MANOJ @ JOSEPH v. THE MANAGER, THE NEW INDIA ASSURANCE CO. LTD.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR MONDAY, THE 25TH DAY OF SEPTEMBER 2017/3RD ASWINA, 1939 MACA.No. 2151 of 2013 () ------------------------AGAINST THE AWARD IN O.P(M.V)NO.479/2011 of M.A.C.T, PALA DATED 11-07-2013 APPELLANT/PETITIONER: --------------------------- MANOJ @ JOSEPH, S/O.VARGHESE, CHENNAMMATTOM HOUSE, VATTANAL BHAGOM, PANAMANNA KARA, OTTAPALAM TALUK, PALAKKAD DISTRICT. BY ADVS.SRI.THOMAS ABRAHAM (NILACKAPPILLIL) SRI.K.B.ARUNKUMAR RESPONDENT/RESPONDENT: ------------------------------- THE MANAGER, THE NEW INDIA ASSURANCE CO. LTD. MUNICIPAL SHOPPING COMPLEX, PALA, PIN-686575. BY ADV. SRI.JOHN JOSEPH VETTIKAD BY ADV. SRI.C.JOSEPH JOHNY BY SRI.A.A.ZIYAD RAHMAN THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 25-09-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **C.T.RAVIKUMAR & B.SUDHEENDRA KUMAR, JJ.** -----------------------------------M.A.C.A.No.2151 of 2013 -----------------------------------Dated 25[th] September, 2017 ## **JUDGMENT** ## **Ravikumar, J.** This appeal seeking enhancement of quantum of compensation is filed by the injured petitioner in O.P.(M.V)No.479 of 2010 on the files of the Motor Accidents Claims Tribunal, Pala. He filed the said claim petition under Section 166 of the Motor Vehicles Act, claiming a compensation of 3,00,000/- for the injuries sustained by₹ him in a motor vehicle accident occurred on 9.12.2010. On that day, at about 8.30 p.m., he was standing in front of Remya Stores, Choottuvely. He was knocked down by a motorcycle bearing Reg.No.KL-36/B-1C ridden by the first respondent therein. He filed the said claim petition alleging that the accident occurred solely due to the rash and negligent riding of the motorcycle by the first respondent. Before the Tribunal, the petitioner got himself examined as PW1 besides getting marked Exts.A1 to A10. The respondents have not adduced any evidence. Ext.X1 is the copy of the disability certificate issued by the Medical Board attached to Medical College Hospital, Kottayam. The Tribunal, as per the impugned award, granted a total compensation of M.A.C.A..No.2151 of 2013 2 ₹1,82,250/- as compensation with interest at the rate of 7.5% per annum from the date of petition till realisation. The petitioner seeks for enhancement of the said quantum of compensation. 2. We have heard the learned counsel for the appellant as also the learned counsel appearing for the respondent insurance company. 3. In the absence of any dispute regarding the cause of the accident as also the liability of the respondent to indemnify the insured owner of the offending vehicle, the only question to be decided in this appeal is whether the appellant is entitled to enhancement of compensation. 4. The learned counsel for the appellant contended that the Tribunal had erroneously estimated the monthly income of the appellant. It is further submitted that in the claim petition it was specifically averred that the appellant was a hotel waiter and was earning 10,000/- per month. At the same time, it is evident that₹ before the Tribunal, he had not adduced any cogent evidence to prove such averments regarding the occupation and income. When that be the nature of evidence adduced, we cannot found fault with the Tribunal in fixing the monthly income of the appellant notionally. But, at the same time, taking into account the age of the appellant at the time of M.A.C.A..No.2151 of 2013 3 the accident as also the year of the accident and taking the decision of the Hon'ble Apex Court in _**Ramachandrappa** v._ _**Manager, Royal Sundaram Alliance Insurance Company Limited ((2011) 13 SCC**_ _**236)**_ as guidance, in the matter of fixation of the monthly income, we are of the view that the monthly income can be safely fixed as ₹8,000/-. It is accordingly fixed. The learned counsel for the appellant further contended that the Tribunal had wrongly assessed the permanent disability for calculation purpose. Ext.X1 is the disability certificate issued by the Medical Board attached to the Government Medical College Hospital, Kottayam. The permanent disability of the appellant has been certified thereunder as 19%. The learned counsel appearing for the respondent submitted that the assessment of permanent disability made by the Tribunal as 9% for calculation purpose invites no interference as a perusal of the disability certificate would reveal that no reason whatsoever has been assigned by the Board as to how they assessed the said extent of disability. The learned counsel appearing for the appellant handed over a copy of Ext.X1 disability certificate for our perusal. On a careful perusal of Ext.X1 disability certificate