Partly allowed

Shirafudheen v. K.K.Haridas

Kerala HC20 May 2024MACA/4403/2019

Case brief

AI extract

What is this about?

Claimant in a motor accident case, rendered paraplegic with 61% permanent disability and 100% loss of earning capacity while working as a manual labourer, sought enhancement of the Tribunal award. The court applied Raj Kumar and Kajal on functional capacity, Pranay Sethi and Sarla Varma multipliers, and Ramachandrappa notional income, enhancing permanent disability compensation and adding amounts

What did the court decide?

Additional compensation of Rs.30,47,720 with 8% interest from date of petition and proportionate costs (excluding interest on two Rs.1 lakh heads), payable by insurer within two months.

Shirafudheen Vs K.K.Haridas — Motor Accident Claims | Kerala HC (2024)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN

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MONDAY, THE 20TH DAY OF MAY 2024 / 30TH VAISAKHA, 1946

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MACA NO. 4403 OF 2019

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[AGAINST THE AWARD DATED 14.06.2019 IN OP(MV) NO.11 OF 2017 OF MOTOR
ACCIDENT CLAIMS TRIBUNAL, OTTAPPALAM]

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APPELLANT/PETITIONER:

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SHIRAFUDHEEN
AGED 29 YEARS
S/O.SIDDIQUE,PUTHENPEEDIKAYIL HOUSE, PO
KAVALAPPARA,NUMBRAM,SHORNUR, PALAKKAD-679523.
BY ADVS.
SHEJI P.ABRAHAM
SRI.O.K.MURALEEDHARAN

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RESPONDENTS/RESPONDENTS:

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1 K.K.HARIDAS S/O.K.R.KELI(LATE),KUNDUPARAMBIL HOUSE, KINAVALLUR,PARALI,PALAKKAD-678612.

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2 K.K.SIVAKUMAR, S/O.K.S.KRISHNAN,NO.31/285,ERNAKOTTIL STREET,PALAKKAD678014.

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3 ORIENTAL INSURANCE COMPANY LTD, DIVISIONAL OFFICE,3RD FLOOR,BUILTECH FOUNDATION,CHITTUR ROAD,PALAKKAD-6780001,REP.BY ITS BRANCH MANAGER. BY ADVS. SRI.R.AJITH KUMAR (128/84) K.S.SANTHI

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THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR
ADMISSION ON 20.05.2024, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:

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M.A.C.A.NO.4403 OF 2019

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JUDGMENT

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The appellant, the claimant in O.P(MV)

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No.11/2017 on the file of the Motor Accidents Claims
Tribunal, Ottappalam (for short 'the Tribunal') is
aggrieved by the amount of compensation granted by
the Tribunal as per the Award dated 14/06/2019. The
respondents herein are the respondents before the
Tribunal.

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2. According to the appellant/petitioner, on
23.07.2016 at about 10.50 am, while he was standing
at SMP Junction on the side of Shornur-Cheruthuruthy
public road, a lorry bearing regn.No.KL-09/AC 7557
driven by the first respondent in a rash and
negligent manner with excessive speed dashed against
the petitioner. As a result of the heavy impact in
the hit, the petitioner has sustained grievous
injuries. The second respondent being the RC owner of
the vehicle is vicariously liable for the negligence
of the first respondent in his lawful employment. The

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liability is indemnified by the third respondent

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M.A.C.A.NO.4403 OF 2019

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under the policy. Hence, the petitioner claimed an
amount of Rs.75,00,000/- as compensation under
various heads.

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3. Before the Tribunal, the second respondent
remained absent from the proceedings in spite of due
notice and was set ex parte.

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4. The first respondent filed written statement
denying the negligence of the first respondent. The
third respondent admitted the policy but challenged
the quantum of compensation claimed.

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5. Before the Tribunal, PWs.1 and 2 were examined
and Exts.A1 to A13 were marked on the side of the
petitioner. No oral and documentary evidence was
adduced by the respondents.

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6. The Tribunal, on a consideration of the oral
and documentary evidence and after hearing both
sides, came to the conclusion that the accident
occurred due to the negligence on the part of the
first respondent resulting in the incident and being

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M.A.C.A.NO.4403 OF 2019

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the insurer, the third respondent was held liable to
pay the compensation. The quantum of compensation was
fixed as Rs.14,90,965/- and the said amount was
directed to be deposited with interest @ 9% per annum
from the date of petition, on 03.01.2017 till the
date of realisation with proportionate costs. The
appellant/petitioner/claimant has come up before this
court seeking enhancement of compensation.

