RadhaKrishnan v. Murshid, Latheesh George and United India Insurance Co. Ltd.

M.A.C.A. No. 317/2021 : 1 : ``` 2025:KER:30766 ``` **==> picture [57 x 57] intentionally omitted <==** IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE JOHNSON JOHN WEDNESDAY, THE 9[TH] DAY OF APRIL 2025 / 19TH CHAITHRA, 1947 ## MACA NO. 317 OF 2021 AGAINST THE AWARD DATED 10.06.2020 IN OP(MV) NO.82 OF 2017 OF ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL, MANJERI ## APPELLANT/APPLICANT: RADHAKRISHNAN, AGED 63 YEARS, S/O. DAMODARAN NAIR, KRISHNA NIVAS HOUSE, MUTHEERI, NILAMBUR RS P. O., NILAMBUR TALUK, MALAPPURAM DISTRICT - 679 330. BY ADVS. SRI. GEORGE MATHEW SRI.M.D.SASIKUMARAN SRI.PRAVEEN S. SRI.SUNIL KUMAR A.G SRI.DIPU JAMES SRI.MATHEW K.T. SRI.GEORGE K.V. SMT.ELSA DENNY PINDIS ## RESPONDENTS/RESPONDENTS: - 1 MURSHID, S/O. HAMZA, VALIYAPEEDIYAKKAL HOUSE, BHOODANAM P.O., KODALIPOYIL, POTHUKALLU, NILAMBUR TALUK, MALAPPURAM DISTRICT - 679 334. - 2 LATHEESH GEORGE, S/O. GEORGE, PUTHUPARAMBIL HOUSE, BHOODANAM P. O., NILAMBUR TALUK, MALAPPURAM DISTRICT - 679 334. - 3 THE UNITED INDIA INSURANCE CO. LTD., A.M. BUILDING, HOSPITAL ROAD, CHETTIYANGADI, NILAMBUR P. O., MALAPPURAM DISTRICT - 679 329. R3 BY ADV SRI.RAJAN P.KALIYATH THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 08.04.2025, THE COURT ON 09.04.2025 DELIVERED THE FOLLOWING: M.A.C.A. No. 317/2021 : 2 : ``` 2025:KER:30766 ``` **==> picture [57 x 57] intentionally omitted <==** ## **JOHNSON JOHN, J.** --------------------------------------------------------M.A.C.A No. 317 of 2021 -------------------------------------------------------Dated this the 9[th] day of April, 2025. ## **JUDGMENT** The petitioner in O.P.(MV) No. 82 of 2017 on the file of the Additional Motor Accident Claims Tribunal-II, Manjeri filed this appeal seeking enhancement of compensation 2. According to the petitioner, on 26.04.2016, while he was walking through the side of the road, motorcycle ridden by the 1[st ] respondent in a rash and negligent manner caused to hit him and thereby, he sustained serious injuries. The 2[nd] respondent is the owner and the 3[rd] respondent is the insurer of the offending vehicle. 3. Before the Tribunal, Exhibits A1 to A12 and Exhibit X1 were marked from the side of the petitioner and no evidence adduced from the side of the respondents. 4. The Tribunal recorded a finding that the accident occurred because of the negligence on the part of the 1[st] respondent and that the respondents are liable to pay compensation to the petitioner. The M.A.C.A. No. 317/2021 : 3 : ``` 2025:KER:30766 ``` **==> picture [57 x 57] intentionally omitted <==** Tribunal awarded a total compensation of Rs.2,19,540/- to the petitioner. 5. Heard Sri. George Mathew, the learned counsel for the appellant and Sri.Rajan P. Kaliyath, learned counsel for the respondent insurance company. 6. The learned counsel for the appellant argued that the appellant was aged 59 years and earning Rs.20,000/- per month from his occupation as a driver and the Tribunal fixed only Rs.10,500/- as notional income. 7. The learned counsel for the respondent insurance company pointed out that no evidence is adduced to prove the occupation and income of the appellant and it was in that circumstance, the Tribunal fixed a notional income of Rs.10,500/-. 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 = 2014 KHC 4027]**_ shows that even in the M.A.C.A. No. 317/2021 ``` 2025:KER:30766 ``` : 4 : **==> picture [57 x 57] intentionally omitted <==** 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. 8. If the monthly income of the appellant is calculated by adopting the above principle, it will come to Rs.10,500/- as the accident occurred in the year 2016. Therefore, considering the facts and circumstances, I find no reason to interfere with the monthly notional income fixed by the Tribunal for calculating the compensation. 