IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN THURSDAY, THE 10TH JULY 2008 / 19TH ASHADHA 1930 MFA.No. 281 of 1996() --------------------- OP(MV)No.584/1995 of MACT VADAKARA DATED 11.10.1995 .................... APPELLANT/PETITIONER: ----------- V.K. CHANDRAN, AGED 27 YEARS, S/O. APPUKUTTY ADIYODI, VADUVANKANDI HOUSE, AVALA AMSOM DESOM, P.O. KUTTOTH, QUILANDY TALUK. BY ADV. SRI.T.RAVINDRAN,ROOPA.M.PAUL RESPONDENTS/RESPONDENTS: ------------- 1. E.T. CHANDRAN, AGE NOT KNOWN, S/O. PACHER, EDATHUMTHARAMMEL HOUSE, KALPATHUR, MEPPAYUR, QUILANDY TALUK. (OWNER OF KEH 3956 JEEP) 2. G. SURESHNATH, AGE NOT KNOWN, S/O. GOPALAN NAIR, KURUKKANKANDI HOUSE, MENHANIAM AMSOM DO DESOM, P.O. MENHANIAM, QUILANDY TALUK DL.NO.3155/88. B.NO.1013/90 (DRIVER OF KEH 3956 JEEP.) 3. UNITED INDIA INSURANCE CO. LTD., BRANCH OFFICE, P.B.NO.17, VALIMANNA BUILDING 3RD FLOOR, MAIN ROAD, VADAKARA. (INSURER OF KEH 3956 JEEP). 4. S. BALAN, AGE NOT KNOWN, S/O. KANNAN, MALAYIL HOUSE, CHERUVANNUR, MEPPAUR, KOYILANDY TALUK. (OWNER OF KEK 1321 JEEP). 5. RAJEEVAN, AGED 25 YEARS, S/O. KUNHIRAMAN, MALAYIL HOUSE, CHERUVBANNUR AMSOM DO DESOM, QUILANDY TALUK DL.NO.2564/87 B.NO.1012/88 (DRIVER OF KEK 1321 JEEP) 6. THE ORIENTAL INSURANCE COMPANY LTD., P.B.NO.27, SREENITHI BUILDING, NARAYANA NAGAR, VADAKARA - 673 101. (INSURER OF KEK 1321 JEEP) BY ADV. SRI.B.G.BIDAN CHANDRAN SRI.A.A.MOHAMMED NAZIR SRI.M.JACOB MURICKAN THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 10/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J.B. KOSHY & P.N. RAVINDRAN, JJ. ---------------------------------------------------- M.F.A.NO.281 OF 1996 ---------------------------------------------------- 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 MFA.NO.281/96 . 2 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 MFA.NO.281/96 . 3 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 MFA.NO.281/96 . 4 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. MFA.NO.281/96 . 5 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 MFA.NO.281/96 . 6 722, 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. MFA.NO.281/96 . 7 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 1500x12x90/100x17= 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 MFA.NO.281/96 . 8 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 . 9 J.B. KOSHY & P.N. RAVINDRAN, JJ. M.F.A.NO.281 OF 1996 JUDGMENT 10th day of July, 2008.