Rajan v. Muneera and Others (MACA No. 349 of 2010)

MACA.No.349/2010 1 # _IN THE HIGH COURT OF KERALA AT ERNAKULAM_ _PRESENT_ _THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A._ _MONDAY, THE 27[TH] DAY OF NOVEMBER 2023 / 6TH AGRAHAYANA,_ _1945_ ## _MACA NO. 349 OF 2010_ _AGAINST THE ORDER/JUDGMENT OPMV 623/2005 OF MOTOR ACCIDENT_ _CLAIMS TRIBUNAL , IRINJALAKUDA_ ## _APPELLANT/PETITIONER IN OP(MV):_ _RAJAN,_ _NORTH THORAVU DESOM, THORAVU VILLAGE, PUDUKKAD.P.O, MUKUNDAPURAM TALUK, THRISSUR DISTRICT._ _BY ADVS. SRI.P.V.BABY SRI.A.N.SANTHOSH_ ## _RESPONDENTS/RESPONDENTS IN O.P(MV):_ - _1 SMT.MUNEERA, W/O.AMEEN, 200/6 BUSHARA MANZIL, MUZHAPPILANGAD.P.O., KANNUR._ - _2 ABDUL RAHIM.S., S/O.KADAKKUM MUKALEL SHAMSUDEN, SAMKRANI DESOM, PERUMPAYIKKAD VILLAGE, KOTTAYAM DISTRICT._ _3 THE NATIONAL INSURANCE CO. LTD., THALASSERY._ _BY ADVS.LAL GEORGE Deepa George George_ _THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 27.11.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:_ MACA.No.349/2010 2 ## **JUDGMENT** This appeal is submitted by the claimant in O.P. (MV).No.623 of 2005 on the files of the Motor Accidents Claims Tribunal, Irinjalakuda. 2. The said claim petition was submitted by him seeking compensation for the injuries sustained to him in a motor accident that occurred on 11.01.2005. According to him, he was hit by a motorcycle bearing registration No.KL-13/M 3468, ridden by the 2[nd] respondent, while he was walking through the road. The vehicle was owned by the 1[st] respondent and insured with the 3[rd] respondent/Insurance Company. According to him, he was a manual labourer, aged 30 years. Consequent to the injuries, he sustained physical disablement. The extent of such disablement was certified by the Medical Board as 30% and functional disability as 60%. The claim petition was submitted in such circumstances. 3. The 3[rd] respondent Insurance Company filed a written statement admitting the coverage of the policy in relation to the motorcycle, but they disputed the liability on MACA.No.349/2010 3 various grounds. They also disputed the quantum of compensation and the negligence on the part of the 2nd respondent. The said claim petition was tried along with O.P. (MV).No.624 of 2005. 4. The evidence in this case consists of Exts.A1 to A11 from the side of the appellant. Medical records were produced as Ext.X1 and X2. After the trial, the Tribunal came to the conclusion that the accident occurred due to the negligence on the part of the 2[nd] respondent in riding the motorcycle and being the insurer, the 3[rd] respondent was held liable to pay the compensation. The quantum of compensation was fixed as Rs.1,44,950/- and the 3[rd] respondent was directed to deposit the said amount along with interest at the rate of 7% per annum from the date of petition till realization. This appeal is submitted in such circumstances seeking enhancement of compensation. 5. Heard Sri.P.V.Baby, learned counsel for the appellant and Smt.Deepa George, learned counsel for the 3[rd] respondent Insurance Company. MACA.No.349/2010 4 6. The learned counsel for the appellant points out that the amounts awarded by the Tribunal under various heads as compensation are grossly inadequate, whereas the learned counsel for the 3[rd] respondent would oppose the said contention by highlighting that a reasonable amount has been awarded by the Tribunal. 7. After considering the materials placed on record, I find some force in the contention of the learned counsel for the appellant. The first dispute is concerned with the percentage of disability taken by the Tribunal. By relying upon the Ext.X1 disability certificate, the learned counsel for the appellant contends that the Medical Board found 43% physical disability, and the loss of earning capacity was found to be 60%. However, the Tribunal accepted only 35%. I have carefully gone through the Ext.X1 disability certificate. Of course, it is true that as per the said certificate, visual disability was certified as 30% and the loss of earning capacity consequent to the same as 30%. In addition to the above, neuropsychiatric disability of 20% was assessed by the Medical Board, and loss of earning capacity consequent to the same is 30%. The total disability was MACA.No.349/2010 5 evaluated as 43% and the consequential loss of earning capacity as 60% as per the said medical report. In the said certificate, a detailed discussion as to the disability suffered by the appellant has been mentioned, with reasons for making such an assessment. It is mentioned that vision of the right eye is 6/9, and there is no perception of light in the left eye. On carefully going through the contents of the same and the detailed assessment made by the Medical Board, I find no discrepancies therein which would warrant taking a different percentage as loss of earning capacity. Evidently, the appellant had sustained loss of eyesight in one eye and suffered neuropsychiatric disability as well. The aforesaid aspects were seen specifically taken into account by the Medical Board, arriving at functional disability and hence, I do not find anything wrong in accepting the loss of earning capacity as certified therein. 