Kerala High Court
P.V.Shilaja vs Sandhya Raju on 17 January, 2022
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE C.S. SUDHA
MONDAY, THE 17 TH DAY OF JANUARY 2022 / 27TH POUSHA, 1943
MACA NO. 3573 OF 2019
AGAINST THE AWARD DATED 30.6.2016 IN OP(MV)NO.1384/2009 ON THE FILE OF
ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL, TRICHUR
APPELLANT/PETITIONER:
P.V.SHILAJA
AGED 47 YEARS
D/O VELAYUDHAN,RESIDING AT PADINJAREPURAKKAL HOUSE,
AVANOOR.P.O,
THRISSUR DISTRICT.
BY ADVS.T.C.SURESH MENON
SRI.P.S.APPU
SRI.A.R.NIMOD
RESPONDENTS/RESPONDENTS:
1 SANDHYA RAJU
W/O.RAJU FRANCIS,RESIDING AT KOKKAT HOUSE,
AVITATHOOR.P.O,IRINJALAKUDA,
THRISSUR-680683.
2 AJEESH,
S/O VARGHESE,RESIDING AT ARAKKAPRAMBIL HOUSE,
MADAIKONAM VILLAGE,NEAR VARNA THEATRE,IRINJALAKUDA,
THRISSUR-680121.
3 THE NEW INDIA ASSURANCE COMPANY LIMITED,
VELLANIKARAN BUILDING,MAIN ROAD,
IRINJALAKUDA,THRISSUR-680121.
BY ADVS.SRI.P.C.CHACKO, SC
SRI.LAL K.JOSEPH
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON
18.12.2021, THE COURT ON 17.01.2022 DELIVERED THE FOLLOWING:
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C.S.SUDHA, J.
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MACA No.3573 of 2019
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Dated this the 17 th day of January, 2022
JUDGMENT
This is an appeal under Section 173 of the Motor Vehicles Act,
1988 (the Act) filed by the petitioner in OP(MV)No.1384/2009 on the
file of the IIIrd Additional Motor Accident Claims Tribunal, Thrissur (the
Tribunal). The appeal is against the award dated 30.06.2016.
Respondents 1 to 3 herein are the respondents before the Tribunal also.
The parties will be referred to as described in the proceedings before the
Tribunal.
2. According to the petitioner, on 17.05.2009 at 8.30 a.m.,
while she was riding a scooter bearing registration No.KL-08/K-5956
through Thrissur-Perumbillissery Public Road, a bus bearing registration
No.KL-45/5995 driven by the second respondent in a rash and negligent
manner knocked her down, due to which she sustained grievous injuries.
She was hospitalised for 14 days. The doctor has assessed her
permanent physical disability at 28.78 %. The first respondent is the
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owner of the bus and the third respondent, the insurer. The petitioner is
an M.Com Graduate and a teacher aged 37 years at the time of the
incident. She was getting a monthly income of `10,000/- at the time of
the incident. A reasonable amount of `9,37,000 was claimed as
compensation. Though Tribunal found that the incident was due to the
rashness and negligence of the second respondent-driver, it awarded a
paltry sum of `2,78,414/- without proper application of mind. Hence,
the present appeal.
3. The impugned order does not make it clear as to whether
respondents 1 and 2 were set ex parte. The impugned award only says
that the respondents 1 and 2 remained absent. The third respondent
disputed the quantum of compensation and also contended that the
incident happened due to the rash and negligent driving of the petitioner.
4. After completion of the pleadings, the Tribunal gave
opportunity to the parties to adduce evidence. No oral evidence was
adduced by either side. Exts.A1 to A11 were marked on the side of the
petitioner.
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5. The only point to be considered in this appeal is whether the
compensation awarded to the claimant is just, fair and reasonable.
Notional Income
6. According to the petitioner, she is an M.Com Graduate and a
teacher earning a monthly salary of `10,000/- at the time of the incident.
She had produced Ext.A10 certificate to establish her qualifications.
However, the Tribunal ignored the certificate and without following the
dictum laid down in Ramachandrappa v. Manager, Royal Sundaram
Alliance Insurance Company Ltd. [2011 AIR SC 2951] has
awarded a meagre sum of `4,000/- per month.
7. Though the petitioner contends that she is a teacher and that
she was earning `10,000/- per month at the time of the incident, no
evidence is seen to have been produced before the Tribunal. However,
applying the yardstick laid down in Ramachandrappa's case supra and
Syed Sadaq vs. Divisional Manager, United India Insurance
Co.Ltd. [2014(2) SCC 735], the notional income of the claimant can
be fixed as `7,000 per month. Therefore, I re-assess the notional income
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of the petitioner accordingly.
