Kerala High Court
Mini vs Saseendran on 4 April, 2024
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE C.S. SUDHA
THURSDAY, THE 4TH DAY OF APRIL 2024 / 15TH CHAITHRA, 1946
MACA NO. 3716 OF 2019
AGAINST THE AWARD DATED 15.09.2018 IN OP(MV) NO.325 OF 2016
ON THE FILES OF MOTOR ACCIDENT CLAIMS TRIBUNAL , PALAKKAD
APPELLANT/PETITIONER:
SARADHA.K.R
AGED 55 YEARS
W/O. GOPALAN, KUPPAKURUSSY,
KANJIRAM, THARISSIPADAM, POTTASSERY,
PALAKKAD - 678 598.
BY ADV K.A.SREEJITH
RESPONDENTS/RESPONDENTS:
1 SASEENDRAN
AGED 52 YEARS
S/O KELU ERADI, MADATHIL,
PAYYANADAM POST,
MANNARKKAD, PALAKKAD - 678 583.
(R.C. OWNER CUM DRIVER OF AUTORIKSHAW BEARING REG
NO KL-50 -B -6828)
2 THE UNITED INDIA INSURANCE COMPANY LTD.
DIVISIONAL OFFICE, 3RD FLOOR,
MALABAR FORT BUILDING, G.B. ROAD - 678 001
(INSURER OF VEHICLE BEARING REG NO KL-50 -B
-6828, POLICY NO. 11012053113P 102852983 VALID
FROM 12-8-2014 TO 11-2015)
BY ADV SMT.P.K.SANTHAMMA
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR
HEARING ON 04.04.2024, ALONG WITH MACA.3808/2019, THE COURT
ON THE SAME DAY DELIVERED THE FOLLOWING:
M.A.C.A.No.3716 and 3808 of 2019
2
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE C.S. SUDHA
THURSDAY, THE 4TH DAY OF APRIL 2024 / 15TH CHAITHRA, 1946
MACA NO. 3808 OF 2019
AGAINST THE AWARD DATED 15.09.2018 IN OP(MV) NO.329 OF
2016 IN THE FILES OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,
PALAKKAD
APPELLANT/PETITIONER:
MINI,
AGED 37 YEARS,
W/O.SASIDHARAN, KUPPAKURUSSY, KANJIRAM,
THARISIPADAM, POTASSERY POST,
PALAKKAD- 678598.
BY ADV K.A.SREEJITH
RESPONDENTS/RESPONDENTS:
1 SASEENDRAN,
AGED 55 YEARS
S/O.KELU ERADI, MADATHIL,
PAYYANADAMPOST, MANANRKAKD,
PALAKKAD- 678583 (R.C.OWNER CUM DRIVER OF THE
AUTORIKSHAW BEARING REGN.NO.KL/50/B/6828).
2 UNITED INDIA INSURANCE COMPANY LIMITED,
DIVISIONAL OFFICE 3RD FLOOR, MALABAR FORT
BUILDING, G.B.ROAD, PALAKKAD- 678001 (INSURER OF
AUTORIKSHAW BEARING REGN.NO.KL/50/B/6828, POLICY
NO.1012053113P102852983, PERIOD OF COVER 12-8-14
TO 11-8-2015)
BY ADV SMT.P.K.SANTHAMMA
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR
HEARING ON 04.04.2024, ALONG WITH MACA.3716/2019, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
M.A.C.A.No.3716 and 3808 of 2019
3
C.S.SUDHA, J.
------------------------------------
M.A.C.A.No.3716 and 3808 of 2019
----------------------------------------------------
Dated this the 04th day of April 2024
JUDGMENT
These appeals under Section 173 of the Motor Vehicles Act,
1988 (the Act) have been filed by the claimants in O.P.
(MV)No.325/2016 and O.P.(MV)No.329/2016 on the file of the
Motor Accidents Claims Tribunal, Palakkad, (the Tribunal),
aggrieved by the amount of compensation granted vide common
Award dated 15/09/2018. The respondents herein are the
respondents before the Tribunal. The parties and the documents
will be referred to as described in the original petition.
2. According to the petitioners, on 14/06/2015 at 05:45
p.m., while they were travelling in an autorickshaw bearing
registration No.KL-50B-6828 through the Payyanadam -
Mannarkkad public Road driven by the first respondent in a rash
M.A.C.A.No.3716 and 3808 of 2019
and negligent manner as a result of which the driver lost control
of the vehicle and it turned turtle. The petitioners sustained
grievous injuries in the incident. The first respondent is the
owner cum driver of the vehicle and the second respondent, the
insurer. The respondents are jointly and severally liable to
compensate the petitioner. Hence the petitioner in O.P.
(MV)No.325/2016 claimed an amount ₹7,43,000/-and the
petitioner in O.P.(MV)No.329/2016, claimed an amount of
₹7,13,000/- as compensation under various heads.
