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2024 DIGILAW 1512 (KER)

National insurance co. Ltd. v. Jipson

2024-11-19

JOHNSON JOHN

body2024
JUDGMENT : Johnson John, J. Appellant was the third respondent in O.P(MV) No.114 of 2016 on the file of the Motor Accidents Claims Tribunal, North Paravur. 2. The appellant/insurance company is challenging the quantum of compensation fixed by the Tribunal under various heads on the ground that the same is on the higher side and disproportionate to the injury sustained by the claim petitioner. The claim petitioner, while travelling in the bus, driven by the second respondent in a rash and negligent manner on 18-02-2016 sustained serious injuries, when the bus caused to hit an ambulance at Varappuzha. Respondents 1 and 3 are the owner and insurer of the bus. 3. Before the Tribunal, PWs 1 and 2 examined and exhibits A1 to A9 and X1 were marked from the side of the petitioner and Ext.B1 was marked from the side of the third respondent. 4. After trial and hearing both sides, the Tribunal found that the accident occurred because of the negligence on the part of the second respondent and that respondents 1 to 3 are jointly and severally liable to pay the compensation. The Tribunal granted a total compensation of Rs.20,46,112/-. 5. Heard Sri.P.Jacob Mathew, the learned counsel appearing for the appellant and Sri.John Numpeli, the learned counsel appearing for the respondent/claimant. 6. The learned counsel for the appellant argued that as per Ext.X1 disability certificate issued by the Medical Board, the whole body permanent physical disability is only 5% and that the Tribunal is not justified in fixing 20% functional disability for the purpose of calculating the compensation for loss of earning capacity. 7. The learned counsel for the respondent/claim petitioner pointed out that the claim petitioner is a Carpenter and Ext.A5 wound certificate and Ext.A6 discharge summary would show that his left index finer was crushed and amputated in the accident. From Ext.X1, it can be seen that the left index finger of the claim petitioner is amputated at the level of middle of proximal phalanx. 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. 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 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 in evidence that the respondent/claim petitioner was working as a Carpenter and that he was aged 31 years at the time of occurrence. The Tribunal found that due to loss of the left index finger, the claim petitioner will not be a position to continue his work effectively as a Carpenter. It cannot be disputed that the Carpenters rely heavily on their fingers to perform intricate tasks and therefore, amputation of left index finger can significantly impact his ability to work effectively and safely as a Carpenter. Considering the fact that the fingers are crucial for a Carpenter’s Profession, enabling them to perform various tasks with precision and dexterity, I find no reason to interfere with the finding of the Tribunal fixing 20% functional disability for the purpose of calculating the loss of earning capacity. 10. The learned counsel for the appellant/insurance company also argued that the Tribunal is not justified in granting an addition of 40% towards future prospects. 10. The learned counsel for the appellant/insurance company also argued that the Tribunal is not justified in granting an addition of 40% towards future prospects. The learned counsel for the appellant/insurance company attempted to canvas the position that only in cases where the percentage of physical disability is above 50%, the court will be justified in granting the benefit of 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 where the age of the victim at the time of the accident was below 40 years. 11. The factors affecting future prospects of a person are his level of education, training, experience, work habits and performance. The state of the economy, cost of living and labor market conditions will also influence the salary prospects. The principle consistently followed by the court in assessing motor accident compensation claims, is to place the victim in as near a position as she or he was in before the accident as held by the Hon’ble Supreme Court in Pappu Deo Yadav v. Naresh Kumar and Others (2020 KHC 6547). The respondent/claim petitioner sustained the physical disability and functional disability because of the injuries sustained in the accident and it is well settled that “just compensation” should include all elements that would go to place the victim in as near a position as she or he was in, before the occurrence of the accident. In that circumstance and in view of the factors affecting the future prospects, I find that 20% functional disability of a Carpenter aged 31 years will have an adverse impact on his work habits and performance which plays a significant role in determining his future prospects and therefore the contention of the learned counsel for the appellant regarding future prospects cannot be accepted. 12. The learned counsel for the appellant argued that the Tribunal has allowed Rs.1,00,000/- as compensation towards loss of amenities and the same is on the higher side. 12. The learned counsel for the appellant argued that the Tribunal has allowed Rs.1,00,000/- as compensation towards loss of amenities and the same is on the higher side. The respondent/claim petitioner was aged only 31 years and taking note of the amputation of left index finger at the level of middle of proximal phalanx, it is evident that he was deprived and would be deprived of ordinary experiences and enjoyment of life for the period he lives. Therefore, I find no valid reason to interfere with the quantum of compensation fixed by the Tribunal under the head loss of amenities. On a careful re appreciation of the evidence and the facts and circumstances of the case, I find that the compensation fixed by the Tribunal under various heads are just and fair and that this appeal is devoid of merit and is liable to be dismissed. In the result, the appeal is dismissed. There will be no order as to costs.