M.A.C.A.No.660/2015

M.A.C.A.No.660/2015 1 ## _IN THE HIGH COURT OF KERALA AT ERNAKULAM_ ## _PRESENT_ _THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. FRIDAY, THE 17[TH] DAY OF SEPTEMBER 2021 / 26TH BHADRA, 1943_ ## _MACA NO. 660 OF 2015_ _AGAINST THE ORDER/JUDGMENT IN OPMV 1270/2009 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,PERUMBAVOOR, ERNAKULAM APPELLANT/S:_ _C.S.DEVASIYA, S/O.SOURA, CHENGALAN HOUSE, CHERANALLOOR P.O., CHERANALLOOR KARA, ANGAMALY._ _BY ADVS. SRI.T.K.KOSHY SRI.ABE RAJAN SRI.K.P.PAULOSE_ ## _RESPONDENT/S:_ _1 JOSEPH P.P, PALLICKAL HOUSE, NEAR JBS, ANGAMALY, ERNAKULAM, PIN - 683 572. 2 JULIA JOSEPH, D/O.JOSEPH, PALLICKAL HOUSE, NEAR JBS, ANGAMALY, ERNAKULAM. PIN - 683 572._ _BAJAJ ALLIANZ GENERAL INSURANCE CO.LTD. 3RD FLOOR, FINANCE TOWER, NEW COCHIN STOCK 3 EXCHANGE, KALOOR, ERNAKULAM. PIN - 682 017._ _BY ADVS. SRI.P.T.SEBASTIAN TOMY SRI.AKHIL K.MADHAV_ _THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 17.09.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:_ M.A.C.A.No.660/2015 2 ## **ZIYAD RAHMAN A.A., J.** -------------------------------------------------------M.A.C.A.No.660 of 2015 ---------------------------------------------Dated this the 17[th] day of September, 2021 ## **ORDER** This appeal is filed by the petitioner in O.P. (M.V.).No.1270 of 2009 on the file of the Motor Accidents Claims Tribunal, Perumbavoor. Claim petition was filed by him seeking compensation for the injuries sustained to him in a motor accident occurred on 01.08.2009. According to him he was working as a head-load worker in FCI godown, Angamaly and the monthly income claimed was Rs.10,000/-. He was aged 50 years at the time of accident and he contended that on account of the injuries sustained, his one leg was amputated below the knee. The total amount of compensation claimed was Rs.15,00,000/-. The 1[st] and 2[nd] respondents, who are owner and driver of the vehicle respectively, have chosen not appear and they were set ex parte. The 3[rd] respondent insurance company contested the M.A.C.A.No.660/2015 3 matter by filing a written statement, wherein they admitted the coverage of policy in respect of the vehicle involved in the accident. The negligence and quantum of compensation were also disputed by them. 2. Evidence in this case consists of Exts.A1 to A13 from the side of the appellant. No evidence was adduced from the side of the respondents. After the trial, the Tribunal passed an award holding that the driver of the vehicle was responsible for the accident and the liability to pay the compensation was imposed upon the 3[rd] respondent insurance company. The quantum of compensation was fixed as Rs.7,71,201/- and the insurance company was directed to deposit the said amount along interest at the rate of 8% per annum. Being dissatisfied with the quantum of compensation as above, this appeal is filed. 3. Heard both sides. 4. The learned counsel for the appellant would contend that the quantum of compensation is very low and it requires re-consideration. The appellant mainly pointed out M.A.C.A.No.660/2015 4 inadequacy in the monthly income and also the percentage of disability taken by the Tribunal. He points out that the Tribunal has taken the monthly income as Rs.6,403/-, which was calculated based on Ext.A9 document produced by the petitioner wherein the details of the monthly earnings from August 2006 to July 2008 were shown. He points out that the average income immediately preceding the date of accident was much higher but the said document could not be produced before the Tribunal. Now the appellant has produced Annexure-B wage certificate dated 22.01.2010 which would indicate the total wages which he received from August, 2008 to July, 2009, along with I.A.No.1/2019, with a prayer to accept the same as additional evidence. The total amount mentioned therein is Rs.11,00,92/- and while taking the average of the same, it would come to Rs.9,174/-. He asserts that as the said wage certificate issued by the Food Corporation of India, is the most recent one and it is the most approximate one to the date of accident and it should be taken into consideration. The learned counsel for the M.A.C.A.No.660/2015 5 insurance company seriously opposes the said application and disputes the veracity of said certificate. It is true that the said certificate was not produced before the Tribunal. However, I notice that the original of the said certificate is produced, which is issued by a Government owned organization such as Food Corporation of India. Hence, I do not find any reason to discard the value of the same. It is particularly so, as the provisions relating to the compensation as contained in the Motor Vehicles Act is part of a welfare legislation intended to extend maximum benefits to the victims and to ensure just compensation to them. In such circumstances, technicalities shall not stand in the way while receiving the documents, if the documents are not having any discrepancies. As pointed out above, the certificate produced as Annexure-B, is a certificate issued by a Government organization and it bears the seal of a competent officer of that organization. The figures shown in the said document as remuneration received by the appellant, also appears to be probable and the learned M.A.C.A.No.660/2015 6 counsel for the insurance company also could not point out any discrepancy therein. It is seen that the average monthly wages during the past one year is Rs.9,174/-. It is to be noted that, the accident occurred in the year, 2009. Even if the additional documents produced are not accepted, in my view there is no illegality in fixing the monthly income around Rs.9,000/-. The materials already produced before the Tribunal would certainly indicate that he was a head load worker and was regularly engaged by Food Corporation of India. When the said employment is considered in light of the economic situation prevailed in the year 2009, under no circumstances it can be found that the amount of Rs.9,000/as monthly income of such an employee, is unreasonably high. In such circumstances, I am inclined to fix the monthly income as Rs.9,000/-. 