MACA.No.1083 of 2014 against the Award in O.P.(M.V) No.943/2011 of Motor Accidents Claims Tribunal, Pala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN TUESDAY, THE 20TH DAY OF JUNE 2017 / 30TH JYAISHTA, 1939 **MACA.No. 1083 of 2014** AGAINST THE AWARD IN O.P(M.V)No.943/2011 of MOTOR ACCIDENTS CLAIMS TRIBUNAL, PALA DATED 28-12-2013 ## **APPELLANT** (S)/PETITIONER MADHU, S/O.SOMAN, THAYYIL HOUSE, VALAKOTTU KARA, VAGAMON VILLAGE, UPPUTHARA, IDUKKI DISTRICT. BY ADVS.SRI.MATHEW JOHN (K) SRI.DOMSON J.VATTAKUZHY ## **RESPONDENTS** /RESPONDENTS: 1. UNNI, S/O.JOHN, 229, VALIYAVILAYIL HOUSE, KARIMKULAM, 5 CHAPPATHU, PACHAKKADU, AYYAPPANCOIL, IDUKKI, 685507. 2. THE MANAGER, NEW INDIA ASSURANCE CO.LTD., MUNICIPAL COMPLEX BUILDINGS, PALA-686575. R2 BY ADV. SRI.PMM NAJEEB KHAN R BY SRI.A.A.ZIYAD RAHMAN THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 20-06-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **C.T.RAVIKUMAR & ANIL K. NARENDRAN, JJ.** ------------------------------- M.A.C.A.No.1083 of 2014 -------------------------------Dated 20[th] June, 2017 ## **JUDGMENT** ## **Ravikumar, J.** This appeal is preferred against the judgment and award dated 28.12.2013 in O.P.(M.V)No.943 of 2011 passed by the Motor Accidents Claims Tribunal, Pala. The appellant filed the said claim petition under Section 166 of the Motor Vehicles Act seeking a compensation of 3,00,000/- for the injuries sustained by him in a₹ motor vehicle accident occurred on 24.6.2011. He was then riding his motor cycle bearing Reg.No.KL-37/A-2398 from Chappathu to Parappu. When he reached near Parappu the Jeep bearing Reg.No.KL-05/G-1573 came from the opposite direction and dashed against his motorcycle. On sustaining injuries, the appellant was taken to hospital and he remained there as an inpatient for a period of 14 days. The injuries sustained by him in the accident resulted in permanent disability. It is in the said circumstances that the claim petition was filed. Before the Tribunal, the appellant got examined as PW1 and Exts.A1 to A14 were marked on his side. Ext.X1 is the disability certificate issued in respect of the appellant by the Medical Board attached to Medical College MACA.No.1083/2014 2 Hospital, Kottayam. No evidence, either oral or documentary, was adduced by the respondents. On evaluating the evidence on record and appreciating the rival contentions, the Tribunal had granted an amount of 2,19,790/- as compensation with interest at the rate of 7.5% per₹ annum from the date of petition till realisation. It is seeking enhancement of the quantum of compensation that the captioned appeal has been preferred. 2. Heard. 3. Evidently, the main grievance of the appellant is with respect to the fixation of the monthly income of the appellant as ₹6,000/- disregarding the evidence adduced by him to prove his occupation and income and also the assessment of permanent disability as 12% ignoring Ext.X1 disability certificate issued by a duly constituted Medical Board. The contention of the appellant is that the Tribunal ought to have taken into account the evidence adduced by him that at the time of the accident he was working as a pump operator though on temporary basis with the Water Authority and was earning 9,000/- per₹ month. It is the further contention that since the permanent disability is assessed under Ext.X1 as 33.75%, the Tribunal ought not to have effected any reduction in the percentage of permanent disability without assigning any specific reasons therefor. The only reason assigned by the Tribunal is that Ext.X1 was not properly proved before the Tribunal. MACA.No.1083/2014 3 In short, it is contended that the erroneous fixation of the monthly income and the erroneous assessment of the extent of permanent disability resulted in deprivation of `just compensation.' The learned counsel appearing for the second respondent contended that the Tribunal had fixed the monthly income correctly as the appellant himself had deposed before the Tribunal that he got no permanent employment and was working only on temporary basis as pump operator. In such circumstances, it is contended that the appellant cannot contend that he was having a monthly income of 9,000/-. It is further contended that₹ since Ext.X1 medical certificate was not properly proved before the Tribunal the Tribunal is right in declining to accept the entire extent of disability certified thereunder and also in assessing the same as 12%. It is the further contention that a bare perusal of the schedule of compensation given under the impugned award would reveal that the appellant was adequately compensated under all heads. 4. We will firstly consider the question whether the Tribunal is justified in declining to accept the percentage of disability certified under Ext.X1 in its entirety. Going by Ext.X1, which is the disability certificate issued by the Medical Board attached to Medical College Hospital, Kottayam the appellant had incurred a disability of 33.75%. A scanning of the impugned award would reveal that the Tribunal had declined to accept the certification thereunder assigning the sole reason MACA.No.1083/2014 4 that the same was not properly proved. In this context, it is relevant to refer to the decision of the Hon'ble Apex Court in **Raj Kumar** v. **Ajay Kumar (2011 (1) KLT 620 (SC)).