Muhammed Nasil N. v. C.K.Kabeerkutty, Muhammed Hussain Kabirkutty, The Branch Manager, National Insurance Co. Ltd., Suhana

M.A.C.A. No. 1407 of 2021 : 1 : ``` 2025:KER:28993 ``` **==> picture [57 x 57] intentionally omitted <==** ## IN THE HIGH COURT OF KERALA AT ERNAKULAM ## PRESENT THE HONOURABLE MR. JUSTICE JOHNSON JOHN MONDAY, THE 7[TH] DAY OF APRIL 2025 / 17TH CHAITHRA, 1947 ## MACA NO. 1407 OF 2021 AGAINST THE AWARD DATED 19.02.2020 IN OP(MV) NO.801 OF 2015 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, KOLLAM ## APPELLANT/PETITIONER: MUHAMMED NASIL.N., AGED 25 YEARS, S/O. NAZEER, NATSANA MANZIL, MAMOODU, CHANDANTHOPE P.O., KOLLAM DISTRICT-691 014. BY ADVS. R.RAJESH (VARKALA) SRI.M.KIRANLAL SRI.MANU RAMACHANDRAN SRI.T.S.SARATH SHRI.SAMEER M NAIR ## RESPONDENTS/RESPONDENTS: 1 C.K.KABEERKUTTY.S KABIR MANZIL, KURATTIKADU, MANNAR P.O., CHENGANNOOR, ALAPPUZHA DISTRICT-689 622. 2 MUHAMMED HUSSAIN KABIRKUTTY S/O. KABIRKUTTY CHAKKECHIL KOCHUKUNJU, KABIR MANZIL, KURATTIKADU, MANNAR P.O., CHENGANNOOR, ALAPPUZHA DISTRICT-689 622. - 3 THE BRANCH MANAGER, THE NATIONAL INSURANCE CO. LTD., BRANCH OFFICE, IST FLOOR, ENNAKKATTU ESTATE, NEAR K.S.R.T.C BUS STAND, P.B.NO.37, THIRUVALLA, ALAPPUZHA DISTRICT-689 101. 4 SUHANA, W/O. LATE C.K.KABIRKUTTY, KABIR MANZIL, KURATTIKADU, MANNAR P.O., CHENGANNOOR, ALAPPUZHA DISTRICT-689 622. BY ADVS. SRI. GEORGE CHERIAN (SR.) SMT. LATHA SUSAN CHERIAN THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 03.04.2025, THE COURT ON 07.04.2025 DELIVERED THE FOLLOWING: M.A.C.A. No. 1407 of 2021 ``` 2025:KER:28993 ``` : 2 : **==> picture [57 x 57] intentionally omitted <==** ## **JOHNSON JOHN, J.** --------------------------------------------------------M.A.C.A No. 1407 of 2021 -------------------------------------------------------Dated this the 7[th] day of April, 2025. ## **JUDGMENT** The petitioner in O.P.(MV) No. 801 of 2015 on the file of the Motor Accident Claims Tribunal, Kollam filed this appeal seeking enhancement of compensation. 2. According to the petitioner, on 30.04.2015, while he was riding a motorcycle, jeep driven by the 2[nd] respondent in a rash and negligent manner caused to hit the motorcycle and thereby, he sustained serious injuries. The 1[st] respondent is the owner of the offending vehicle and 3[rd] respondent is the insurer. 3. During the pendency of the petition before the Tribunal, the 1[st] respondent died and the additional 4[th] respondent was impleaded as his legal representative. 4. Before the Tribunal, Exhibits A1 to A14 and Exhibit X1 were marked from the side of the petitioner and from the side of the respondents, Exhibit B1 marked. M.A.C.A. No. 1407 of 2021 : 3 : ``` 2025:KER:28993 ``` **==> picture [57 x 57] intentionally omitted <==** 5. The Tribunal recorded a finding that the accident occurred because of the negligence on the part of the 2[nd] respondent and that respondents are jointly and severally liable to pay compensation to the petitioner. The Tribunal awarded a total compensation of Rs.22,68,800/-. 6. Heard Sri.R. Rajesh, the learned counsel for the appellant and Smt. Latha Susan Cherian, the learned counsel for the respondent insurance company. 7. The learned counsel for the appellant argued that the appellant was aged 19 years and earning Rs.25,000/- per month from his occupation as a tailor and for the reason that no evidence is adduced to prove the income, the Tribunal fixed only a notional income of Rs.8,250/- and the same is on the lower side. 8. The decision of the Hon'ble Supreme Court in _**Ramachandrappa v. Royal Sundaram Alliance Insurance Co.Ltd.**_ _**[(2011) 13 SCC 236]**_ and _**Syed Sadiq and Others v. Divisional Manager, United India Insurance Company [(2014) 2 SCC 735 =**_ M.A.C.A. No. 1407 of 2021 ``` 2025:KER:28993 ``` : 4 : **==> picture [57 x 57] intentionally omitted <==** _**2014 KHC 4027]**_ shows that even in the absence of any evidence, the monthly income of an ordinary worker has to be fixed as Rs.4,500/- in respect of the accident occurred in the year 2004 and for the subsequent years, the monthly income could be reckoned by adding Rs.500/- each per year. If the monthly income of the appellant is calculated by adopting the above principle, it will come to Rs.10,000/-, as the accident occurred in the year 2015. Therefore, I find that it is only reasonable to fix the monthly notional income as Rs.10,000/- for the purpose of calculating the compensation. 9. As per Exhibit X1 disability certificate, the appellant is having 10% permanent disability and for the purpose of calculating the compensation for loss of earning capacity, the Tribunal accepted 15% functional disability. Even though this Court, as per order dated 30.10.2024, referred the appellant to the State Medical Board for further examination for assessing the percentage of physical disability, letter dated 17.2.2015 from the Superintendent, Medical College Hospital Thiruvananthapuram shows that the appellant did not appear before the M.A.C.A. No. 1407 of 2021 : 5 : **==> picture [57 x 57] intentionally omitted <==** ``` 2025:KER:28993 ``` Medical Board, in spite of issuing necessary intimation to the appellant to appear before the Medical Board 13.01.2025. ## 10. In _**Raj Kumar v. Ajay Kumar**_ **[(2011) 1 SCC 343]** , the Honourable Supreme Court summarised the