we are inclined to accept the contention of the learned counsel appearing for the respondent. True that, when a disability certificate is issued by a duly constituted Medical Board, in the M.A.C.A..No.2151 of 2013 4 absence of any doubt regarding its genuineness it can be accepted and acted upon. But, at the same time, it is to be noted that the evidentiary value of the said document is nothing but is that of an expert evidence. For accepting the same, the certificate should reflect the manner in which disability was assessed. On a careful perusal of the same we do not find any reason assigned by the Board as to how they arrived at the said extent of disability. In that context, it is relevant to refer to Ext.A5 wound certificate and Ext.A7 discharge card. They would go to show that in the accident the appellant had sustained head injury and fracture of left tibia. Ext.X1 would reveal that the neurological disability is 9%. As regards the orthopedic disability no reason whatsoever has been assigned in Ext.X1. Taking into account all such circumstances, we are of the view that for the purpose of calculation 12% can be taken as the disability. It is fixed accordingly. The multiplier was correctly identified by the Tribunal with reference to the age of the injured at the time of the accident. He was aged 38 years going by Ext.A5. The multiplier was rightly identified as `15'. In such circumstances, compensation for permanent disability has to be reassessed by substituting the re-fixed monthly income and also reassessed degree of permanent disability. While effecting calculation, we cannot lose sight of the fact that in deviation of the decision of the M.A.C.A..No.2151 of 2013 5 Full Bench of this Court in **Oriental Insurance Co. Ltd.** v. **Hariprasad (2005 (4) KLT 977 (F.B.)),** in addition to compensation granted for permanent disability the Tribunal has granted compensation for loss of earning power. In this case, 20,250/- was granted under that head.₹ In the light of the dictum laid down by the Full Bench in **Hariprasad's** case (supra), the manner in which compensation was granted by the Tribunal reckoning the permanent disability sustained by the appellant can only be held as irregular. The nature of injuries would constrain us to hold that the appellant is entitled to get compensated for permanent disability only and he is not entitled to get compensated for loss of earning power. In that view of the matter, the appellant is not at all entitled to get the amount of 20,250/- granted as compensation for₹ loss of earning power. This is to be deducted from the amount assessed as compensation for permanent disability. The amount payable as compensation for permanent disability is re-assessed as ₹1,72,800/- (8,000x12x15x12/100). Deducting the amount already granted by the Tribunal, the appellant will be entitled to get an additional compensation of 91,800/-. From the said amount an₹ amount of 20,250/- granted towards loss of earning power has to be₹ deducted and on such deduction the actual additional amount payable as compensation for permanent disability will be 71,550/-.₹ M.A.C.A..No.2151 of 2013 6 5. We will now proceed to consider the question whether the appellant is entitled to get enhanced compensation under any other head. Towards damages to clothing, no amount was awarded by the Tribunal. The nature of the injuries would suggest that the dresses worn by him at the time of the accident must have been spoiled. Hence, we are inclined to grant an amount of 1,000/- towards₹ damages to clothing. Towards extra nourishment, the Tribunal granted an amount of 1,000/-. Taking into account the fact that the accident is₹ of the year 2010 we are of the view that the rate of reimbursement towards extra nourishment ought to have fixed at 100/- per day. He₹ had been an inpatient for 20 days. Hence, the appellant is entitled to get an amount of 1,000/- more under that head. No amount was₹ granted towards loss of amenities. Taking into account the nature of the injuries, the parts on which such injuries sustained and also the extent of degree of disability, we are inclined to grant 10,000/- as₹ compensation for loss of amenities. In the light of the assessment/reassessment made by us, the appellant is entitled to get a total additional compensation of 83,550/- and it is granted. The said₹ additional compensation will carry interest at the rate of 8% per annum from the date of petition till realisation. The respondent insurance company is directed to deposit the said additional compensation along M.A.C.A..No.2151 of 2013 7 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. **Sd/Judge** **C.T.RAVIKUMAR** **Sd/B.SUDHEENDRA KUMAR Judge** TKS