Kerala High Court
Pramod V vs New India Assurance Co. Ltd, Rep, By Its ... on 6 March, 2025
M.A.C.A. No. 3982/2022 :1:
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE JOHNSON JOHN
THURSDAY, THE 6TH DAY OF MARCH 2025 / 15TH PHALGUNA, 1946
MACA NO. 3982 OF 2022
AWARD DATED 06.06.2022 IN OP(MV) NO.1822 OF 2019 OF MOTOR
ACCIDENT CLAIMS TRIBUNAL ,KOZHIKODE
APPELLANT/PETITONER:
PRAMOD V., AGED 41 YEARS,
S/O MADHAVAN, VENADIYIL HOUSE, POST KATTIPPARA, KEDAVOOR,
KOZHIKODE, PIN - 673 573.
BY ADV K.V.RASHMI
RESPONDENT/3RD RESPONDENT:
NEW INDIA ASSURANCE CO. LTD.,
REP. BY ITS MANAGER, FAIRMONT BUILDING, 2ND FLOOR,
ERANHIPALAM, WAYANAD ROAD, KOZHIKODE., PIN - 673 008.
BY ADV. SRI. V.P.K. PANICKER
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON
05.03.2025, THE COURT ON 06.03.2025 DELIVERED THE FOLLOWING:
M.A.C.A. No. 3982/2022 :2:
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JOHNSON JOHN, J.
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M.A.C.A No. 3982 of 2022
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Dated this the 6th day of March, 2025.
JUDGMENT
The petitioner in O.P.(MV) No. 1822 of 2019 on the file of the
Motor Accident Claims Tribunal, Kozhikode filed this appeal challenging
the quantum of compensation fixed by the Tribunal under various heads.
2. According to the petitioner, on 11.04.2019, while he was sitting
on a motorcycle, pick up van driven by the 2 nd respondent in a rash and
negligent manner caused to hit the motorcycle and thereby, he fell down
and sustained serious injuries. The 1 st respondent is the owner of the
offending vehicle and 3rd respondent is the insurer.
3. Before the Tribunal, PW1 examined and Exhibits A1 to A16 and
C1 were marked from the side of the petitioner and no evidence adduced
from the side of the respondents. The Tribunal recorded a finding that
the accident occurred because of the negligence on the part of the 2 nd
respondent and that respondents 1 to 3 are jointly and severally liable to
pay compensation to the petitioner. The Tribunal awarded a total
compensation of Rs.27,32,000/- to the petitioner
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4. Heard Smt. Rashmi K.V., the learned counsel for the appellant
and Sri. V.P.K. Panicker, the learned counsel for the respondent
insurance company.
5. According to the appellant, at the time of the accident, he was
aged 38 years and earning Rs.30,000/- per month from his business.
But, no evidence was adduced to prove the income and therefore, the
Tribunal fixed a notional income of Rs.12,000/- per month for calculating
the compensation.
6. The decision of the Hon'ble Supreme Court in
Ramachandrappa v. Royal Sundaram Alliance Insurance Co.Ltd.
[(2011) 13 SCC 236] and Syed Sadiq and Others v. Divisional
Manager, United India Insurance Company [(2014) 2 SCC 735 =
2014 KHC 4027] shows that even in the absence of any evidence, the
monthly income of an ordinary worker has to be fixed as Rs.4,500/- in
respect of the accident occurred in the year 2004 and for the subsequent
years, the monthly income could be reckoned by adding Rs.500/- each
per year. If the monthly income of the appellant is calculated by
adopting the above principle, it will come to Rs.12,000/- as the accident
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occurred in the year 2019. In that circumstance, I find no reason to
interfere with the notional income fixed by the Tribunal.
7. The learned counsel for the appellant argued that as per Exhibit
C1 certificate of permanent disability issued by the Medical Board, the
appellant sustained 85% occupational disability; but, the Tribunal
accepted only 80% functional disability and the same is on the lower
side.