Permanent disability and loss of earning capacity
8. The petitioner produced Ext.A8 disability certificate issued
by Additional Professor, Neurosurgery, Medical College Hospital,
Thrissur, who assessed the whole body permanent disability of the
petitioner at 28.78%. The Tribunal after taking into account the injuries
sustained and the profession of the petitioner, fixed the functional
disability at 22%. This is challenged by the petitioner who contends that
there was no reason for the Tribunal to have reduced the percentage of
disability to 22%. Further, the Tribunal had also failed to take into
account the loss of future prospects by computing the compensation
towards disability, which according to the learned counsel is against the
dictum in National Insurance Co. Ltd. v. Pranay Sethi (2017(5)
KHC 350).
9. Here I refer to Raj Kumar vs. Ajay Kumar [2011(1) KLT
620] wherein the Hon'ble Supreme court held that what needs to be
looked into in relation to compensation in injury cases is the functional
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disability of the claimant. Paragraphs 6 to 9 of the said judgment read
thus -
"6. Disability refers to any restriction or lack of ability to perform an
activity in the manner considered normal for a human-being.
Permanent disability refers to the residuary incapacity or loss of use of
some part of the body, found existing at the end of the period of
treatment and recuperation, after achieving the maximum bodily
improvement or recovery which is likely to remain for the remainder
life of the injured. Temporary disability refers to the incapacity or loss
of use of some part of the body on account of the injury, which will
cease to exist at the end of the period of treatment and recuperation.
Permanent disability can be either partial or total. Partial permanent
disability refers to a person's inability to perform all the duties and
bodily functions that he could perform before the accident, though he
is able to perform some of them and is still able to engage in some
gainful activity. Total permanent disability refers to a person's inability
to perform any avocation or employment related activities as a result
of the accident. The permanent disabilities that may arise from motor
accidents injuries, are of a much wider range when compared to the
physical disabilities which are enumerated in the Persons with
Disabilities (Equal Opportunities, Protection of Rights and Full
Participation) Act, 1995 (`Disabilities Act' for short). But if any of the
disabilities enumerated in section 2(i) of the Disabilities Act are the
result of injuries sustained in a motor accident, they can be permanent
disabilities for the purpose of claiming compensation.
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7. The percentage of permanent disability is expressed by the Doctors
with reference to the whole body, or more often than not, with
reference to a particular limb. When a disability certificate states that
the injured has suffered permanent disability to an extent of 45% of the
left lower limb, it is not the same as 45% permanent disability with
reference to the whole body. The extent of disability of a limb (or part
of the body) expressed in terms of a percentage of the total functions
of that limb, obviously cannot be assumed to be the extent of disability
of the whole body. If there is 60% permanent disability of the right
hand and 80% permanent disability of left leg, it does not mean that
the extent of permanent disability with reference to the whole body is
140% (that is 80% plus 60%). If different parts of the body have
suffered different percentages of disabilities, the sum total thereof
expressed in terms of the permanent disability with reference to the
whole body, cannot obviously exceed 100%.
8. 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 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
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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). We may however note that in some
cases, on appreciation of evidence and assessment, the Tribunal may
find that percentage of loss of earning capacity as a result of the
permanent disability, is approximately the same as the percentage of
permanent disability in which case, of course, the Tribunal will adopt
the said percentage for determination of compensation (see for
example, the decisions of this court in Arvind Kumar Mishra v. New
India Assurance Co.Ltd. - 2010(10) SCALE 298 and Yadava Kumar v.
D.M., National Insurance Co. Ltd. - 2010 (8) SCALE 567).
9. Therefore, the Tribunal has to first decide whether there is any
permanent disability and if so the extent of such permanent disability.
This means that the tribunal should 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
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limb, then the effect of such disablement of the limb on the
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 the loss of future earning capacity. But if the Tribunal
concludes that there is permanent disability then it will proceed to
ascertain its extent. After the Tribunal ascertains the actual 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." (Emphasis supplied)
10. Therefore, from the aforesaid judgment it is clear that it is
the functional disability that needs to be taken into account for assessing
the loss of income. The assessment of computation under the head of
loss of earnings will depend upon the effect and impact of the
permanent disability on the earning capacity of the petitioner. The
Tribunal cannot and should not mechanically apply the percentage of
permanent disability as the percentage of economic loss or loss of
earning capacity. In the instant case, the petitioner is stated to be a
teacher by profession. In Raj Kumar's case supra, the Hon'ble Supreme
Court sounded a note of caution to the Tribunals in cases where it
proposed to accept the expert evidence of doctors who had not treated
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the injured but who issued disability certificates. In such cases, the Apex
Court held that the Tribunal may invariably make it a point to require
the evidence of the doctor who treated the injured or who assessed the
permanent disability. Mere production of a disability certificate or
discharge certificate would not be proof of the extent of disability stated
therein unless the doctor, who treated the claimant or who medically
examined and assessed the extent of disability of the claimant, is
tendered for cross examination with reference to the certificate. If the
Tribunal is not satisfied with the medical evidence produced by the
claimant, it can constitute a Medical Board from a panel maintained by
it in consultation with reputed local hospitals/Medical Colleges and
refer the claimant to such Medical Board for assessment of the
disability. However, the Apex Court also, taking into account the
difficulties faced by the claimants in securing the presence of Surgeons
or Doctors treating them or who had treated them, held that if the
certificates are not contested by the respondents, they may be marked by
consent thereby dispensing with the oral evidence.
