Venu @ Venukuttan v. Gopakumar and The New India Assurance Co. Ltd.

MACA.No.4176/2017 1 _IN THE HIGH COURT OF KERALA AT ERNAKULAM_ ## _PRESENT_ _THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. MONDAY, THE 9[TH] DAY OF OCTOBER 2023 / 17TH ASWINA, 1945_ ## _MACA NO. 4176 OF 2017_ _AGAINST THE ORDER/JUDGMENT OPMV 629/2011 OF MOTOR ACCIDENT_ _CLAIMS TRIBUNAL, ALAPPUZHA_ ## _APPELLANT/PETITIONER:_ _VENU @ VENUKUTTAN, S/O.DAMODHARAN, KAKALATHARA HOUSE, SANADANAPURAM P.O., KALARCODE, ALAPPUZHA._ _BY ADVS._ _SRI.GEORGE VARGHESE(PERUMPALLIKUTTIYIL) SRI.P.J.JOE PAUL_ ## _RESPONDENTS/RESPONDENTS:_ - _1 GOPAKUMAR, S/O.SANKARA NARAYANAN, A.V.T. COMPOUND, SEA VIEW WARD, BAZAR P.O., ALAPPUZHA._ - _2 THE NEW INDIA ASSURANCE CO.LTD., REPRESENTED BY ITS BRANCH MANAGER, BRANCH OFFICE, ALAPPUZHA._ _BY ADV.SRI.THOMAS MATHEW NELLIMOOTTIL_ _THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 09.10.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:_ MACA.No.4176/2017 2 ## **J U D G M E N T** The appellant is the petitioner in O.P.(MV).No.629 of 2011 on the file of the Motor Accidents Claims Tribunal, Alappuzha. 2. The said claim petition was submitted by him seeking compensation for the injuries sustained to him in a motor accident that occurred on 21.11.2010. According to him, the accident occurred when the bicycle ridden by him was hit by a car owned and driven by the 1[st] respondent. The said vehicle was insured with the 2[nd] respondent herein. Immediately after the accident, he was admitted to General Hospital, Alappuzha and later, he was referred to Medical College Hospital, Kottayam, where he was diagnosed with hemiplegia. He was 48 years old at the time of the accident and a head load worker with a monthly income of Rs.9,000/-. Consequent to the injuries sustained, he was physically disabled, and the percentage of disability was certified by the Medical Board as 60%. The compensation was claimed in such circumstances. 3. Both the respondents in the claim petition were exparte. Evidence in this case consists of Exts.A1 to A12 and MACA.No.4176/2017 3 Ext.X1. After examining the materials placed on record, the Tribunal arrived at the conclusion that the accident occurred due to the negligence of the 1[st] respondent and being the insurer of the said vehicle, the 2[nd] respondent was held liable to pay the compensation. The quantum of compensation was fixed as Rs.6,39,870/- and the 2[nd] respondent was directed to deposit the said amount along with interest at the rate of 9% per annum from the date of petition till realization. This appeal is submitted in such circumstances, seeking enhancement of compensation. 4. Heard Sri.George Varghese Perumpallikuttiyil, learned counsel for the petitioner and Sri.Thomas Mathew Nellimoottil, learned counsel for the 2[nd] respondent Insurance Company. 5. The contention raised by the learned counsel for the appellant is with regard to the inadequacy of compensation for permanent partial disability. It was pointed out that the appellant was working as a head load worker at the relevant time, and to substantiate the same, Ext.A9 copy of the identity card issued by the Kerala Head Load Workers’ Welfare Board was produced. Since the appellant was engaged in an MACA.No.4176/2017 4 employment which requires physical exertion, the nature of disability suffered by him would deprive him completely from pursuing the said employment. Therefore, the functional disability, which is higher than the physical disability certified by the Medical Board, ought to have been taken by the Tribunal, contends the learned counsel. Reliance was placed upon the decision of the Honourable Supreme Court in **Syed** **Sadiq v. Divisional Manager, United India Insurance** **Company [(2014) 2 SCC 735],** wherein it was observed that, while considering the compensation for physical disability, the functional disability, has to be taken into account, which is to be determined with reference to the nature of the employment of the claimant. 6. The learned counsel for the 2[nd] respondent opposes the said application by pointing out that the Tribunal has awarded reasonable compensation under the said head by accepting the percentage of disability as certified by the Doctor and fixing Rs.4,000/- as the monthly income. 