Kerala High Court
Niyas vs Mohana on 13 November, 2024
Object 1
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M.A.C.A. No. 2441/2014 :1:
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE JOHNSON JOHN
WEDNESDAY, THE 13TH DAY OF NOVEMBER 2024 / 22ND KARTHIKA, 1946
MACA NO. 2441 OF 2014
AWARD DATED 19.05.2014 IN OP(MV) NO.227 OF 2011 OF III ADDITIONAL
MACT, KASARAGODE
APPELLANT/PETITIONER:
NIYAS
AGED 24 YEARS
S/O. MUHAMMED C.H., CHATHAPPADY HOUSE, P.O.NEKRAJE,
KASARAGOD DISTRICT, REPRESENTED BY HIS FATHER THE POWER OF
ATTORNEY HOLDER, MUHAMMED C.H., CHATHAPPADY HOUSE,
P.O.NEKRAJE, KASARAGOD DISTRICT.
BY ADV SRI.K.P.HARISH
RESPONDENTS/RESPONDENTS:
1 MOHANA
AGED 28 YEARS
S/O. VISWANATHA, DOOR NO. 383 A , KUMBLA GRAMA PANCHYATH,
(DRIVER OF KL 14B 9687) - 671 321.
2 ABOOBACKER SIDDIQUE
S/O. MOOSA, K.K.HOUSE, BADRIYA COMPOUND, KUMBLA, KASARAGOD
DISTRICT (DRIVER OF KL 14B 9687)- 671 321
3 THE BRANCH MANAGER
NATIONAL INSURANCE, COMPANY LTD, 3RD FLOOR, HIGH LANE PLAZA,
M.G.ROAD, KASARAGOD - 671 121. (INSURER OF THE VEHICLE
BEARING REG. NO. KL 14B 9687 POLICY NO.
571101/31/09/6300012400)
BY ADV SRI. V.S.SHIRAZ BAVA
R3 BY SRI. LAL K. JOSEPH
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON
12.11.2024, THE COURT ON 13.11.2024 DELIVERED THE FOLLOWING:
M.A.C.A. No. 2441/2014 :2:
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'CR'
JOHNSON JOHN, J.
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M.A.C.A No. 2441 of 2014
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Dated this the 13th day of November, 2024.
JUDGMENT
The appellant was the petitioner in O.P (MV) No. 227 of 2011 on
the file of the Motor Accident Claims Tribunal, Kasaragod.
2. According to the appellant, on 11.06.2010, at about 10 p.m.,
while he was riding a motorcycle, autorickshaw driven by the 1 st
respondent in a rash and negligent manner caused to hit the motorcycle
and thereby, he fell down and sustained grievous injuries. Respondents
2 and 3 are the owner and insurer of the offending vehicle.
3. At the time of trial, Exhibits A1 to A8 were marked from the
side of the petitioner and no evidence was adduced from the side of the
respondents.
4. After trial and hearing both sides, the Tribunal found that the
accident occurred because of the negligence on the part of the 1 st
respondent. The Tribunal awarded a total compensation of Rs.74,000/-
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to the appellant. The appellant is challenging the quantum of
compensation determined by the Tribunal on the ground that the
Tribunal has not correctly fixed the notional income and also failed to
grant compensation towards loss of earning capacity of the appellant.
The compensation granted by the Tribunal on other heads are also on
the lower side and therefore, requires interference by this Court in
appeal.
5. Heard Sri. K.P. Harish, the learned counsel appearing for the
appellant and Sri. Lal K. Joseph, the learned counsel appearing for the
3rd respondent.
6. As per the order dated 20.02.2020, this Court directed the
superintendent, District Hospital, Kasaragod to constitute a Medical
Board to assess the permanent disability, if any, of the appellant on
account of the injury sustained in the motor accident and accordingly,
the Medical Board assessed the disability and the medical certificate in
this regard is marked as Exhibit X1.
7. According to the appellant, he was aged 21 years at the time of
the accident and having a monthly income of Rs.4,500/-. But, the
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Tribunal found that the appellant has not succeeded in proving the said
monthly income and therefore, fixed a notional income of Rs.3,000/- per
month for the purpose of calculating the loss of earning.
8. The decision of the Hon'ble Supreme Court in
Ramachandrappa v. Royal Sundaram Alliance Insurance Co.Ltd.
[(2011) 13 SCC 236] and Syed Sadiq and Others v. Divisional
Manager, United India Insurance Company [(2014) 2 SCC 735 =
2014 KHC 4027] shows that even in the absence of any evidence, the
monthly income of an ordinary worker has to be fixed as Rs.4,500/- in
respect of the accident occurred in the year 2004 and for the subsequent
years, the monthly income could be reckoned by adding Rs.500/- each
per year. If the monthly income of the appellant is calculated by
adopting the above principle, it will come to Rs.7,500/- as the accident
occurred in the year 2010.
9. The learned counsel for the 3rd respondent argued that the
appellant claimed only Rs.4,500/- as his monthly income in the claim
petition and therefore, it is not just and fair to fix a higher amount as
notional income based on the decision in Ramachandrappa (supra).
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The learned counsel for the appellant cited the decisions of the
Honourable Supreme Court in Meena Devi v. Nunu Chand Mahto @
Nemchand Mahto and others [2022 KHC 7080] and Nagappa v.
