Mani v. Manikandan and Shriram General Insurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE BASANT BALAJI** **SATURDAY, THE 18[TH] DAY OF DECEMBER 2021 / 27TH AGRAHAYANA,** ## **1943** ## **MACA NO. 4067 OF 2019** ## **OPMV 1013/2016 OF MOTOR ACCIDENT CLAIMS TRIBUNAL , PALAKKAD APPELLANT/S:** MANI, AGED 49 YEARS S/O. MANDU, 242/5, MARUTHALAPARAMBU, PALAKKAD, PRESENTLY RESIDING AT VADAKKUMURI, VATTEAKKAD POST, ELAVANCHERY, CHITTUR TALUK, PALAKKAD - 678 508. BY ADV BINOY VASUDEVAN ## **RESPONDENT/S:** 1 MANIKANDAN AGED 36 YEARS S/O. DEVASAMUTHU, MARAPPA GOUNDAN PUDUR, PERIYABOTHU, POLLACHI, COIMBATORE, TAMILNADU, PRESENTLY RESIDING AT OPPOSITE OPS NAGAR, CHEMMANAMPATHI SCHOOL, MARAPPA GOUNDAN PUDUR, POLLACHI, TAMILNDU - 641 017. 2 SHRIRAM GENERAL INSURNCE CO. LTD. E8, RIICO, INDUSTRIAL AREA, SILAPURA, JAIPUR, RAJASTHAN - 302022, REPRESENTED BY ITS MANAGER. BY ADV SRI.P.JACOB MATHEW THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 18.12.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **MACA NO. 4067 OF 2019** -2- ## **JUDGMENT** (Dated this the 18[th] day of December 2021) This appeal is filed by the appellant/petitioner in O.P. (M.V.) No.1013 of 2016 on the files of the Motor Accidents Claims Tribunal, Palakkad against the award dated 30.7.2018. 2. The facts in brief are as follows: On 16.2.2016 at about 8.30 p.m., while the petitioner was loading jaggery bags in Tata Ace vehicle, which was parked on side of Kovilakammokke – Pallassena, he was hit down by a tractor bearing Reg.No.TN 65/E-1666, causing serious injuries. He was initially treated at Sai Medical Centre, Kollengode and thereafter, referred to Government Medical College hospital, Thrissur. The accident occurred due to **MACA NO. 4067 OF 2019** -3- the negligence on the side of the first respondent, who was the owner-cum-driver of the offending vehicle at the relevant time. 3. The respondents entered appearance and filed written statement. The 2[nd] respondent/insurer filed separate written statement contending that the amount compensation claimed is exorbitant. The age, occupation and monthly income of the petitioner are disputed. 4. On the side of the petitioner, Exts.A1 to A17 series were marked and on the side of the respondents Ext.B1 was marked. There was no oral evidence adduced on both sides. The Tribunal, on the basis of the evidence adduced awarded a compensation of Rs.2,53,927/- with interest at the rate of 9% per annum from the date of **MACA NO. 4067 OF 2019** petition till the date of deposit. Aggrieved by the said award, this appeal has been filed. 5. Heard the learned counsel on both sides. 6. The main grievance of the learned counsel for the appellant was regarding the compensation granted for future earning power. His contention was that the income taken by the Tribunal was Rs.7,000/-, though he claimed Rs.12,000/- in the claim petition. Moreover, the disability certificate issued by the Orthopedic surgeon attached to the Medical College Hospital, Thissur shows that he has a disability of 15%. There was shortening of leg and mal union of the bone. Though such a certificate was issued, the Tribunal reduced the same and fixed it at 10% without any reason. **MACA NO. 4067 OF 2019** -5- 7. The counsel for the respondent, on the other hand, submitted that the Tribunal reduced the disability to 10%, considering the injuries as seen from the disability certificate and treatment given to him, because though he was given a disability certificate showing 15%, his earning capacity is only to the extent of 10%. 8. In **Syed Sadiq v. Divisional Manager, United India Insurance Co. Ltd. [2014 (2) SCC 735],** relying on the decision reported in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited [2011 (13) SCC 236],** the Apex Court held that the monthly income of a vegetable vendor, who met with a road accident in the year 2008, at the age of 24 years, notionally as Rs.6,500/-. In the said decision, the Apex **MACA NO. 4067 OF 2019** -6- Court held that a labourer in an unorganised sector doing his own business cannot be expected to produce documents to prove his monthly income. Therefore, there was no reason for the Tribunal and the High Court to ask for evidence to prove his monthly income. Going by the state of economy prevailing at that time and the rising prices in agricultural products, the Apex Court accepted the case of the vegetable vendor and fixed a reasonable income at Rs.6,500/- per month. Relying on the said decision, the notional income of the appellant herein is fixed at Rs.10,500/- as the accident happened in the year 2016, though the Tribunal fixed it at only Rs.7,000/-. 9. Ext.A14 is the disability certificate issued by the Orthopedic surgeon attached to the Government Medical **MACA NO. 4067 OF 2019** College, Thrissur, which shows that he has a disability of 15%. The appellant being loading and unloading worker and hence, the disability of 15% can be taken as correct disability and the scaling down of the disability from 15% to 10% is without any reason or evidence. The disability certificate shows that he has shortening of leg and malunion of bone. In such a situation, it cannot be said that the disability is less than 15%, more so when it is certified by an orthopedic surgeon attached to Government Medical College Hospital. Taking Rs.10,500/- as the notional income, the compensation for loss of future earning power can be worked out as Rs.10,500/- x 12 x 13 x 15/100 = 2,45,700/-. The appellant is already granted an amount of Rs.1,09,200/- under the same head. The balance amount **MACA NO. 4067 OF 2019** -8- payable is Rs.1,36,500/-. 10. As far as the loss of earning is concerned, the Tribunal took monthly income as Rs.7,000/-. Since, I am inclined to take Rs.10,500/- as monthly income, the compensation under loss of earning can be worked out as Rs.10,500 x 6 = Rs.63,000/-, out of which he was awarded Rs.42,000/- by the Tribunal. The balance will come to Rs.21,000/-. Thus the total compensation will come to 1,36,500 + 21,000 = Rs.1,57,500/-. In the result, the appeal is allowed and the impugned award is modified and the 2[nd] respondent is ordered to deposit the enhanced compensation of Rs.1,57,500/- with interest at 9% from the date of petition till the date of deposit, before the Tribunal within a period of two months **MACA NO. 4067 OF 2019** -9from the date of receipt of a certified copy of this judgment. The Tribunal shall disburse the enhanced compensation to the appellant/petitioner in accordance with law. sd **BASANT BALAJI, JUDGE** _dl/_