Anoop Pachath S/o Raveendran v. Shafeer K.K. and Jimnesh K. S. and M/S Oriental Insurance Co. Ltd.

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE K.HARILAL** **WEDNESDAY, THE 23RD DAY OF MAY 2018 / 2ND JYAISHTA, 1940** **MACA.No. 797 of 2012** **AGAINST THE AWARD IN OPMV 638/2010 of M.A.C.T. TIRUR DATED 24-12-2011** ## **APPELLANT/PETITIONER:** **-----------------------** **ANOOP PACHAT S/O. RAVEENDRAN, AJANTHA HOUSE, PEDIYATTUKUNNU, PO KADALUNDI, KOZHIKODE.** **BY ADV.SRI.P.CHANDRASEKHAR** ## **RESPONDENT/RESPONDENTS:** **------------------------** **1. SHAFEER K.K.** **S/O. MUHAMMED KOYA, 32/1018, MISFA, PO, CHELAVOOR,** **KOZHIKODE, PIN-673571.** **2. JIMNESH K. S/O. LATE APPUNNI, VAITHUMKANDY HOUSE, PO MANNUR,** **VEDAKKUMBAD, KOZHIKODE, PIN-673328.** **3. M/S. ORIENTAL INSURANCE CO.LTD.** **BRANCH OFFICE, CKH BUILDING, THAZHEPALAM, TIRUR, PIN-676101.** **R3 BY SRI.GEORGE CHERIAN (THIRUVALLA)** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 23-05-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **rk** ## **K.HARILAL, J. ------------------------------------M.A.C.A.No. 797 OF 2012** **--------------------------------------** Dated this the 23[rd] day of May, 2018 ## **JUDGMENT** The appellant is the petitioner in O.P.(M.V.) No.638/2010 of the Motor Accidents Claims Tribunal, Tirur. The aforesaid Original Petition was filed by the appellant claiming compensation for the injuries and the consequential disablement suffered by him. 2. According to the appellant, on 09.10.2009, at about 8.45 AM, while he was riding a motor cycle through the public road, the offending bus, driven by the 1[st] respondent owned by the 2[nd] respondent and insured with the 3[rd] respondent came from the opposite side and hit against motor cycle in which he was travelling along with pillion rider, resulting in grievous injuries and consequential permanent disablement thereunder. The accident was **M.A.C.A.No. 797 OF 2012 2** caused by the rash and negligent driving of the offending bus, by the 1[st] respondent and respondents 1 and 2 are liable to compensate him and the 3[rd] respondent, Insurance Company is liable to indemnify respondents 1 and 2 by paying compensation. 3. The learned Counsel for the Insurance Company disputed the claim and the cause of accident, but admitted the coverage of the insurance policy. On the aforesaid pleadings, both parties adduced evidence. Considering the evidence on record, the Tribunal passed an impugned award granting '14,78,300/- (Rupees Forteen Lakhs Seventy Eight Thousand Three Hundred Only) to the appellant. The inadequancy and correctness of the quantum of compensation determined under various heads of claim are assailed in this appeal. 4. Heard the learned Counsel for the appellant and the learned Counsel for the 3[rd] respondent, Insurance Company. **M.A.C.A.No. 797 OF 2012** **3** 5. It is elaborately contended by the learned Counsel for the appellant that the Tribunal went wrong by fixing the monthly income of the appellant and determining the compensation for permanent disability. It is further contended that it has come out in evidence by Exts.28, 32, 41 and 42 that he was established as a well known Musician in classical music and getting more than '10,000/- as his monthly income. But the Tribunal discarded the aforesaid documents and has taken '5,000/- only as his monthly notional income without sufficient reasoning. Further it is contended that, though the Medical Board in Ext.C1 disability certificate has certified the permanent disability at 95%, the Tribunal has reduced the degree of disability to 65%, on the basis of its own assumption, without any material to corroborate the said reduction. 6. According to the leaned Counsel for the appellant, the Tribunal ought to have granted compensation for permanent disability, taking 95% permanent disability as **M.A.C.A.No. 797 OF 2012** **4** such without any interference. 7. _Per contra_ , the learned Counsel appearing for the 3[rd] respondent, Insurance Company submits that in the absence of convicing and cogent evidence to prove the exact income of the appellant per month, the Tribunal is justified in taking '5,000/- as his monthly notional income. It is further contended that the reduction of the degree of disability from 95% to 65% was supported by sound reasoning made by them at Tribunal. 8. The first point to be considered in this appeal is, whether the Tribunal is justified in fixing `5,000/-, as monthly income of the petitioner. It is the case of the petitioner that he was an established well-known musician in classical music, at the time of accident and he was getting `10,000/- per month, as income from his profession, as musician. In order to substantiate his qualification, Exts.A28, A42 and A43 were produced. Ext.A28 shows that he was a student at the school of distance education, **5** **M.A.C.A.No. 797 OF 2012** University of Calicut. Ext.A42 is the certificate issued by the Secretary, Board of Public Examinations, Kerala State and it certifies that the he has been awarded the diploma of 'Ganabhooshanam' in vocal music. Ext.A43 is the copy of mark list issued by the Secretary, Board of Public Examination, Kerala State. 