3. Respondents 1 and 2 filed separate written statements
contending that there was no negligence on the part of the driver.
The policy was admitted, but the liability was denied.
4. Before the Tribunal, no oral evidence was adduced by
either side. Ext.A1 to A20 were marked on the side of the
petitioners. Exts.B1 and B2 were marked on the side of the
respondents. Ext.C1 was also marked.
5. The Tribunal on a consideration of the documentary
M.A.C.A.No.3716 and 3808 of 2019
evidence and after hearing both sides, found negligence on the
part of the first respondent resulting in the incident and hence
awarded an amount of ₹2,70,113/- to the petitioner in O.P.
(MV)No.325/2016 and an amount of ₹1,26,778/- to the petitioner
in O.P.(MV)No.329/2016 with interest @ 9% per annum from the
date of the petition till realisation along with proportionate costs.
Aggrieved, the petitioners have come up in appeal.
6. The only point that arises for consideration in this
appeal is whether there is any infirmity in the findings of the
Tribunal calling for an interference by this Court.
7. Heard both sides.
8. The impugned award in O.P.(MV)No.325/2016 is
challenged on the following grounds-
9. Notional Income - It is submitted by the learned
counsel for the petitioner/injured that the petitioner was a coolie
at the time of the incident and hence her income ought to have
been fixed at the rate fixed in the decision in Ramachandrappa
M.A.C.A.No.3716 and 3808 of 2019
v. Manager, Royal Sundaram Allian.Co.Ltd, (2011) 13 SCC
236. However, the Tribunal has fixed the notional income only
at the rate of ₹6,000/- per month which is against the aforesaid
dictum. Per Contra, it is submitted by the learned counsel for the
second respondent insurer that the petitioner had claimed only an
amount of ₹6,000/- and therefore the Tribunal was right in
granting the said amount to the petitioner. The learned counsel for
the petitioner submitted that the Tribunal as well as this Court has
all the power to grant more amounts than what is claimed in the
petition; that the Act being a beneficial legislation, a liberal
approach needs to be taken and therefore, the notional income
fixed by the Tribunal requires to be interfered with in the light of
the dictum in Ramachandrappa (Supra).
9.1. Admittedly, the claim in the petition was only that she
was getting a monthly income of ₹6,000/-. It is no doubt true that
the Act is a beneficial piece of legislation and that the courts have
to take a liberal approach while interpreting the provisions and in
M.A.C.A.No.3716 and 3808 of 2019
the grant of just compensation. It is also true that there are
precedents to the effect that in appropriate cases to meet the ends
of justice the courts can grant more than what is claimed, if that is
the just compensation. The petitioner never had a case before the
Tribunal that though she had claimed only ₹6,000/- in the
petition, she was entitled to the rate fixed in Ramachandrappa
(Supra). In the facts and circumstances of the case, I find no
reasons to enhance the notional income than what has been
claimed in the petition.
10. Extra Nourishment - The award of ₹3,000/- granted
is challenged on the ground that the petitioner had to be
hospitalised for a period of 8 days and therefore extra
nourishment ought to have been ₹20,000/- as claimed by the
petitioner. The amount of ₹3,000/- appears to be just
compensation and hence I find no reason to interfere with the
same.
11. Compensation for pain and suffering - an amount
M.A.C.A.No.3716 and 3808 of 2019
of ₹30,000/- has been granted by the Tribunal, which according
to the learned counsel, is too low an amount as an amount of
₹1,00,000/- had been claimed by the petitioner. In the light of the
injuries sustained by the petitioner, the amount of ₹30,000/-
granted for pain and suffering seems appropriate.
12. Compensation for loss of amenities and enjoyment
in life - the learned counsel pointed out that the petitioner is
hailing from Palakkad, in which part of Kerala, agriculture is the
main operation. The petitioner is also engaged in such
agricultural operations. During the course of her work, she will
have to carry articles like paddy and other agricultural products
on her head. Pursuant to the incident it has become difficult for
her to carryout such works and therefore the compensation under
the said head needs to be enhanced. On the other hand, it is
submitted by the learned counsel for the respondent insurer that
no evidence has come on record relating to the nature of work
carried on by the petitioner and therefore no interference is called
M.A.C.A.No.3716 and 3808 of 2019
for.
12.1. It is true that no evidence has been adduced by
the petitioner relating to the nature of her occupation or work.
But the petitioner being a coolie, I think an amount of ₹25,000/-
would be just compensation under this head. An amount of
₹15,000/- has been granted by the Tribunal. Therefore, an
enhancement of ₹10,000/- is granted under this head.