7. After considering the materials placed on record, I find some force in the contention put forward by the learned counsel for the appellant. The percentage of disability MACA.No.4176/2017 5 accepted by the Tribunal was 60%, which is as per the Ext.X1 certificate. However, as rightly pointed out by the learned counsel for the appellant, the appellant had suffered hemiplegia, which would certainly prevent him from pursuing the avocation as a head load worker. Such a disability would also prevent him from successfully pursuing any other job which requires physical exertion. Therefore, as observed by the Honourable Supreme Court in **Said Sadiq (supra),** certainly a higher percentage of disability considering the functional disability has to be taken. Therefore, in the facts and circumstances of the case, I deem it appropriate to fix the same as 85%. 8. When moving on the monthly income, the amount of Rs.4,000/- fixed by the Tribunal appears to be on the lower side. The accident occurred in the year 2010, and evidently, the appellant was working at the relevant time as a head load worker, which is established as per Ext.A9. Even going by the method of computation evolved based on the principles in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Co.Ltd [(2011) 13 SCC 236] and Said Sadiq (supra)** , in respect of an ordinary worker without any special MACA.No.4176/2017 6 skills, the monthly income can be fixed as Rs.7,500/- even without any evidence. In this case, there is some evidence to show that the appellant was working as a head load worker, registered with Kerala Head Load Workers Welfare Board, which is an employment under an organised sector. Therefore, a slightly higher income can be taken for the purpose of computation of the compensation. Accordingly, the facts and circumstances of this case compel this Court to fix the monthly income as Rs.8,500/-. The Tribunal has added 30% of the monthly income towards future prospects while computing the compensation. However, in the light of the principles laid down by the Honourable Supreme Court in **National Insurance Co. Ltd. v. Pranay Sethi [(2017) 16 SCC 680]** , the proper addition in this regard is 25%. Thus, when the compensation for disability and a consequential loss of earning capacity is reassessed with the above revised criteria, the amount would come to Rs.14,08,875/- [(8500+25%) x 12 x 13 x 85%]. The amount already awarded by the Tribunal is Rs.4,86,720/- and thus, the additional amount receivable by the appellant under this head is Rs.9,22,155/-. MACA.No.4176/2017 7 9. Consequent to the revision of the monthly income, the appellant would be entitled to a further sum of Rs.36,000/[(8500 x 8) - 32000] under the head of loss of earnings, as the amount awarded by the Tribunal under this head was for eight months. The amount awarded by the Tribunal under the head of pain and suffering was Rs.50,000/-. The nature of injuries and the consequent disability would make it clear that the said amount is on the lower side. The amount claimed by the appellant under this head is Rs.70,000/-, which is justifiable in the facts and circumstances of the case. Therefore, a further sum of Rs.20,000/- is granted under the head. For the very same reasons, i.e., in the light of the nature of the injuries, physical disability and the consequences arising from the same, some additional amount ought to be granted under the head of loss of amenities. An amount of Rs.25,000/- awarded by the Tribunal under the said head is on the lower side. Therefore, a further sum of Rs.25,000/- is granted under the head. Thus, additional compensation receivable by the appellant is determined as Rs.10,03,155/- [922155+36000+25000+20000]. In such circumstances, in the light of the aforesaid findings and observations, this appeal is allowed, the award MACA.No.4176/2017 8 dated 22.04.2017 in O.P.(MV).No.629 of 2011 on the file of the Motor Accidents Claims Tribunal, Alappuzha, is hereby modified, by granting an additional compensation of Rs.10,03,155/- (Rupees ten lakhs, three thousand, one hundred and fifty five only) and the 2[nd] respondent Insurance Company is directed to deposit the said amount along with interest at the rate as ordered by the Tribunal within a period of three months from the date of receipt of a copy of this judgment. Sd/- **ZIYAD RAHMAN A.A. JUDGE** DG/11.10.23