9. The learned counsel for the appellant argued that as per Exhibit X1 disability certificate issued by the District Medical Board, Government General Hospital, Manjeri, the appellant is having 30% permanent disability. But, the Tribunal accepted only 13% functional disability for the purpose of calculating the compensation and the same is on the lower side. ## 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: M.A.C.A. No. 317/2021 ``` 2025:KER:30766 ``` : 5 : **==> picture [57 x 57] intentionally omitted <==** ( _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. 11. The Tribunal recorded a finding that the appellant was aged 61 years at the time of accident without referring to any document and a perusal of Exhibit A4, copy of the driving licence of the appellant shows his date of birth as 15.11.1956. Therefore, it can be seen that as on the date of accident, he was aged only 59 years. The multiplier applicable for persons aged between 56-60 years is ‘9’ as per the decision of the Honourable Supreme Court in _**Sarla Varma v. Delhi Transport Corporation [2010 (2) KLT 802 (SC)].**_ M.A.C.A. No. 317/2021 ``` 2025:KER:30766 ``` : 6 : **==> picture [57 x 57] intentionally omitted <==** _12._ 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 10% of the established income should be made, where the age of the victim at the time of the accident was between 50-60 years. 13. From Exhibit X1 disability certificate, it can be seen that the appellant is having loss of hearing and balance. Therefore, considering the nature of injuries, physical disability assessed in Exhibit X1, age and occupation of the appellant, I find that 25% functional disability can be accepted for the purpose of calculating the compensation for permanent disability and loss of earning capacity. When the compensation for permanent disability and loss of earning capacity is calculated as per the revised criteria, the same would come to Rs.3,11,850/- [(10500 + 10%) x 12 x 9 x 25/100]. The Tribunal has already granted Rs. 1,14,660/- M.A.C.A. No. 317/2021 ``` 2025:KER:30766 ``` : 7 : **==> picture [57 x 57] intentionally omitted <==** under this head. Therefore, the appellant is granted an additional compensation of Rs.1,97,190/- under this head. 14. The Tribunal has granted ‘loss of earnings’ only for 4 months and considering the nature of injuries and period of treatment, I find that loss of earnings can be granted for 5 months and therefore, an additional compensation of Rs.10,500/- is granted towards ‘loss of earnings’. 15. The learned counsel for the appellant argued that the Tribunal has granted only Rs.25,000/- towards ‘pain and sufferings’ and only Rs.10,000/- towards loss of amenities. Considering the nature of injuries, period of treatment and disability, additional compensation of Rs.10,000/- each is granted to the appellant under the heads—‘pain and sufferings’ and ‘loss of amenities’. 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: M.A.C.A. No. 317/2021 : 8 : ``` 2025:KER:30766 ``` **==> picture [57 x 57] intentionally omitted <==** |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<br>permanent disability and<br>loss of earning capacity|1,14,660/-|1,97,190/-| |Loss of earnings|42,000/-|10,500/-| |Pain and sufferings|25,000/-|10,000| |Loss of amenities|10,000/-|10,000/-| |Total enhanced compensation||2,27,690/-| 17. Thus, a total amount of Rs.2,27,690/- (Rupees Two Lakhs Twenty Seven Thousand Six Hundred and Ninety only) is awarded as enhanced compensation. The said amount shall carry interest at the rate of 9% per annum from the date of the application till realization. The appellant 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