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7. Heard the learned counsel for the petitioner
as well as Smt.K.S.Santhi, the Standing Counsel for
the third respondent- Insurance Company.

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8. The main challenge in this case relates to the
quantum of compensation.

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9. Learned counsel for the petitioner claims
enhancement under the following heads.

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10. Permanent Disability - Learned counsel for
the petitioner submits that the compensation of
Rs.8,71,080/- awarded by the Tribunal is not
sufficient enough. It is also argued that Ext.A1- the

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M.A.C.A.NO.4403 OF 2019

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disability certificate issued by Dr.Jyothish.K.,
reveals that permanent physical disability shown is
61%, and the loss of earning capacity as per the
disability certificate is 100%. The appellant was
aged only 27 years at the time of accident and had
been working as a manual labourer. After the
accident, the appellant could not do any work due to
paraplegia stage. Hence, the compensation deserves
enhancement.

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10.1 Per Contra, the learned Standing Counsel for
the third respondent, submits that disability
certificate was issued by only one Doctor and when
examined, he admits that permanent disability is
only 61% and hence, the petitioner is not entitled to
claim compensation for loss of earning capacity at
100%.

¶39

10.2 In the deposition of PW1, the Doctor has
admitted that claimant's physical disability is 61%
as well as the loss of earning capacity is 100%.
Learned counsel for the petitioner relied on a

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M.A.C.A.NO.4403 OF 2019

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decision reported in Raj Kumar v. Ajay Kumar and
another [(2011)1 SCC 343] wherein it is stated as

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follows:-

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“8. Disability refers to any restriction or
lack of ability to perform an activity in the
manner considered normal for a human being.
Permanent disability refers to the residuary
incapacity or loss of use of some part of the
body, found existing at the end of the period
of treatment and recuperation, after achieving
the maximum bodily improvement or recovery
which is likely to remain for the remainder
life of the injured. Temporary disability
refers to the incapacity or loss of use of
some part of the body on account of the
injury, which will cease to exist at the end
of he period of treatment and recuperation.
Permanent disability can be either partial or
total. Partial permanent disability refers to
a person's inability to perform all the duties
and bodily functions that he could perform
before the accident, though he is able to
perform some of them and is still able to
engage in some gainful activity. Total
permanent disability refers to a person's
inability to perform any avocation or
employment related activities as a result of
the accident. The permanent disabilities that
may arise from motor accident injuries, are of
a much wider range when compared to the
physical disabilities which are enumerated in
thePersonswithDisabilities(Equal
Opportunities, Protection of Rights and Full
Participation) Act, 1995 (“the Disabilities
Act”, for short). But if any of the
disabilities enumerated in Section 2(i) of the
Disabilities Act are the result of injuries
sustained in a motor accident, they can be
permanent disabilities for the purpose of
claiming compensation.

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M.A.C.A.NO.4403 OF 2019

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9. xxxxxx

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10. 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. xxxxx

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11. What requires to be assessed by the
Tribunal is the effect of the permanent
disability on the earning capacity of the
injured; and after assessing the loss of
earning capacity in terms of a percentage of
the income, it has to be quantified in terms
of money, to arrive at the future loss of
earnings (by applying the standard multiplier
method used to determine loss of dependency).
xxxxxx

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12. Therefore, the Tribunal has to first
decide whether there is any permanent
disability and, if so, the extent of such
permanent disability. This means that the
Tribunal should consider and decide with
reference to the evidence:

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(i)whether the disablement is permanent or
temporary;

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(ii)if the disablement is permanent,
whether it is permanent total disablement
or permanent partial disablement;

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 (iii) if the disablement percentage is
expressed with reference to any specific
limb, then the effect of such disablement of
the limb on the functioning of the entire
body, that is, the permanent disability
suffered by the person.

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If the Tribunal concludes that there is
no permanent disability then thereisno
question of proceeding further and determining
the loss of future earning capacity. But if the
Tribunal concludes that there is permanent

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M.A.C.A.NO.4403 OF 2019

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disability then it will proceed to ascertain
its extent. After the Tribunal ascertains the
actual extent of permanent disability of the
claimant based on the medical evidence, it has
to determine whether such permanent disability
has affected or will affect his earning
capacity.

