Kochugovindan v. Sivasankaran Master M., Ananthakrishnan K.N. and The Oriental Insurance Co. Ltd.

M.A.C.A. No. 1798/2019 : 1 : ``` 2025:KER:26630 ``` **==> picture [57 x 58] intentionally omitted <==** IN THE HIGH COURT OF KERALA AT ERNAKULAM ## PRESENT THE HONOURABLE MR. JUSTICE JOHNSON JOHN FRIDAY, THE 28[TH] DAY OF MARCH 2025 / 7TH CHAITHRA, 1947 ## MACA NO. 1798 OF 2019 AGAINST THE AWARD DATED 29.01.2019 IN O.P(MV) NO.316 OF 2017 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, PALAKKAD ## APPELLANT/PETITIONER: KOCHUGOVINDAN, AGED 57 YEARS, S/O.KUMARAPANIKKAR, KALARIKKAL HOUSE, MANALIPADAM P.O., MUDAPPALUR, PALAKKAD DISTRICT. BY ADV P.V.CHANDRA MOHAN ## RESPONDENTS/RESPONDENTS: - 1 SIVASANKARAN MASTER M., S/O.C.P.MANIYAN, CHERINKAL HOUSE, MATHUR, MUDAPPALLUR P.O., PALAKKAD DISTRICT-678 705. - 2 ANANTHAKRISHNAN.K.N., S/O.KARUPPAN, PULLANPADAM HOUSE, VANDAZHY P.O., ALATHUR, PALAKKAD DISTRICT-678 706. 3 THE ORIENTAL INSURANCE CO. LTD., RAHMANIA COMPLEX, COURT ROAD, ALATHUR, PALAKKAD-678 541. BY ADVS. R3 BY SRI.LAWRENCE D CUNHA SRI.JIJO ISAAC THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 27.03.2025, THE COURT ON 28.03.2025 DELIVERED THE FOLLOWING: M.A.C.A. No. 1798/2019 : 2 : ``` 2025:KER:26630 ``` **==> picture [57 x 58] intentionally omitted <==** ## **JOHNSON JOHN, J.** --------------------------------------------------------M.A.C.A No. 1798 of 2019 -------------------------------------------------------Dated this the 28[th] day of March, 2025. The petitioner in O.P.(MV) No. 316 of 2017 on the file of the Motor Accident Claims Tribunal, Palakkad filed this appeal seeking enhancement of compensation. 2. According to the petitioner, on 26.01.2015, while he was traveling as a pillion rider in a motorcycle, van driven by the 2[nd] respondent in a rash and negligent manner caused to hit the motorcycle 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, O.P.(MV) No. 317 of 2017 was jointly considered with O.P.(MV) No. 316 of 2017 and from the side of the petitioners, Exhibits A1 to A19 were marked and from the side of the 3[rd] respondent, Exhibits B1 and B2 were marked. 4. The Tribunal recorded a finding that the accident occurred because of the negligence on the part of the 2[nd] respondent and that M.A.C.A. No. 1798/2019 : 3 : ``` 2025:KER:26630 ``` **==> picture [57 x 58] intentionally omitted <==** respondents 1 to 3 are jointly and severally liable to pay compensation to the petitioner. The Tribunal awarded a total compensation of Rs.1,09,663/- to the petitioner. 5. Heard Sri. P.V. Chandramohan, the learned counsel for the appellant and Sri. Lawrence D. Cunha, the learned counsel for the respondent insurance company. 6. The learned counsel for the appellant argued that the appellant was aged 56 years and at the time of the accident, he was working in a private school after his retirement, and for the reason that no evidence is adduced to prove the income, the Tribunal fixed only Rs.7,000/- as his income and the same is on the lower side. 7. The decision of the Hon'ble Supreme Court in ## _**Ramachandrappa v. Royal Sundaram Alliance Insurance Co.Ltd.**_ _**[(2011) 13 SCC 236]**_ and _**Syed Sadiq and Others v. Divisional**_ ## _**Manager, United India Insurance Company [(2014) 2 SCC 735 =**_ _**2014 KHC 4027]**_ shows that even in the absence of any evidence, the monthly income of an ordinary worker has to be fixed as Rs.4,500/- in M.A.C.A. No. 1798/2019 ``` 2025:KER:26630 ``` : 4 : **==> picture [57 x 58] intentionally omitted <==** respect of the accident occurred in the year 2004 and for the subsequent years, the monthly income could be reckoned by adding Rs.500/- each per year. If the monthly income of the appellant is calculated by adopting the above principle, it will come to Rs.10,000/-, as the accident occurred in the year 2015. Therefore, considering the facts and circumstances, I find that it is only reasonable to fix the monthly notional income of the appellant as Rs.10,000/- for the purpose of calculating the compensation. 