Dennish @ Denny vs Rajan
2022 Latest Caselaw 735 Ker

              IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                 PRESENT
               THE HONOURABLE MRS. JUSTICE M.R.ANITHA
      MONDAY, THE 17TH DAY OF JANUARY 2022 / 27TH POUSHA, 1943
                          MACA NO. 3016 OF 2009
   OPMV 1379/2004 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, IRINJALAKUDA


APPELLANT/PETITIONER

           DENNISH @ DENNY, S/O VARGHESE, THATTARAPARAMBIL HOUSE,
           NORTH CHALAKUDY, THRISSUR DISTRICT
           BY ADV SRI.T.N.MANOJ


RESPONDENTS/RESPONDENTS



           1.RAJAN P.J., PALALATHINGAL HOUSE, K.K.ROAD, CHALAKUDY,
           2.GEORGE S/O POULOSE, CHOORAMANA HOUSE, PARIYARAM DESOM,
           THRISSUR
           3. THE MANAGER, NATIONAL INSURANCE COMPANY LTD, AMBIKA
           ARCADE, M.G.ROAD, THRISSUR


           BY ADV SRI.E.M.JOSEPH FOR R3



     THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD
ON 6.1.2022, THE COURT ON 17.01.2022 DELIVERED THE FOLLOWING:
 MACA.3016 of 2009
                                       2



                            JUDGMENT

1. Appellant is the claimant in O.P.(MV).1379/2004 on the file of

Motor Accident Claims Tribunal, Irinjalakuda. The claim petition

was filed under Section 166 of the Motor Vehicles Act, 1998 (in

short the Act) for the injury sustained by the

appellant/claimant in a motor accident occurred on 28.5.2004

at about 2.00 am at Sevanur Privu in Tamil Nadu.

2. It is alleged that the appellant/claimant (hereinafter referred as

the claimant) was travelling as agent as owner of the goods

carried in lorry with registration No.KL.08/T 2967 from

Bangalore to Chalakudy. While reaching at the place of

occurrence, due to the rash and negligent driving of the lorry

driven by the 2nd respondent, it hit on another lorry bearing

registration No.T.N.27/1555. Out of the accident, claimant

sustained grievous injuries on his right leg and due to that, his

right leg has to be amputed just below the hip and serious

injury was sustained to the left leg also, causing loss of left

calcaneum.

MACA.3016 of 2009

3. 2nd respondent, the driver remained ex parte to the

proceedings before the Tribunal. 3 Rd respondent is the

Insurance Company. 1St respondent is the owner of the

offending vehicle, who filed written statement admitting the

case of the claimant that he was accompanying the goods in

the lorry as representatives of the owner.

4. 3rd respondent filed written statement admitting the Insurance

coverage of the lorry involved in the accident but contending

that the petitioner was only a gratuitous passenger in the

goods vehicle and is not covered by the policy.

5. The owner of the goods in the lorry was examined as PW1 and

the claimant was examined as PW2. Exts.A1 to A10 marked

from the side of the claimant and Exts.B1 to B2 were marked

from the side of the 3rd respondent.

6. Thereafter on hearing both sides and evaluating the facts and

circumstances and the evidence adduced, the Tribunal found

that the accident occurred due to rash and negligent driving of

the lorry by the 2nd respondent. With regard to the liability of

the 3rd respondent, it was found by the Tribunal that the

claimant was an agent of the owner of the goods and is MACA.3016 of 2009

entitled to get statutory protection and coverage under

Section 147 of the Motor Vehicles act as authorized agent of

the owner of the goods and found that the claimant is covered

by Ext.P1 policy statutorily and hence 3 rd respondent Insurance

Company is liable to pay the compensation.

7. The claimant approaches this Court dissatisfied with the

quantum of compensation awarded by the Tribunal. Though

respondents 1 to 3 were duly served, 3 rd respondent insurer

alone contested the matter. The learned standing counsel

would contend that a just and reasonable compensation has

been awarded by the Tribunal and no interference is called for

in this appeal.

