Basheer v Abdulrahiman, Jamal and National Insurance Co. Ltd.

M.A.C.A. No. 1946/2019 ``` 2025:KER:29943 ``` : 1 : **==> picture [57 x 58] intentionally omitted <==** IN THE HIGH COURT OF KERALA AT ERNAKULAM ## PRESENT THE HONOURABLE MR. JUSTICE JOHNSON JOHN MONDAY, THE 7[TH] DAY OF APRIL 2025 / 17TH CHAITHRA, 1947 ## MACA NO. 1946 OF 2019 AGAINST THE AWARD DATED 07.09.2018 IN OP(MV) NO.156 OF 2014 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, KOZHIKODE ## APPELLANT/PETITIONER: BASHEER, AGED 48 YEARS, S/O. MOHAMMED, RANDAM KAIKKAL HOUSE, KAITHAPOYIL P.O, THAMARASSERY VIA, KOZHIKODE-673 023. BY ADV ANIL KUMAR K.P. ## RESPONDENTS/RESPONDENTS: - 1 ABDULRAHIMAN, S/O. SAIDOOTTY HAJI, THADATHIL HOUSE, AVILORA P.O, KIZHAKKOTHU, KODUVALLY, KOZHIKODE-673 572. - 2 JAMAL, AGED 38 YEARS, S/O. SAIDALI, MOONNAKKAL HOUSE, KANNOTH P.O, KOZHIKODE 673 639. - 3 NATIONAL INSURANCE CO. LTD, NOOR COMPLEX, ARAYADATHUPALAM, KOZHIKODE-673 004. BY ADV SRI.P.G.GANAPPAN THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 04.04.2025, THE COURT ON 07.04.2025 DELIVERED THE FOLLOWING: M.A.C.A. No. 1946/2019 ``` 2025:KER:29943 ``` : 2 : **==> picture [57 x 58] intentionally omitted <==** ## **JOHNSON JOHN, J.** --------------------------------------------------------M.A.C.A No. 1946 of 2019 -------------------------------------------------------Dated this the 7[th] day of April, 2025. ## **JUDGMENT** The petitioner in O.P.(MV) No. 156 of 2014 on the file of the Motor Accident Claims Tribunal, Kozhikode filed this appeal seeking enhancement of compensation. 2. According to the petitioner, on 17.11.2013, while he was travelling in the car driven by the 2[nd] respondent in a rash and negligent manner, it caused to hit on the rear side of a lorry and thereby, he sustained serious injuries. The 1[st] respondent is the owner of the offending vehicle and the 3[rd] respondent is the insurer. 3. Before the Tribunal, PW1 examined and Exhibits A1 to A20 and Exhibit C1 were marked from the side of the petitioner and no evidence adduced from the side of the respondents. 4. The Tribunal recorded a finding that the accident occurred because of the negligence on the part of the 2[nd] respondent and that respondents are liable to pay compensation to the petitioner. The ``` 2025:KER:29943 ``` M.A.C.A. No. 1946/2019 : 3 : **==> picture [57 x 58] intentionally omitted <==** Tribunal awarded a total compensation of Rs.15,45,000/- to the petitioner. 5. Heard Sri. K.P. Anil Kumar, the learned counsel for the appellant and Sri. P.G. Ganappan, the learned counsel for the respondent insurance company. 6. The learned counsel for the appellant argued that the appellant was aged 47 years and earning Rs.40,000/- per month from his occupation as a driver in Qatar. But, the Tribunal fixed only a notional income of Rs.10,000/- for the reason that no evidence is adduced to prove the income. In the chief affidavit of PW1, it is stated that the accident occurred, when he reached India after cancelling his visa for the purpose of returning to Qatar in a new visa. In cross examination when a specific question was put to PW1 about the absence of documents to prove his occupation abroad, the witness stated that there is entry in his passport in this regard. 7. Exhibit A17 is the copy of the passport and the entries in Exhibit A17 would show that the claimant reached Qatar on a work visa M.A.C.A. No. 1946/2019 ``` 2025:KER:29943 ``` : 4 : **==> picture [57 x 58] intentionally omitted <==** with expiry date 02.07.2013. Admittedly, no evidence is adduced to prove the salary or income of the claimant at the time of occurrence. But, the entries in Exhibit A17 will clearly show that before the accident, the claimant was working in Qatar on a work visa. Exhibits A8 and A9 are the copies of the driving licnece of the claimant. 8. The learned counsel for the appellant cited the decision of the Honourable Supreme Court in _**Manusha Sreekumar and Others v.**_ _**United India Insurance Co. Ltd**_ [2022 KHC Online 7106], wherein the Honourable Supreme Court fixed Rs.15,600/- as the notional income of a driver on the basis of the notification dated 04.09.2015 under the Kerala Motor Transport Workers' Payment of Fair Wages Act, 1971 prescribing a minimum wage scale of the workers listed in schedule B category III of the Kerala Motor Transport Workers' Payment of Fair Wages Act, 1971. 