IN THE HIGH COURT OF KERALA AT ERNAKULAM
MFA.No. 281 of 1996()
1. V.K.CHANDRAN
... Petitioner
Vs
1. E.T.CHANDRAN
... Respondent
For Petitioner :SRI.T.RAVINDRAN,ROOPA.M.PAUL
For Respondent :SRI.B.G.BIDAN CHANDRAN
The Hon'ble MR. Justice J.B.KOSHY
The Hon'ble MR. Justice P.N.RAVINDRAN
Dated :10/07/2008
O R D E R
J.B. KOSHY & P.N. RAVINDRAN, JJ.
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M.F.A.NO.281 OF 1996
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Dated this the 10th day of July, 2008.
JUDGMENT
Koshy, J:
The appellant/claimant sustained serious injuries in a motor
accident on 8.4.1992. He was travelling in a jeep bearing
registration No.KEK 1321, which was driven by the 2nd respondent,
hit on a jeep bearing Registration No.KEH 3926 driven by the 3rd
respondent coming from the opposite direction and due to the
collision, the appellant sustained serious multiple injuries resulting
amputation of his one hand at the shoulder level. The appellant
was immediately taken to the Calicut Medical College with the
severed hand. The Medical College doctors could not do anything
with the amputated segment. He was then taken to Specialists
Hospital, Cochin. But they were also unable to rejoin the
amputed hand . Therefore, he was referred back to Calicut Medical
College and the appellant lost his right hand through root of the
upper limb. It was proved that he was a driver by profession and
he used to earn more than Rs.100/= per day. But, after the
accident he cannot do any work. He lost his right hand. He was
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aged 26 years. His marriage was fixed but the bride and bride’s
people were reluctant for a marital tie with a physically
handicapped person. He applied for compensation. The insurance
company of both jeeps admitted that coverage but disputed the
question of negligence and amount of compensation. The Tribunal
found that the accident occurred due to the negligence of the 2nd
respondent/driver of the jeep and the vehicle was duly insured by
the 3rd respondent insurance company. But against a total claim
of Rs.5 lakhs, the compensation awarded was Rs.77,133/=. Only
dispute in this appeal is regarding the quantum of compensation.
With regard to the injuries, the Tribunal held as follows:
“Due to the accident, the petitioner lost his
right hand. Ext.A2 is the Accident-cum-wound-
certificate. From Ext.A2 I find that there is a total
trumatic amputation through the root (R) limb with
hypovolenie shock. The patient was admitted on
8.4.92. The certificate is issued by doctor of Medical
College Hospital, Kozhikode. Ext.A3 is the referal O.P
ticket. There also I find a description regarding
advice and physical findings. Ext.A4 is the copy of
the patient’s name and index card. In that card, it is
mentioned that the case is of amputation of right arm.
Ext.A5 is the specialists hospital report, dated
14.4.1992. Ext.A6 is the medical bills and other
connected bills. Ext.A7 is the reference card, from
the specialists hospital, Palarivattom for having done
plastic surgery. Date of admission there is 8.4.1992
and date of discharge on 14.4.1992. Ext.A8 is driving
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licence. Ext.A9 is cash memo issued from Nevedac
Prosthetic Centre from Chandigar. Ext.X1 is the case
sheet from Medical College Hospital, Kozhikode. It
refers to various treatment given to the patient.”
2. It is not disputed that his right hand was completely
amputated. He was present before the court and examined as
PW1. He produced his driving licence to prove that he is a
professional driver and also produced evidence to prove that his
marriage was fixed on 29.5.1992 with one Radha which was
eventually did not take place due to the accident. PW2, his
employer deposed that he was employed as a driver. Apart from
Rs.1,500/= per month as salary, he was given Rs.10/= per day
as batta.
3. Being a driver by profession, we are of the opinion that even
without looking on future prospects, we can fix Rs.1,500/= as
monthly income. Considering the injuries, he was completely bed
ridden for two months. For loss of actual earnings, Tribunal has
granted Rs.1,000/=. For 2 months loss of actual earnings, Tribunal
ought to have allowed Rs.3,000/=. Hence, he is entitled to
Rs.2,000/= as additional compensation for actual loss of earnings
for the period he was totally bed ridden. He was taken to Medical
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College Hospital, Calicut and Specialist Hospital, Palarivattom. He
was also treated in Chandigar. Rs.2,500/= was allowed for
treatment expenses. In the absence of bills, we are not enhancing
the same. For pain and sufferings, Rs.15,000/= was awarded
against a claim for Rs.75,000/=. Since accident occurred in 1992,
we are not enhancing the compensation granted for pain and
sufferings considering the money value at that time. For medical
expenses, Tribunal awarded Rs.5333.38. He was an in patient for
about a month. There will be many expenses not covered by bills.
