Kerala High Court
M.Vipin vs New India Assurance Company Ltd on 5 April, 2024
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE C.S. SUDHA
TH
FRIDAY, THE 5 DAY OF APRIL 2024 / 16TH CHAITHRA, 1946
MACA NO. 4083 OF 2019
AGAINST THE AWARD DATED 24.04.2019 IN O.P.(MV) NO.528 OF 2015 OF
THE MOTOR ACCIDENTS CLAIMS TRIBUNAL-IV, PALAKKAD.
APPELLANT/PETITIONER:
M.VIPIN,
AGED 26 YEARS, S/O.SANKAR @ SANKARANARAYAN @ SANKARAN,
6/365, MANNATTIL HOUSE,
PERUVEMBU, PALAKKAD, PIN-678 531.
BY ADVS.
JACOB SEBASTIAN
SRI.K.V.WINSTON
SMT.ANU JACOB
RESPONDENT/2ND RESPONDENT:
NEW INDIA ASSURANCE COMPANY LTD.
N.S.TOWERS, 1ST FLOOR, NEAR STADIUM BUS STAND,
COIMBATORE ROAD, PALAKKAD, PIN-678 001.
BY ADV.LATHA SUSAN CHERIAN
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR
ADMISSION ON 05.04.2024, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
2
MACA NO. 4083 OF 2019
JUDGMENT
Dated this the 5th day of April, 2024
This appeal under Section 173 of the Motor Vehicles
Act, 1988 (the Act) has been filed by the claimant in O.P.
(MV)No.528/2015 on the file of the Motor Accidents Claims
Tribunal-IV, Palakkad, (the Tribunal), aggrieved by the amount of
compensation granted by Award dated 24/04/2019. The respondent
herein is the 2nd respondent insurer before the Tribunal. The parties
and the documents will be referred to as described in the original
petition.
2. According to the petitioner, on 19/05/2013 at about 16:30
hours, he was travelling in a motorcycle bearing registration No.KL-
9/AF-63 as a pillion rider. The first respondent was riding the
motorcycle in a rash and negligent manner due to which it collided
with another motorcycle as a result of which the petitioner was
thrown on to the road whereby he sustained injuries. The first
respondent is the owner cum rider and the second respondent, the
MACA NO. 4083 OF 2019
insurer of the vehicle. Hence, the petitioner claimed an amount of
₹10 lakhs as compensation under various heads.
3. The first respondent driver filed written statement
denying any negligence on his part.
4. The second respondent insurer admitted the existence of
a valid policy but denied liability.
5. Before the Tribunal, PW1 was examined and Exts.A1 to
A9 series were marked on the side of the petitioner. The report of
the Medical Board has been marked as Ext.X1. No oral or
documentary evidence was adduced by the respondents.
6. The Tribunal on a consideration of the oral and
documentary 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 ₹6,73,058/- with interest
@ 9% per annum from the date of the petition till realisation along
with proportionate costs. Aggrieved, the petitioner has come up in
appeal.
MACA NO. 4083 OF 2019
7. 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.
8. Heard both sides.
9. The impugned award is challenged on the following
grounds -
Loss of future prospects- It is pointed out on behalf of the
petitioner that as per Ext.X1 disability certificate, the petitioner
sustained 44% whole body permanent disability. Despite the same,
the Tribunal did not grant any amount towards loss of future
prospects/future earnings. Per contra, it is submitted by the learned
counsel for the respondent insurer that, after a period of one year,
the petitioner had rejoined duty and that there is also no evidence to
show that there was any reduction of income or loss of earning
capacity pursuant to the accident. That being the position, no
compensation towards loss of future prospects can be granted, goes
the argument.
MACA NO. 4083 OF 2019
9.1. As held in Raj Kumar v. Ajay Kumar, (2011)1 SCC
343, 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 the injured/claimant or who
examined him subsequently to assess 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,
MACA NO. 4083 OF 2019
education, and other factors.
9.2. The Tribunal considering the fact that the petitioner was
on leave without salary for a period of one year, granted
compensation for the said period. In addition, an amount of
₹4,00,000/- towards loss of amenities and ₹50,000/- towards pain
and suffering has also been granted. No evidence has come on
record to show that pursuant to the accident, there was any reduction
in the monthly salary being received by the petitioner due to the
disability caused by the injuries. There is also no evidence to show
that there has been any loss of future earning capacity.
