Kerala High Court
Saji vs Bijily John on 7 November, 2024
MACA No.4512 of 2019 1 2024:KER:82969
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE P. KRISHNA KUMAR
THURSDAY, THE 7TH DAY OF NOVEMBER 2024 / 16TH KARTHIKA, 1946
MACA NO. 4512 OF 2019
AGAINST THE AWARD DATED 16.08.2019 IN OPMV NO.513 OF 2013 OF
THE MOTOR ACCIDENT CLAIMS TRIBUNAL , MAVELIKKARA
APPELLANT/SPETITIONER
SAJI, AGED 42 YEARS
S/O.DAMODHARAN, THUNDIL HOUSE,
CHIRAKADAVOM MURI,
KAYAMKULAM VILLAGE,
ALAPPUZHA DISTRICT, PIN-690502
BY ADVS.
M.V.THAMBAN
SRI.R.REJI
SMT.THARA THAMBAN
SRI.B.BIPIN
SRI.ARUN BOSE
SMT.RENI JAMES
SMT.DEEPA SREENIVASAN
RESPONDENTS/RESPONDENTS 1,2, & 3:
1 BIJILY JOHN,
S/O.JOHNY,
KALEEKKAL THEKKATHI,
CHIRAKADAVOM, KAYAMKULAM.P.O,
ALAPPUZHA DISTRICT-690502
2 SREELAL
S/O.SREEDHARAN,
THANIKKAL THARAYIL,
CHERAVALLY MURI,
KAYAMKULAM.P.O,
ALAPPUZHA DISTRICT-690502
MACA No.4512 of 2019 2 2024:KER:82969
3 UNITED INDIA INSURANCE CO.LTD
KAYAMKULAM.P.O,
ALAPPUZHA DISTRICT-690502
REPRESENTED BY ITS BRANCH MANAGER
BY SMR.S.JAYASREE, SC
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD
ON 07.11.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
MACA No.4512 of 2019 3 2024:KER:82969
P.KRISHNA KUMAR, J
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MACA No.4512 of 2019
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Dated this the 7th day of November, 2024
JUDGMENT
This appeal is preferred against the award passed on
16.08.2019 by the Motor Accidents Claims Tribunal, Mavelikara in
OP(MV) No.513 of 2013, by the petitioner therein, claiming that the
amount awarded under various heads is insufficient.
2. The appellant suffered injury consequent to an accident that
occurred on 29.01.2011, while the appellant was walking along a
public road, the motorcycle driven by the first respondent in a rash and
negligent manner knocked down the applicant.
3. As there is no challenge against the findings of the Tribunal
regarding the cause of the motor accident, the nature of injuries
suffered, the liability of the respondent etc, the discussion hereunder is
limited to the essential aspects only.
4. Heard both sides and perused the available records.
5. The learned counsel appearing for the appellant challenged
the award mainly on two grounds. The Tribunal has fixed the monthly
income of the appellant at the rate of Rs.4000/-, instead of the
amount claimed i.e. Rs.8000/-, but referring to the decision in
MACA No.4512 of 2019 4 2024:KER:82969
Ramachandrappa v. Manager, Royal Sundaram Aliance
Insurance Company Limited (2011 KHC 4675), the learned counsel
contended that the Honourable Supreme Court has fixed the notional
income as Rs.4,500/- for a 35 years old Coolie in the year 2004 and
thus there is no reason for reducing the income claimed by the
appellant for the year 2011. He further contended that the percentage
of disability assessed by the Doctor working in Alappuzha Medical
College Hospital is 15% and that the doctor was also examined before
the Tribunal for proving the certificate issued by him and hence there
is no reason for reducing the percentage of the disability to 10%.
6. Learned counsel appearing for the third respondent
submitted that the Tribunal has awarded more than what is legally
contemplated and hence no enhancement is therefore required. It is
pointed out that the Tribunal awarded compensation for future
prospects, though this is not a case where the claimant suffered a
serious injury resulting in permanent disability and thus the future
prospects ought not have been given. It is also pointed out that the
Tribunal awarded compensation for disability as well as the loss of
earning power, which is impermissible in law and thus the amount
awarded for loss of earning power should be adjusted, if this Court
intends to enhance any amount.
7. As contended by the learned counsel for the appellant that
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the Supreme Court has fixed the notional income of a Coolie aged 35
years as Rs.4500/- in an accident occurred in the year 2007, based on
the then prevailing wages of labourers. If that be so, it is just and
reasonable to consider the income of the appellant at the rate of
Rs.8,000/- per month, as the accident in question occurred in the year
2011. Though it is contended that the percentage of disability fixed by
the Tribunal is to be enhanced, I am not persuaded to do so in view of
the law laid down by the Honourable Supreme Court in Rajkumar v.
Ajayakumar (2010 KHC 5021), wherein it is observed that the
disability assessed by the Doctor need not be the percentage of the
occupational disability. In the present case, there is no evidence to
show that the financial disability is more than what is fixed by the
Tribunal.
8. Though it is contended that this is not a fit case in which
future prospects can be given as the nature of the injury does not
show that it is such a serious in nature, I am unable to accept the
same in view of the medical evidence on record i.e. (1) Compound
fracture lower third of right tibia (2) Fracture upper third fibula and (3)
Lacerated wound 1x1 c.m. lower third of the right leg. If the monthly
income is fixed at the rate of Rs.8000/-, and a 40% increase towards
future prospects added, the compensation for disability will be
Rs.2,01,600/- (11,200(8000+3200 i.e. 40%) X12x15x10%). The
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appellant is entitled to an additional compensation of Rs.93600/- under
the head 'compensation for disability' (2,01,600-1,08,000=93,6000).
9. As contended by the learned counsel for the respondent the
compensation for loss of earning power cannot be awarded together
with compensation for disability, and hence the said amount is to be
reduced. There is no scope for interference on any other grounds.
10. In view of the above discussion, the appeal is allowed as
follows:
The appellant is entitled to get an additional compensation
under the head:-
Compensation for disability - Rs.93,600/-
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Total Rs.93,600/-
=======
The impugned award is modified only to the above extent. As
the amount exceeds the claim raised before the Tribunal, the 3rd
respondent will pay the proportionate court fee and reduce the same
from the amount to be given to the appellant.
Sd/-
P.KRISHNA KUMAR, JUDGE
dlk 7.11.2024