principles for ascertainment of loss of earning capacity due to permanent disability as follows: ( _i_ ) All injuries (or permanent disabilities arising from injuries), do not result in loss of earning capacity. ( _ii_ ) The percentage of permanent disability with reference to the whole body of a person, cannot be assumed to be the percentage of loss of earning capacity. To put it differently, the percentage of loss of earning capacity is not the same as the percentage of permanent disability (except in a few cases, where the Tribunal on the basis of evidence, concludes that the percentage of loss of earning capacity is the same as the percentage of permanent disability). ( _iii_ ) The doctor who treated an injured claimant or who examined him subsequently to assess the extent of his permanent disability can give evidence only in regard to the extent of permanent disability. The loss of earning capacity is something that will have to be assessed by the Tribunal with reference to the evidence in entirety. ( _iv_ ) The same permanent disability may result in different percentages of loss of earning capacity in different persons, depending upon the nature of profession, occupation or job, age, education and other factors. In view of the principles laid down by the Honourable Supreme Court in _**Raj Kumar**_ (supra), and the percentage of physical disability assessed M.A.C.A. No. 1407 of 2021 : 6 : ``` 2025:KER:28993 ``` **==> picture [57 x 57] intentionally omitted <==** in Exhibit X1 and the occupation of the appellant, I find no reason to interfere with the functional disability fixed by the Tribunal in the impugned award. 11. The decision of the Hon'ble Supreme Court in _**National Insurance Co. Ltd. v Pranay Sethi [(2017) 16 SCC 680]**_ and _**Jagdish v. Mohan [(2018) 4 SCC 571]**_ shows that the benefit of future prospects should not be confined only to those who have a permanent job and would extend to self-employed individuals and in case of a self-employed person, an addition of 40% of the established income should be made where the age of the victim at the time of the accident was below 40 years. 12. In this case, the Tribunal has not made any addition towards future prospects and therefore, I find that the appellant is entitled for an addition of 40% to the established income towards future prospects for the purpose of calculating the compensation for loss of earning power. When the compensation for loss of earning power due to permanent disability of the appellant is calculated as per the revised criteria mentioned above, the same would come to Rs.4,53,600/- [(10,000 + ``` 2025:KER:28993 ``` M.A.C.A. No. 1407 of 2021 : 7 : **==> picture [57 x 57] intentionally omitted <==** 40%) x 12 x 18 x 15 /100]. The Tribunal has already granted Rs.2,67,300/- under this head. Therefore, the appellant is granted an additional compensation of Rs.1,86,300/- towards compensation for permanent disability and loss of earning capacity. 13. The Tribunal calculated loss of earnings for 8 months and when the same is calculated as per the revised notional income, the appellant is entitled for Rs.80,000/-. The Tribunal has already granted Rs.66,000/- and therefore, an additional compensation of Rs.14,000/- is granted to the appellant towards ‘loss of earning’. 14. Even though the learned counsel for the appellant argued that the compensation granted by the Tribunal for ‘pain and sufferings’ and ‘loss of amenities’ are on the lower side, considering the nature of injuries and period of treatment, I find that Rs.1,00,000/- each granted by the Tribunal under the heads ‘pain and sufferings’ and ‘loss of amenities’ are reasonable and requires no interference. 15. The Tribunal granted bystander's expenses at the rate of Rs.300/- per day for 7 months and considering the facts and M.A.C.A. No. 1407 of 2021 ``` 2025:KER:28993 ``` : 8 : **==> picture [57 x 57] intentionally omitted <==** circumstances of the case, I find that bystander's expenses can be calculated at the rate of Rs.400/- per day and therefore, the appellant is granted additional compensation of Rs.21,000/- towards bystander's expenses. I find that the compensation granted by the Tribunal under all other heads are reasonable and requires no interference. 16. Accordingly, the appellant is entitled to the enhanced compensation as given below: |Particulars|Compensation<br>awarded<br>by<br>the<br>Tribunal (Rs.)|Additional<br>amount<br>granted by<br>this<br>Court<br>(Rs.)| |---|---|---| |Compensation for loss of<br>earning power due to<br>permanent disability|2,67,300/-|1,86,300/-| |Loss of earnings|66,000/-|14,000/-| |Bystander's expenses|63,000/-|21,000/-| |Total enhanced compensation||2,21,300/-| 17. Thus, a total amount of Rs.2,21,300/- (Rupees Two Lakhs Twenty One Thousand and Three Hundred only) is awarded as enhanced compensation. The said amount shall carry interest at the rate of 8% per annum from the date of the application till realization. The appellant M.A.C.A. No. 1407 of 2021 : 9 : **==> picture [57 x 57] intentionally omitted <==** ``` 2025:KER:28993 ``` would also be entitled to proportionate costs in the case. The claimant shall furnish the details of the bank account to the insurance company for transfer of the amount. The appeal is allowed as above. sd/- **JOHNSON JOHN, JUDGE.** Rv