8. The learned counsel for the claimant on the other hand would

contend that, claimant suffered serious injuries and he had

been working as a salesman with P.J.Fruits, Chalakkudy. He was

aged 27 years and was having a monthly income of Rs.4000/-.

The total amount of compensation claimed was Rs.12,00,000/-.

The Tribunal under various heads awarded a total

compensation of Rs.8,40,800/- which according to the claimant

is very low in view of the injury sustained by him. It is MACA.3016 of 2009

contended that the monthly income notionally fixed by the

Tribunal as Rs.2000/- is very low. Claimant as PW2 deposed

that he had been working as agent of PW1, the owner of the

lorry and was not a gratuitous passenger. During cross-

examination also, he asserted his stand that he had travelled

in the lorry as agent. The averments in the claim petition is

that he is an employee in P.J.Fruits. It is true that he did not

produce any document to prove that he is an employee in

P.J.Fruits.

9. In this context it is relevant to quote Ramachandrapa v

manager, Royal Sundaram Alliance Insurance Company

Limited [(2011) 13 SCC 236], wherein the Hon'ble Apex

Court notionally fixed the monthly income of cooli in the year

2004 as rupees 4,500. It was held that a claimant working as

coolie cannot be expected to produce any documentary

evidence to substantiate their claim. It is also held that in the

absence of any other evidence contrary to the claim made by

the claimant, the Tribunal should have accepted the claim of

the claimant. It is also held that in a given case if the claim

made is so exorbitant or if the claim made is contrary to MACA.3016 of 2009

ground realities the Tribunal may not accept the claim and

may proceed to determine the possible income by resorting to

some guess work which may include the ground realities

prevailing at the relevant point of time.

10. In Syed Sadiq v. Divisional manager, United India

Insurance Co. Ltd. [(2014) 2 SCC 735] Apex Court was

dealing with an appeal which arouse out of an accident

occurred on 14-08-2008. Claimant was a vegetable vendor

aged about 24 years who sustained injury to the lower end of

right femur and left upper arm and his right leg had to be

amputated. Question arouse about his monthly income.

Following the principles in Ramachandrapa's case it was held

that there is no reason for the Tribunal and the High Court to

ask for evidence of monthly income of the appellant/claimant.

It is further found that going by the present state of economy

and rising prices in agricultural products a vegetable vendor is

reasonably capable of earning Rs.6,500/- per month.

11. In the present case, the accident occurred on 28.5.2004.

So the monthly income of Rs.4000/- claimed in the claim

petition ought to have been accepted as just and reasonable in MACA.3016 of 2009

view of the principles laid down by the Apex Court in the above

referred decisions. So I accept the contention of the counsel

for the claimant that the monthly income notionally fixed by

the Tribunal as Rs.2000/- per month is very low and hence it is

re-fixed as Rs.4000/- per month.

12. Ext.A4 discharge summary issued from the Medical Trust

Hospital, Ernakulam on 1.9.2004 would establish that the

claimant was referred to the said hospital from the adjacent

hospital where he was initially taken immediately after the

incident on 28.5.2004 at early hours at Bavani near Erode. He

was diagnosed to have fracture dislocation ® hip with femoral

arterial injury. Femoral arterial repair, fasciotomy ® thigh and

closed reduction on (R) hip, upper tibial skeletal traction was

done in that hospital and later he was referred to the medical

Trust hospital. It would reveal that on 31.5.2004, above knee

amputation ® done under the GA because of non viability of

leg muscles and deteriorating general condition and renal

function. On 2.6.2004, wound debridement and partial closure

of (R) A/K stump done under GA. It would also go to show that

serial wound inspection and debridment of (R) A/K stump and MACA.3016 of 2009

(L) leg done on 4.6.2004, 10.6.2004, 11.6.2004 and 14.6.2004.

On 16.7.2004, wound debridement (L) heel wound done and

calcaneum was found to be completely infected, hence total

calcanectomy was done due to acute osteomyelitis of

calcaneum with total involvement.