9. The accident in this case occurred on 17.11.2013 and therefore, the notification dated 04.09.2015 under the Kerala Motor Transport Workers' Payment of Fair Wages Act, 1971 is not applicable. But, considering the fact that driving is a skilled work and the claimant M.A.C.A. No. 1946/2019 ``` 2025:KER:29943 ``` : 5 : **==> picture [57 x 58] intentionally omitted <==** was employed abroad prior to the occurrence, I find that the notional income of the appellant for the purpose of calculating the compensation can be fixed as Rs. 15,000/-. 10. As per Exhibit C1 disability certificate issued by the Medical Board, Medical College Hospital, Calicut, the claimant is having 58% permanent disability. For the purpose of calculating the loss of earning capacity, the Tribunal accepted 60% functional disability. ## 11. In _**Raj Kumar v. Ajay Kumar**_ **[(2011) 1 SCC 343]** , the Honourable Supreme Court summarised the principles for ascertainment of loss of earning capacity due to permanent disability as follows: ( _i_ ) All injuries (or permanent disabilities arising from injuries), do not result in loss of earning capacity. ( _ii_ ) The percentage of permanent disability with reference to the whole body of a person, cannot be assumed to be the percentage of loss of earning capacity. To put it differently, the percentage of loss of earning capacity is not the same as the percentage of permanent disability (except in a few cases, where the Tribunal on the basis of evidence, concludes that the percentage of loss of earning capacity is the same as the percentage of permanent disability). M.A.C.A. No. 1946/2019 ``` 2025:KER:29943 ``` : 6 : **==> picture [57 x 58] intentionally omitted <==** ( _iii_ ) The doctor who treated an injured claimant or who examined him subsequently to assess the extent of his permanent disability can give evidence only in regard to the extent of permanent disability. The loss of earning capacity is something that will have to be assessed by the Tribunal with reference to the evidence in entirety. ( _iv_ ) The same permanent disability may result in different percentages of loss of earning capacity in different persons, depending upon the nature of profession, occupation or job, age, education and other factors. Considering the age, occupation and physical disability assessed in Exhibit C1, I find that 60% functional disability fixed by the Tribunal is reasonable and requires no interference. 12. The decision of the Hon'ble Supreme Court in _**National**_ _**Insurance Co. Ltd. v Pranay Sethi [(2017) 16 SCC 680]**_ and _**Jagdish v. Mohan [(2018) 4 SCC 571]**_ shows that the benefit of future prospects should not be confined only to those who have a permanent job and would extend to self-employed individuals and in case of a self-employed person, an addition of 25% of the established income should be made, where the age of the victim at the time of the accident was between 40-50 years. M.A.C.A. No. 1946/2019 : 7 : ``` 2025:KER:29943 ``` **==> picture [57 x 58] intentionally omitted <==** 13. When the compensation for loss of earning capacity is calculated as per the revised criteria, the same would come to Rs.17,55,000/- [(15000 + 25%) x 12 x 13 x 60/100]. The Tribunal has already granted Rs.9,36,000/- under this head. Hence, the appellant is granted an additional compensation of Rs.8,19,000/- towards loss of earning capacity. I find that the compensation granted by the Tribunal under all other heads are reasonable and requires no interference. 14. Accordingly, the appellant is entitled to the enhanced compensation as given below: |Particulars|Compensation<br>awarded by the<br>Tribunal (Rs.)|Additional<br>amount granted<br>by this Court<br>(Rs.)| |---|---|---| |Loss of earning capacity|9,36,000/-|8,19,000/-| |Total enhanced compensation||8,19,000/-| 15. Thus, a total amount of Rs.8,19,000/- (Rupees Eight Lakhs Nineteen Thousand only) is awarded as enhanced compensation. The said amount shall carry interest at the rate of 8% per annum from the date of the application till realization (excluding the period of delay of M.A.C.A. No. 1946/2019 : 8 : **==> picture [57 x 58] intentionally omitted <==** ``` 2025:KER:29943 ``` 103 days in filing the appeal). The appellant would also be entitled to proportionate costs in the case. The claimant shall furnish the details of the bank account to the insurance company for transfer of the amount. The appeal is allowed as above. sd/- **JOHNSON JOHN, JUDGE.** Rv