9.3. The learned counsel for the petitioner relies on the
decisions in Erudhaya Priya v. State Express Transport
Corporation Ltd. [2020 KHC 6460] and Hari Om v. National
Insurance Co. Ltd. [2023 KHC 2944] to canvass the point that in
the light of the disability sustained by the petitioner, he is certainly
entitled to the compensation towards loss of future prospects/future
earnings. On going through the decisions cited, it can be seen that
MACA NO. 4083 OF 2019
the injured/claimant therein had sustained multiple fractures and in
the light of the nature of work being done by them, it was held that
the future prospects of the injured therein had been adversely
affected. That is not the case in the case on hand.
9.4. As per Ext.X1 disability certificate issued by the
medical board, the petitioner has 30% ophthalmology and 20%
orthopaedics disability and thus a total whole body permanent
disability of 44%. The Apex court in Raj Kumar (Supra) has
explained the manner in which the effect of permanent disability on
the actual earning capacity has to be ascertained, which is thus- the
effect of the permanent disability on the actual earning capacity
involves three steps- (i) the Tribunal has to first ascertain what
activities the claimant could carry on in spite of the permanent
disability and what he could not do as a result of the permanent
ability (this is also relevant for awarding compensation under the
head of loss of amenities of life). (ii) to ascertain his avocation,
profession, and nature of work before the accident, as also his age.
MACA NO. 4083 OF 2019
(iii) to find out whether (a) the claimant is totally disabled from
earning any kind of livelihood, or (b) whether in spite of the
permanent disability, the claimant could still effectively carry on the
activities and functions, which he was earlier carrying on, or (c)
whether he was prevented or restricted 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. For example, if the left hand of a
claimant is amputated, the permanent physical or functional
disablement may be assessed around 60%. If the claimant was a
driver or a carpenter, the actual loss of earning capacity may
virtually be hundred percent, if he is neither able to drive or do
carpentry. On the other hand, if the claimant was a clerk in
Government service, the loss of his left hand may not result in loss
of employment and he may still be 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 carpenter, nor
MACA NO. 4083 OF 2019
60% which is the actual physical disability, but far less. In fact,
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 his
hand. Sometimes the injured claimant may be continued in service,
but may not be found suitable for discharging the duties attached to
the post or job which he was earlier holding, on account of his
disability, and may 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. It may be noted that
when compensation is awarded by treating the 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 may disappear and as a result, only a
token or nominal amount may have to be awarded under the head of
MACA NO. 4083 OF 2019
loss of amenities or loss of expectation of life, as otherwise there
may be a duplication in the award of compensation.
9.5. PW1 was examined by the petitioner to prove Ext.A1
salary certificate, which certificate has been accepted by the
Tribunal, based on which compensation has been granted for loss of
pay for a period of one year, during which period he was on leave
without pay. PW1 was examined in the year 2018. The incident took
place on 19/05/2013. PW1 admitted that the petitioner continues to
be a permanent employee in their business concern. No evidence
has been brought through the testimony of PW1, examined on
behalf of his employer to show that pursuant to the accident, the
petitioner, a Plant Operator, had been shifted from his post or that
his salary had been reduced as he was unable to discharge his duties.
9.6. Further, where a person is employed in a salaried job and
notwithstanding the disability suffered by him on account of the
injuries in the accident, if he does not suffer any reduction in salary
or loss of future prospects in his employment, then he will not be
MACA NO. 4083 OF 2019
entitled to any compensation for loss of earning capacity. In such
cases, the claimant would be entitled to compensation for loss of
amenities in life, considering the effect of the disability on his
personal life and his ability to do the personal chores in his private
life (See National Insurance Co. Ltd., Kozhikode v. Anoop
Kumar, 2014 KHC 13). Here an amount of ₹4,00,000/- towards
loss of amenities and ₹50,000/- towards pain and suffering has been
granted by the Tribunal. As there is no evidence or materials on
record to show that there has been any loss of earning capacity or
earning power due to the injury sustained, no compensation can be
awarded under this head.
10. The learned counsel for the petitioner made a request for
remanding the matter to the Tribunal to enable him to adduce
evidence to establish his case of loss of income and loss of future
prospects. In the claim petition, the case of the petitioner is that
pursuant to the accident, he is completely disabled and that he
cannot do any work whatsoever. This case of the petitioner is belied
MACA NO. 4083 OF 2019
by the testimony of PW1 who when examined in the year 2018
deposed that the petitioner continues to be a permanent employee of
their business concern. Therefore, remanding the case would also
not help the petitioner in any way. Moreover, the petitioner has no
case that the Tribunal had not given sufficient opportunity to adduce
evidence. Hence, I find no reasons to interfere with the findings of
the Tribunal.
In the result, the appeal is dismissed.
Interlocutory applications, if any pending, shall stand closed.
Sd/-
C.S. SUDHA
JUDGE
bpr
