY,CHENGAMANAD,PIN-683578.

         SRI. ALEX ANTONY SEBASTIAN P.A R1


     THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR
ADMISSION ON 25.03.2022, THE COURT ON 05.04.2022 DELIVERED
THE FOLLOWING:
 M.A.C.A.No.2317/2012
                                              2




                               M.R.ANITHA, J
                               ******************
                         M.A.C.A.No.2317 of 2012
               ------------------------------------------------------
                 Dated this the 5th day of April, 2022


                                 JUDGMENT

This appeal has been filed by the claimant in O.P(MV)

No.266/2006 on the file of the Motor Accident Claims Tribunal,

Perumbavoor. The claim petition has been filed under Section 166

of the Motor Vehicles Act, 1988 (in short the Act) for the injury

sustained by the appellant.

2. It is alleged that on 18.8.2005 at about 7 a.m. while

the appellant was riding scooter bearing Reg. No.KL-7/AX-7610

from south to north through the Ernakulam-Thrissur N.H.47, and

reached at Perambra, a K.S.R.T.C. bus bearing Reg.No.KL-

15/5246 driven by the 2nd respondent came in a rash and

negligent manner from the southern side and hit the scooter

ridden by the appellant resulting in serious injuries to him. M.A.C.A.No.2317/2012

Immediately, he was taken to St.James Hospital, Chalakudy and

from there he was referred at Medical Trust Hospital, Ernakulam,

and treated there as an inpatient.

3. It is alleged that the accident occurred due to the rash

and negligent driving of the offending vehicle. 1 st respondent is

the registered owner of the K.S.R.T.C. bus. Hence, both the

respondents 1 and 2 are jointly and severally liable to pay

compensation to the petitioner. The appellant claimed total

compensation of Rs.15,00,000/-.

4. 1st and 2nd respondent filed joint written statement

disputing the accident and rashness and negligence alleged

against the 2nd respondent. According to them the accident

occurred due to the careless riding of the scooter by the

appellant himself. The K.S.R.T.C. bus bearing Reg.No.KL-

15/5246 never involved in any accident on 18.8.2005 as alleged.

It was actually operating service in Aluva - Thrissur route. While

the vehicle reached at Church stop it was seen that a motor cycle

overturned in the road about 100 metres away from the bus. The

bus was stopped and took necessary steps to take the injured to M.A.C.A.No.2317/2012

the hospital with the aid of the passengers in the bus. It is also

contended that the appellant/claimant filed a private complaint

and ultimately a charge sheet was filed. Hence, the respondents

1 and 2 are not liable to pay any compensation to the claimant.

5. PWs 1 to 3 were examined and Exhibits A1 to A15

series were marked from the side of the appellant. Thereafter, on

evaluating the evidence and facts and circumstances, the

Tribunal passed an award for Rs.7,82,836/- with the interest @

8% per annum from the date of application till realisation from

respondents 1 and 2 jointly and severally.

6. Dissatisfied with the award passed by the Tribunal the

appellant/claimant (herein after be referred as claimant)

approaches this Court in appeal.

7. The learned counsel for the claimant would contend

that as a result of the accident the appellant had taken earned

leave for 34 days and loss of pay for 406 days and that was

already granted by the Tribunal and there is no further claim

under those heads. But the amount awarded towards disability,

transportation charges, extra nourishment, attendance expenses M.A.C.A.No.2317/2012

as well as loss of amenities etc. are far below the actual loss and

hence he seeks for enhancement under those heads.

8. The learned counsel for the respondents on the other

hand vehemently contend that just and reasonable compensation

have been awarded by the Tribunal under various heads and no

interference is called for in this appeal.

