Pramod v. Roy S/o Nelson; C. Mohandas; Oriental Insurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **WEDNESDAY, THE 14[TH] DAY OF JULY 2021 / 23RD ASHADHA, 1943 MACA NO. 1714 OF 2007** **AGAINST THE AWARD IN OP(MV)NO. 868/2002 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,NEYYATTINKARA, THIRUVANANTHAPURAM** ## **APPELLANT/PETITIONER:** **PRAMOD, KATTACHAL VEEDU, ELIYAVOOR PUTHUKULANGARA P.O., NEDUMANGAD.** **BY ADVS. SRI.R.T.PRADEEP SRI.V.VIJULAL** ## **RESPONDENTS:** - **1 ROY, S/O. NELSON, 559, JAYAVILASOM, UNDAPPARA, POOVACHAL P.O., THIRUVANANTHAPURAM.** - **2 C.MOHANDAS, ASWATHY BHAVAN PUTHUKULANGARA, NEDUMANGADU.** **3 THE MANAGER THE ORIENTAL INSURANCE CO.LTD.,, DIVISIONAL OFFICE.NO.II, ST.MARY VILLA,, ULLOOR, MEDICAL COLLEGE P.O., THIRUVANANTHAPURAM.** **BY ADV GEORGE CHERIAN (SR.)** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 14.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA.No.1714 of 2007 _2_ ## **C.S.DIAS,J** - - - - - - - - - - - - - - - - - - - - - - - - MACA No. 1714 of 2007 - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 14[th] day of July, 2021 ## **JUDGMENT** The appellant was the petitioner in OP (MV) No.868 of 2002 on the file of the Motor Accidents Claims Tribunal, Neyyattinkara. The respondents in the appeal were the respondents before the Tribunal 2. The concise facts in the claim petition, relevant for the determination of the appeal are : on 26.05.2002 while the appellant was riding his motorcycle bearing registration KL 01 U/8177 from Poovachal to Konniyoor, when he reached a place named 'Undappara Mosque', another motorcycle bearing registration KL 01 V/3277 (offending vehicle) ridden by the 1[st] respondent in a rash and negligent manner hit the motorcycle of the appellant. The MACA.No.1714 of 2007 _3_ motorcycle was owned by the 2[nd] respondent and insured with the 3[rd] respondent. The appellant was a student pursuing his graduation and was also taking tuitions at home and earning a monthly income of Rs.2,500/-. The appellant sustained serious injuries in the accident. The appellant claimed compensation from the respondent at Rs.2,79,000/-, which was limited to Rs.2,50,000/-. 3. The respondents 1 and 2 did not contest the proceedings. 4. The 3[rd] respondent filed a written statement, _inter alia_ , contending that the appellant was not holding a valid driving licence and was only a student having no income. The 3[rd] respondent also disputed the injury sustained by the appellant. Nevertheless, the 3[rd] respondent admitted that the vehicle of the appellant as well as the offending vehicle had valid MACA.No.1714 of 2007 _4_ insurance policies issued by it. 5. The appellant examined himself and the Doctor who issued the disability certificate as PWs 1 and 2 and ExtsA1 to A18(a) were marked in evidence. The case records pertaining to the treatment of the appellant at the Medical College Hospital was marked as Ext.X1. The copy of the insurance policy of the offending vehicle was marked as Ext.B1. 6. The Tribunal, after analysing the pleadings and evidence on record, allowed the claim petition, in part, by permitting the appellant to realise an amount of Rs.73,240/- with interest at 7.5% per annum from the date of petition till the date of reaslisation. The 3[rd] respondent was directed to pay the compensation amount. 7. Dissatisfied with the quantum of compensation and reduction of permanent disability fixed by the MACA.No.1714 of 2007 _5_ Tribunal, the petitioner is in appeal. 8. Heard Sri.T.R.Pradeep, the learned counsel for the appellant/petitioner and Smt.K.S.Santhi, the learned counsel appearing for the 3[rd] respondentinsurance company. 9. The questions that emanate for consideration in the appeal are (i) whether the Tribunal was justified in reducing disability of the appellant assessed as per Ext.A11 disability certificate which was proved through PW2? and (ii) whether the quantum of compensation awarded by the Tribunal is reasonable and just? 10. Ext.A1 charge-sheet filed by the police substantiates that the accident occurred solely on account of the negligence of the 1[st] respondent, who drove the vehicle in a rash and negligent manner. Undisputedly, the 2[nd] respondent was the owner of the MACA.No.1714 of 2007 **==> picture [7 x 9] intentionally omitted <==** vehicle and the 3[rd] respondent was the insurer of the vehicle. Therefore, the 3[rd] respondent is liable to indemnify the liability caused on account of the accident. 11. The appellant had produced Ext.A11 disability certificate which was issued by PW2. It was categorically found that the appellant has a disability of 15% due to the injuries sustained by the appellant in the accident. PW2 had specifically mentioned that due to the injuries sustained by the appellant, he was unable to carry on with his daily pursuits and would be disabled to perform well as a degree student. Accordingly, the disability was fixed at 15%. 