M.A.C.A. No.2472 of 2019

``` IN THE HIGH COURT OF KERALA AT ERNAKULAM ``` ``` PRESENT ``` ``` THE HONOURABLE MR.JUSTICE BASANT BALAJI ``` ``` MONDAY, THE 17[TH] DAY OF OCTOBER 2022 / 25TH ASWINA, 1944 ``` # **`M.A.C.A. NO.2472 OF 2019`** ``` OF ADDITIONAL MACT-II, THODUPUZHA) ``` ## **`APPELLANT/PETITIONER:`** ``` JOSE, AGED 65 YEARS, W/O.KURIAKOSE, NELLIYATT HOUSE, VATTAKKAVILPALAM BHAGOM, KARIMANNOOR KARA, KARIMANNOOR VILLAGE. ``` ``` BY ADVS. GEORGE VARGHESE(PERUMPALLIKUTTIYIL) SRI.A.R.DILEEP SRI.P.J.JOE PAUL SRI.RAJAN G. GEORGE ``` ## **`RESPONDENTS/RESPONDENTS:`** ``` 1SHIJU, AGED 43 YEARS, S/O. KURIAN, ORAPPANKAL VEEDU, ALAKODE VILLAGE, CHAVARNA BHAGOM - 685 588. 2V.A. JAMAL MUHAMMED, S/O.HASSAN ALI V.A., VEZHAPPILLIL (H), H.NO.10/219 TMC, THODUPUZHA P.O., PIN - 688 584. 3UNITED INDIA INSURANCE CO. LTD., MUVATTUPUZHA - 686 661 BY ADV SRI.P.JACOB MATHEW ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 17.10.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` MACA No.2472/2019 2 ## **`JUDGMENT`** ``` (Dated: 17[th] October, 2022) ``` Aggrieved by the award of compensation in O.P.(MV) No.55 of 2017 on the file of the Addl. Motor Accidents Claims Tribunal-II, Thodupuzha, the appellant/petitioner has filed this appeal, claiming enhancement of compensation. 2. Brief facts of the case are as follows: On 17.11.2016 at 10.30 a.m., while the appellant/petitioner was standing on the side of Karimannoor road, a mini lorry bearing Reg.No.KL-38/C-2532 driven by the 1[st] respondent in a rash and negligent manner hit against the appellant/petitioner and therefore he sustained injuries. He was taken to St.Mary’s Hospital, Thodupuzha and thereafter to Rajagiri Hospital, Aluva, where he was MACA No.2472/2019 3 treated as an inpatient for one day. The 1[st] respondent remained ex-parte and the 2[nd] respondent filed a written statement contending that the appellant/petitioner has not sustained injuries as stated. The insurance company admitted the policy with respect to the vehicle bearing Reg.No.KL-38/C-2532. The 3[rd] respondent filed a written statement contending that there is a valid policy coverage for the offending vehicle in the name of the 2[nd] respondent. Relying on Exts.A1 to A12, the Tribunal awarded total compensation of Rs.71,890/- with 9% interest per annum from the date of petition till realisation. Aggrieved by the amount of compensation awarded by the Tribunal, this appeal has been preferred. 3. The main contention raised by the counsel for the appellant is that Ext.A10 disability certificate issued by the Medical Board, District Hospital, Thodupuzha, in MACA No.2472/2019 4 which it is shown that the appellant/petitioner has a disability of 20% but the Tribunal scaled down it to 3% and calculated the compensation for loss of earning capacity. The counsel for the petitioner also submits that the income taken by the Tribunal for calculating the loss of earning power is Rs. 9,000/-, which is on the lower side because he has produced Exts.A11 and A12 income tax returns for the year 2015-16; 2016-17, which shows that he has earned a total income of Rs.6,31,095/- and he had paid tax for Rs.23,170/-. The Tribunal ought to have relied on Exts.A11 and A12 and fixed the income for calculating the loss of earning power. 4. The learned counsel for the respondent/insurance company submits that the Tribunal is justified in reducing the percentage of disability from 20% to 3%, as the disability assessed by the Medical MACA No.2472/2019 5 Board is the whole body, which will come to only 3%, thereby the Tribunal has relied on the decision reported in _**Raj Kumar v. Ajay Kumar and Another 2011(1) KLT 620]**_ . 5. The appellant/petitioner was aged 62 years at the time of the accident. Even going by the decision reported in _**Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Co.Ltd. [(2011) 13 SCC 236]**_ , the monthly income to be taken for the person who met with an accident in the year 2016 is Rs.10,500/-. The multiplier to be adopted is 7. The only question is regarding the percentage of disability to be taken for calculating the loss of earning power. Taking into consideration the injury sustained, the disability certificate was issued by the Medical Board showing that there is a disability of 20%. The loss of compensation for disability has MACA No.2472/2019 6 to be weighed taking into consideration the loss of income of the appellant. In this case, the appellant has earned income from doing petroleum dealership and PWD Contractor and also income from agricultural products as well as from fixed deposits. In such a situation, it cannot be said that there is total loss of earnings, as the appellant is admittedly having a dealership in a petrol pump and income as well from agricultural operations as both cannot be done by him solely. But taking into consideration the entire facts and circumstances of the case, I am of the opinion that the Tribunal is not justified in reducing the percentage of disability from 20% to 3%. In the said circumstances, I am inclined to take the percentage of disability as 7%. Taking the income of the appellant/petitioner as Rs.10,500/-, the multiplier adopted is 7 and the percentage of disability is 7%; the loss of earning capacity can be calculated as: 10500x12x7x7/100 = 61,740 – 22,680/- (the amount MACA No.2472/2019 7 already awarded by the Tribunal). For the head loss of earnings, the Tribunal awarded Rs.9,000/-; which is meagre, hence I enhanced the same to Rs.10,500/-. 6. On going through the award of the Tribunal, it is seen that the Tribunal has awarded just and reasonable compensation under other heads, so there are no other enhancements in other heads. ## Accordingly, the following enhancements are made to the award passed by the Tribunal: |Sl.<br>No.|Head of Claim|Amt. Awarded by<br>Tribunal (Rs.)|Amt. Enhanced in<br>appeal (Rs.)| |---|---|---|---| |1.|Loss of permanent disability|22,680/-|61,740/-| |2.|Loss of earnings|9,000/-|10,500/-| ||Total|31,680/-|72,240/-| ||Amount enhanced : 72,240 – 31,680 = 40,560**/-.**||| In the result, the appeal is allowed and the appellant is entitled for enhanced compensation of Rs.40,560/- MACA No.2472/2019 8 (Rupees Forty thousand five hundred and sixty only). The Insurance Company shall pay interest for the amounts awarded by the Tribunal at the rate directed in the impugned award and for the enhanced amounts at the rate of 8% from the date of the petition. All other findings entered by the Tribunal stand confirmed. If any amounts have already been paid, the same shall be granted set off. The claimants shall produce the details of the Bank account before the Insurance Company/Tribunal within one month from the date of receipt of a certified copy of this judgment and the amount shall be transferred to the Bank account directly through NEFT/RTGS mode, within a period of one month thereafter. If the Bank account is not furnished within the time stipulated, it is made clear that no interest shall run on the enhanced amount after the period stipulated by this Court. However, if the Insurance Company fails to deposit the amount as directed, interest MACA No.2472/2019 9 shall run at the rate ordered by the Tribunal from the date of the petition. Appeal allowed as above. ``` Sd/- ``` **BASANT BALAJI, JUDGE** ss