9. In Raj Kumar v. Ajay Kumar : 2011 (1) KLT 620

(SC), a two Judge Bench of the Apex Court laid down general

principles relating to compensation in injury cases wherein the

assessment of compensation under the head of loss of future

earning in different contingencies has been dealt with in

paragraph No.8 of the said judgment. It has been provided that

where the claimant suffers a permanent disability as a result of

injuries, the assessment of compensation under the head of loss

of future earnings would depend upon the effect and impact of

such permanent disability on such earning capacity. The Tribunal

should not mechanically apply the percentage of permanent

disability as the percentage of economic loss or loss of earning

capacity. Specifically provided that what requires to be assessed M.A.C.A.No.2317/2012

is the effect of the permanent disability on the earning capacity

of the injured, and after assessing the loss of earning capacity in

terms of the percentage of the income, it has to be quantified in

terms of money, to arrive at the future loss of earnings by

applying the standard multiplier method used for determination

of loss of dependency and if on appreciation of evidence and

assessment, the Tribunal found that percentage of loss of earning

capacity as a result of the permanent disability is approximately

the same as the percentage of permanent disability, the Tribunal

will adopt the said percentage for determination of

compensation. In paragraph 9, it is further provided that the

Tribunal has to first decide whether there is any permanent

disability and if so, the extent of the permanent disability and

Tribunal has to consider and decide with reference to the

evidence (i) Whether the disablement is permanent or temporary

(ii) if the disablement is permanent whether it is permanent

total disablement or permanent partial disablement (iii) if the

disablement percentage is expressed with reference to any

specific limb, the effect of such disablement of the limb on the M.A.C.A.No.2317/2012

functioning of the entire body, that is the permanent disability

suffered by the person. If the Tribunal concludes that there is no

permanent disability then there is no question of proceeding

further and determining of loss of future earning capacity does

not arise and if the Tribunal concludes that there is permanent

disability and then it will proceed to ascertain its extent. After

the Tribunal ascertains the extent of permanent disability of the

claimant based on the medical evidence it has to determine

whether such permanent disability has affected or will affect his

earning capacity. That in turn involves three steps, that is, first

the Tribunal has to ascertain what activity is the claimant could

carry on inspite of the permanent disability and what he could

not do as a result of permanent disability. The second steps is to

ascertain his avocation, profession and nature of work before the

accident as also his age. The third step is to find whether the

claimant is totally disabled from earning any kind of livelihood or

whether inspite of the permanent disability, claimant could still

effectively carry on the activities and functions which he was

earlier carrying on and whether he was prevented or restricted M.A.C.A.No.2317/2012

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. The Apex Court also described the example of

amputation of a hand, permanent physical or functional

disablement would be assessed at 60% but if the claimant was a

driver or a carpenter, the actual loss of earning capacity may

virtually be 100% if he is neither able to drive or do carpentry.

But, if he is a clerk in Government service, the loss of his left

hand may not result in loss of employment and he may still

continued as a clerk as he could perform his clerical functions

and in that event, the loss of earning capacity will not be 100%

as in the case of a driver or a carpenter, nor 60% that is the

actual physical disability but far less. It is further found that

there may not be any need to award any compensation under the

head of "loss of future earnings" if the claimant continues in

Government service, though he may be awarded compensation

under the head of loss of amenities as a consequence of losing of

his hand. Sometimes, the injured may continue in service but M.A.C.A.No.2317/2012

may not be found suitable for discharging the duties attached to

the post or a job which he was earlier holding on account of his

disability and would, therefore, be shifted to some other suitable

but lesser post with lesser emoluments in which case there

should be a limited award under the head of loss of future

earning capacity taking note of the reduced earning capacity.

11. In New India Assurance Company Ltd. v. Satish

Chandra Sharma and Another : Civil Appeal No.1579 of 2022 @

S.L.P (c) No.14350 of 2019, the Apex Court in a case of injury

sustained by a person in Government service, upheld the decision of

the Tribunal which refused to grant any amount towards loss of

earning power on the ground that the injured continued to earn the

monthly salary including the increments except some allowances given

due to the nature of posting. Hence, it was found that High Court

failed to notice that the injury certificate did not relate to

permanent disability in the entire body and had certified 75%

disability in the lower limbs and he is not immobilized and can perform

and undertake the daily chores without help and assistance and

reduced the enhanced compensation from Rs.56,44,378/- to M.A.C.A.No.2317/2012

Rs.10,00,000/- in total by adding Rs.3,79,000/- to the awarded

amount of the Tribunal, that is Rs.6,21,000/- on the ground that he

lost opportunity to take up post retirement employment.