8. In such circumstances, the loss of earning capacity of the appellant is accepted as 60%. It is also to be noted in this regard that, as per the provisions of the Employees Compensation Act, what is relevant for determining the earning capacity is the certification by a qualified medical practitioner. MACA.No.349/2010 6 In this case, an assessment was made by a medical board consisting of a panel of five doctors with expertise, and hence, I do not find any justification for rejecting such an assessment. 9. The next aspect is with respect to the monthly income. The appellant claimed to be a manual labourer, and the monthly income claimed is Rs.3,000/-. The learned counsel for the appellant contended that even though the amount claimed was only Rs.3,000/- a realistic assessment needs to be made, taking note of the realities that prevailed in the year 2005. The learned counsel also points out that, as per the method of computation of monthly income evolved from the principles laid down by the Honourable Supreme Court in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Co. Ltd. [2011 (13) SCC 236]** and **Syed Sadiq v. Divisional Manager, United India Insurance Co.[2014 (2) SCC 735],** under no circumstances can the monthly income of an ordinary employee, even in the absence of evidence, be less than Rs.5,000/- in respect of an accident in the year 2005. 10. After examining the materials placed on record, I am inclined to accept the said contention of the appellant, even MACA.No.349/2010 7 though the same was opposed by the learned counsel for the 3[rd] respondent/Insurance Company by pointing out that, as the monthly income claimed was Rs.3,000/-, there is no necessity to accept the higher income. However, the fact that the appellant was a manual labourer with no static income cannot be ignored. Usually, the monthly income of such workers depends upon the work they get, and it varies from month to month. Therefore, much significance cannot be given to the monthly income mentioned in the claim petition. Moreover, the chances of a lower monthly income being conveyed to the counsel while providing instructions to the counsel for preparing the claim petition also cannot be ruled out because of the poor educational background and financial backwardness of those employees. As far as the provisions relating to the compensation under the Motor Vehicles Act are concerned, the same are part of welfare legislation, and there is a duty cast upon the Tribunal and this Court to ensure “just compensation”. While adjudicating the said question, this Court has to essentially take into consideration, the realities existing as on the date of the accident and should make a realistic assessment to ensure "just MACA.No.349/2010 8 compensation". In **Minu Rout v. Satya Pradumna Mohapatra [2013(3) KLT Online 1128 (SC)],** the Honourable Supreme Court has pleased to take the monthly income of the victim therein more than what was claimed in the claim petition. In such circumstances, I do not find any legal impediment in taking a higher monthly income than mentioned in the claim petition, as this Court is convinced that the facts and circumstances of the case justify the adoption of a higher monthly income, and I find this as a fit case in which such a view needs to be taken. In such circumstances, the monthly income is fixed as Rs.5,000/-. 11. While re-working the compensation with the revised monthly income and the percentage of disability as 60%, the compensation would come to Rs.6,12,000/- [5000 x 12 x 17 x 60/100]. The amount already awarded by the Tribunal is Rs 91,800/-; thus, the additional compensation would come to Rs.5,20,200/-. 12. Consequent to the revision of monthly income, the appellant would be entitled to an additional amount under the head of loss of earnings. The Tribunal awarded compensation MACA.No.349/2010 9 of RS 7,500/-, which was calculated at the rate of Rs.1500/- for a period of five months. Thus, the additional compensation would come to Rs.17,500/- [(5000x5)-7500]. 13. Another head which requires re-consideration is pain and suffering. The Tribunal awarded an amount of Rs.20,000/under this head, which appears to be on the lower side. It is a fact that this is a case in which serious injuries were sustained, and the appellant had undergone prolonged treatment. Moreover, the injuries resulted in 43% permanent disability and 60% functional disability. Considering all the relevant aspects, I am of the view that a further sum of Rs.10,000/- can be granted under the head. Similarly, the amount awarded towards loss of amenities and discomfort was Rs.10,000/-, which also appears to be on the lower side. Considering the nature of the injuries and functional disability, a further sum of Rs.20,000/- is awarded under this head. Thus, the additional compensation awarded is Rs.5,67,700/[520200+17500+10000+20000]. In the light of the aforesaid observations and findings, this appeal is allowed. The award dated 10.09.2009 passed by the MACA.No.349/2010 10 Motor Accidents Claims Tribunal, Irinjalakuda in O.P. (MV).No.623 of 2005 is hereby modified by granting an additional compensation of Rs.5,67,700/- (Rupees five lakhs sixty seven thousand seven hundred only) to the appellant, and the 3[rd] respondent Insurance Company is directed to deposit the said amount along with interest at the rate as ordered by the Tribunal and proportionate costs, within a period of three months from the date of receipt of a copy of this judgment. _Sd/-_ **ZIYAD RAHMAN A.A. JUDGE** DG/30.11.23