Bye stander’s expenses also have to be looked into. Hence, we are
of the opinion that at least Rs.3,000/= ought to have been granted
for medical and incidental expenses including expenses for hiring a
bye stander. with regard to permanent disability and loss of
earning power, Tribunal held as follows:
“Compensation for continuing permanent
disability he has claimed a sum of Rs.1,00,000/=.
No disability certificate is produced. However, he
has lost his right hand. It would definitely affect
his job prospectus as a driver. So we can give
a sum of Rs.20,000/= on that count.
Compensation for the loss of earning power, he has
claimed a sum of Rs.3,03,000/=. The multiplier
method of calculation is not applicable in this case,
because there is no percentage of disability
assessed not any disability certificate available.
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Taking into consideration that the petitioner is a
youngster and also a driver earning a sum of
Rs.1,500/= per month. I feel that a sum of
Rs.30,000/= would be the appropriate amount on
this count.”
4. Thus total amount granted for permanent disability and loss
of earning capacity was Rs.50,000/=. He completed the age of
26 years at the time of the accident. As per the guidelines of
second schedule, the apt multiplier is 18. The three Bench decision
of the Supreme Court in Smt.Supe Dei & Others v. National
Insurance Company Ltd. & Others (JT 2002 Suppl. 1 SC 451),
Abati Bezbaruch v. Deputy Director General of Geological
Survey of India & another (2003 (3) SCC 148) and APSRTC v. M.
Pentaiah Chary (AIR 2007 SCW 5689) it is held that in the absence
of exceptional circumstances, second schedule should be taken for
guidance for calculating compensation in claims under Section 166
also. The Supreme Court in United India Insurance Co. Ltd. v.
Patricia Jean Mahajan and others (JT 2002 (5) SC 74) held that
except in very rare cases the multiplier shown in second schedule
should not be deviated from. In U.P. State Road Transport
Corporation & others v. Trilok Chandra (1996 (4) SCC 362) and
in New India Assurance Company Ltd. v. Charlie (2005 (10) SCC
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722, the Hon’ble Apex Court held that highest multiplier of 18
should be taken for the accident victim aged between 20 and 25.
Considering the circumstances of the case, we take 17 as the apt
multiplier in this case. The next question is what is the percentage
of disability to be taken for calculating the compensation. It is
true that his entire right hand was lost even without leaving a
stump. According to the claimants, being a driver his loss of earning
capacity is 100%.
5. Loss of earning capacity is different from physical disability
and as held by a five member Bench of the Apex Court in Pratap
Narain Singh Deo v. Shrinivas Sabata and another (AIR 976
SC 222 = (1976) 1 SCC 289) compensation has to be awarded not
with reference to loss of physical capacity, but, with reference to the
loss of ‘earning capacity’ which is to be assessed with reference to
the nature of job the workman was doing. In the above case, a
carpenter, whose left hand from elbow was amputated, was
granted compensation for 100% loss of earning capacity as it has
the effect of total disablement as defined under Section 4(1)(c) (ii)
of the Workmen’s compensation Act.
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6. For amputation of right arm through shoulder, percentage
of disability is fixed as 90%. In the second schedule of the
Employees State Insurance Act also, for amputation of arm
through shoulder the disability fixed as 90%. Under the Mc bride
scale also for loss of one arm percentage of loss of earning
capacity is fixed as 90%. Here, Tribunal examined the claimant as
PW1 and satisfied that as his right arm was amputated through
shoulder joint, he should have awarded compensation on multiplier
method and it was wrong in doing so because medical certificate
assessing percentage of disability was not produced. If the Tribunal
felt that medical certificate assessing disability was necessary, it
could have referred the claimant to a medical board for assessing
percentage of disability and took a reasonable view. We are of the
opinion that, in this case, the claimant who was a driver lost the
right hand from the shoulder level and his disability is fixed as
90%. Even though being a driver his actual loss of earning
capacity is 100%, he has to live with the disability through out his
life. Therefore, compensation payable for disability and loss of
earning capacity is 1500x12x90/100×17= 2,75,400/=. From this,
Rs.50,000/= has to be deducted. Hence, for loss of earning capacity
and permanent disability he is entitled to an additional amount of
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Rs.2,25,400/= since his right arm was completely lost, he requires
the assistance of others. For disfiguration and loss of marriage
prospects and loss of amenities, no amount was awarded by the
tribunal. We award Rs.10,000/= under the above heads. Hence
additional amount payable will be Rs.2,35,400/=. The above
amount should be deposited by the third respondent insurance
company with 7% interest from the date of application,12.5.1992 till
31.3.2003, the date of dismissal of the appeal for default and
thereafter from today till the date of deposit.
J.B. KOSHY, JUDGE.
P.N. RAVINDRAN, JUDGE.
cl
MFA.NO.281/96 .
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J.B. KOSHY &
P.N. RAVINDRAN, JJ.
M.F.A.NO.281 OF 1996
JUDGMENT
10th day of July, 2008.