BY AD vs SRI.MATHEWS JACOB (SR.)

7. Aggrieved by the quantum of compensation awarded by the Tribunal, the Respondent No.3 preferred this appeal.

8. Now the point that arises for consideration is the following: Whether the quantum of compensation awarded by the Tribunal is just and reasonable? MACA. No.3213/2015 4

9. Heard Sri.P. Mathews Jacob, the learned Senior Counsel representing Sri.P.Jacob Mathew, the learned standing counsel appearing for the insurer/appellant, and Sri. A. N. Santhosh, the learned counsel for the claimants.

10. The Point: In this case the accident as well as valid insurance policy of the offending vehicle are admitted.

11. In the accident the petitioner sustained the following injuries: “amputation above right knee, shattered right lower limb with vascular injury, popliteal artery and vein ligated above the thrombosed anastomosis and cut, all bleeding vessels ligated etc.”

12. The petitioner was treated as inpatient for a total period of 25 days and in the meantime two amputations were done on his right leg above the knee and five major surgeries were also conducted. As per Exhibit A10 disability certificate issued by the Medical Board, the petitioner suffered 80% permanent physical disability. However, the Tribunal after considering the fact that the petitioner was a tailor by profession, his functional disability was taken as 95%. MACA. No.3213/2015 5

13. The learned senior counsel appearing for the 3rd respondent would argue that the Tribunal was not justified in fixing the functional disability of the petitioner at 95% when the medical board assessed only 80% permanent physical disability. Further, he would argue that the income of the petitioner fixed by the Tribunal at Rs.40,000/- per month is on the higher side. Further according to him, the Tribunal was not justified in adding 30% of the income towards future prospects.

14. On the other hand, the learned counsel for the petitioner would argue that the actual income of the petitioner from his business as cloth merchant and tailor is more than Rs.1,00,000/- and as such his notional income fixed by the Tribunal does not call for any interference. Further he would argue that, since the petitioner was a tailor by profession, the functional disability is almost 100% and as such the Tribunal was perfectly justified in in taking his functional disability as 95%. However, he fairly conceded that the Tribunal ought to have taken only 25% towards future prospects.

15. According to the petitioner, he was a cloth merchant cum MACA. No.3213/2015 6 tailor getting a monthly income of Rs.40,000/-. In order to substantiate the above contention, he has relied upon the documents Exhibit A11 to A18. The petitioner was also examined as PW1 in this case. Exhibit A11 is the Bank statement of the petitioner issued from the Union Bank of India, Chettiyarpetti, Rajapalayam Branch. From Exhibit A11 bank statement, it can be seen that during the period from January to December 2012, more than Rs.21,00,000/- was deposited in the said account. Moreover, the other documents produced by the petitioner would go to show that he had several bank deposits and LIC policies and his two children are studying in Engineering Colleges and towards annual fee Rs.2.25 lakhs is being paid in every year. It was in the above context, the Tribunal found that the income of the petitioner will come to Rs.40,000/-. The Tribunal arrived at the monthly income of the petitioner based on convincing and reliable documentary evidence supported by ocular evidence and as such I do not find any grounds to interfere with the same.

16. It is true that as per the disability certificate Exhibit A10, the MACA. No.3213/2015 7 permanent physical disability of the petitioner is only 80%. From the evidence of PW1, it is revealed that he was a tailor by profession and he used to purchase clothes from different places and stitch them and sell them in different parts of Kerala as well as in Tamil Nadu. Because of the injuries sustained in the accident, his right leg above knee was to be amputated twice. In the above circumstances, though the permanent physical disability of the petitioner is only 80%, the Tribunal was justified in holding that the petitioner could not continue his job as a tailor and hence, I do not find any ground to interfere with the finding of the Tribunal that the functional disability of the petitioner will come to 95%.