** Going by the said decision, when the permanent disability was assessed by a duly constituted Medical Board, in the absence of specific reasons for declining to accept the percentage of disability certified thereunder, there is absolutely no reason to decline to accept the certification thereunder. The reason that the members of the Board who issued the disability certificate were not examined cannot be assigned as a reason to decline to accept the same. True that, when a disability certificate is issued by a doctor who treated the injured or who assessed the permanent disability on scrutiny of treatment records the mere production of such disability certificate issued by such a doctor could not be taken as a proof in regard to the extent of disability unless the doctor who treated the claimant and who medically examined the claimant and assessed the disability, was examined. Since the disability certificate is issued in this case by a duly constituted Medical Board attached to Medical College Hospital, we do not find any reason to decline to accept the certification of permanent disability thereunder. Hence, for the purpose of calculation of compensation for permanent disability it is assessed as 33.75%. The Tribunal had correctly adopted the multiplier with reference to the age of the appellant as `16'. The next question to be MACA.No.1083/2014 5 considered is whether the Tribunal is justified in fixing the monthly income of the appellant notionally and if so, whether the fixation of monthly income as 6,000/- invites interference. In the claim petition₹ the appellant stated that he was working as pump operator with the Water Authority. While being examined as PW1, he deposed that he is working with the Water Authority only on temporary basis. In such circumstances, we do not find fault with the Tribunal in fixing the monthly income of the appellant notionally for calculation purpose. But, then the question is whether the fixation of 6,000/- as his monthly₹ income invites interference. The accident occurred on 24.6.2011 and the appellant was then aged 33 years. Taking into account such factors and also taking note of the decision of the Hon'ble Apex Court in _**Ramachandrappa**_ v. _**Manager, Royal Sundaram Alliance Insurance Company Limited ((2011) 13 SCC 236)**_ wherein the Hon'ble Apex Court fixed the monthly income of a coolie as 4,500/- for₹ calculation purpose that too, in an accident occurred in 2004 we are of the view that the fixation of monthly income as 6,000/- invites₹ interference. Taking into account the aforesaid aspects we deem it fit to fix the monthly income of the appellant as 7,500/-. It is fixed₹ accordingly. With the re-fixed monthly income and also re-assessed permanent disability the compensation for permanent disability has to be re-assessed. On such re-assessment, the appellant would be MACA.No.1083/2014 6 entitled to get an amount of 4,86,000/- (7,500x12x16x33.75/100) as₹ compensation for `permanent disability'. The Tribunal has already granted 1,38,240/- under that head. After deducting the said amount,₹ the appellant would be entitled to get an amount of ₹ 3,47,760/additionally under that head. It is awarded. Despite the fact that the appellant had sustained permanent disability and he had sustained fracture of cervical vertebra and remained as an inpatient for 14 days the Tribunal had not granted any amount towards `loss of amenities'. Taking into account all such matters, we are of the view that an amount of 20,000/- can be granted under that head. It is awarded. Based on₹ the re-fixed monthly income and retaining the period of loss of earning as fixed by the Tribunal, the appellant would be entitled to get an amount of 6,000/- more towards `loss of earning'. No amount was₹ granted by the Tribunal towards damage to clothing. The appellant claimed an amount of 1,000/- under that head. The nature of the₹ injuries would suggest that the dresses worn by him at the time of the accident must have been damaged. We are inclined to grant 500/-₹ under that head. In the light of the re-assessment and enhancement made by us as above, the appellant would be entitled to get a total additional compensation of 3,74,260/-. It is awarded. The said additional₹ MACA.No.1083/2014 7 compensation will carry interest at the rate of 8% per annum from the date of petition till realisation. Since the insurance coverage of the vehicle is not disputed, the second respondent is directed to deposit the said amount along with interest within a period of two months from the date of receipt of a copy of this judgment. There will be no order as to costs. It is seen that the appellant had limited the claim before the Tribunal to 3,00,000/-. In such circumstances, before releasing the₹ amount of compensation as enhanced the Tribunal shall recover the balance court fee payable, in accordance with law. There will be no order as to costs. Sd/- **C.T.RAVIKUMAR Judge** Sd/- **ANIL K. NARENDRAN Judge** TKS // true copy // P.S. To Judge