9. It has come out in evidence that he has received several certificates in light music, vocal music, group music, classical music, Malayalam recitation, tablo etc. Ext.X1 is the copy of the acquittance register produced by PW.1 and PW.1 is the Secretary of Tanur Moving Library. She has stated that music classes were being conducted by the petitioner under the auspices of Tanur Moving Library, at the time of accident. According to her, the petitioner was a teacher employed by her for teaching classical music. She used to give atleast `2,000/- per month, by way of salary to the petitioner and the salary will vary in accordance with the number of students. Further, she has stated that in addition to the said **6** ## **M.A.C.A.No. 797 OF 2012** music classes, the petitioner was conducting a music school by name 'Chembai Sangeetha Vidyalayam' at Cheruvannoor. Ext.A32 is the certificate produced by the petitioner to prove that he was getting `2,000/- per month from Sri. Parameswara Kala Kshethram, Tanur. Thus, it has come out in evidence that the petitioner was working as a music teacher in several musical schools. After analysing the certificates, the Tribunal itself found that the merit certificates, certificate of excellence and other academic records produced by the petitioner would probabilise that he is a famous musician in classical music, imparting music classes to students in music and other cultural activities. But, after arriving at such a finding, the Tribunal has taken `5,000/- only, as monthly income of the petitioner. 10. In _**Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Co. Ltd.**_ [(2011) 13 SCC 236], the Supreme Court held that in the case of an accident has occurred in 2004, `3,500 to `4,500/-can be taken as monthly ## **M.A.C.A.No. 797 OF 2012 7** notional income, in the absence of any evidence to prove the exact income of the claimant. In the instant case, the accident was occurred in the year 2009 and at that time, the petitioner was aged only 27 years. 11. In view of the aforesaid decision, the Tribunal can never be justified in taking `5,000/- only as monthly income of a famous musician, for an accident occurred in the year 2009. The petitioner has succeeded in proving that he was a well-known musician, in classical music, having diploma of 'Ganabhooshanam' in vocal music and he was getting substantial income from music programmes and music classes. Therefore, his monthly income will stand redetermined to `10,000/- per month, as claimed by the petitioner. Therefore, he is given `1,20,000/- as compensation for 'loss of earnings'. The additional compensation payable to under this head is `60,000/-. 12. The next point to be considered is, whether the Tribunal is justified in reducing the degree of disability from ## **M.A.C.A.No. 797 OF 2012** ## **8** 95% to 65%. The medical board has examined the petitioner and reported that the petitioner has 95% permanent disability, by Ext.C1 disability certificate. I have meticulously gone through the disability certificate and find that the medical board has elaborately stated that the reasons from which they have arrived at a finding that the petitioner has 95% disability. After taking note of the disabilities of each organ of the petitioner, the Tribunal is not justified in reducing the degree of disability from 95% to 65%, merely on the reason that the petitioner walks with the support of a single cane. The assessment of the medical board as to the degree of disability is seen supported by the sound reasoning. Therefore, the petitioner is entitled to get a compensation for 'permanent disability' taking 95% disability, as certified by the medical board. 13. Thus, the petitioner is given `19,38,000/- as compensation for 'permanent disability' (10,000 x 12 x 17 x 95/100). The additional compensation payable to the **M.A.C.A.No. 797 OF 2012 9** petitioner under the head compensation for 'permanent disability' is `12,75,000/- (19,38,000 – 6,63,000) . The total compensation payable to the petitioner is `28,13,300/(12,75,000+60,000+14,78,300). 14. The petitioner is entitled to get interest as stipulated by the Tribunal for the said amount also. The respondent Insurance Company is directed to pay the entire compensation, within a period of three months from today and the petitioner is allowed to withdraw the entire compensation. All other findings of the impugned award would stand undisturbed and operative. This Motor Accident Claims Appeal is allowed accordingly to the above extent. Sd/- Sd/- **K. HARILAL, JUDGE** //TRUE COPY// PA TO JUDGE DST/rk