17. On the date of accident, the petitioner was aged 48 years. Therefore, 25% of the monthly income is to be added towards future prospects, as held in the decision in National Insurance Co. Ltd v. Pranay Sethi [(2017) 16 SCC 680] and the multiplier to be applied is 13, as held in Sarla Verma v. Delhi Transport Corporation, [(2009) 6 SCC 121]. In the above circumstances, the loss of disability will come to MACA. No.3213/2015 Rs.74,10,000/-. 8

18. Towards loss of earning, the tribunal has awarded only Rs.2,40,000/- being the income for 6 months @Rs.40,000/-. Considering the nature of the injuries sustained and the percentage of disability suffered by the petitioner, the petitioner might have lost income at least for a period of 9 months. Therefore, towards 'loss of income' the petitioner is entitled to get a sum of Rs. 3,60,000/- (40000x 9 months).

19. Towards the head ‘pain and sufferings’ and 'loss of amenities of life' the Tribunal has awarded Rs.75,000/- each. According to the learned counsel for the petitioner, the compensation awarded on those heads are on the lower side.

20. The petitioner sustained very serious injuries in the accident and was treated as inpatient for 25 days and in the meantime two amputations were done on his right leg above the knee and five major surgeries were also conducted. Because of the injuries sustained, the percentage of disability suffered and the length of treatment undergone by the petitioner, I hold that the compensation awarded by the Tribunal MACA. No.3213/2015 9 on the heads ‘pain and sufferings’ and 'loss of amenities of life' 'are on the lower side and hence they are enhanced to Rs.2,00,000/- each.

21. Learned counsel for the petitioner would argue that towards the cost of artificial limb, the Tribunal has awarded only Rs.50,000/-, which is too meager. It is true that the petitioner's right leg above the knee was amputated and as such he requires the use of artificial limb for rest of his life. It is also true that the compensation awarded by the Tribunal on the above head is too meager. However, the petitioner has not filed any appeal or cross objection and also has not produced any documents to show the price of artificial limb which he proposes to purchase. However, considering the fact that the petitioner requires the use of artificial limb for the rest of his life, I hold that towards cost of purchasing artificial limb, a lump-sum amount can be awarded, and I hold that a sum of Rs.2,00,000/- will be reasonable one on that head, in the absence of any documents.

22. The learned Senior Counsel would argue that since the petitioner has not filed any appeal or cross objection, enhancement of MACA. No.3213/2015 10 compensation cannot be awarded. However, the law is well settled that even in the absence of appeal or cross objection by the claimant, this court has every power to award enhancement of compensation in case if finds that just and reasonable compensation was not awarded. (See Surekha and Ors v. Santosh and Ors [2020 ACJ 2156])

23. No change is required, in the amounts awarded on other heads, as the compensation awarded on those heads appears to be just and reasonable.

24. Therefore, the petitioner/appellant is entitled to get a total compensation of Rs.92,55,426/-, as modified and recalculated above and given in the table below, for easy reference: Sl. No. Head of Claim 1 Loss of earning 2 Pain and suffering 3 Transport to hospital 4 Extra nourishment Amount awarded by Tribunal (in Rs.) Amount Awarded in Appeal (in Rs.) 2,40,000/- 3,60,000/- (40000x9) 75,000/- 56,900/- 10,000/- 2,00,000/- 56,900/- 10,000/- 5 Compensation for disability 77,06,400/- 74,10,000/- 6 Loss of amenities of life 75,000/- 7 Medical expenses 8 Bystander expenses 7,45,326/- 73,200/- 2,00,000/- 7,45,326/- 73,200/- MACA. No.3213/2015 11 9 Cost of artificial limb 50,000/- Total 90,31,826/- 2,00,000/- 92,55,426/- Enhanced Rs.2,23,600/-

25. In the result, this Appeal is dismissed. At the same time, Respondent No.3 is directed to deposit a total sum of Rs.92,55,426/- (Rupees ninety two lakh fifty five thousand four hundred and twenty six only), less the amount already deposited, if any, along with interest at the rate ordered by the Tribunal, from the date of the petition till deposit/realisation, with proportionate costs, within a period of two months from today. (Enhanced compensation will carry interest @8%).

26. On depositing the aforesaid amount, the Tribunal shall disburse the entire amount to the petitioner, excluding court fee payable, if any, without delay, as per rules. Sd/- sou. C. PRATHEEP KUMAR, JUDGE