Gurudayal singh [2003 KHC 15] to point out that the grant of just and
fair compensation is a statutory responsibility of the court, and even if a
less amount is claimed in the claim petition, the same would not be an
impediment to award just compensation in excess of the amount
claimed.
10. It cannot be disputed that even a casual worker is entitled for
fair wages and the notional income of an ordinary worker has to be fixed
after considering the fair wages at the relevant time and only because
the appellant was earning less than the fair wages at the time of
occurrence, he cannot be denied parity in the matter of notional income,
as it is well settled that beneficial legislations with social objective are
expected to be interpreted in favour of those for whose benefit the said
legislations are made. Therefore, considering the facts and
circumstances of the case, I am of the view that the appellant is entitled
for the benefit of the decisions of the Honourable Supreme Court in
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Ramachandrappa and Syed Sadiq (supra) regarding fixation of
notional income and that the contention of the 3 rd respondent in this
regard is not legally sustainable.
11. As per Exhibit X1, medical certificate issued by the Medical
Board, the appellant has got limitation of range of movement of: (1)
right hip (Active flexion limited to 0-90 degree range); (2) Right knee
(Active flexion limited to 0-90 degree range); and (3) Right Ankle
movements active range limited to (dorsiflexion plantor flexion limited to
(0-50) degree range, inversion -eversion movements of Right ankle
limited to 0-30 degree). The permanent locomotor impairment is
assessed as 49% in relation to right lower limb.
12. In Raj Kumar v. Ajay Kumar, (2011) 1 SCC 343], the
Honourable Supreme Court summarised the principles for ascertainment
of loss of earning capacity due to permanent disability as follows:
(i) All injuries (or permanent disabilities arising from injuries), do not
result in loss of earning capacity.
(ii) The percentage of permanent disability with reference to the whole
body of a person, cannot be assumed to be the percentage of loss of
earning capacity. To put it differently, the percentage of loss of earning
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capacity is not the same as the percentage of permanent disability
(except in a few cases, where the Tribunal on the basis of evidence,
concludes that the percentage of loss of earning capacity is the same as
the percentage of permanent disability).
(iii) The doctor who treated an injured claimant or who examined him
subsequently to assess the extent of his permanent disability can give
evidence only in regard to the extent of permanent disability. The loss
of earning capacity is something that will have to be assessed by the
Tribunal with reference to the evidence in entirety.
(iv) The same permanent disability may result in different percentages
of loss of earning capacity in different persons, depending upon the
nature of profession, occupation or job, age, education and other
factors.
13. According to the appellant, he was working as a salesman and
was aged 21 years at the time of the accident. Taking note of the nature
of injuries and physical disability assessed in Exhibit X1 and the
occupation of the appellant, I am of the view that 20% functional
disability can be accepted for the purpose of calculating the
compensation for loss of earning power.
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14. The decision of the Hon'ble Supreme Court in National
Insurance Co.Ltd. v Pranay Sethi [(2017) 16 SCC 680] and
Jagdish v. Mohan [(2018) 4 SCC 571] shows that the benefit of
future prospects should not be confined only to those who have a
permanent job and would extend to self-employed individuals and in
case of a self-employed person, an addition of 40% of the established
income should be made where the age of the victim at the time of the
accident was below 40 years.
15. As per the decision of the Honourable Supreme Court in Sarla
Verma v. Delhi Transport Corporation and another [(2009) 6 SCC
121 = 2010 (2) KLT 802 (SC)], the multiplier applicable for persons aged
between 21 to 25 years is 18. The Tribunal granted compensation for
loss of earnings for a period of 3 months at the rate of Rs.3,000/- per
month. Since the monthly income has been revised to Rs.7,500/-, the
appellant would get additional compensation for loss of earnings.
Accordingly, an additional compensation of Rs.13,500/- (Rupees Thirteen
Thousand Five Hundred only) is awarded towards loss of earnings.
When the compensation for loss of earning power due to permanent
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disability of the appellant is calculated as per the criteria mentioned
above, the same would come to Rs.4,53,600/- [(7500 + 40%) x 12 x 18
x 20/100].
16. The next head which requires consideration is pain and
sufferings and the amount awarded by the Tribunal is Rs.25,000/-.
Taking note of the nature of injuries, period of treatment and disability,
an additional compensation of Rs.15,000/- (Rupees Fifteen Thousand) is
granted to the appellant under this head.
17. Accordingly, the appellant is entitled to the enhanced
compensation as given below:
Particulars Compensation awarded Additional
by the Tribunal (Rs.) amount
granted by this
Court (Rs.)
Loss of earnings 9,000/- 13,500/-
Compensation for
permanent NIL 4,53,600/-
disability
Pain and sufferings 25,000/- 15,000/-
Total enhanced compensation 4,82,100/-
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18. Thus, a total amount of Rs.4,82,100/- (Rupees Four Lakhs
Eighty Two Thousand One Hundred only) is awarded as enhanced
compensation. The said amount shall carry interest at the rate of 8% per
annum from the date of the application till realization. The appellant
would also be entitled to proportionate costs in the case. The claimants
shall furnish the details of the bank account to the insurance company
for transfer of the amount.
The appeal is allowed as above
sd/-
JOHNSON JOHN,
JUDGE.
Rv
