Pramod vs Roy
2021 Latest Caselaw 14563 Ker

             IN THE HIGH COURT OF KERALA AT ERNAKULAM
                              PRESENT
                THE HONOURABLE MR.JUSTICE C.S.DIAS
  WEDNESDAY, THE 14TH DAY OF JULY 2021 / 23RD ASHADHA, 1943
                      MACA NO. 1714 OF 2007
  AGAINST THE AWARD IN OP(MV)NO. 868/2002 OF MOTOR ACCIDENT
        CLAIMS TRIBUNAL ,NEYYATTINKARA, THIRUVANANTHAPURAM
APPELLANT/PETITIONER:

            PRAMOD, KATTACHAL VEEDU,
            ELIYAVOOR
            PUTHUKULANGARA P.O.,
            NEDUMANGAD.

            BY ADVS.
            SRI.R.T.PRADEEP
            SRI.V.VIJULAL


RESPONDENTS:

    1       ROY, S/O. NELSON, 559, JAYAVILASOM,
            UNDAPPARA, POOVACHAL P.O.,
            THIRUVANANTHAPURAM.

    2       C.MOHANDAS, ASWATHY BHAVAN
            PUTHUKULANGARA, NEDUMANGADU.

    3       THE MANAGER
            THE ORIENTAL INSURANCE CO.LTD.,,
            DIVISIONAL OFFICE.NO.II, ST.MARY VILLA,,
            ULLOOR, MEDICAL COLLEGE P.O.,
            THIRUVANANTHAPURAM.

            BY ADV GEORGE CHERIAN (SR.)


     THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR
ADMISSION ON 14.07.2021, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
 MACA.No.1714 of 2007

                              2


                        C.S.DIAS,J
              ------------------------
                  MACA No. 1714 of 2007
              ------------------------
             Dated this the 14th day of July, 2021

                        JUDGMENT

The appellant was the petitioner in OP (MV)

No.868 of 2002 on the file of the Motor Accidents

Claims Tribunal, Neyyattinkara. The respondents in

the appeal were the respondents before the Tribunal

2. The concise facts in the claim petition,

relevant for the determination of the appeal are : on

26.05.2002 while the appellant was riding his

motorcycle bearing registration KL 01 U/8177 from

Poovachal to Konniyoor, when he reached a place

named 'Undappara Mosque', another motorcycle

bearing registration KL 01 V/3277 (offending vehicle)

ridden by the 1st respondent in a rash and negligent

manner hit the motorcycle of the appellant. The MACA.No.1714 of 2007

motorcycle was owned by the 2nd respondent and

insured with the 3rd respondent. The appellant was a

student pursuing his graduation and was also taking

tuitions at home and earning a monthly income of

Rs.2,500/-. The appellant sustained serious injuries in

the accident. The appellant claimed compensation

from the respondent at Rs.2,79,000/-, which was

limited to Rs.2,50,000/-.

3. The respondents 1 and 2 did not contest the

proceedings.

4. The 3rd respondent filed a written statement,

inter alia, contending that the appellant was not

holding a valid driving licence and was only a student

having no income. The 3rd respondent also disputed

the injury sustained by the appellant. Nevertheless,

the 3rd respondent admitted that the vehicle of the

appellant as well as the offending vehicle had valid MACA.No.1714 of 2007

insurance policies issued by it.

5. The appellant examined himself and the

Doctor who issued the disability certificate as PWs 1

and 2 and ExtsA1 to A18(a) were marked in evidence.

The case records pertaining to the treatment of the

appellant at the Medical College Hospital was marked

as Ext.X1. The copy of the insurance policy of the

offending vehicle was marked as Ext.B1.

6. The Tribunal, after analysing the pleadings

and evidence on record, allowed the claim petition, in

part, by permitting the appellant to realise an amount

of Rs.73,240/- with interest at 7.5% per annum from

the date of petition till the date of reaslisation. The 3 rd

respondent was directed to pay the compensation

amount.

7. Dissatisfied with the quantum of compensation

and reduction of permanent disability fixed by the MACA.No.1714 of 2007

Tribunal, the petitioner is in appeal.

8. Heard Sri.T.R.Pradeep, the learned counsel

for the appellant/petitioner and Smt.K.S.Santhi, the

learned counsel appearing for the 3rd respondent-

insurance company.

9. The questions that emanate for consideration

in the appeal are (i) whether the Tribunal was

justified in reducing disability of the appellant

assessed as per Ext.A11 disability certificate which

was proved through PW2? and (ii) whether the

quantum of compensation awarded by the Tribunal is

reasonable and just?

10. Ext.A1 charge-sheet filed by the police

substantiates that the accident occurred solely on

account of the negligence of the 1st respondent, who

drove the vehicle in a rash and negligent manner.

Undisputedly, the 2nd respondent was the owner of the MACA.No.1714 of 2007

vehicle and the 3rd respondent was the insurer of the

vehicle. Therefore, the 3rd respondent is liable to

indemnify the liability caused on account of the

accident.