12. The Tribunal arrived at the conclusion that the appellant has only a disability of 11%. 13. The Honourable Supreme Court in **Rajkumar v. Ajayakumar** [2011(1) KLT 620(SC)] has MACA.No.1714 of 2007 _7_ held that the disability of an injured can be proved by examining the Doctor who authors the disability certificate or by getting the disability assessed by a duly constituted Medical Board. 14. In the instant case, the appellant produced Ext.A11 disability certificate, which was proved through PW2 stating that the appellant has disability of 15%. 14. In **Union of India and another v.** **Talwinder Singh** [2012 (5) SCC 480], the Honourable Supreme Court has held that the court should not normally interfere with the opinion of Experts, with its wisdom, as the experts are more familiar with the problems than that of the general opinion of the Courts. 16. In the light of the law laid down in **Rajkumar** and **Talwinder Singh** (supra) I am of the opinion MACA.No.1714 of 2007 _8_ that the Tribunal ought not to have tinkered with the opinion of PW2 in Ext.A11 disability certificate. Hence, I set aside the findings of the Tribunal, which has scaled down the disability of the appellant at 11% from 15% . Accordingly, I re-fix the disability of the appellant at 15%. ## **Notional income** 16. The appellant had claimed that, although he was a student, he used to take private tuitions and earn a income of Rs.2,500/- per month. The Tribunal went on to fix the notional income of the appellant at Rs.2,000/- per month. 18. The Hon'ble Supreme Court in _**Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited**_ [ _(2011) 13 SCC 236_ ] has fixed the notional income of a Coolie worker in the year 2004, at Rs.4,500/- per month. MACA.No.1714 of 2007 _9_ 19. In view of the assertions made by the appellant that he was taking private tuitions and earning an income of Rs.2,500/- per month and also that there is no contra evidence on record, I am of the opinion that the appellant's notional income can safely be fixed at Rs.2,500/- as claimed in the claim petition. Hence, I re-fix the notional income of the appellant at Rs.2,500/- 20. The appellant also claimed that due to the serious injuries that he has sustained as reflected in Ext.A2 wound certificate, Ext.A5 and Ext.A7 discharge cards and Ext.A11 disability certificate, he was incapacitated to carry on his work for a period of six months. ## **Loss of earnings** 21. On a re-appreciation of the pleadings and materials on record and especially the treatment MACA.No.1714 of 2007 _10_ records mentioned above, I am of the opinion that the appellant was incapacitated to carry on with his avocation for a period of six months. In view of the re-fixation of the notional income of the appellant at Rs.2,500, I re-fix the compensation for 'loss of earnings' at Rs.15,000/- as claimed for in the claim petition. ## **Multiplier** 22. The appellant was aged 18 at the time of accident. Therefore, the relevant multiplier as per the law laid down in **Sarala Varma and others v. Delhi Transport Corporation and others** [(2010) 2 KLT 802] is '18'. ## **Loss due to disability** 23. In view of the re-fixation of the notional income of the appellant at Rs.2,500/- and his disability at 15%, I hold that the appellant is entitled for MACA.No.1714 of 2007 _11_ compensation for 'loss due to disability at Rs.81,000/instead of Rs.42,240/- awarded by the Tribunal. 24. With respect to the other heads of compensation , I find that the Tribunal has awarded reasonable and just compensation. 25. On an overall re-appreciation of the pleadings, materials on record and the law referred to in the afore-cited decisions, I am of the definite opinion that the appellant/petitioner is entitled for enhancement of compensation under the aforementioned heads, namely, 'loss due to disability' by a further amount of Rs.38,760/- and compensation for 'loss of earnings' at Rs.15,000/-, totalling to an amount of Rs.53,760/- In the result, the appeal is allowed, in part, by enhancing the compensation by a further amount of Rs.53,760/- with interest at the rate of 7.5% per MACA.No.1714 of 2007 _12_ annum from the date of petition till the date of deposit and proportionate costs. The 3[rd] respondent shall deposit the enhanced compensation awarded in this appeal along with proportionate cost before the Tribunal with interest within a period of two months from the date of receipt of a certified copy of the judgment. The enhanced compensation shall be disbursed to the appellant, in accordance with law. **Sd/-C.S.DIAS,JUDGE** dlK 14.07.2021