Kerala High Court
Ashraf vs United India Insurance Company Ltd on 15 July, 2025
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M.A.C.A.No.221 of 2020
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE C.S. SUDHA
TUESDAY, THE 15TH DAY OF JULY 2025 / 24TH ASHADHA, 1947
MACA NO. 221 OF 2020
AGAINST THE AWARD DATED 24.04.2019 IN OP(MV) NO.201
OF 2017 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, VATAKARA
APPELLANT/PETITIONER:
ASHRAF
AGED 41 YEARS
S/O.MAMMAD, RESIDING AT THADATHIL (H),
MUCHUKUNNU(PO), KOYILANDY,
KOZHIKODE (DT.)-673307.
BY ADV SHRI.AVM.SALAHUDDEEN
RESPONDENT/2ND RESPONDENT:
UNITED INDIA INSURANCE COMPANY LTD.,
BOI RAMEEZ ARCADE, CHEROOTY ROAD, NEAR CH FLY
OVER, KOZHIKODE BEACH.P.O., KOZHIKODE-673032,
REPRESENTED BY BRANCH MANAGER.
BY ADVS. SRI.JOHN JOSEPH VETTIKAD
SRI.C.JOSEPH JOHNY
P.K.MANOJ KUMAR
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN
FINALLY HEARD ON 08/07/2025, THE COURT ON 15/07/2025
DELIVERED THE FOLLOWING:
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M.A.C.A.No.221 of 2020
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C.S.SUDHA, J.
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M.A.C.A.No.221 of 2020
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Dated this the 15th day of July 2025
JUDGMENT
This appeal has been filed under Section 173 of the Motor
Vehicles Act, 1988 (the Act) by the claim petitioner in O.P.(MV)
No.201/2017 on the file of the Motor Accidents Claims Tribunal,
Vatakara, (the Tribunal), aggrieved by the amount of compensation
granted by Award dated 24/04/2019. The sole respondent herein is
the second respondent/insurer in the petition. In this appeal, the
parties and the documents will be referred to as described in the
original petition.
2. According to the claim petitioner, on 16/10/2016 at 03:00
p.m. at Purakkad road, Thikkodi, he was riding motorcycle bearing
registration no.KL-56/F-5042 and when he reached Purakkad road,
autorickshaw bearing registration no.KL-56/G-877 owned and driven
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by the first respondent collided with the motorcycle, as a result of
which he sustained serious injuries. A sum of ₹25,00,000/- was
claimed as compensation under various heads.
3. The first respondent/owner cum driver of the offending
vehicle filed written statement contending that the accident was due
to the negligent driving of the rider of the motorcycle. The age,
occupation and monthly income of the injured were disputed.
Compensation claimed under various heads was contended to be
excessive.
4. The second respondent/insurer filed written statement and
additional written statement admitting the existence of a valid policy.
The negligence attributed to the first respondent was denied.
5. Before the Tribunal, PW1 was examined and Exts.A1 to
A11 and Ext.C1 report of the Medical Board were marked on the
side of the claim petitioner. No oral evidence was adduced on the
side of the respondents. Exts.B1 and B2 were marked on the side of
the respondent.
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6. The Tribunal on consideration of the oral and
documentary evidence and after hearing both sides, found that the
accident was due to the negligent driving of the first
respondent/driver. Hence awarded an amount of ₹22,55,800/-
together with interest @ 8% per annum from the date of the petition
till realisation along with proportionate costs. Aggrieved by the
quantum of compensation, the claim petitioner has come up in
appeal.
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. It was submitted by the learned counsel for the claim
petitioner that the latter was a loading and unloading worker. Due to
the injuries sustained, the Medical Board as per Ext.C1 has assessed
his disability at 67%. The disability ought to have been taken as
100%. In support of the argument reference has made to Section
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2(1)(l) of the Employee's Compensation Act, 1923 (the EC Act).
Reference was also made to the dictum in Indra Bai v. Oriental
Insurance Company Ltd., 2023 KHC 6708 : AIR 2023 SC 3478.
Per contra, it was submitted by the learned counsel for the second
respondent/insurer that the EC Act is applicable to workers coming
within the definition of the said Act and hence the said definition
does not require to be borrowed in this case. A competent Medical
Board assessed the disability of the claim petitioner herein. If the
claim petitioner was aggrieved by the report, he ought to have taken
steps for rectifying the same. The said course has not been adopted
by the claim petitioner and hence the Tribunal was justified in fixing
the functional disability based on Ext.C1 report of the Medical Board
which suffers from no infirmity, calling for an interference by this
Court, goes the argument.