12. In this case, the claimant was initially taken to

casuality Medical Officer of Medical Trust Hospital, Ernakulam

immediately after the accident and the injuries noted down are:

1) Pain, distension, guarding and tenderness of abdomen 2)

Abrasion left leg 3) Pain and tenderness over the pelvic region.

Laparotomy showed bladder tear. X-ray of pelvis showed fracture

of right superior and inferior pubic rami. Fracture of left inferior

pubic rami and acetabulam. Fracture of sacrum. Ext.A10 is the

discharge summary issued from Medical Trust Hospital,

Ernakulam for the inpatient treatment of the petitioner in that

hospital for the period from 18.08.2005 to 17.10.2005. The

diagnosis was Tile's Type C3 pelvis fracture with transverse

fracture left acetabulam with foot drop. X-ray of pelvis with both

hips AP showed fracture left sacral ala, with IS disruption,

fracture left acetabulam, fracture superior and inferior pubic

ramus (L). X-ray of pelvis judet views and CT of Pelvis showed M.A.C.A.No.2317/2012

transverse fracture left acetabulam, comminuted fracture left

sacral ala with IS disruption, fracture iliac crest post aspect right

with anterior opening of right IS joint. On 18.8.2005 Upper tibial

skeletal traction was given. Underwent haematoma evacuation of

left thigh and spinal region on 25.8.2005, 10.9.2005 and

17.9.2005. He had intermittent bouts of fever which settled with

IV antibiotics and haematoma evacuation. Urology consultation

was given for incontinence of urine and continue catheterization

till patient is mobilized. Traction was removed on 4.10.2005 and

check X-ray showed that position was maintained. Ext.A11 is

disability certificate issued by Dr.Mohammad Ali, Consultant in

Orthopaedics, Taluk Headquarters Hospital, Fort Kochi who

examined the claimant for assessing the disability. In the

disability certificate it has been noted that the petitioner got

inability to lift left foot and numbness of left leg. He also got

inability to walk fast and inability to squat. He got pain over back

and left hip. His left lower limb had shortening and left hip

movements accordingly reduced and 22% whole body permanent

disability was assessed by the Doctor. He had undergone total 63 M.A.C.A.No.2317/2012

days inpatient treatment and an amount of Rs.4,45,078/- was

awarded towards actual medical bills produced. So, the treatment

records as well as medical bills produced from the side of

appellant coupled with the disability certificate would speak in

volumes about the injuries as well as the disability suffered by

the appellant. Two discharge certificates issued from the Medical

Trust Hospital have been produced and he had undergone

prolonged inpatient treatment of 63 days also.

13. Admittedly, the claimant in this case, is thirty years old

Agricultural Officer at the time of accident. At the time of

examination before Court as PW1, he was working as Scientist.

So, that would go to show that inspite of the accident and the

resulting injuries and disabilities suffered by him, he has been

promoted to a higher rank and there is no loss of income as such

to him. During the course of examination, PW3, Dr.Mohammad

Ali, Consultant in Orthopaedics, Taluk Headquarters Hospital, Fort

Kochi who issued Ext.A11 disability certificate, categorically

stated that he had examined the appellant and issued Ext.A11

certificate and that the disability of 22% noted is permanent. M.A.C.A.No.2317/2012

Even though it was put to him that 22% permanent disability

certified is very high, he denied that. But, at the same time, he

admit that he has not assessed the occupational disability of the

appellant. Ext.A11 certificate would specifically state that left

lower limb has an apparent shortening of 2.5 cm. His hip

movements are greatly reduced, flexion upto 70%, the sensation

of left leg is diminished and left ankle movement is reduced. So,

the injuries and permanent disability caused to the appellant

would definitely reduce his earning capacity after the retirement.