11. The appellant had produced Ext.A11

disability certificate which was issued by PW2. It was

categorically found that the appellant has a disability

of 15% due to the injuries sustained by the appellant

in the accident. PW2 had specifically mentioned that

due to the injuries sustained by the appellant, he was

unable to carry on with his daily pursuits and would

be disabled to perform well as a degree student.

Accordingly, the disability was fixed at 15%.

12. The Tribunal arrived at the conclusion that

the appellant has only a disability of 11%.

13. The Honourable Supreme Court in

Rajkumar v. Ajayakumar [2011(1) KLT 620(SC)] has MACA.No.1714 of 2007

held that the disability of an injured can be proved by

examining the Doctor who authors the disability

certificate or by getting the disability assessed by a

duly constituted Medical Board.

14. In the instant case, the appellant produced

Ext.A11 disability certificate, which was proved

through PW2 stating that the appellant has disability

of 15%.

     14.     In    Union     of       India   and   another    v.

Talwinder         Singh     [2012       (5)   SCC     480],   the

Honourable Supreme Court has held that the court

should not normally interfere with the opinion of

Experts, with its wisdom, as the experts are more

familiar with the problems than that of the general

opinion of the Courts.

16. In the light of the law laid down in Rajkumar

and Talwinder Singh (supra) I am of the opinion MACA.No.1714 of 2007

that the Tribunal ought not to have tinkered with the

opinion of PW2 in Ext.A11 disability certificate.

Hence, I set aside the findings of the Tribunal, which

has scaled down the disability of the appellant at 11%

from 15% . Accordingly, I re-fix the disability of the

appellant at 15%.

Notional income

16. The appellant had claimed that, although he

was a student, he used to take private tuitions and

earn a income of Rs.2,500/- per month. The Tribunal

went on to fix the notional income of the appellant at

Rs.2,000/- per month.

18. The Hon'ble Supreme Court in

Ramachandrappa v. Manager, Royal Sundaram

Alliance Insurance Company Limited [(2011) 13

SCC 236] has fixed the notional income of a Coolie

worker in the year 2004, at Rs.4,500/- per month. MACA.No.1714 of 2007

19. In view of the assertions made by the

appellant that he was taking private tuitions and

earning an income of Rs.2,500/- per month and also

that there is no contra evidence on record, I am of the

opinion that the appellant's notional income can safely

be fixed at Rs.2,500/- as claimed in the claim petition.

Hence, I re-fix the notional income of the appellant at

Rs.2,500/-

20. The appellant also claimed that due to the

serious injuries that he has sustained as reflected in

Ext.A2 wound certificate, Ext.A5 and Ext.A7

discharge cards and Ext.A11 disability certificate, he

was incapacitated to carry on his work for a period of

six months.

Loss of earnings

21. On a re-appreciation of the pleadings and

materials on record and especially the treatment MACA.No.1714 of 2007

records mentioned above, I am of the opinion that the

appellant was incapacitated to carry on with his

avocation for a period of six months. In view of the

re-fixation of the notional income of the appellant at

Rs.2,500, I re-fix the compensation for 'loss of

earnings' at Rs.15,000/- as claimed for in the claim

petition.

Multiplier

22. The appellant was aged 18 at the time of

accident. Therefore, the relevant multiplier as per the

law laid down in Sarala Varma and others v. Delhi

Transport Corporation and others [(2010) 2 KLT

802] is '18'.

Loss due to disability

23. In view of the re-fixation of the notional

income of the appellant at Rs.2,500/- and his disability

at 15%, I hold that the appellant is entitled for MACA.No.1714 of 2007

compensation for 'loss due to disability at Rs.81,000/-

instead of Rs.42,240/- awarded by the Tribunal.

24. With respect to the other heads of

compensation , I find that the Tribunal has awarded

reasonable and just compensation.

25. On an overall re-appreciation of the

pleadings, materials on record and the law referred to

in the afore-cited decisions, I am of the definite

opinion that the appellant/petitioner is entitled for

enhancement of compensation under the afore-

mentioned heads, namely, 'loss due to disability' by a

further amount of Rs.38,760/- and compensation for

'loss of earnings' at Rs.15,000/-, totalling to an

amount of Rs.53,760/-

In the result, the appeal is allowed, in part, by

enhancing the compensation by a further amount of

Rs.53,760/- with interest at the rate of 7.5% per MACA.No.1714 of 2007

annum from the date of petition till the date of deposit

and proportionate costs. The 3rd respondent shall

deposit the enhanced compensation awarded in this

appeal along with proportionate cost before the

Tribunal with interest within a period of two months

from the date of receipt of a certified copy of the

judgment. The enhanced compensation shall be

disbursed to the appellant, in accordance with law.

Sd/-C.S.DIAS,JUDGE dlK 14.07.2021