10. Section 2(1)(l) of the EC Act reads thus-
"(l) "total disablement" means such
disablement, whether of a temporary or permanent
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nature, as incapacitates a employee for all work
which he was capable of performing at the time of the
accident resulting in such disablement
Provided that permanent total disablement
shall be deemed to result from every injury specified
in Part I of Schedule I or from any combination of
injuries specified in Part II thereof where the
aggregate percentage of the loss of earning capacity,
as specified in the said Part II against those injuries,
amounts to one hundred per cent or more;"
(Emphasis supplied)
In Indra Bai (Supra), the appellant therein was employed as a
loading and unloading worker in a Company. During the course of
her employment of loading poles/pillars into a truck, the chain pulley
broke and the poles fell on her left arm resulting in a compound
fracture of her left arm as well as damage to the nerves. Claiming
that due to the injury, she had suffered permanent total disablement,
as there was no grip in her left arm, compensation was sought. The
appellant was examined by a Medical Board which found that there
was a compound fracture in her left arm and that plates and screws
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were installed in her radial and ulna bone after operation, due to
which, the fingers of her left hand had lost movement and the
muscles had become thin. The Board certified that her permanent
disability was to the extent of 50% with a declaration that she was
unfit for labour work. The Commissioner under the E.C.Act
assessed the permanent disability as 'total' and awarded
compensation accordingly. In appeal, the High Court assessed the
permanent disability as 40% and reduced the compensation awarded.
When the matter came up before the Apex Court, referring to Section
2(1)(l) of the EC Act, it was held that if the disablement incurred in
an accident incapacitates a workman for all work which he was
capable of performing at the time of the accident resulting in such
disablement, the disablement would be taken as 'total' for the purpose
of award of compensation under Section 4(1)(b) of the said Act,
regardless of the injury sustained being not one as specified in Part-I
of Schedule I of the EC Act. It was noticed that on the basis of the
medical certificate provided by the Board, the Commissioner had
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found the appellant unfit for labour in as much as there was complete
loss of grip in the appellant's left hand. It was held that when the
Board had certified that the appellant was rendered unfit for labour,
there was no perversity in the decision of the Commissioner in
awarding compensation by treating the disability as 'total' on account
of her functional disability. Hence, it was held that the High Court
erred in partly setting aside the order of the Commissioner and
assessing the disability as 40% instead of 100%, as assessed by the
Commissioner.
11. In the case on hand, the materials on record show that the
claim petitioner sustained the following injuries -
"1. Comminuted Type III A open fracture supra condylar and intra
condylar fracture of right femur with mangled foot.
2. Comminuted fracture 1st and IInd metatarsal right foot.
3. Amputation mangled right foot.
4. Degloving injury on right knee and multiple tendons cut and
bone exposed."
He was hospitalized for a period of 96 days in different spells. He
had to undergo several surgeries also. Ext.C1 report of the Medical
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Board, Government District Hospital, Vatakara, reads thus:
"We after Careful examination of Sri./Smt.Asharaf, 42 y, S/o.
Mammad, Thadathil, Muchukunnu, Koyilandy, whose signature is
give above, Certify that He/She is having Amputation of Right foot,
Ankylosis of knee, partial ankylosis hip with shortening of femur
due to Type III open supracondylar fracture femur and mangled
foot sustained in traffic accident 16/10/16 and is physically
handicapped, His/her percentage of permanent disability due to the
injury is 67% (Sixty seven percent) as per Mc Bride's schedule and
occupational disability due to the injury is --------"
The disability sustained by the claim petitioner and assessed by the
Medical Board as 67% is high and so this must have certainly
affected the discharge of his duties as a loading and unloading
worker.
11.1. In this context it would be apposite to refer to the
dictum in Raj Kumar v. Ajay Kumar, (2011)1 SCC 343 which has
been followed in Anthony Swami v. M.D., KSRTC, (2020)7 SCC
161 and in many other subsequent decisions, wherein the Apex Court
has lucidly set out the principles for grant of compensation in cases
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of permanent physical functional disability as follows: 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, the 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 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
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low or too high a compensation. Ascertainment of the effect of the
permanent disability on the actual earning capacity involves three
steps. The Tribunal has to first ascertain what activities the claimant
could carry on despite the permanent disability and what he could
not do as a result of the permanent disability (this is also relevant for
awarding compensation under the head of loss of amenities of life).
The second step is to ascertain his avocation, profession and nature
of work before the accident, as also his age. The third step is to find
out whether (i) the claimant is totally disabled from earning any kind
of livelihood, or (ii) 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 (iii) 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.
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11.2. Therefore it is the functional disability that needs to be
assessed. The 'permanent disability' going by the definition
contained in the EC Act means total disablement of a temporary or
permanent nature which would incapacitate an employee from all
work for which he was capable of performing at the time of the
accident resulting in such disablement. In this context, I refer to the
testimony of the claim petitioner who was examined before the
Tribunal as PW1. In the proof affidavit filed in lieu of chief
examination, he refers to Ext.C1 and states that the Medical Board
has certified his disability as 67%. He has no case that the disability
assessed by the Board is low or that based on Ext.C1, the functional
disability ought to have been fixed as 100%. That being the position
and taking into account the avocation of his work, I find that the
Tribunal was justified in fixing the functional disability also as 67%.
Hence, I do not find any infirmity calling for an interference by this
Court.
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In the result, the appeal sans merit is dismissed.
Interlocutory applications, if any pending, shall stand closed.
Sd/-
C.S. SUDHA
JUDGE
ami/