8. The learned counsel for the appellant argued that as per Exhibit A12, the appellant is having 12% whole body permanent disability and even though A12 disability certificate was marked without objection, the Tribunal rejected the same on the ground that the doctor who issued the certificate was not examined. The treatment records of the appellant shows that he sustained fracture left lateral malleolus; fracture left proximal phalanx big toe; and abrasion knee and elbow. In A12 disability certificate, the following problems are noted: - 1) Deformity over the (L) ankle - 2) Range of dorsiflexion (10[0] ) of the (L) ankle decreased than the (R) ankle (20[0] ) - 3) Deformity over the (L) big toe M.A.C.A. No. 1798/2019 ``` 2025:KER:26630 ``` : 5 : **==> picture [57 x 58] intentionally omitted <==** - 4) Pain and difficulty in squatting, climbing stairs or sitting on the floor - 5) Radiologically, severely malunited fracture (L) lateral malleolous, malunited fracture P1 (L) big toe. 9. The proceedings of the Tribunal shows that Exhibit A12 was marked without any objection. In the absence of any challenge regarding the genuineness of Exhibit A12, rejection of the same on the ground of non-examination of the doctor as a witness is not justifiable. ## 10. 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). ( _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. M.A.C.A. No. 1798/2019 ``` 2025:KER:26630 ``` : 6 : **==> picture [57 x 58] intentionally omitted <==** ( _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. 11. According to the appellant, after his retirement, he was working in a private school. Therefore, considering the occupation, age and problems noted in Exhibit A12 and the percentage of physical disability assessed, I find that 12% functional disability can be accepted for the purpose of calculating the loss of earning capacity. 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 10% of the established income should be made, where the age of the victim at the time of the accident was between 50-60 years. 13. When the compensation for loss of earning capacity due to permanent disability is calculated as per the criteria mentioned above, M.A.C.A. No. 1798/2019 ``` 2025:KER:26630 ``` : 7 : **==> picture [57 x 58] intentionally omitted <==** the same would come to Rs.1,42,560/- [(10,000 + 10%) x 12 x 9 x 12/100]. The Tribunal has already granted Rs.30,240/- under this head and therefore, the appellant is granted an additional compensation of Rs.1,12,320/- towards loss of earning capacity. 14. The learned counsel for the appellant argued that the Tribunal granted only Rs.20,000/- towards ‘pain and sufferings’ and Rs.10,000/towards ‘loss of amenities’ and the same is on the lower side. Considering the nature of injuries, period of treatment and disability, an additional compensation of Rs.10,000/- each is granted to the appellant under the heads— ‘loss of amenities’ and ‘pain and sufferings’. I find that the compensation granted by the Tribunal under all other heads are reasonable and requires no interference. 15. 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.)| |---|---|---| |Compensation for loss of<br>earning capacity|30,240/-|1,12,320/-| ``` 2025:KER:26630 ``` M.A.C.A. No. 1798/2019 : 8 : **==> picture [57 x 58] intentionally omitted <==** |Pain and sufferings|20,000/-|10,000/-| |---|---|---| |Loss of amenities|10,000/-|10,000/-| |Total enhanced compensation||1,32,320/-| |||| 16. Thus, a total amount of Rs.1,32,320/- (Rupees One Lakh Thirty Two Thousand Three Hundred and Twenty only) is awarded as enhanced compensation. The said amount shall carry interest at the rate of 9% per annum from the date of the application till realization. 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