Manoharan v. Suresh, Lukose T. J and The Branch Manager, IFFCO-Tokio Insurance Co. Ltd.

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE K.HARILAL** **WEDNESDAY, THE 14TH DAY OF FEBRUARY 2018 / 25TH MAGHA, 1939** **MACA.No. 1757 OF 2014** **-------------------------** **AGAINST THE AWARD IN OP(MV)NO.1160/2008 OF THE ADDL.M.A.C.T., KOTTAYAM DATED 13.07.2012** ## **PETITIONER/APPELLANT** **--------------------** **MANOHARAN, AGED 43, S/O.DAMODARAN,THEKKEMATTAKKAL ASSARISSERY HOUSE,CHEMMENATHU KARA P.O, VAIKOM** **BY ADV.SRI.P.M.NATESAN** ## **RESPONDENTS/RESPONDENTS:** **-----------------------** ## **1. SURESH, AGED 23 YEARS,** **S/O.CHANDRAN,PUTHENTHARA HOUSE,VAIKOM P.O,VAIKOM, PIN 686 141** ## **2. LUKOSE T.J** **S/O.JOSEPH, THOMMANATH HOUSE, ETTUMANOOR P.O, KOTTAYAM PIN 686 631** **3. THE BRANCH MANAGER IFFCO-TOKIO COMPANY LIMITED, DIVISIONAL OFFICE, KOTTAYAM PIN 686 001** **R3 BY ADVS.SRI.MATHEWS JACOB (SR.)** **SRI.P.JACOB MATHEW** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 14-022018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **vgd** ## **K. HARILAL, J. = = = = = = = = = = = = = = = = = M.A.C.A.No.1757 of 2014** **- - - - - - - - - - - - - - - - - - - - - -** _Dated this the 14[th] day of February, 2018_ ## **J U D G M E N T** The appellant is the petitioner in O.P(MV)No.1160/2008 of the Additional Motor Accidents Claims Tribunal, Kottayam and the said petition was filed under Section 166 of the Motor Vehicles Act claiming a compensation for bodily injury suffered by him in a road traffic accident. The parties are referred to as in the OP(MV).According to the petitioner, when he was travelling in a motor cycle as a pillion rider, the offending autorikshaw came from the opposite direction and hit him down causing injuries on his body. Thus, the accident arose out of the use of the offending vehicle, owned by the 2[nd] respondent, driven by the 1[st] respondent and insured with the 3[rd] respondent. He claimed an amount of `2,00,000/- towards M.A.C.A.No.1757 of 2014 2 compensation for the injuries sustained by him in the said accident. The 3[rd] respondent insurance company opposed the said application, disputing the quantum of compensation claimed under various heads and the cause of accident, but admitted that the offending vehicle was covered under the insurance policy issued by them to the 2[nd] respondent at the time of accident. After considering the evidence adduced by both parties, the Tribunal passed the impugned award, granting `1,34,093/- to the appellant as compensation. The adequacy and correctness of the quantum of compensation determined under various heads of claim are assailed in this appeal. 2. Heard the learned counsel for the appellant and the learned Standing Counsel for the 3[rd] respondent insurance company. 3. In this appeal, it is contended that the Tribunal M.A.C.A.No.1757 of 2014 3 went wrong by reducing the percentage of disability, despite the production of Ext.X1 disability certificate, which would show that the percentage of permanent disability suffered by him is at 15%. But the Tribunal has taken 8% disability only for calculating the compensation for permanent disability. Further, it is contended that no amount was granted for loss of earnings and the learned counsel for the appellant cited the decision in _**S.Manickam vs. Metropolitan Transport Corporation Ltd.**_ **[AIR (2013) SC 2629]** to substantiate the contention that compensation under the head ‘permanent disability’ cannot be denied, for the reason that, compensation has been granted under loss of earning capacity. Per contra, the learned Standing Counsel for the 3[rd] respondent insurance company contended that in the instant case, actually there was no loss of earning capacity, as the petitioner continued his M.A.C.A.No.1757 of 2014 4 employment under the Coir Board, as that of earlier, after the accident and he retired on superannuation at the age of 60 years only. In short, there was no reduction in his earnings after the accident. Therefore, the Tribunal is justified in rejecting the claim under ‘loss of earning capacity’, the learned Standing Counsel contends. 4. In view of the arguments at the Bar, the first point to be considered is, whether there is any illegality or impropriety in the determination of the quantum of compensation under the head ‘permanent disability’. Going by the impugned award, it is seen that the Tribunal has granted `34,560/- towards the compensation for permanent disability and for determining the said compensation, the Tribunal has taken the disability at 9%, though Ext.X1 disability certificate shows that the appellant has sustained 15% permanent disability. But, there is no reasoning for M.A.C.A.No.1757 of 2014 5 reducing the percentage of disability from 15% to 8%. In other words, the reduction of percentage of permanent disability stands unfounded. In the above view, the Tribunal ought to have taken disability at 15% as quantified in Ext.X1 disability certificate. Consequently, the petitioner is entitled to get `64,800/- (`4000 x 15 x 9 x 12/100) as compensation for permanent disability. 5. Further, it is seen that no amount was granted under the head ‘loss of earning capacity’. Is the Tribunal justified in not granting any amount for loss of earning capacity? The learned counsel for the appellant cited **Manickam** ’s case (supra) to substantiate his contention that the compensation for loss of earning capacity and compensation for permanent disability are entirely different and distinct and the Tribunal ought to have granted compensation for loss of earning capacity. Per contra, the M.A.C.A.No.1757 of 2014 6 learned Standing Counsel for the insurance company cited the decision in **The** _**Oriental Insurance Company Ltd. vs. V.Hariprasad**_ [ _**2005(4)KLT 977]**_ and contended that compensation cannot be awarded separately on account of permanent disability and also on account of loss of earning capacity. 6. Coming to the facts of the instant case, this Court finds that, admittedly, the accident occurred when the petitioner was aged 43 years old and he continued his service under the Coir Board as a Mechanic and retired on superannuation at the age of 60 years. From the said admission, it is evident that actually there was no loss of earning capacity and he earned as an employee as that of earlier, after the accident also. Therefore, actually, there is no factual circumstance to consider the question whether compensation for loss of earning capacity and compensation M.A.C.A.No.1757 of 2014 7 for permanent disability are one and the same. Considering the facts and circumstances of the case, the Tribunal is justified in rejecting the claim under loss of earning capacity. 7. In the above analysis, the compensation granted to the appellant will stand re-determined and the appellant is entitled to get an additional compensation of `30,240/-. Thus, the total compensation payable to the appellant is `1,64,333/- (`1,34,093 + `30,240). The learned Standing Counsel for the insurance company submitted that the insurance company had already deposited `1,34,093/- and the appellant received the same. If the 3[rd] respondent insurance company has deposited the said amount, the 3[rd] respondent is required to deposit the balance amount only. It is needless to say that the additional amount would also carry interest as stipulated by the Tribunal. But it is made M.A.C.A.No.1757 of 2014 8 clear that the appellant is not entitled to get interest for 643 days as per the order dated 25.06.2015 passed by this Court in the application for condoning the delay in filing this appeal. All other findings of the Tribunal will stand undisturbed and operative. The M.A.C.A is allowed to the above extent. Sd/- **K. HARILAL, JUDGE** //True copy// vgd PA To Judge