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13. 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 in spite of 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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14. For example, if the left hand of a
claimant is amputated, the permanent physical or
functional disablement may be assessed around
60%. If the claimant was a driver or a carpenter,
the actual loss of earning capacity may virtually
be hundred per cent, if he is neither able to
drive or do carpentry. On the other hand, if the
claimant was a clerk in government service, the
loss of his left hand may not result in loss of
employment and he may still be continued as a
clerk as he could perform his clerical functions;
and in that event the loss of earning capacity
will not be 100% as in the case of a driver or

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M.A.C.A.NO.4403 OF 2019

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carpenter, nor 60% which is the actual physical
disability, but far less. In fact, there may not
be any need to award any compensation under the
head of “loss of future earnings”, if the
claimant continues in government service, though
he may be awarded compensation under the head of
loss of amenities as a consequence of losing his
hand. Sometimes the injured claimant may be
continued in service, by may not be found
suitable for discharging the duties attached to
the post or job which he was earlier holding, on
account of his disability, and may therefore be
shifted to some other suitable but lesser post
with lesser emoluments, in which case there
should be a limited award under the head of loss
of future earning capacity, taking note of the
reduced earning capacity.“

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Due to the injury, the appellant is in a stage of
paraplegia. There is no dispute on the fact that the
claimant was a manual labourer. As per Ext.A1
disability certificate, the loss of earning capacity
of the appellant is 100%. Learned counsel for the
appellant relies on the decision of the Supreme Court
in Kajal v. Jagdish Chand and others [(2020)4 SCC
413], wherein the Apex Court, after considering the
loss of earning capacity, has taken the compensation
for permanent disability at 100%. On going through
the afore judgment in Rajkumar (supra) and Kajal
(supra), the functional capacity of the appellant,

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M.A.C.A.NO.4403 OF 2019

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who was a manual labourer, is to be assessed as 100%
and accordingly, the compensation for permanent
disability has to be treated as 100%.

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10.3 The monthly notional income has to be
calculated on the basis of Ramachandrappa v. Manager,
Royal Sundaram Alliance Insurance Company Ltd.
[(2011) 13 SCC 236]. According to Ramachandrappa
(supra), the income has to be taken as Rs.10,500/-
and 40% has to be added to Rs.10,500/- towards future
prospects, which will come to Rs.14,700/-. Following
the decisions reported in National Insurance Co.Ltd.
v. Pranay Sethi [2017(4) KLT 662(SC)] and Sarla Varma
v. Delhi Transport Corporation [2010(2) KLT 802(SC)],
considering the age, the multiplier is 17. Thus, the
enhanced calculation will be Rs.14700/- x 12 x 17 x
100/100 = Rs.29,98,800/- (Rupees Twenty Nine Lakh
Ninety Eight Thousand and Eight Hundred only). The
Tribunal awarded an amount of Rs.8,71,080/- and the
balance enhanced compensation will come to
Rs.21,27,720/- (Rupees Twenty One Lakh Twenty Seven

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M.A.C.A.NO.4403 OF 2019

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Thousand Seven Hundred and Twenty only).

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11. Future medical expenses – For the future
medical expenses, the Tribunal has not awarded any
amount since the claimant is not in a position to
adduce any evidence. It is submitted that the
appellant is having 61% permanent physical disability
and hence, it is only reasonable that some amount is
to be granted for his future expenses. Since he is
suffering from paraplegia-grade 3 and numbness,
parasthesiae over both lower limbs etc., in future
also, he may need physiotherapy and other continued

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treatment. The Tribunal had not granted any
compensation under the above head. Considering the
sufferings of the claimant, an amount of
Rs.1,00,000/- (Rupees One Lakh only) is awarded under
the head 'future medical expenses' without interest.

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12. Pain and suffering and loss of enjoyment
and amenities of life - The next claim is for
enhancement of compensation for pain and suffering
and loss of enjoyment and amenities of life. Learned

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M.A.C.A.NO.4403 OF 2019

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counsel for the appellant relied on the decision
reported in Kajal v. Jagdish Chand and others
[(2020)4 SCC 413] wherein a huge amount was awarded
for pain and suffering. That was a case of 100% brain
damage. Here in this case, the appellant does not
have a situation like Kajal (supra). However, it is
clear that since he is having 61% permanent
disability, he will be having pain and suffering and
also loss of enjoyment and amenities in life at the
age of 27 years. The Tribunal only granted
Rs.40,000/- (Rupees Forty Thousand only) each.

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12.1 Considering the facts and circumstance
of the case and the situation of the appellant, I am
inclined to grant Rs.3,00,000/- (Rupees Three Lakh
only) for pain and suffering as well as Rs.3,00,000/-
(Rupees Three Lakh only) for loss of enjoyment and
amenities of life. The Tribunal has awarded an amount
of Rs.40,000/- each on the two heads, that amount has
to be deducted and the respondent shall disburse an
amount of Rs.2,60,000/- (Rupees Two Lakh Sixty

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M.A.C.A.NO.4403 OF 2019

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Thousand only) each for pain and suffering as well as
loss of enjoyment and amenities of life.

