Gopakumar G., (Deceased)* vs The Divisional Manager
2025 Latest Caselaw 4383 Ker

Kerala High Court

Gopakumar G., (Deceased)* vs The Divisional Manager on 21 February, 2025

M.A.C.A. No. 2878/2021            :1:


                                                          2025:KER:14783

                 IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                     PRESENT

                 THE HONOURABLE MR. JUSTICE JOHNSON JOHN

         FRIDAY, THE 21ST DAY OF FEBRUARY 2025 / 2ND PHALGUNA, 1946

                           MACA NO. 2878 OF 2021

      AGAINST THE AWRD DATED IN OP(MV) NO.1663 OF 2017 OF MOTOR
ACCIDENT CLAIMS TRIBUNAL ,KOTTAYAM

APPELLANT/PETITIONER IN OP(MV):

     1      GOPAKUMAR G.,
            AGED 34 YEARS
            S/O. GOPALAKRISHNAN ASSARI, MAVELIL HOUSE, PERINGARA P.O,
            PERINGARA VILLAGE, KARAKKAL, THIRUVALLA TALUK,
            PATHANAMTHITTA-689 108                     (DIED)

            ADDL. APPELLANT NO.2 IMPLEADED:

     2      GOPIKA.G
            D/O.GOPALAKRISHNAN, ASSARI, MAVELIL HOUSE, AGED 37 YEARS,
            PERINGARA .P.O, THIRUVALLA, PATHANAMTHITTA DISTRICT,
            PIN: 689 108.
            ADDL. APPELLANT NO.2 IS IMPLEADED AS PER ORDER DATED
            08.11.2024 IN I.A. NO. 1 OF 2024]


            BY ADVS.
            T.K.BIJU (MANJINIKARA)
            ANNIE M.ABRAHAM
            KURIEN BIJU




RESPONDENT/2ND RESPONDENT IN THE OP(MV):

            THE DIVISIONAL MANAGER,
            ORIENTAL INSURANCE CO. LTD., DIVISIONAL OFFICE, MATTEETHRA
            BUILDING, BAKER JUNCTION, KOTTAYAM-686 001.


            R1 BY BY SMT. DEEPA GEORGE

THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY            HEARD   ON
20.02.2025, THE COURT ON 21.02.2025 DELIVERED THE FOLLOWING:
 M.A.C.A. No. 2878/2021            :2:


                                                            2025:KER:14783

                            JOHNSON JOHN, J.
           ---------------------------------------------------------
                         M.A.C.A No.2878 of 2021
            --------------------------------------------------------
               Dated this the 21st day of February, 2025.

                                JUDGMENT

This appeal is filed by the petitioner in O.P.(MV) No. 1663 of 2017

on the file of the Motor Accident Claims Tribunal, Kottayam seeking

enhanced compensation.

2. During the pendency of the appeal, the original appellant died

and his legal heir was impleaded as additional appellant No.2.

3. In the claim petition, it is stated that while the petitioner was

riding a motorcycle on 18.10.2015, car driven by the 1 st respondent in a

rash and negligent manner hit the motorcycle and thereby, he fell down

and sustained serious injuries. The 1 st respondent is also owner of the

offending vehicle and the 2nd respondent in the insurer.

4. Before the Tribunal, from the side of the petitioner, Exhibits A1

to A19 and X1 were marked and no evidence adduced from the side of

the respondents.

5. The Tribunal recorded a finding that the accident occurred

2025:KER:14783

because of the negligence on the part of the 1 st respondent and that

respondents 1 and 2 are jointly and severally liable to pay

compensation. The Tribunal awarded a total compensation of

Rs.9,26,220/- to the petitioner.

6. Heard Sri. T.K. Biju (Manjinikkara), the learned counsel for the

appellant and Smt. Deepa George, the learned counsel for the

respondent insurance company.

7. The learned counsel for the appellant argued that the victim

was a carpenter aged 30 years and earning Rs.1,500/- per day and

without considering the same, the Tribunal fixed a notional income of

Rs.10,000/- and the same is on the lower side. The learned counsel for

the appellant pointed out that in Exhibit A1 First Information Statement,

the occupation of the victim as carpenter is specifically stated and

further, there is no specific denial of the occupation in the written

statement of the insurance company. In Shivakumar M. v. Managing

Director, Bengaluru Metropolitan Transport Corporation [(2017) 5

SCC 79], the Honourable Supreme Court accepted the monthly income

of Rs.15,000/- for a painter in connection with the occurrence in the

year 2013 on the ground that there is no serious dispute on the part of

the respondent regarding the avocation and income claimed.

2025:KER:14783

8. The learned counsel for the appellant also cited the decision of

this Court in Sujith M.G and others v. New India Assurance Co.

Ltd. [judgment dated 26.09.2024 in M.A.C.A. No. 271 of 2021 :

2024:KER:72100], wherein this Court fixed a notional income of

Rs.15,000/- for a carpenter in connection with an accident occurred in

the year 2015. Therefore, considering the facts and circumstances, I find

that it is only reasonable to fix monthly notional income of the victim at

the time of the accident as Rs.15,000/-.

9. The learned counsel for the appellant argued that the Tribunal

failed to fix the functional disability by applying the settled principles for

ascertainment of loss of earning capacity due to permanent disability. It

is pointed out that even though the percentage of permanent disability

assessed in Exhibit X1 is only 20%, considering the avocation of the

victim as a carpenter, the Tribunal ought to have fixed a higher

percentage of functional disability. Exhibit A7, discharge certificate,

shows that the victim sustained Type II open both bone fracture left leg

middle third; closed intra articular fracture distal end of radius right;

closed undisplaced fracture distal third ulna right; closed fracture distal

end radius left; and zone V flexor tendon injury right.

2025:KER:14783

10. 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 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.

11. Taking note of the nature of injuries and physical disability

assessed in Exhibit X1 and the occupation of the victim, I am of the view

that 25% functional disability can be accepted for the purpose of

calculating the loss of earning power.

     Loss of earning capacity         4,08,000/-
                                                             18,900/-
     Bystander's expenses             31,500/-
                                                             15,000/-
     Loss of amenities                30,000/-
     Total enhanced compensation
                                                            6,96,900/-