Deepa v. Haris and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **MONDAY, THE 4TH DAY OF DECEMBER 2017/13TH AGRAHAYANA, 1939** ## **M.A.C.A.No. 900 of 2015** ## **------------------------** ## **AGAINST THE AWARD IN O.P.(MV) NO.913/2008 of MOTOR ACCIDENTS CLAIMS TRIBUNAL, PERUMBAVOOR, DATED 28-05-2014** ## **APPELLANT/PETITIONER:** ## **------------------------------------** ## **DEEPA, AGED 38, W/O.KRISHNAN NAMBOOTHIRI, POOKKANNIMANA, MEPRATHUPADIBAGHAM, ARCKAPPADY VILLAGE** **BY ADVS.SRI.ELSON SIMON SRI.PRAMOD KOCHUTHOMMEN.E.** ## **RESPONDENTS/RESPONDENTS:** **------------------------------------------------** **1. HARIS, S/O.SULAIMAN, PUTHIRIHOUSE, VALLAM BAGHAM, CHELAMATTOM KARA, CHELAMATTOM VILLAGE - 696529** **2. UNITTED INDIA INSURANCE CO. LTD, BR. OFFICE PERUMBAVOOR - 682042** **3. NAJEEB P.B., S/O.MAKKAR, PALLATHUPARA HOUSE, ONAMKULAM BAGHAM, VENGOLAKARA, ARACKAPPADY VILLAGE - 682045** **4. THE ORIENTAL INSURANCE CO. LTD, BR. OFFICE ALUVA - 683 101** - **THE ADDRESS FOR SERVICE OF THE RESPONDENTS IS AS SHOWN ABOVE** - **R2 BY ADV. SRI.V.JAYAPRADEEP R3 BY ADVS. SRI.V.RAJENDRAN (PERUMBAVOOR) SRI.GEORGE VARGHESE KIZHAKKAMBALAM R4 BY ADV. SRI.M.JACOB MURICKAN** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 0412-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Bb** ## **P.D.RAJAN, J. ----------------------------------M.A.C.A.No.900 of 2015 -----------------------------------Dated this the 04[th] day of December, 2017** ## **J U D G M E N T** This appeal is preferred against the award in O.P. (M.V.) No.913 of 2008 of the Motor Accidents Claims Tribunal, Perumbavoor. Appellant sustained injuries in a motor accident on 10.01.2008 and the learned Tribunal awarded a sum of Rs.80,730/- with interest and cost as compensation. Being aggrieved by that, the injured preferred this appeal. 2. Appellant's case is that, on the date of accident, while she was travelling in an autorickshaw, at that time, another vehicle KL-7/K-6746, came in a rash and negligent manner, hit against the autorickshaw as a result, the passengers in the autorickshaw sustained serious injuries. The insurer admitted the insurance of the vehicle. It is contended that the driver of the M.A.C.A.No.900 of 2015 : 2 : autorickshaw had driven the vehicle without a valid driving licence. The Mini Lorry bearing registration No.KL-7/K-6746 was plying without a fitness certificate. O.P.(MV) Nos.913 of 2008 and 914 of 2008 were tried jointly. The documents in both cases were marked as Exts.A1 to A13 series. Respondents did not adduce any evidence. 3. Learned counsel appearing for the appellant contended that at the time of accident, the appellant was working as a Clerk in the office of the Cable Vision Net Work, Kalady and was earning an amount of R.7,500/- as her monthly income, but while awarding compensation, the tribunal took only Rs.2,000/as her monthly income. The Doctor assessed 10% disability, but the learned Tribunal reduced it to 3%. Hence, appellant is entitled to get just amount as compensation. 4. Apex Court in **Rajkumar** v. **Ajay Kumar and Anr. [2011 ACJ 1]** held that the injured is entitled to get just amount of compensation which reads as M.A.C.A.No.900 of 2015 : 3 : 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 percentage of loss of earning capacity is the same as percentage of permanent disability). (iii) The doctor who treated an injuredclaimant or who examined him subsequently to assess the extent of his permanent disability can give evidence only in regard 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. In another decision in **Syed Sadiq and Others** v. **Divisional Manager, United India Insurance Company Limited (2014) 2 Supreme Court Cases** M.A.C.A.No.900 of 2015 : 4 : **735,** the Apex Court held that where the injured is working as a coolie and he stated that he was earning Rs.4,000/- per month as his monthly income, in the absence of any other documentary evidence, that income has to be admitted. 