13. The impugned Award in O.P.(MV)N0.325/2016 is
partly modified thus -
Sl. Head of claim Amount Amount Modified in
No. claimed awarded appeal
by
Tribunal
1. Loss of earning ₹50,000/- ₹30,000 /- ₹30,000 /-
(No
modification)
2 Transportation ₹20,000/- ₹3,000/- ₹3,000/-
to hospital (No
modification)
3. Damage to ₹3,000/- ₹1,000/- ₹1,000/-
clothing and (No
articles modification)
4. Extra ₹20,000/- ₹3,000/- ₹3,000/-
nourishment (No
modification)
M.A.C.A.No.3716 and 3808 of 2019
5. Expenses of a ₹20,000/- ₹2,400/- ₹2,400/-
Bystander (No
modification)
6. Medical ₹80,000/- ₹27,313/- ₹27,313/-
Expenses (No
modification)
7. Compensation ₹1,00,000/- ₹30,000/- ₹30,000/-
for pain and (No
suffering modification)
8 Compensation for ₹3,50,000/- ₹1,58,400/- ₹1,58,400/-
loss of earning (No
power modification)
9 Compensation for ₹1,00,000/- ₹15,000/- ₹25,000/-
loss of amenities (15,000 + 10,000/-)
and enjoyment in
life
Total ₹7,43,000/ ₹2,70,113/ ₹2,80,113/-
-
14. The impugned award in O.P.(MV)No.329/2016 is
challenged on the following grounds-
15. Notional Income - The petitioner in order to prove
her income relies on Ext.A15 salary certificate, as per which she
was drawing a monthly salary of ₹13605/- in her capacity as
Assistant Pharmacist, Mannarkkad Nursing Home, Mannarkkad.
The Tribunal fixed the notional income at ₹6,000/- per month on
M.A.C.A.No.3716 and 3808 of 2019
the ground that the salary certificate had not been proved. This is
challenged by the petitioner and it is submitted that Ext.A15 was
never objected to and hence it was marked without any objection.
That being the position, there was no reason for the Tribunal to
reject the same. Per contra, it is submitted by the learned counsel
for the second respondent insurer that as long as Ext.A15
certificate is not proved, the same cannot be made the basis for
fixing the notional income.
15.1. Ext.A15 salary certificate which is undated, is
stated to have been issued by the proprietor, Mannarkkad Nursing
Home. However, the person who issued Ext.A15 was not
examined to prove the same. It is true that the document has been
marked without any objection being raised by the respondent.
However, mere marking of a document would not prove its
contents. It would always have been better had the petitioner
examined the person who had issued Ext.A15. Be that as it may,
fixing notional income of the petitioner at ₹6,000/- per month by
M.A.C.A.No.3716 and 3808 of 2019
the Tribunal also does not seem to be correct in the light of the
dictum in Ramachandrappa (Supra). Therefore, relying on the
said decision, I fix the notional income of the petitioner at
₹10,000/- per month.
16. Percentage of disability and loss of future prospects
- As per Ext.A14 disability certificate issued by Orthopedic
Surgeon, Medical College Hospital, Thrissur, the petitioner is
stated to have sustained 12% permanent physical disability
(whole body) as a result of the injury sustained in the accident. It
is submitted that inspite of Ext.A14 coming on record, the
Tribunal without stating any reason(s), scaled down the
percentage of disability to 4%, which is incorrect. Per contra, it
is submitted by the learned counsel for the second respondent
insurer, fixing the percentage of disability at 4% itself is too high
and unreasonable in the light of the injuries sustained by the
petitioner.
16.1. As per Ext.A17 wound certificate dated 14/06/2015,
M.A.C.A.No.3716 and 3808 of 2019
the injuries sustained by the petitioner are -
"C/o pain neck, back, right shoulder
Sprain neck (Avulsion # L5 next along ACC)
Contusion back K4 right shoulder."
16.2. As pointed out by the Tribunal, the doctor who
issued Ext.A14 certificate was not examined to prove the same.
The doctor who issued the certificate does not seem to be the
doctor who treated the petitioner. As held by the Apex Court in
Raj Kumar v. Ajay Kumar, (2011) 1 SCC 343, the Tribunal is
to invariably make it a point to require the evidence of the doctor
who treated the injured or who assessed the permanent disability
and that mere production of a disability certificate/ discharge
certificate is not proof of the extent of the disabilities stated in the
certificate unless the doctor is tendered for cross examination
with reference to the certificate. It has also been held that in
cases where the certificates are not contested by the respondent,
they may be marked on consent, thereby dispensing with oral
evidence. In the case on hand, it is true that Ext.A14 certificate
M.A.C.A.No.3716 and 3808 of 2019
was marked without any objection being raised by the
respondent. As per Ext.A14 the petitioner is stated to have 12%
permanent physical disability, which is whole body, as a result of
the injuries sustained by her. As held in Raj Kumar (Supra)
where the claimant suffers a permanent disability because of the
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. It is wrong to assume in all cases, a
particular extent (percentage) of permanent disability would
result in a corresponding loss of earning capacity. For instance, if
the evidence produced shows 45% as the permanent disability, it
M.A.C.A.No.3716 and 3808 of 2019
cannot be held that there is 45% loss of future earning capacity.