MACA No.3573 of 2019
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11. In the instant case, the respondents do not seem to have
objected to the marking of Ext.A8 disability certificate. Therefore,
Ext.A8 can be relied on for assessing whole body permanent disability.
The disabilities noted as per Ext.A8 are - 1) paresthesia over forehead
along the trigeminal sensory cranial nerve, 2) painful restriction of
movement of right shoulder and upper arm, 3) impaired central vision in
the right eye, 4) complications due to malunited fracture on clavicle
affecting impairment of upper limb and shoulder. Therefore, the
functional disability of the claimant taking into account her profession,
can be fixed at 25% in the place of 22% fixed by the Tribunal. There is
no dispute relating to the multiplier adopted. Therefore, the amount due
to the petitioner under this head would be `3,15,000/-
(`7,000x12x15x25/100).
Loss of earnings
12. The petitioner claimed an amount of `60,000/- towards loss
of earnings for four months. The Tribunal awarded an amount of
`16,000/- under this head. The four months' time given for recuperation
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and convalescence appears to be reasonable. I have already re-assessed
the notional income as `7,000/- per month. Therefore, the amount to
which the petitioner is entitled under this head is `28,000/- (`7,000x4).
Medical expenses and future treatment expenses
13. The petitioner claimed an amount of `1,25,000/- towards
medical expenses. However, Ext.A10 medical bill showed an amount of
₹66,213.43/-. Hence the Tribunal awarded the said amount of ₹66,214/-
towards medical expenses. The petitioner also claimed an amount of
₹25,000/- towards future treatment expense. As no materials were
produced to substantiate the same, the said claim was disallowed. In Raj
Kumar's case supra, the Apex Court held that award under the head of
future medical expenses depends upon the specific medical evidence
regarding the need for further treatment and the cost thereof. Hence, the
Tribunal cannot be found fault for disallowing the said claim.
Pain and sufferings
14. The petitioner claimed an amount of `60,000/- under this
head. The said amount according to the Tribunal is not reasonable and
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therefore taking into account the nature of injuries and the treatment
taken, an amount of `12,000/- was awarded. The petitioner contends
that while awarding such a paltry sum, the Tribunal lost sight of the fact
that the petitioner had sustained very serious injuries including fracture
of skull, clavicle, severe head and optical nerve injury. Therefore
according to her, a higher amount ought to have been awarded under
this head. Ext.A3 wound certificate shows that the following injuries
have been sustained by the petitioner - (i) Polytrauma head injury,
(right) frontotemporal acute sub-dural haematoma and temporal
hemorrhagic contusion brain, (ii) fracture of right temporal bone, (iii)
fracture of right clavicle and (iv) right 3 rd nerve palsy. In the light of the
grievous injuries sustained by her, I am of the opinion that an amount of
`20,000/- under this head would be reasonable.
15. With respect to other heads of claims, I find that the
Tribunal has awarded reasonable, fair and just compensation, which
does not call for any interference.
16. Hence, I hold that the appellant/petitioner is entitled to
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enhanced compensation, at the rates as given in the table below.
Sl. Head of Claim Amount Amount Amount which
No. awarded by the modified by this the appellant/
Tribunal (in `) Court (in `) petitioner is
entitled to (in
`)
1 Loss of earning 16,000/- 28,000/- 28,000/-
2 Transportation to hospital 1,000/- - 1,000/-
3 Extra nourishment 1,000/- - 1,000/-
4 Damage to clothings and 1,000/- - 1,000/-
articles
5 Medical expense 66,214/- - 66,214/-
6 Personal assistance 2,800/- - 2,800/-
7 Future treatment expense - - -
8 Pain and suffering 12,000/- - 12,000/-
9 Permanent disability and 1,58,400/- 3,15,000/- 3,15,000/-
loss of earning power
10 Amenities of life 20,000/- - 20,000/-
Total 2,78,414/- 4,47,014/-
In the result, the appeal is partly allowed with costs. The
appellant/petitioner is awarded a total compensation of `4,47,014/-
with interest at the rate of 9% per annum from the date of the claim
petition till the date of deposit, after deducting the interest for a period
of 713 days, viz., the period of delay in filing the appeal (as ordered by
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this Court on 10.10.2019 in C.M.Appln.No.1 of 2019). The third
respondent is ordered to deposit the compensation with interest and
costs before the Tribunal within a period of 60 days from the date of
receipt of a certified copy of this judgment. On deposit of the amount,
the Tribunal shall disburse the compensation amount to the appellant in
accordance with law.
Sd/-
C.S.SUDHA
JUDGE
ami/
