Samuel v. United India Insurance Company Ltd.

MACA.No.1345/13 1 ## _IN THE HIGH COURT OF KERALA AT ERNAKULAM_ ## _PRESENT_ _THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. WEDNESDAY, THE 18[TH] DAY OF OCTOBER 2023 / 26TH ASWINA, 1945_ ## _MACA NO. 1345 OF 2013_ _AGAINST THE ORDER/JUDGMENT OPMV 65/2010 OF DISTRICT COURT & SESIONS & MOTOR ACCIDENT CLAIMS TRIBUNAL ,KALPETTA_ ## _APPELLANT/PETITIONER:_ _SAMUEL, AGED 40 YEARS, S/O.DWARA RAJ, RESIDING AT HARISONS ESTATE PADY, NEDUMKARANA, RIPPON POST, MUPPAINAD AMSOM, VYTHIRY TALUK._ _BY ADV.SMT.CELINE JOSEPH_ ## _RESPONDENT/RESPONDENT NO.3:_ _THE BRANCH MANAGER, UNITED INDIA INSURANCE COMPANY LTD., GUDALUR, TAMIL NADU._ _BY ADV.JOHN JOSEPH VETTIKAD_ _THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 18.10.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:_ MACA.No.1345/13 2 ## **JUDGMENT** The appellant is the petitioner in O.P.(MV).No.65 of 2010 on the file of the Motor Accidents Claims Tribunal, Kalpetta. The said claim petition was submitted by him seeking compensation for the injuries sustained to him in a motor accident that occurred on 30.8.2009. 2. The accident occurred when the motorcycle on which the appellant was pillion riding was hit by a jeep bearing registration No.TN 22C/6514 driven by the 1[st] respondent in the claim petition. The said vehicle was owned by the 2[nd] respondent in the claim petition and was insured with the 3[rd] respondent in the claim petition, the sole respondent in this appeal. According to him, he was working as a carpenter with a monthly income of Rs.7,800/- and he sustained serious injuries which resulted in physical disablement. He was aged 37 years at the time of the accident. The claim petition was submitted in such circumstances seeking compensation of Rs.4,00,000/-. 3. The respondent Insurance Company alone contested the matter by filing a written statement, wherein they admitted MACA.No.1345/13 3 the coverage of policy in respect of the vehicle. However, they disputed the negligence and quantum of compensation. 4. The evidence in this case consists of Exts.A1 to A8 from the side of the appellant, and the disability certificate issued by the District Hospital, Mananthavady, was marked as C1. After the trial, the Tribunal came to the conclusion that the accident occurred due to the negligence of the driver of the jeep and being the insurer of the said vehicle, the respondent herein was held liable to pay the compensation. The quantum of compensation was fixed as Rs.68,200/- and the respondent herein was directed to deposit the said amount along with interest at the rate of 7.5% from the date of petition till realisation. This appeal is submitted in such circumstances. 5. Heard Smt.Celine Joseph, learned counsel for the appellant and Sri. John Joseph Vettikkad, learned counsel for the Insurance Company. 6. The main dispute is concerning the quantum of compensation. It was pointed out that even though a monthly income of Rs.7,800/- was claimed, the Tribunal took only Rs.3,000/-, which is on the lower side. The learned counsel for MACA.No.1345/13 4 the Insurance Company would oppose the said contention by pointing out that the Tribunal granted a reasonable compensation. 7. After carefully going through the materials placed on record, I find some force in the contention put forward by the learned counsel for the appellant. Of course, it is true that no evidence was adduced by the appellant to substantiate the income. However, as far as the avocation of the appellant is concerned, the learned counsel for the appellant pointed out that, in Ext.A1 FIR itself, he described his avocation as a carpenter. Since the FIR was registered immediately after the accident while he was undergoing treatment, I am of the view that the reference of the petitioner therein as a carpenter is a relevant factor which can be taken into account. There is indeed no evidence to ascertain the monthly income of the appellant. However, as per the method of computation on the basis of 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.** MACA.No.1345/13 5 **[2014 (2) SCC 735]** , even in the absence of any evidence, a monthly income of Rs.7,000/- can be taken in respect of an accident occurred in the year 2009, for an ordinary employee without any specialised skills. Since the appellant is a skilled labourer, a slightly higher income can be taken to compute the compensation. Thus, having found that the appellant was working as a carpenter at the relevant time, which is a skilled labour, a slightly higher income can be taken. Therefore, the monthly income claimed by the appellant, which is Rs.7,800/-, is accepted as the monthly income. 8. The next element is the percentage of disability. In Ext.C1 disability certificate issued by the Medical Board, the percentage of disability was certified by applying two scales. When the same was assessed as per Mc-Bride Scale, it was evaluated as 7%, whereas when the assessment was made as per the scales of the National Institute of Orthopedically Handicapped Scale (N.I.O.H) scale, the disability was shown as 16%. The Tribunal observed that the assessment as per N.I.O.H is significant when functional disability is to be taken into account and hence the Tribunal accepted the disability of 7%. MACA.No.1345/13 6 However, I find that the said observation was not proper. This is mainly because, it is evident that the appellant was employed as a carpenter, which requires physical exertion. Therefore, considering the nature of the employment, which is based on the physical ability and skills of the victim, the functional disability is the appropriate element to be considered for assessing the compensation for disability. This is mainly because what is to be determined is the loss of earning capacity of the victim, consequent to the physical disability sustained and not the physical disability as such. Therefore, the proper course is to assess the functional disability and to apply the same for calculating the compensation for loss of earning power. Therefore, I deem it appropriate to accept the 16% disability certified in the Ext.C1 disability certificate as per the N.I.O.H scale. While reconsidering the compensation for physical disability with the revised monthly income and percentage of disability, the said amount would come to Rs.2,24,640/- [7800 x 12 x 15 x 16/100]. The amount already awarded by the Tribunal under this head is Rs.37,800/-; therefore, the additional compensation is Rs.1,86,840/-. MACA.No.1345/13 7 9. When moving on to the other heads, it is seen that the amount awarded under the heads of loss of amenities and pain and suffering, which are Rs.3,000/- and Rs.10,000/respectively, are also on the lower side. Considering the nature of the injuries sustained and the consequential disabilities, I deem it appropriate to fix Rs.20,000/- each under these heads, thereby the enhancement of compensation under those heads would be Rs.17,000/- and Rs.10,000/- respectively. 10. Another head which requires consideration is loss of earnings. The Tribunal has awarded compensation under this head for a period of three months by taking a monthly income of Rs.3,000/-. Considering the nature of injuries, disabilities arising therefrom and the nature of employment of the appellant, I deem it appropriate to calculate the compensation under the said head by applying the monthly income as Rs.7,800/- for a period of four months. This would result in an additional compensation of Rs.22,200/-. Thus, the total compensation which the appellant is entitled to in addition to the amount already awarded by the Tribunal is Rs.2,36,040/[186840+17000+10000+22200]. 8 MACA.No.1345/13 In the light of the aforesaid observations and findings, this appeal is allowed. Award dated 03.08.2012 in O.P.(MV).No.65 of 2010 on the files of the Motor Accidents Claims Tribunal, Kalpetta is hereby modified by granting an amount of Rs.2,36,040/- (Rupees two lakhs thirty six thousand and forty only) as additional compensation, and the respondent Insurance Company is directed to deposit the same 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/21.10.23