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 terms of
money, to arrive at the future loss of earnings (by applying the
standard multiplier method used to determine loss of dependency.
All injuries (or permanent disabilities arising from injuries), do
not result in loss of earning capacity. The percentage of
permanent disability with reference to the whole body of a
person, cannot be assumed to be the percentage of loss of earning
capacity. To put it differently, the percentage of loss of earning
capacity is not the same as the percentage of permanent disability
(except in a few cases, where the Tribunal based on evidence,
concludes that percentage of loss of earning capacity is the same
as percentage of permanent disability). The doctor who treated an
injured - claimant or who examined him subsequently to assess
M.A.C.A.No.3716 and 3808 of 2019
the extent of his permanent disability can give evidence only
regarding the extent of permanent disability. The loss of earning
capacity is something that will have to be assessed by the
Tribunal with reference to the evidence in entirety. The same
permanent disability may result in different percentages of loss of
earning capacity in different persons, depending upon the nature
of profession, occupation or job, age, education, and other
factors.
16.3. In the aforesaid circumstance, taking into account the
injuries sustained by the petitioner, I find that percentage of
disability fixed by the Tribunal warrants no interference.
17. The learned counsel for the petitioner also challenges
the period of four months that has been taken for loss of earnings
as well as the compensation awarded for loss of amenities and
enjoyment. The notional income has been raised to ₹10,000/- per
month. The period of four months taken for loss of earnings and
the compensation awarded under other heads are quite
M.A.C.A.No.3716 and 3808 of 2019
reasonable. The only modification that is required is regarding
the notional income that has been fixed by the Tribunal at
₹6,000/- which would stand modified to ₹10,000/- and in the
light of such modification, the compensation awarded under the
heads loss of earnings and compensation for loss of future
earning power would stand appropriately modified.
18. The impugned Award in O.P.(MV)N0.329/2016 is
partly modified thus -
Sl. Head of claim Amount Amount Modified in
No. claimed awarded by appeal
Tribunal
1. Loss of earning ₹50,000/- ₹24,000 /- ₹40,000 /-
(10,000 x 4
M*)
2 Transportation ₹20,000/- ₹2,000/- ₹2,000/-
to hospital (No
modification)
3. Damage to ₹3,000/- ₹1,000/- ₹1,000/-
clothing and (No
articles modification)
4. Extra ₹20,000/- ₹2,000/- ₹2,000/-
nourishment (No
modification)
5. Expenses of a ₹20,000/- ₹1,800/- ₹1,800/-
Bystander (No
M.A.C.A.No.3716 and 3808 of 2019
modification)
6. Treatment ₹50,000/- ₹14,898/- ₹14,898/-
Expenses (No
modification)
7. Compensation ₹1,00,000/- ₹25,000/- ₹25,000/-
for pain and (No
suffering modification)
8 Compensation ₹3,50,000/- ₹46,080/- ₹ 76,800/-
for loss of future (10,000 NI* x
earning power 12M* x 16
PD*)
9 Compensation ₹1,00,000/- ₹10,000/- ₹10,000/-
for loss of (No
amenities and modification)
enjoyment in life
Total ₹7,13,000/ ₹1,26,778/- ₹1,73,498/-
[ * M - Month; MR - Multiplier; NI - Notional Income;
PD - Permanent Disability]
19. In the result, MACA No.3716/2019 is allowed in part
by enhancing the compensation by a further amount of ₹10,000/-
(total compensation ₹2,80,113/-, that is, ₹2,70,113 /- granted by
the Tribunal + ₹10,000/- granted in appeal) with interest at the
rate of 7.5% per annum from the date of petition till date of
M.A.C.A.No.3716 and 3808 of 2019
realization and proportionate costs.
MACA No.3808/2019 is allowed in part by enhancing the
compensation by a further amount of ₹46,720/- (total
compensation ₹1,73,498/-, that is, ₹1,26,778/- granted by the
Tribunal + ₹46,720/- granted in appeal) with interest at the rate of
7.5% per annum from the date of petition till date of realization
and proportionate costs. The second respondent/insurer is
directed to deposit the enhanced compensation with interest and
costs before the Tribunal within a period of 60 days from the date
of receipt of a copy of the judgment. On deposit of the
compensation amount, the Tribunal shall disburse the amount to
the petitioners/appellants at the earliest in accordance with law.
Interlocutory applications, if any pending, shall stand
closed.
Sd/-
C.S.SUDHA
JUDGE
Jms
