Kerala High Court
Paul N.O vs Finu on 1 November, 2024
2024:KER:81273
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE EASWARAN S.
FRIDAY, THE 1ST DAY OF NOVEMBER 2024 / 10TH KARTHIKA, 1946
MACA NO. 799 OF 2021
AGAINST THE ORDER/JUDGMENT DATED IN OPMV NO.1512 OF 2013
OF MOTOR ACCIDENT CLAIMS TRIBUNAL & SPECIAL COURT FOR E.C. ACT
CASES, THRISSUR
APPELLANT:
PAUL N.O.
AGED 52 YEARS
S/O.OUSEPH,NARIKULAM HOUSE,SUBRAHMANIYA IYYER
STREET, THALORE.P.O,THRISSUR,PIN-680 306.
BY ADV P.V.CHANDRA MOHAN
RESPONDENTS:
1 FINU
S/O FRANCIS,3/264 D,PULIKKAN HOUSE,
THALORE,ALAGAPPANAGAR.P.O, IRINJALAKUDA, THRISSUR
DISTRICT-680 306.
2 RELIANCE GENERAL INSURANCE COMPANY LIMITED,
REPRESENTED BY ITS BRANCH MANAGER,2ND FLOOR,GLOBAL
PLAZA, OPP-NEW RAILWAY PLATFORM, VANCHIKULAM
ROAD,P.O.,POOTHOLE, THRISSUR-680 004.
3 SHAKIN KHADER,
KARIKKAPEEDIKA HOUSE,OLLUKKARA.P.O, THRISSUR
DISTRICT,PIN-680655.
BY ADVS.
GEORGE CHERIAN (SR.)
LATHA SUSAN CHERIAN
GEORGE A.CHERIAN
M.A.C.A No.799 of 2021
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2
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY
HEARD ON 01.11.2024, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
M.A.C.A No.799 of 2021
2024:KER:81273
3
JUDGMENT
The claimant in OP(MV) No.1512 of 2013 before the
Motor Accidents Claims Tribunal, Thrissur has come up with
the present appeal.
2. The facts for disposal of this case is as follows: On
13.04.2013 at 7.15 pm while the petitioner was standing on
the extreme western side of the road near Thalore overbridge,
a car bearing Reg. No. KL-8-AM-3376 came through
Amballur - Mannuthy NH-47 in a rash and negligent manner
and knocked the claimant down. The claimant sustained
injuries and was taken to Jubilee Mission Medical Hospital,
Thrissur and treated there as inpatient. Since, the accident
occurred due to the rash and negligent driving of the 1 st
respondent, the claimant approached the Motor Accidents
claims Tribunal. The claimant contented that he was an
autorishaw driver and was earning monthly income of
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Rs.12,000/-. The claimant also contented that he was
hospitalized for 13 days as inpatient for treatment. Since, the
injuries suffered by him was serious, the claimant
substantiated the claim for compensation under the head
personal disability by producing Ext.A11 certificate of
disability dated 10.06.2019. The Tribunal, however, did not
accept the contention of the appellant that he was drawing a
monthly income of Rs.12,000/- and proceeded to fix the
income notionally at Rs.9,000/-. In so far as the claim of the
percentage of disability is concerned the Tribunal found that
Ext.A11 was marked subject to objection and proof, while the
doctor who examined the claimant/appellant noted 28.2%
disability. Since, the claimant did not examine the doctor
during the trial, the Tribunal proceeded to fix the disability at
14% and granted the following compensation:
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Sl Head of claim Amount Amount
No. claimed (in awarded (in
rupees) rupees)
1 Loss of earning(Total) 1,20,000 36,000
2 Transportation expenses 5,000 3,000
3 Extra nourishment 3,000 2,000
4 Damages to clothings etc 1,000 1,000
5 Bystander expenses -- 2,600
6 Medical expenses 55,000 15,500
7 Personal assistance 10,000 5,000
8 Future treatment 20,000 --
9 Pain and sufferings 50,000 30,000
10 Compensation for continuing or 6,75,000 2,11,680
permanent disability and loss of
earning power
11 Compensation for disfigurement 10,000 --
12 Loss of amenities in life 25,000 25,000
13 Shortened expectancy of life 10,000 --
14 Loss of marriage life 15,000 --
Total 9,99,000 3,31,760
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3. Heard Sri. P.V Chandramohan, the learned counsel
appearing for the appellant and Sri. Gerorge A. Cheriyan, the
learned counsel appearing for the Insurance Company.
4. The learned counsel appearing for the appellant
contended that the avocation of the claimant/appellant as
driver is to prove indisputably by Ext.A8. What remained for
consideration before the Tribunal was the notional income to
be fixed as well as the percentage of disability. Although the
claimant did not examine the doctor who issued Ext.A11,
even then the Tribunal could not have reduced the percentage
of disability unless the claimant was referred to the Medical
Board invoking the powers under Rule 387 of Kerala Motor
Vehicles Rules, 1989.
