Kerala High Court
Binoy vs United India Insurance Company Limited on 1 November, 2024
2024:KER:89828
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. 1943 OF 2021
AGAINST THE AWARD DATED 08.04.2021 IN OPMV NO.502 OF 2016
OF MOTOR ACCIDENT CLAIMS TRIBUNAL,PUNALUR
APPELLANT/PETITIONER:
BINOY
AGED 40 YEARS
S/O GEORGEKUTTY, VATTAVILA PUTHEVEEDU,
VALLAKKADAVU, KALAYAPURAM P.O.KOTTARAKKARA,
KOLLAM DISTRICT
BY ADV ANCHAL C.VIJAYAN
RESPONDENT/RESPONDENT:
UNITED INDIA INSURANCE COMPANY LIMITED
DIVISIONAL OFFICE BEACH ROAD, KOLLAM PIN-691 001,
REPRESENTED BY ITS DIVISIONAL MANAGER.
BY ADV DEEPA GEORGE
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD
ON 01.11.2024, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
MACA 1943/2021
2
2024:KER:89828
EASWARAN S., J.
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MACA.No.1943 of 2021
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Dated this the 1st day of November, 2024
JUDGMENT
The claimant before the Motor Accidents Claims Tribunal,
Punalur, is the appellant.
2. On 08.07.2016 at 5 p.m, the claimant was riding a
motorcycle bearing Reg.No.KL-2P/1523 at Kalayapuram to
Puthoor from east to west direction and when he reached near
Mylamkulam, a Honda Activa Scooter bearing
Reg.No.KL-24K/6415 driven by the 2nd respondent in the original
petition, came in a rash and negligent manner from the opposite
direction of the motorcycle and dashed against the same. Due to
the impact, the claimant fell down and sustained severe injuries.
The claimant had to undergo amputation of the right leg and
fracture to the right index finger in the accident sustained. He
was taken to Taluk Head Quarters Hospital, Kottarakara and
thereafter, to Medical College Hospital, Thiruvananthapuram,
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where he had undergone treatment as inpatient and outpatient.
3. On the side of the claimant, Exts.A1 to A13 were
marked. To prove the disability suffered by the claimant due to
the injury caused to him in the accident, the claimant was
examined by the Medical Board. Ext.X1 is the Disability
Certificate, wherein 30% of disability as per Mc Bride Scale was
fixed. The claimant contended that he was a driver by
occupation. Ext.A12 - copy of the driving licence of the claimant,
was produced to show that he had a driving licence for a non-
transport and transport vehicle and the class of the vehicle is
three wheeler. The Tribunal accepted Ext.A12 and found that the
occupation of the claimant as an autorickshaw driver stood
proved. However, in order to prove his income, no document
was produced. This lead to the Tribunal fixing the notional
income of the claimant at Rs.10,000/- and percentage of
disability at 30%, which forced the claimant to come with this
present appeal.
4. Heard, Sri.Anchal C.Vijayan - learned counsel
appearing for the appellant and Smt.Deepa George - learned
Standing Counsel for the Insurance Company.
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5. The learned counsel appearing for the appellant raised
the following submissions:
i. The occupation of the claimant as an autorickshaw driver
stood indisputably proved before the Tribunal.
ii. When the occupation of a driver stood proved, then the
Tribunal ought to have fixed the notional income in terms of the
provisions contained under the Kerala Motor Transport Workers'
Payment of Fair Wages Act, 1971. If such a course was adopted,
then the minimum notional income ought to have been fixed at
Rs.15,600/-.
iii. Even otherwise, going by the principles laid down by
the Hon'ble Supreme Court in Manusha Sreekumar and
Others v. United India Insurance Co.Ltd [(2022) SCC OnLine
SC 1441], the appellant is entitled to have the notional income
fixed at Rs.15,600/-.
6. The claimant having proved that he had suffered
amputation of the right leg and suffered 30% of whole body
disability, was entitled to have the functional disability fixed at
100%. In support of his contention, the learned counsel for the
appellant relied on the following decisions: Jakir Hussein v.
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Sabir and Others [(2015) 7 SCC 252], Sakharam v. Karan
Development Service Pvt. Ltd. and Others [2023 ACJ 2388],
Mohd. Sabeer v. Regional Manager, U.P. State Road
Transport Corporation [AIR 2023 SC 186], Sarnam Singh v.
Shriram General Insurance Company Limited and Others
[(2023) 8 SCC 193].
7. Therefore, according to the learned counsel, the
Tribunal ought to have fixed the functional disability of the
appellant at 100% and granted sufficient compensation.
