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2025 DIGILAW 457 (KER)

Lovely Jose Edayadiyil House v. Biju B S/o. Baby

2025-03-05

JOHNSON JOHN

body2025
JUDGMENT : The petitioner in O.P.(MV) No. 434 of 2019 on the file of the Motor Accident Claims Tribunal-II, Pathanamthitta filed this appeal seeking enhancement of compensation. 2. According to the petitioner, on 11.02.2019, while she was riding a scooter, autorickshaw driven by the 1 st respondent in a rash and negligent manner caused to hit the scooter and thereby, she fell down and sustained serious injuries. The 2 nd respondent is the owner of the offending vehicle and the 3 rd respondent is the insurer. 3. Before the Tribunal, Exhibits A1 to A15 were marked from the side of the petitioner and no evidence adduced from the side of the respondents. 4. The Tribunal arrived at a finding that the accident occurred because of the negligence on the part of the 1 st 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.6,39,960/- to the petitioner. 5. Heard Sri. T. K. Koshy, the learned counsel for the appellant and Sri. Rinny Stephen Champarambil, the learned counsel for the respondent insurance company 6. The learned counsel for the appellant argued that the appellant was aged 52 years and earning Rs.18,000/- per month from her occupation as a dairy farmer and agriculturist and the Tribunal fixed a notional income of Rs.12,000/- and the same is on the lower side. It is argued that as per the principles 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], the monthly income fixed is for an ordinary worker and in this case, the appellant is a dairy farmer and agriculturist and in the absence of serious dispute regarding the occupation and considering the fact that documentary evidence may not be available to specifically prove the earnings of a self-cultivating agriculturist, the Tribunal ought to have fixed a higher amount as notional income. 7. 7. In this connection, the learned counsel for the appellant also cited the decision of the Honourable Supreme Court in Rajani v. Oriental Insurance Company Ltd. [2022 (5) KLT SN 41 (C. No. 38) SC], wherein the deceased was a pineapple cultivator and the Honourable Supreme Court held that in such matters, a robust view has to be taken of the quantum of earnings, since documentary evidence may not be available to specifically prove the quantum of earnings of a self-cultivating agriculturist. Therefore, considering the facts and circumstances, I find that it is only reasonable to fix the monthly notional income of the appellant at Rs.14,000/- per month for the purpose of calculating the compensation. 8. The learned counsel for the appellant argued that Exhibit A10 would show that the appellant sustained 20% permanent disability and the Tribunal accepted only 18% functional disability for the purpose of calculating the compensation for loss of earning capacity and the same is on the lower side. 9. 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. 10. 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. 10. The treatment records of the petitioner shows that she sustained: (i) comminuted and displaced fracture of right proximal humerus; (ii) lacerated wound over the right forearm 2 cm x 0.5 cm x 0.5 cm.; (iii) contusion over right shoulder; and (iv) abrasion over back of right elbow, above right ankle laterally and dorsal of right foot. Exhibit A10 disability certificate shows that abduction only upto 30 0 , rotations restricted by 60 0 , flexion extension decreased by 90 0 and post traumatic stiffness of shoulder right. Considering the occupation of the appellant as a dairy farmer and agriculturist, I find merit in the argument of the learned counsel for the appellant that problems noted in Exhibit A10 can have a significant impact on her ability to work as a dairy farmer and agriculturist and therefore, considering the nature of injuries and problems faced by her as a result of the physical disability, I find that 20% functional disability can be accepted for the purpose of calculating loss of earning capacity. 11. The learned counsel for the appellant argued that considering the age of the appellant and in view of the principles laid down by the Honourable Supreme Court in National Insurance Co. Ltd. v Pranay Sethi [ (2017) 16 SCC 680 ] and Jagdish v. Mohan [(2018) 4 SCC 571], the appellant is entitled for an addition of 10% of the established income towards future prospects. But, the learned counsel for the respondent insurance company argued that since the percentage of physical disability is only 20%, the appellant is not entitled for future prospects. It cannot be disputed that the main factors affecting future prospects of a person are his level of education, training, experience, work habits and performance. 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). 12. 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). 12. The appellant/claim petitioner sustained physical disability and functional disability because of the injuries sustained in the accident and therefore, considering the factors affecting the future prospects of a person, I find that 20% functional disability of a dairy farmer and agriculturist aged 52 years will have an adverse impact on her work habits and performance, which plays a significant role in determining her future prospects. 13. 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 and therefore, I find that the appellant is entitled for addition towards future prospects, as per the principles laid down by the Honourable Supreme Court in Pranay Sethi (supra) and the contention of the learned counsel for the respondent insurance company regarding future prospects cannot be accepted. 14. When the compensation for permanent disability and loss of earning capacity is calculated as per the revised criteria, the same would come to Rs.4,06,560/- [(14000 + 10%) x 12 x 11 x 20/100]. The Tribunal has already granted Rs.2,85,120/- under this head. Therefore, the appellant is granted an additional compensation of Rs.1,21,440/-under this head. 15. The Tribunal has allowed loss of earnings for 5 months and when the same is calculated as per the revised notional income, the same would come to Rs.70,000/-. Since the Tribunal has already granted Rs.60,000/- under this head, the appellant is granted an additional compensation of Rs.10,000/- towards ‘loss of earnings’. 16. The learned counsel for the appellant argued that the Tribunal noticed disfiguration over the shoulder of the appellant and no compensation is granted for disfiguration. But, the learned counsel for the respondent insurance company pointed out that no disfiguration is noted in Exhibit A10 disability certificate and further, compensation is already granted under the heads– ‘permanent disability’ and ‘loss of amenities and enjoyment of life’ and therefore, there is no justification for granting separate compensation for disfiguration. 17. But, the learned counsel for the respondent insurance company pointed out that no disfiguration is noted in Exhibit A10 disability certificate and further, compensation is already granted under the heads– ‘permanent disability’ and ‘loss of amenities and enjoyment of life’ and therefore, there is no justification for granting separate compensation for disfiguration. 17. Apart from the observation of the Tribunal in paragraph 14 of the award, there is no other material to show that the appellant suffered any disfiguration as a result of the injuries sustained in the accident. There is also nothing in Exhibit A10 disability certificate to indicate that the appellant suffered any disfiguration as a result of the injuries sustained in the accident. In view of the compensation awarded under two separate heads– ‘permanent disability’ and ‘loss of amenities’, I find that the appellant has not made out a case for awarding separate compensation under the third head ‘disfiguration’. I find that the compensation awarded by the Tribunal under all other heads are reasonable and requires no interference. 18. 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.) compensation for permanent disability and loss of earning capacity 2,85,120/- 1,21,440/- Loss of earnings 60,000/- 10,000/- Total enhanced compensation 1,31,440/- 19. Thus, a total amount of Rs. 1,31,440/- (Rupees One Lakh Thirty One Thousand Four Hundred and Forty only) is awarded as enhanced compensation. The said amount shall carry interest at the rate of 9% 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.