Manoj C.N vs Jinu V.S
2021 Latest Caselaw 21756 Ker

             IN THE HIGH COURT OF KERALA AT ERNAKULAM
                             PRESENT
               THE HONOURABLE MR. JUSTICE T.R.RAVI
 TUESDAY, THE 2ND DAY OF NOVEMBER 2021 / 11TH KARTHIKA, 1943
                      MACA NO. 1978 OF 2015
   AGAINST THE AWARD DATED 24.02.2015 IN OPMV 230/2013 OF
    ADDITIONAL MOTOR ACCIDENTS CLAIMS TRIBUNAL, KOTTAYAM


APPELLANT/PETITIONER:

             MANOJ C.N.
             S/O NARAYANAN NAIR, MANOVIHAR,
             KUDAMALOOR (P.O), AYMANAM VILLAGE,
             KOTTAYAM TALUK, KOTTAYAM DISTRICT, PIN:686017.
             BY ADV SRI.JACOB E SIMON


RESPONDENTS/RESPONDENTS:

    1        JINU V.S.
             S/O SUKUMARAN, VADAYATTUPARAMBIL HOUSE,
             KOMBANAL BHAGOM, AYMANAM VILLAGE,
             KOTTAYAM TALUK, KOTTAYAM DISTRICT, PIN 686017.
              *(DELETED)
    2        ORIENTAL INSURANCE CO. LTD.,
             REPRESENTED BY MANAGER
             BAKER JUNCTION, KOTTAYAM BRANCH, PIN-686001.

             RESPONDENT NO.1 IS DELETED FROM THE PARTY ARRAY AT
             THE RISK OF THE APPELLANT AS PER ORDER DATED
             31/3/2021 IN I.A.NO.1/ 21 IN THE MACA.
             BY ADV SRI.R.AJITH KUMAR (128/84), FOR R3



     THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY
HEARD ON 08.10.2021, THE COURT ON 02.11.2021 DELIVERED THE
FOLLOWING:
 M.A.C.A. No. 1978 of 2013
                                    2




                              T.R. RAVI, J.
               --------------------------------------------
                       M.A.C.A. No. 1978 of 2013
                --------------------------------------------
               Dated this the 2nd day of November, 2021

                              JUDGMENT

The motorcycle which the appellant was driving on

12.09.2011, was hit by another motorcycle causing serious

injuries to the appellant. The appellant preferred a claim before

the Tribunal for compensation of a sum of ₹3,30,000/-. The

Tribunal awarded a sum of ₹2,01,200/- with 9% interest from

08.03.2013 and costs. Aggrieved by the award, the appellant has

filed this appeal seeking enhancement of the compensation

awarded.

2. Heard Sri.Jacob E.Simon, learned counsel for the

appellant and Sri.R.Ajith Kumar, learned counsel for the 2 nd

respondent.

3. The first contention of the learned counsel for the

appellant is that the Tribunal went wrong in restricting the loss of

earnings to 12 months, since it can be seen from Ext.A11

certificate and the deposition of PW1 that the appellant could not

attend work from 12.09.2011 to 26.06.2013 ie; 21 months and

that he had not been paid any salary during that period. Another M.A.C.A. No. 1978 of 2013

submission of the appellant is that he had suffered disability, for

which no amount was granted as compensation. The Tribunal has

found that Ext.A10 which is the disability certificate from the

Medical Board shows that the appellant was suffering from post

traumatic secondary osteoarthritis involving patellofemoral joint

and he had disability for safe driving of heavy vehicles. However,

it was also noted that no percentage of disability is noted in the

certificate. Since the appellant was an employee of the K.S.R.T.C.

and there is no case that his employment was in any manner

affected due to the disability, I do not think any enhancement is

called for by granting compensation for permanent disability.

However, regarding loss of earnings, it can be seen from Ext.A11

that the appellant had not drawn any amount as salary during the

period from 12.11.2011 to 26.06.2013. PW1 was examined to

prove Ext.A11. He has specifically stated before the Tribunal that

the appellant was earning ₹9,081/- per month and that he was on

loss of pay leave from 12.09.2011 to 26.06.2013. The reason for

not accepting the above evidence as can be seen from the award

is that no supporting document was produced to show that the

appellant was on leave for such long period and no copy of leave

application is produced before the Tribunal. It is also observed M.A.C.A. No. 1978 of 2013

that there is no evidence to show whether the appellant had taken

earned leave, HPL or commuted leave during the period.

4. I am of the opinion that the reasoning of the Tribunal is

not justified. Ext.A11 is the employment certificate issued by the

employer in the usual course. The District Transport Officer (PW1)

has signed the employment certificate as the Officer authorised by

the employer K.S.R.T.C. The certificate specifically shows the

salary that was being earned by the appellant as well as the fact

that he was on leave from 12.09.2011 to 26.06.2013 due to the

bike accident and that pay has not been drawn and disbursed

during the said period. There is no further evidence required to

show that the appellant was on loss of pay during the period and

that the absence was due to the accident, entitling him to claim

compensation for loss of earnings. In cross examination, PW1 has

specifically stated that he had sanctioned leave to the appellant

and that the leave was sanctioned on the basis of leave

applications supported by medical certificates. It was further

stated that it is after referring to the attendance register, service

book and other documents that Ext.A11 was issued. There is no

reason to disbelieve the evidence tendered by PW1. I am hence of

the opinion that the appellant is entitled to compensation towards M.A.C.A. No. 1978 of 2013

loss of earnings for the entire period of his absence ie; 21 months.

The compensation for loss of earnings would thus amount to

₹1,90,701/- (₹9,081 x 21). After deducting the amount of

₹1,08,972/- awarded by the Tribunal, the appellant will be entitled

to an additional sum of ₹81,729/- under the above head. I am

of the opinion that the Tribunal has granted reasonable

compensation under the other heads.

In the result, the appeal is allowed. The appellant is

awarded an additional compensation of ₹81,729/- with 9%

interest from 08.03.2013 till realisation, with proportionate costs.

The 2nd respondent insurer shall deposit the additional

compensation granted in this appeal along with the interest and

proportionate costs, before the Tribunal within two months from

the date of receipt of a certified copy of this judgment, after

deducting any amount to which the appellant is liable towards

balance court fee and legal benefit fund. The disbursement of the

compensation to the appellants shall be in accordance with law.

Sd/-

T.R. RAVI JUDGE

Pn