5. Next aspect is relating to the percentage of disability sustained by the appellant. No documents to prove the percentage of disability has been produced. However, the Tribunal, by taking into account the fact that one leg of M.A.C.A.No.660/2015 7 the appellant was amputated below knee, the percentage of disability was taken as 50%, as contained in the Employees Compensation Act. The learned counsel for the appellant is relying upon the **Prathap Narain Singh Deo v. Srinivas Sabata [ (1976) 1 SCC 289]** , **K. Janardhan v. United India Insurance Company Limited and Another [(2008) 8 SCC 518]** , **Basappa v. T.Ramesh [(2014) 10 SCC 789]** and **Raj Kumar v. Ajay Kumar & Anr. [(2011) 1 SCC 343],** in support of his contention that in cases where the victim is employed in an avocation where the physical ability is a material aspect, the loss of earning power has to be assessed in terms of functional disability and not by taking mere pecentage of disability as certified by the doctor or even as prescribed in the Employees Compensation Act. It is noticed that in the aforementioned decisions the Honourable Supreme Court has taken into consideration the various kinds of avocations such as driver, carpender etc and taken higher percentage of disability ranging from 70% to 100% subject to the factual situation in those cases, even though M.A.C.A.No.660/2015 8 the respective disabilities as certified by the medical certificates therein were much lower. In this case, it is evident from the records that he was workng as a head-load worker at the time of accident and it depends completly upon physical fitnes. The loss of one leg would cause serious prejudice to him because, it would not be possible for him to pursue the said avocation any longer. In such circumstances, principles laid down by the Honourable Supreme Court in the said judgments have to be applied in this case and while doing so, I find that the percentage of disability of 50% taken by the Tribunal is on lower side. In my view, the facts and circumstances would justify a functional disability of at least 70%. Accordingly, the functional disability of the petitioner is fixed as 70%. 6. Since the appellant had sufferred serious physical disability, while computing the compensation some addition has also to be made towards future prospects. It can be seen from the documents that the deceased was aged 50 years as on the date of accident. There is no material to M.A.C.A.No.660/2015 9 indicate the exact date of birth of the petitioner. The learned counsel for the appellant would contend that he has not completed the age of 50 years and therefore, he has to be treated as a person belonging to the age group of less than 50 years. In such case, addition to be made towards future prospects would be 15%. However, I am of the view that in the absence of any documents specifically pointing out the exact date birth of the appellant, he has to be treated as a person coming within the age group of 50 to 60 years. In such case, the proper addition to be made is 10% and it is accordingly accepted. While, re-working the compensation with the above revised criteria, the total amount of compensation under the head of permanant disability and consequential loss of earning power would come to Rs.9,14,760/- [9000+10% x 12 x 11 x 70/100]. The Tribunal has already awarded an amount of Rs.5,10,312/- and therefore the balance amount will be Rs.4,04,448/-. 7. Another contention put forward by the learned counsel for the appellant is that he requires to be M.A.C.A.No.660/2015 10 compensated for future treatment expenses. In support of his contention he has produced Annexure-B quotation issued by M/s.Endolite India Ltd., Ernakulam, in which price of artificial limb is seen mentioned. The learned counsel asserts that in order to install artificial limb, he requires the amount as shown in the said certificate, which comes to more than Rs.2,50,000/-. However, the said contention cannot be accepted as such. The appellant has not produced any document before the Tribunal in support of his claim for future medical expenses. The accident has occurred in the year 2009 and he has also suferred amputation of one leg immediately after the accident. The additional document showing the price of the artificial limb is produced only now and the said certificate is of the year 2019. The circumstances would clearly indicate that till this point of time, he was not using the artificial limb and there was no effort from his part to claim such an amount while the said application was pending before the court. Therefore, the claim under this head as such cannot be accepted. Even M.A.C.A.No.660/2015 11 though the claim udner this head has not been established by the appellant, he is entitled for some amount under this head. In the facts and circumstances of the case, I am of the view that, an amount of Rs.1,00,000/- under this head would be a reasonable amount for this purpose and it is awarded. However, the said amount shall carry interest only from the date of this judgment. 8. Even though the learned counsel for the appellant claimed for enhancement of the compensation under the head of pain and suferring as well as loss of amenities, taking into account the amount already awarded by the Tribunal, I am not inclined to accept the said contention. In the above circumstances, the award passed by the Tribunal is modified by granting an additional amount of Rs.5,04,448/- to the appellant. Out of the said amount an amount of Rs.4,04,448/- shall be deposited by the insurance company along with interest @ 8% per annum from the date of petition till realisation. With respect to the remaining amont of Rs.1,00,000/-, the insurance company shall be M.A.C.A.No.660/2015 12 liable to pay the interest only from the date of this judgment, which shall be paid @ 8% per annum. The amount as mentioned above shall be deposited by the insurance company within a period of three months from the date of receipt of a copy of this judgment. Sd/- **ZIYAD RAHMAN A.A.(JUDGE)** DG/22.9.21