Being a Scientist in Agricultural Department, he could have taken

other assignments after retirement. During cross-examination

before the Court, as PW1 in the proof affidavit he categorically

stated that grievous injuries have been sustained to his hip bones

as well as other parts of the body. So, legally though he will not

be able to claim any compensation towards loss of earning power

during the period of service, compensation can be awarded

towards loss caused in earning income by taking post retirement

employment during the post-retirement period by taking the

income notionally.

 M.A.C.A.No.2317/2012





      14.   Accident   was    in   the    year    2005.    As    per

Ramachandrappa v. Manager, Royal Sundaram Alliance

Insurance Company Limited [(2011) 13 SCC 236], his

income can notionally be taken as Rs.5,000/- per month. Hence,

towards loss caused in earning income by taking post retirement

employment, he can be awarded Rs.1,18,800/- (Rs.5,000 x 12 x

9 x 22/100). The Tribunal already awarded Rs.71,280/- towards

disability. So, deducting that amount under the above head, the

appellant/claimant is entitled to get Rs.47,520/-.

15. The learned counsel raised a contention that while

awarding loss of earning, Tribunal reduced the amount of Rs.80/-

towards PCA. But, only because of the accident and the resultant

injuries, he could not go to the office and avail that benefit. Since

claimant did not report for duty, amount towards PCA need not

be awarded. Reasoning of the Tribunal in that regard is only to

be approved.

16. In view of the prolonged treatment and four surgeries

undergone by him, the learned counsel seeks for further M.A.C.A.No.2317/2012

enhancement of compensation towards pain and suffering but an

amount of Rs.40,000/- has already been awarded. In view of the

grievous nature of the injuries and the various procedures of

treatment undergone by him as well as 63 days of inpatient

treatment, an amount of Rs.20,000/- is further awarded towards

pain and suffering. Towards loss of amenities, Rs.30,000/- has

already been awarded. A further amount of Rs.10,000/- can be

awarded under that head.

17. So, taking into account the above factors, towards

transportation expenses, an amount of Rs.3,000/- can be

awarded. Deducting Rs.1,000/- already awarded by the Tribunal,

the balance amount is Rs.2,000/-. Towards extra nourishment,

only Rs.2,000/- has been awarded. It can be enhanced to

Rs.6,000/- in total. Deducting the amount already awarded,

balance amount would be Rs.4,000/-. Towards attendant

expenses, only Rs.6,300/- has been awarded. Since the accident

was in the year 2005, an amount of Rs.200/- per day can be

taken as expenses towards bystander expenses. So, towards

bystander expenses, claimant is further entitled to get Rs.6,300/- M.A.C.A.No.2317/2012

[(Rs.200 x 63) - Rs.6,300].

18. After discharge from the hospital also, in view of the

injury sustained, he might have required assistance of another

person. Hence a further amount of Rs.3,000/- can be awarded

towards attendant expenses. So, the claimant is entitled to get a

total compensation of Rs.82,820/- (Rs.47,520 + Rs.20,000 +

Rs.10,000 + Rs.6,300 + Rs.4,000 + Rs.2,000 + Rs.3,000) which

is rounded off to Rs.92,850/-.

19. In the result appeal allowed. The claimant is allowed

to realise enhanced compensation of Rs.92,850/- (Rupees

Ninety Two thousand eight hundred and fifty only) with interest

at 7.5% from the date of petition till realisation. The 1st

respondent/KSRTC 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.

20. The claimant shall provide the Bank account details

(attested copy of relevant page of bank pass book, Bank Account

number and IFSC code of the branch) before the Tribunal with a M.A.C.A.No.2317/2012

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