5. The employer was examined as PW1. His evidence shows that the injured was working as a Clerk in his firm, Clear Vision Cable Network, Kalady and was earning an amount of Rs.7,500/- per month. It is true that she had sustained fracture to both bones and had taken leave for 4 months. PW2 Doctor issued Ext.A1 Disability Certificate, in which, 10% disability has been assessed. He sustained fracture both bones distal 3[rd] Rt leg, Contused abrasions Rt upper arm and abrasions Rt knee. Even though 10% disability was reported, no evidence has been adduced by the injured to show that the disability affected her earning capacity. It is true that the above fracture will result in some damages to the frame of the body, which in turn will lead to permanent or temporary disability. Therefore, the injured is entitled to M.A.C.A.No.900 of 2015 : 5 : get just amount as compensation. The learned Tribunal awarded following amounts as compensation: |Sl.<br>No.|Head of Claim<br>Compensation for|Amount<br>Claimed<br>(in Rupees)|Amount<br>Awarded<br>(in Rupees)|Basis - vital<br>details in a<br>nut shell| |---|---|---|---|---| |1|Loss of earnings|15,000/-|8000/-|` 2000X04<br>months| |2|Partial loss of<br>earnings|2,000/-|NIL|| |3|Transport to<br>hospital|1,000/-|500/-|1<br>admission| |4|Extra nourishment|5,000/-|3000/-|Rs.750x4<br>months| |5|Damage to clothes<br>etc|1,000/-|500/-|| |6|Bystander<br>expenses|6,000/-|1500/-|Rs.150x10<br>days| |7|Medical expenses|20,000/-|15,710/-|Actual<br>medical<br>bills| |8|Loss of earning<br>power|20,000/-|NIL|| |9|Pain & suffering|50,000/-|25,000/-|BB# IP 10<br>days| |10|Loss of amenities<br>etc|20,000/-|15,000/-|| |11|Disability|30,000/-|11,520/-|No<br>disability<br>certificate| ||Total|1,70,000/-<br>Limited to<br>1,00,000/-|80,730/-<br>=======|Rs.80,730/-<br>along With<br>interest @<br>8% p.a.| 6. The learned Tribunal awarded an amount of Rs.8,000/- for loss of income for four months by taking Rs.2,000/- as her monthly income. In this case, appellant M.A.C.A.No.900 of 2015 : 6 : is a Clerk by profession and was getting Rs.7,500/- per month. Hence, in view of the decision of the Apex Court in **Syed Sadiq and Others** v. **Divisional Manager, United India Insurance Company Limited [(2014) 2 Supreme Court Cases 735]** , the appellant is entitled to get Rs.7,500/- per month. Therefore, an amount of Rs.30,000/- (Rs.7,500x4) is hereby granted for loss of income for 4 months. Learned Tribunal already awarded Rs.8,000/- on that head. The balance is Rs.22,000/(30000-8000). There is a permanent physical disability and the learned Tribunal awarded Rs.11,520/-. Considering the nature of injury, Rs.25,000/- is a just amount for physical disability. No evidence has been adduced by the petitioner to show that the injury had affected her earning capacity. 7. Therefore, appellant is entitled to get a balance amount of Rs.13,480/- (25000-11520) for permanent disability. Therefore, the appellant is entitled to get an additional compensation of **Rs.35,480/-** (13480+22000). The 3[rd] respondent admitted the M.A.C.A.No.900 of 2015 : 7 : insurance of the vehicle. The learned Tribunal directed the 3[rd] respondent to recover the amount from the 1[st] respondent, but no grounds are stated by the learned Tribunal. The only contention is that, there is violation of permit condition, but that was not proved. Hence, the direction to recover the amount from the 1[st] respondent is set aside and the Insurance Company is liable to satisfy the award. The insurer is directed to satisfy the award within 30 days from the date of receipt of a copy of this judgment, failing which it will carry 12% interest. The appellant is not entitled to get interest for the delay in preferring the appeal. Sd/- **P.D.RAJAN JUDGE** Bb/08/12/2017 _[True copy]_ _P.A to Judge_