5. On the other hand, Sri. George A. Cheriyan, the
learned counsel appearing for the Insurance Company
submitted that the disability fixed by the Tribunal at 14% is
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just and proper and does not call for any interference. In the
absence of any corroborating evidence in order to substantiate
the claim under Ext.A11, the Tribunal rightly fixed the
disability at 14%. He further pointed out that in so far as the
fixation of notional income is considered, the claimant
himself has claimed only Rs.12,000/- per month as monthly
salary. The Tribunal had rightly fixed the notional income by
applying the principles laid down by the Hon'ble Supreme
Court in Ramachandrappa v Manager, Royal Sundaram
Alliance Insurance Company Ltd. [AIR 2011 SC 2951].
6. I have considered the rival submissions raised
across the Bar and perused the award passed by the Tribunal.
7. The 1st issue to be considered by this Court is what
should be the notional income to be fixed in respect of the
claimant/appellant. It is true that the appellant has claimed an
amount of Rs.12,000/- in his application. This Court has
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already held in National Insurance Company V. Prasanth
((2024) KLT Online 2645) that merely because a particular
rate has been claimed in the application as monthly income,
that by itself does not prevent the Tribunal from fixing a
reasonable income considering these adequate principles
under Section 166 of the Motor Vehicles Act, 1988.
Therefore, this Court finds that the objection raised by the
learned counsel for the Insurance Company that even if this
Court is inclined to fix the notional income more than that
fixed by the Tribunal, it cannot go at any rate beyond
Rs. 12,000/-.
8. As stated above the occupation of the claimant as
an autorikshaw driver stood proved by Ext.A13 driving
licence. Considering the fact that the job of a driver is a
skilled job, this Court is of the considered view that the
income has to be fixed slightly more than that of a coolie
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worker as laid down by the Hon'ble Supreme Court in
Ramachandrappa (Supra).
9. In Manusha Sreekumar and Others v. United
India Insurance Co. Ltd. ((2022) SCC Online SC 1441)
the Hon'ble Supreme Court had followed the notification
issued under the provisions of the Minimum Wages Act, 1948
and during the year 2015 and fixed the notional income at Rs.
15,600/- in respect of a driver. It is pertinent to mention that
in the present case the accident took place in the year 2013.
Considering these aspects, this Court deem it appropriate to
fix the monthly income as Rs.13,000/-.
10. In so far as scaling down of the percentage of
disability is concerned, this Court is constrained to note that
the contention of the learned counsel for the Insurance
Company cannot be accepted for reasons more than one. In
Manikantan.G v. K Janardhanan Nair and others (2021(5)
KHC 305) a learned Single Bench of this Court has already
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held that if the Tribunal has any difference of opinion in
fixing the percentage of disability, it ought to have referred
the claimant to Medical Board by evoking the powers under
Rule 387 of the Kerala Motor Vehicles Rules 1989. In a
recent decision of the Hon'ble Apex Court, in Aabid Khan v.
Dinesh and others [2024 (6) SCC 149] the Hon'ble Apex
Court had reiterated that the Motor Accidents Claims Tribunal
while considering the claim petitions under Section 166 of the
Motor Vehicles Act cannot unilaterally reduce the percentage
of disability without any cogent reasons.
11. Applying the principles laid down by this Court,
as well as by the Hon'ble Supreme Court, this Court finds that
in the impugned award, no reasons whatsoever have been
assigned by the Tribunal to reduce the percentage of
disability. If, the Tribunal had any difference of opinion
regarding the percentage of disability, then it ought to have
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referred the claimant to the Medical Board. Having not done
so, at this point of time the claimant cannot be expected to
appear before the Medical Board and give evidence.
Therefore, this Court is of the considered view that the
percentage of disability in respect of the claimant/appellant
has to be fixed at 28.2%.
12. In the result, the appeal stands allowed. The
appellant is entitled to have the following compensation :
i) The notional income of the appellant is fixed at Rs.
13,500/-.
ii) The appellant is entitled to have a compensation of
Rs. 18,000/- (13,500 x 4 = 54,000 - 36000) under the
head of loss of earnings.
iii) The amount of Rs. 4,27,896/- (13,500 x 12 x 14 x
28.2 /100 = 6,39,576 - 2,11,680) is awarded under the
head of permanent disability.
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Thus, a total amount of Rs.4,45,896/- (Rupees four
lakhs forty five thousand eight hundred and ninety six only) is
granted as enhanced compensation. The aforesaid amount will
carry an interest at 8% per annum from 31.07.2013 till
realization with proportionate costs on the enhanced
compensation. The Insurance Company shall deposit the
enhanced compensation together with interest and
proportionate costs within a period of one month from the
date of receipt of a copy of this judgment. The claimant shall
furnish the details of the bank account to the Insurance
Company for transfer of the amount. The appeal is ordered
accordingly.
Sd/-
EASWARAN S.
JUDGE
AKH