8. On the other hand, Smt.Deepa George - learned
Standing Counsel for the Insurance Company, placed reliance on
the judgment of the Supreme Court in Raj Kumar v. Ajay
Kumar [2011 (1) KLT 620 (SC)] to contend for the proposition
that the appellant is not entitled to have the functional disability
fixed at 100%. It is the specific contention of Smt.Deepa George
that the appellant could not successfully prove, because of the
amputation of his right leg and the other injuries suffered by him
due to the accident, he was not able to pursue any other
avocation. It is only when a person who suffers injury in a road
accident is prevented from continuing with any avocation, the
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tribunals and courts are permitted to fix the functional disability
at 100%. In so far as the claim for notional income is
concerned, it is the specific case of Smt.Deepa George that, in
the application preferred before the Tribunal, only Rs.15,000/- is
claimed and therefore, even if this Court is inclined to fix the
notional income of the claimant in terms of the provisions
contained under the Kerala Motor Transport Workers' Payment of
Fair Wages Act, 1971, it cannot go beyond Rs.15,000/-. It is
further submitted that going by the decision of the Hon'ble
Supreme Court in Syed Sadiq & Ors. v. Divisional Manager,
United India Insurance Company Ltd. [2014 (2) SCC 735]
and Pappu Deo Yadav v. Naresh Kumar and Others [(2022)
13 SCC 790], the appellant is not entitled for 100% functional
disability.
9. I have considered the rival submissions raised across
the Bar and have perused the award impugned in the appeal.
10. This Court will have to consider the question as to
whether the notional income fixed by the Tribunal is correct or
not. Only, thereafter, this Court could proceed to consider the
secondary issue raised by Sri.Anchal C.Vijayan that, the Tribunal
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could not have fixed the disability at 30% and it ought to have
fixed the functional disability at 100%.
11. The Hon'ble Supreme Court in Manusha Sreekumar
(supra) had the occasion to consider the question as to what
should be the notional income of a driver. It is true that the
notional income is fixed in cases where there are no direct
evidence to prove the income drawn by the claimants. It is
under these circumstances, that the Hon'ble Supreme Court has
laid down certain principles in order to enable the courts and
tribunals to arrive at the notional income while considering the
claim under Section 166 of the Motor Vehicles Act, 1988. The
Hon'ble Apex Court further held that when a claim in respect of a
notional income of a driver is considered, the courts and
tribunals should always endeavour to fix the notional income at
slightly more than what is normally fixed in respect of a Coolie
Worker. Following the principles laid down by the Hon'ble Apex
Court as above, this Court has no hesitation that the Tribunal
ought to have fixed the notional income of the claimant/appellant
at Rs.15,600/-.
12. Coming forward to the next question raised by the
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learned counsel for the appellant, this Court is constrained to
note that, despite the injuries suffered by the appellant, the
Tribunal was inconsiderate towards fixing the functional disability.
It is true that in terms of Ext.X1, only 30% of whole body
disability is fixed by the Medical Board. However, that should not
have dettered the Tribunal in proceeding to fix the functional
disability in accordance with the avocation of the claimant.
13. In Rekha Jain v. National Insurance Company
Ltd. [2013 KHC 4600], the Hon'ble Supreme Court held that the
courts and tribunals are empowered to fix 100% functional
disability depending upon the avocation of the claimant. Applying
this principle, this Court fails to comprehend how the Tribunal
could have fixed only 30% of functional disability qua the whole
body disability. Admittedly, the claimant is a driver by
occupation. The amputation of right leg, has certainly affected
his avocation. This Court cannot be oblivious of the fact that
with an amputed right leg, the claimant could still continue with
the avocation as a driver. Such inconsiderate approach should
not have been taken by the Tribunal while fixing the percentage
of disability.
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14. Considering the facts in totality, this Court has no
hesitation to hold that the Tribunal ought to have fixed 100% as
functional disability in the present case.
15. As a result of the above discussion, this Court finds
that the appellant is entitled to succeed. The compensation is
modified as follows:
i. The notional income of the appellant/claimant is fixed at
Rs.15,600/-.
ii. The notional income of the appellant/claimant with 40%
future prospects is as follows:
15600+(15600x40%)=Rs.21,840/-
iii. Compensation for continuing or permanent disability
and compensation of loss of earning power = 21840 x 12 x
15 = Rs.39,31,200/-
16. In the light of the fact that this Court has taken 100%
functional disability and also granted 40% future prospects, this
Court is of the considered view that there should be just and fair
compensation. Therefore, the plea raised by the appellant for
claiming compensation for the change of prosthesis is declined in
the absence of any evidence. The compensation granted by the
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Tribunal under the head loss of earnings is also deleted since this
Court has fixed 100% disability.
Thus, the appellant is entitled to enhanced compensation
as follows:
Heads Amount awarded Total Enhanced
by the Tribunal compensation amount of
awarded in appeal compensation
Compensation for 5,40,000/- 39,31,200/- 33,91,200/-
continuing or [21840 x 12 x 15] [39,31,200-
permanent 5,40,000]
disability and
compensation of
loss of earning
power
Loss of earnings 1,20,000/- deleted (-1,20,000/-)
Total enhanced amount of compensation Rs.32,71,200/-
Accordingly, the appellant/claimant is awarded an
additional compensation of Rs.32,71,200/- (Rupees thirty two
lakhs seventy one thousand two hundred only) over and above
the compensation awarded by the Tribunal with interest @7%
per annum from the date of petition till realization together with
proportionate costs. The Insurance Company is directed to
deposit the aforesaid amount within a period of 30 days from the
date of receipt of a copy of this judgment.
In view of the fact that appellant is granted enhanced
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compensation more than what is claimed, the appellant is
directed to remit the requisite court fee for the enhanced
compensation.
The appeal is ordered accordingly.
Sd/-
EASWARAN S., JUDGE
ACR