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13. Future Bystander Expenses - The learned

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counsel for the appellant also claims for
compensation for future bystander. On a perusal of
the award of the Tribunal, it is seen that though the
petitioner had claimed an amount of Rs.10,00,000/-,
no amount was awarded by the Tribunal. It is seen
that the Tribunal has not considered the aspect of
compensation for future bystander. It is an admitted
fact that a person, who is in a paraplegia stage,
needs support from the bystander whether it being his
father or mother or siblings. Moreover, he is also a
person, who is having loss of earning capacity.
Hence, I am of the opinion that an amount of
Rs.1,00,000/- (Rupees One Lakh only) without interest
can be awarded to the appellant on that count.

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14. Loss of enjoyment of life and marriage

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prospects - Next is regarding the enhancement of
compensation for loss of enjoyment of life and

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M.A.C.A.NO.4403 OF 2019

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marriage prospects. The appellant claimed an amount
of Rs.5,00,000/- and no amount was awarded by the
Tribunal on that head. However, it is true that at
the age of 27, the appellant had an accident and
suffered severe injuries. It is true that since the
appellant is in a paraplegia stage, it would affect
his loss of enjoyment in life as well as his marriage
prospects. It is only reasonable to award the amount
under this head also. Considering the circumstances
of the case, I am inclined to grant an amount of
Rs.2,00,000/- (Rupees Two Lakh only).

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15. The impugned award is modified thus:-

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Sl. No.	Head of Claim	Amount claimed (in Rs.)	Amount awarded by the Tribunal (in Rs.)	Modified in appeal (in Rs.)	Total compensation
1	Loss of earning	2,00,000	-	No modification	-
2	Partial loss of earnings	2,00,000	-	No modification	-
3	Transportation expenses	50,000	5,000	No modification	5000
4	Extra nourishment	1,00,000	16,800	No modification	16800

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M.A.C.A.NO.4403 OF 2019

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5	Personal assistance expenses	2,00,000	16,800	No modification	16800
6	Damage to clothing and articles	20,000	1,000	No modification	1000
7	Medical expenses	10,00,000	4,50,285	No modification	4,50,285
8	Future medical expenses	5,00,000	-	1,00,000	1,00,000
9	Compensation for pain and suffering	3,00,000	40,000	2,60,000	3,00,000
10	Compensation for loss of enjoyment and amenities of life	3,00,000	40,000	2,60,000	3,00,000
11	Compensation for permanent disability	30,00,000	8,71,080	21,27,720	29,98,800 (Rs.14700/- x 12 x 17 x100/100)
12	Compensation for loss of earning power	6,00,000	50000	(No modification)	50000
13	Compensation for future bystander	10,00,000	-	1,00,000	1,00,000
14	Compensation for loss of future prospects	15,00,000	-	(No modification)	-
15	Compensation for loss of enjoyment of life and marriage prospects	5,00,000	-	2,00,000	2,00,000
16	Compensation for mental agony	2,00,000	-	(No modification)	-
	Total	78,70,000	14,90,965	30,47,720	45,38,685

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In the result, this appeal is allowed in

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part. The Award dated 14.06.2019 passed by the Motor
Accidents Claims Tribunal, Ottapalam in O.P(MV)

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M.A.C.A.NO.4403 OF 2019

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No.11/2017 is hereby modified by awarding an additional compensation of Rs.30,47,720/- (Rupees Thirty Lakh Forty Seven Thousand Seven Hundred and Twenty

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only) over and above the compensation awarded by the Tribunal with interest @ 8% per annum, to the appellant, from the date of petition till realization and proportionate costs excluding interest for the amount of Rs.1 lakh for future medical expenses and Rs.1 lakh for compensation for future bystander expenses. The third respondent-insurer shall deposit the said amount together with interest and costs within a period of two months from the date of receipt of a certified copy of this judgment. The appellant/claimant shall furnish copies of the PAN Card, ADHAAR Card and bank details before the third respondent-insurer within a period of one month so as to enable the insurance company to make the deposit as ordered above. In case of failure to furnish details as above, it shall be open for the insurance company to deposit the said amount before the Tribunal. Upon such deposit being made, the entire

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M.A.C.A.NO.4403 OF 2019

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amount shall be disbursed to the appellant at the
earliest, in accordance with law.

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 sd/-

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 SHOBA ANNAMMA EAPEN,
 JUDGE

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MBS/

Shirafudheen v. K.K.Haridas

Case brief

What is this about?

What did the court decide?

Shirafudheen v. K.K.Haridas

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

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