P.S. Siddique S/o. Sulaiman v. Saju S. Dominic and National Insurance Company Ltd. and The United India Insurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **THURSDAY, THE 18TH DAY OF MARCH 2021 / 27TH PHALGUNA, 1942** ## **MACA.No.701 OF 2012** **AGAINST THE AWARD IN OPMV 792/206 DATED 30-03-2011 OF SPECIAL C SPE/CBI-I&3 ADDITIONAL DISTRICT COURT .ADD MOTOR ACCIDENT CLAIMS TRIBUNAL ,EKM** ## **APPELLANT:** **P.S.SIDDIQUE S/O.SULAIMAN, AGED 44 YEARS, RESIDING AT PARAYANTHAZHATHU HOUSE, AYSHA MANZIL, VAZHAKKALA VILLAGE, KAKKANADU P.O., ERNAKULAM.** **BY ADVS. SRI.ANIL S.RAJ SMT.K.N.RAJANI SRI.RADHIKA RAJASEKHARAN P. SMT.ANILA PETER SRI.SAJEN THAMPAN** ## **RESPONDENTS:** **1 SAJU S.DOMINIC S/O.DOMINIC, KOCHAPPALLIL HOUSE, CC 38/409 B, OPPOSITE TO P.O.C. ALINCHUVADU, PALARIVATTOM P.O, KOCHI-682 025. 2 NATIONAL INSURANCE COMPANY LTD. DIVISIONAL OFFICE, ERNAKULAM, KOCHI-681 016. 3 THE UNITED INDIA INSURANCE CO.LTD. CHITTOOR ROAD, ERNAKULAM, KOCHI-682 035. R1 BY ADV. SRI.M.A GEORGENO MEMOBO R1, R3 BY ADV. SRI.RAJAN P.KALIYATH R2 BY ADV. SRI.M.A GEORGE(NO MEMO,B/O)** ## **OTHER PRESENT:** **SRI.LAL GEORGE FOR R2** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 18-03-2021, THE COURT ON 18-03-2021 DELIVERED THE FOLLOWING:** **MACA.No.701 OF 2012** **2** ## **P.V.KUNHIKRISHNAN, J. =================== MACA No. 701 OF 2012 =================== Dated this the 18[th] day of March 2021** ## **J U D G M E N T** This is an appeal filed by the petitioner in O.P. (MV) No. 792/2006 on the file of the Additional Motor Accidents Claims Tribunal, Ernakulam. It is a claim petition filed by the appellant under Section 166 of the Motor Vehicles Act, 1988. This claim petition was disposed of by the tribunal along with O.P. (MV) No.2328 /2007. 2. The case of the petitioner is that while he was riding his motor cycle from east to west direction along the Kakkanad – Palarivattom Road, a car driven by the 1[st] respondent came from the opposite direction and hit on the back of a motor cycle, which was going ahead of the car and thereafter hit against two pedestrains and then hit **MACA.No.701 OF 2012** **3** on the motor cycle on which the petitioner was proceeding. It is stated that the accident occurred solely due to the negligence of the driver of the car. Hence, the claim petition was filed arraying the owner cum driver of the said vehicle as respondent No.1 and insurer as respondent No.2. The petitioner also arrayed the insurer of the motor bike as respondent No.3. 3. To substantiate the case, Exts.A1 to A20 were marked on the side of claimant/petitioner. The petitioner himself was examined as PW1. After going through the evidence and documents, the Tribunal allowed the claim petition and passed an award of Rs.5,89,150/- with interest @ 8% from the date of application till realization. Aggrieved by the quantum of compensation this appeal is filed. 4. Heard the learned counsel for the appellant and the learned counsel for the respondents 1 to 3. 5. The learned counsel for the appellant submitted that, the appellant was a driver by profession and he was **MACA.No.701 OF 2012** **4** aged only 39 years at the time of accident. The learned counsel submitted that, the appellant was even in gulf and he was having a driving license issued from a foreign country. He has also produced his passport. Admittedly, there is amputation of right upper limb below elbow with soft tissue loss form antero distal aspect. Ext. A7 is the photographs of the petitioner herein, which shows that there is amputation from right upper limb. Since the petitioner was a driver by profession, the learned counsel submitted that, there is an occupation disability of 100%. The tribunal assessed the loss of income taking the disability as 55%. According to me, there is complete occupation disability to the petitioner because of his amputation of his upper right limb. The Apex Court in _**S.