Eldhose K.A vs Jaiji K.Sajan

Johnson John, J

The appellant is the petitioner in O.P.(MV) No. 592 of 2017 on the file of the Motor Accident Claims Tribunal, Muvattupuzha and he is challenging the quantum of compensation fixed by the Tribunal under various heads as inadequate.

According to the appellant, on 02.04.2017, at about 9.30 p.m., while he was riding a motorcycle, another motorcycle ridden by the 1st respondent in a rash and negligent manner caused to hit his motorcycle and thereby, he sustained serious injuries. The 1st respondent is also the owner of the offending vehicle and the 2nd respondent is the insurer.

Before the Tribunal, from the side of the petitioner, PW1 examined and Exhibits A1 to A12 and C1 were marked, and no evidence adduced from the side of the respondents.

Heard the learned counsel for the appellant and the learned counsel for the respondent Insurance Company.

According to the appellant, at the time of the accident, he was aged 35 years and earning Rs.15,000/- per month from his occupation as a salesman. In the absence of satisfactory evidence to prove the income claimed, the Tribunal fixed Rs.9,000/- as notional income.

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.11,000/-, as the accident occurred in the year 2017.

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 where the age of the victim at the time of the accident was below 40 years.

The learned counsel for the appellant invited my attention to Exhibit C1, disability certificate, and pointed out that even though the doctor has assessed 38% permanent disability, the Tribunal accepted only 20% disability for the purpose of calculating the compensation for loss of earning capacity. Exhibit C1 shows that the petitioner is handicapped by post traumatic stiffness of left ankle with disfigurement. When the petitioner was examined as PW1, he stated that he has difficulty in walking and standing for long duration.

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 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.

According to the appellant, he was working as a salesman and was aged 35 years at the time of accident. As per the treatment records he sustained: (1) fracture tibia and fibula left; (2) lacerated wound 10 x 3 on the anterior lateral part of left leg; and (3) lacerated wound right eyebrow.

Taking note of the nature of injuries and physical disability assessed in Exhibit C1 and occupation of the appellant, I am of the view that 35% functional disability can be accepted for the purpose of calculating the compensation for loss of earning power. When the compensation for loss of earning power due to permanent disability of the appellant is calculated as per the criteria mentioned above, the same would come to Rs. 9,70,200/- [(11000 + 40%) x 12 x 15 x 35/100]. The Tribunal has already granted Rs.3,24,000/- and therefore, an additional compensation of Rs.6,46,200/- is granted under this head.

The learned counsel for the appellant pointed out that the Tribunal granted only Rs.25,000/- towards pain and sufferings and Rs.15,000/- towards loss of amenities and the same is on the lower side. Considering the nature of injuries, period of treatment and disability, I find that an additional compensation of Rs.10,000/- and Rs.5,000/-respectively can be granted towards pain and sufferings and loss of amenities. Therefore, an additional compensation of Rs.10,000/- is granted towards pain and sufferings and Rs.5,000/- towards loss of amenities.

Accordingly, the appellant is entitled to the enhanced compensation as given below:

Particulars

Compensation awarded  by  the Tribunal (Rs.)

Additional amount granted by this Court (Rs.)

Loss of earning power (Continuing            and

permanent disability)

3,24,000/-

6,46,200/-

Pain and sufferings

25,000/-

10,000/-

Loss of amenities

15,000/-

5,000/-

Total enhanced compensation

6,61,200/-

Thus, a total amount of Rs.6,61,200/- (Rupees Six Lakhs Sixty One Thousand Two Hundred only) is awarded as enhanced compensation. The said amount shall carry interest at the rate of 7% per annum from the date of the application till realization. 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.