National Insurance Co. Ltd vs Alavi
2022 Latest Caselaw 43 Ker

          IN THE HIGH COURT OF KERALA AT ERNAKULAM
                            PRESENT
             THE HONOURABLE MR. JUSTICE T.R.RAVI
   MONDAY, THE 3RD DAY OF JANUARY 2022 / 13TH POUSHA, 1943
                    MACA NO. 2322 OF 2015
AGAINST THE AWARD DATED 19.03.2015 IN OPMV 230/2014 OF MOTOR
        ACCIDENTS CLAIMS TRIBUNAL, WAYANAD ,KALPETTA


APPELLANT/2ND RESPONDENT:

          NATIONAL INSURANCE CO. LTD.
          KALPETTA, REPRESENTED BY THE MANAGER,
          KOCHI REGIONAL OFFICE,
          M.G. ROAD, ERNAKULAM,
          COCHIN 682035
         BY ADV SRI.E.M.JOSEPH


RESPONDENTS/CLAIMANT & 1ST RESPONDENT:

    1     ALAVI
          AGED 49 YEARS, S/O.MUHAMMED,
          VELLAKATTIL HOUSE, 112,
          JAWAHAR COLONY 8, PATTARUPADI,
          SULTHANBATHERY PO, SULTHAN BATHERY,
          WAYANAD 673592
    2     SHAJI C.R.,
          AGED 47 YEARS, S/O.RAJAN PILLAI,
          CHEMMANDOOR HOUSE, PUTHENKUNNU PO,
          SULTHAN BATHERY, WAYANAD 673595
          BY ADV SRI.T.MADHU


     THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN
FINALLY HEARD ON 11.10.2021, THE COURT ON 03.01.2022
DELIVERED THE FOLLOWING:
 M.A.C.A.No.2322 of 2015                    2




                               T.R. RAVI, J.
                --------------------------------------------
                         M.A.C.A.No.2322 of 2015
                 --------------------------------------------
                  Dated this the 3rd day of January, 2022

                                      JUDGMENT

The appeal has been filed by the Insurance Company which was

the 2nd respondent before the Tribunal, challenging the quantum of

compensation awarded.

2. The 1st respondent while travelling in an autorickshaw on

8.2.2014, suffered injuries when the autorickshaw capsized. He was

working as a cook and was aged 49 years at the time of the accident.

He suffered crushed injuries on the 3 rd and 4th fingers of his right hand.

The main contention taken by the learned counsel for the appellant is

that the Tribunal went wrong in treating the disability of the 1 st

respondent as 28% and in fixing the monthly income as Rs.6,000/-.

The contention is based on the schedule to the Workmen's

Compensation Act which says that the disability in cases where the

finger is lost can only be 19% and not 28%.

3. The learned counsel for the 1st respondent submitted that it

was case where the 1st respondent is entitled to enhanced

compensation and that the same ought to be granted by invoking

order XLI Rule 33 of the Code of Civil Procedure, by this Court. It is

submitted that the accident happened in 2014 and going by the dictum

in Ramachandrappa v. Manager, Royal Sundaram Alliance

Insurance Co.Ltd., reported in [AIR 2011 SC 2951], a coolie in

2014 would have earned Rs.9,500/- as monthly income and the 1 st

respondent had claimed that he was having an income of Rs.9,000/- in

the claim petition. It is submitted that the Tribunal went wrong in

fixing Rs.6,000/- as the monthly income as against the amount

claimed. Regarding the disability, the counsel for the 1 st respondent

contended that Ext.C1 certificate issued by the Medical Board shows

that the disability is 28% and absolutely no evidence has been let in by

the appellant to create any doubt as to the correctness of the disability

assessed by the Medical Board. It is submitted that the Tribunal which

has to award a just compensation has gone by the functional disability

as supported by Ext.C1 certificate and there is no reason to interfere

with the said finding. It is submitted that Schedule to the Workmen's

Compensation Act, which is only a guideline, should not be relied upon

and that the same cannot take the place of clear evidence available

regarding the disability.

4. Having heard the counsel on either side, I find that the

contentions raised by the counsel for the 1 st respondent is justified.

The Schedule in the Workmen's Compensation Act cannot take the

place of an evidence available regarding the disability which has been

tendered in a proceedings before the Tribunal against which no

challenge has been raised by the appellant. There is no reason why

the decision of the Medical Board should not be followed. So also the

contention that the amount of monthly income fixed is excessive is also

without any justification. The 1st respondent was working as a cook

and loss of two fingers on the right hand of a cook will necessarily

cause serious functional disability. The amount claimed by the 1 st

respondent as monthly income cannot in any way be said to be

excessive, having regard to the dictum in Ramachandrappa (supra).

I am hence of the opinion that the 1 st respondent is entitled to have

the compensation refixed on the basis of the monthly income of

Rs.9,000/-. I am of the opinion that this is an apt case where this

Court should invoke the power available under Order XLI Rule 33 CPC

to enhance the compensation granted by the Tribunal, despite the fact

that there is no cross appeal filed by the 1st respondent.

5. The 1st respondent will be entitled to a sum of

Rs.3,93,120/- (9000x12x13x28%) under the head compensation for

permanent disability as against the sum of Rs.2,62,080/- awarded by

the Tribunal. Thus the appellant will be entitled to an additional

compensation of Rs.1,31,040/- under the head permanent disability.

The 1st respondent will also be entitled to an additional sum of

Rs.12,000/- (3000x4) towards loss of earning.

6. Even though the learned counsel for the appellant

contended that the amount granted to the 1st respondent by the

Tribunal is more than what is claimed, it is settled law that what is to

be granted by the Court or the Tribunal is the just compensation and

that the Tribunal and the appellate Court is well within its powers to

grant more compensation than what is claimed. I am hence of the

opinion that the above enhancement has to be granted, particularly

when the same is supported by the decisions of the Hon'ble Supreme

Court.

The appeal is disposed of granting the 1 st respondent an

additional compensation of Rs.1,43,040/- (Rupees One Lakh Forty

Three Thousand Forty only) with interest at the rate of 9% per

annum from the date of filing of the claim petition (24.5.2014) till the

date of realisation, with proportionate costs. The appellant insurer

shall deposit the additional compensation granted in this appeal along

with 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 1st respondent/claimant is

liable towards balance court fee and legal benefit fund. The

disbursement of the compensation to the 1 st respondent/claimant shall

be in accordance with law.

Sd/-

T.R. RAVI JUDGE

dsn