**_ _**Suresh V. Oriental Insurance Co. Ltd and another (2010 ACJ 487)**_ consider this situation in the following manner. “ 7. The correctness of impugned judgment questioned mainly on the ground that the claimant being a lorry driver, the loss of his right leg ipso facto meant a total disablement' as understood in **MACA.No.701 OF 2012** **5** terms of Section 2 (1) (1) of the Act and as such compensation payable to the claimant had to be computed on that basis. In support of the plea, reliance is placed on a four-Judge Bench decision of this court in Pratap _Narain Singh Deo v. Shrinivas Sabata,_ 1976 ACJ 141 (SC). In that case, a carpenter had suffered amputation of his left arm from elbow. This court held that this amounted to a total disability as the injury was of such a nature that the claimant had been disabled from all work which he was capable of performing at the time of accident. It was observed as under: “(5) The expression 'total disablement has been define in Section 2(1) (1) of the Act as follows: (1) “total disablement means such disablement whether of a temporary or permanent nature, as incapacitates work man for all work which he was capable of performing at the time of the accident resulting in such disablement. It has not been disputed before us that the injury was of such nature as to cause permanent disablement to the respondent, and the question for consideration is that whether the disablement incapacitated the respondent for all work which he was capable of performing at the time of accident. The Commissioner has examined the question and recorded his finding as follows: "The injured workman in this case is carpenter by profession... By loss of the left hand above elbow, he has evidently been rendered unfit for the work of carpenter as the work of carpentry cannot be done by one hand only This is obviously a reasonable and correct finding." 8. In our view, the ratio of the said judgment is squarely applicable to the facts at hand. We are of the opinion that on account of amputation of his right leg below knee, he is rendered unfit for the work of a driver, which he was performing at the time of the accident resulting in the said disablement. Therefore, he has lost 100 per cent **MACA.No.701 OF 2012** **6** of his earning capacity as a lorry driver, more so, when he is disqualified from even getting a driving licence under the Motor Vehicles Act.” 6. In the light of the above decision it is clear that the petitioner has a loss of 100% of his earning capacity as a driver. If that is the case, the appellant is entitled more amounts for compensation for loss of earning power. 7. The total compensation prayed by the petitioner is only Rs.7,68,000/-. I already found that there is 100% disability to the appellant as far as earning capacity is concerned. The Tribunal found that the monthly income of the appellant is only Rs.3,500/-. The petitioner claimed that he was getting an amount of Rs.4,000/- per month. The accident occurred in the year 2005. Therefore, Rs.4,000/- can be safely fixed as his monthly income. 8. The compensation for the loss of income due to disability can be re-assessed in the following manner: Rs.4,000 X 12 X 16= Rs.7,68,000/- 9. Therefore, the balance amount entitled by the **MACA.No.701 OF 2012** **7** appellant for loss of earning power can be summarised like this. Rs.7,68,000 - Rs.3,69,600 = Rs.3,98,400/-. 10. The appellant is entitled an additional compensation of Rs. 3,98,400/- towards loss of income due to disability. 11. The Tribunal awarded only an amount of Rs. 25,000/- towards pain and sufferings. Towards pain and sufferings an additional amount of Rs.15,000/- can be given because of the serious injury sustained by the appellant and trauma he faced after the accident. Therefore, the enhanced compensation entitled by the appellant can be summarised like this. Compensation for loss of earning power – Rs.3,98,400/- **Total - Rs.4,13,400/-** **MACA.No.701 OF 2012** **8** 12. The appellant is entitled for an enhanced compensation of Rs. 4,13,400/- with interest at the rate of 8% per annum from the date of filing the petition till realisation. In the result, the appeal is allowed. The impugned award is modified to the effect that the appellant is entitled enhanced compensation amount of Rs.4,13,400/with interest at the rate of 8% p.a., from the date of petition till realisation. The second respondent is directed to pay the enhanced compensation amount with interest to the petitioner. **(Sd/-) P.V.KUNHIKRISHNAN JUDGE** LU/Al