13. So according to the learned counsel, his right leg has

been amputed above the knee and left calcaneum was found

to be completely infected and hence total calcanectomy was

done due to acute ostemyelitis of calcaneum with total

involvement. So there is considerable disablement to the left

leg also out of the accident. So according to the learned

counsel, the Tribunal went wrong in restricting the percentage

of disability to the tune of Rs.80% while awarding

compensation for the loss of earning capacity since the

claimant cannot perform any job in future.

14. Ext.A7 is the disability certificate issued by the doctor

certifying that permanent disability is assessed at 55% for the

whole body as per McBrides scale and the loss of earning

capacity for a salesman is 100%. But according to the learned

counsel, the Tribunal adopted 80% permanent disability at the MACA.3016 of 2009

rate of Rs.24,000/- per annum and accordingly arrived at

Rs.3,46,000/- under the heard 'loss of earning' capacity. But it

has come out from the evidence of PW2, the claimant about

the accident and the injuries sustained by him. It has come out

from the medical records as well as the disability certificate

that very serious injuries has been sustained and there is

above knee amputation of his right leg and there is also

serious injuries to his left leg also. With respect to the left leg it

is certified by the doctor that he has loss of calaeneum. It is

discussed by the Tribunal that amputation of leg without

leaving the stump of more than 12 cm will amount to 80%

disability under the Workmen's Compensation Act. In this case

the petitioner is alleged to be a sales man and hence the

amputation of right leg above knee and the serious injuries

involving calcanectomy of left leg would practically make him

unable to do his work of sales man as before.

15. In Raj Kumar v. Ajay Kumar and Another (2011

(1) SCC 343 = 2010 KHC 5021) the Apex Court has

elaborately discussed the general principles relating to

compensation in injury cases. In personal injury cases, heads MACA.3016 of 2009

under which the compensation is awarded has been classified

into two as pecuniary damages (Special damages) and non

pecuniary damages (general damages). In paragraph No.5, the

heads coming under pecuniary damages and non pecuniary

damages have been enumerated. In personal injury cases,

compensation would be awarded only under the heads ie,

expenses relating treatment, hospitalization, medicine,

transportation nourishing food and miscellaneous expenditure

and loss of earning during the period of treatment as well as

damages for pain, suffering and trauma as a consequence of

the injuries.

16. In cases of serious injuries, where there is specific

medical evidence corroborating evidence of the claimants, the

compensation would be granted under the heads loss of

earning (and other gains) which the injured would have made

had he not been injured, comprising : - 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 (shortening of normal longevity).

17. The assessment of non pecuniary damages under the MACA.3016 of 2009

damages for pain, suffering and trauma, loss of amenities and

loss of expectation of life involves determination of lump sum

amounts with reference to circumstances such as age, nature of

injury/deprivation/disability suffered by the claimant and the effect

thereof on the future life of the claimant. The tribunal in the

judgment had found that as per the schedule attached to

Workmen's Compensation Act, 1923, the percentage of disability

for amputation below hip with stump not exceeding 12.70 cms in

length measured from hip from deep of grave trenchanter is 80%.

But amputation below hip with stump exceeding 12.70 cms in

length measured from hip of grave trenchanter but not beyond

middle thigh is 70%.

18. In this case, by looking at the photographs as well as the

disability certificate (Ext.A7) it appears that the amputation in

the case on hand comes in the category of serial No.18 of part

II of Schedule I of the Workmen's Compensation Act which

specifies disability at 70% in the case of amputation below hip

with stump exceeding 12.70 cm measured from the hip of

grave trenchanter but not beyond middle thigh. But at the

same time, in the disability certificate the doctor though

calculated the permanent disability at 55% for the whole body, MACA.3016 of 2009

as per the McBrides scale and natural guidelines, the loss of

earing capacity as a salesman is fixed as 100%.

19. In Raj Kumar's case it has been held by the Apex Court

that in cases where claimant suffers 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 common disability of 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. What is to be assessed is the effect of

permanent 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 terms of

money to arrive at the future loss of earnings.

20. In the present case, the right leg above the knee

was amputed and left leg also sustained grievous injuries.