8. In Raj Kumar v. Ajay Kumar, (2011) 1 SCC 343], the
Honourable Supreme Court summarised the principles for ascertainment
of loss of earning capacity due to permanent disability as follows:
(i) All injuries (or permanent disabilities arising from injuries), do not
result in loss of earning capacity.
(ii) 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 on the basis of evidence,
concludes that the percentage of loss of earning capacity is the same as
the percentage of permanent disability).
(iii) The doctor who treated an injured claimant or who examined him
subsequently to assess the extent of his permanent disability can give
evidence only in regard to the extent of permanent disability. The loss
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of earning capacity is something that will have to be assessed by the
Tribunal with reference to the evidence in entirety.
(iv) 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.
9. It is not in dispute that the right leg of the appellant was
amputated above knee and therefore, considering the nature of injuries
and occupation of the appellant as a businessman, I find that 85%
functional disability assessed as per Exhibit C1 can be accepted for the
purpose of calculating the compensation for loss of earnings capacity.
10. The learned counsel for the appellant pointed out that the
Tribunal has not made any addition towards future prospects. The
decision of the Hon'ble Supreme Court in National Insurance Co. Ltd.
v Pranay Sethi [(2017) 16 SCC 680] and Jagdish v. Mohan
[(2018) 4 SCC 571] shows that the benefit of future prospects should
not be confined only to those who have a permanent job and would
extend to self-employed individuals and in case of a self-employed
person, an addition of 40% of the established income should be made
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where the age of the victim at the time of the accident was below 40
years.
11. Thus, while reassessing the compensation for loss of earning
capacity, as per the revised criteria, the amount would come to
Rs.25,70,400/- [(12000 + 40%) x 12 x 15 x 85/100]. The Tribunal has
already granted Rs.17,28,000/- under this head. Hence the appellant is
granted an additional compensation of Rs.8,42,400/- towards loss of
earning capacity.
12. The learned counsel for the appellant pointed out that the
Tribunal granted only Rs.2500/- towards bystander's expenses. Taking
note of the nature of injuries and period of treatment, an additional
compensation of Rs.7,500/- is granted to the appellant towards
bystander's expenses.
13. The learned counsel for the appellant argued that the Tribunal
granted only Rs.3,00,000/- towards future treatment and the same is on
the lower side. The Tribunal granted Rs.3,00,000/- towards future
treatment after taking note of the fact that an artificial limb is required.
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The learned counsel for the respondent insurance company cited the
decision of the Honourable Supreme Court in Yadav S. v. Divisional
Manager, New India Insurance Company Limited [2024 KHC Online
11085], wherein the Honourable Supreme Court, after taking note of the
fact that the Tribunal has not awarded any amount for artificial limb,
granted a global enhancement of Rs.3,00,000/- additionally. In this
case, there is no material to prove the cost of the artificial limb and since
the Tribunal has already granted Rs.3,00,000/- towards future treatment
by considering the need for an artificial limb, I find that the
compensation granted by the Tribunal towards future treatment is
reasonable. I find that the compensation awarded by the Tribunal under
all other heads are reasonable and requires no interference.
14. Accordingly, the appellant is entitled to the enhanced
compensation as given below:
Additional
Compensation amount granted
Particulars awarded by the by this Court
Tribunal (Rs.) (Rs.)
8,42,400/-
Loss of earning capacity 17,28,000/-
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7,500/-
Bystander's expenses 2,500/-
Total enhanced compensation
8,49,900
15. Thus, a total amount of Rs.8,49,900/- (Rupees Eight Lakhs
Forty Nine Thousand Nine Hundred only) is awarded as enhanced
compensation. The said amount shall carry interest at the rate of 8% per
annum from the date of the application till realization (excluding the
period of delay of 67 days in filing the appeal). The appellant would also
be entitled to proportionate costs in the case. The claimant shall furnish
the details of the bank account to the insurance company for transfer of
the amount.
The appeal is allowed as above.
sd/-
JOHNSON JOHN,
JUDGE.
Rv