Doctor certified 55% permanent disability and 100%

occupational disability. In view of the avocation of the claimant

as salesman, the loss of one leg above knee and the injury

sustained on the left leg ostemyelitis and calcanectomy etc., MACA.3016 of 2009

would make him disabled to do the work of salesman who has

to stand almost the whole working hours. So, 100% of loss of

earning capacity assessed by the doctor could have been

followed to assess the loss of earning capacity of the claimant.

Admittedly the claimant was 27 years old at the time of

incident.

21. The Tribunal awarded six months loss of income that can

be maintained by fixing the monthly amount as Rs.4000/-. So

under the head of 'loss of income', claimant is entitled to get

an enhanced compensation of Rs.24,000/- (4000 x 6).

Deducting the amount already awarded by the Tribunal, the

balance would be Rs.12,000/- (24000 - 12000) towards loss

of income.

22. Towards 'pain and suffering', Tribunal already

awarded Rs.30,000/-. In view of the serious nature of injuries

including the amputation of right leg and the injuries to the left

leg also, amount towards pain and suffering can be refixed as

Rs.50,000/-. So deducting the amount already awarded, the

claimant is entitled for an enhanced compensation of

Rs.20,000/- towards 'pain and suffering'. MACA.3016 of 2009

23. Towards 'loss of amenities', an amount of

Rs.50,000/- has already been awarded. No further

enhancement is needed under that head.

  24.          As    per    Sarla      Verma       v.     Delhi    Transport

    Corporation      (2009 (2) SCC 121 = 2010 (2) KLT 802)

which is followed in Rajkumar as well as in National

Insurance Company Limited v. Pranay Sethi and Ors

(2017 (4) KLT 662 (SC)), the multiplier to be applied is 17

since the claimant is 27 years at the time of accident.

25. Under the head 'future earning capacity, claimant is

entitled to get Rs.8,16,000/- (4000 x 17 x 12). Out of it, the

amount of Rs.3,46,000/- awarded by the Tribunal has to be

deducted. The balance amount would be Rs.4,70,000/-

(8,16,000 - 3,46,000). Claimant further claimed an amount of

Rs.10,000/- towards compensation of 'disfiguration'. He was

only 27 years old and his right leg was amputed above the

knee and left leg also sustained grievous injuries including loss

of calcaneum but the tribunal refused to award any

compensation for disfiguration. In view of the nature of injury

sustained by him and his age, I am of the view that an amount MACA.3016 of 2009

of Rs.5000/- can be awarded towards compensation for

'disfiguration'. In effect, claimant is entitled for an enhanced

compensation of Rs.5,07,000/- (12,000 + 20,000 + 4,70,000

+ 5000) with interest at the rate of 7.5% per annum from the

date of petition, ie, 8.10.2004. At the time of allowing

C.M.Application No.1 of 2009, 48 days were excluded for

calculating the interest. So claimant is not entitled for interest

for 48 days.

26. In the result, Appeal allowed and the appellant is allowed

to realize an enhanced compensation of Rs.5,07,000/- which

will carry interest at the rate 7.5% per annum from the date of

petition, ie, 8.10.2004, till realization deducting 48 days out of

it.

27. 3rd respondent/insurer shall satisfy the additional amount

together with interest within a period of two months from the

date of receipt of a certified copy of this judgment, after

deducting the liability of the claimants towards balance court

fee. The disbursement of additional compensation to the

appellant/claimant shall be made taking note of the law on the

point and in terms of the directives issues by this Court in MACA.3016 of 2009

Circular No.3 of 2019 dated 6.9.2019 and clarified further in

Official Memorandum No.D1-62475/2016 dated 7.11.2019.

Appellant/claimant shall provide his bank account details

(attested copy of the relevant page of the Bank Passbook

having details of the Bank Account Number and IFSC Code of

the branch) before the Tribunal, with copy to the learned

Standing Counsel for the insurer, within one month from the

date of receipt of a certified copy of this judgment. Parties

shall bear their respective costs.

Sd/-

M.R.Anitha, Judge

Mrcs/5.1.22.