Kerala High Court
Aneesh P vs Ajeesh on 3 March, 2025
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE JOHNSON JOHN
MONDAY, THE 3RD DAY OF MARCH 2025 / 12TH PHALGUNA, 1946
MACA NO. 3332 OF 2021
AGAINST THE AWARD DATED 16.07.2021 IN OP(MV) NO.350 OF 2019 OF
MOTOR ACCIDENT CLAIMS TRIBUNAL, OTTAPPALAM
APPELLANTS/PETITIONERS:
ANEESH P.P
AGED 24 YEARS
S/O.AYYAPPAN, POOLAKKAL HOUSE, VENGASSERY P.O., AMBALAPPARA,
PALAKKAD - 679 516.
BY ADV SHEJI P.ABRAHAM
RESPONDENTS/RESPONDENTS:
1 AJEESH
S/O.RADHAKRISHNAN, VARIYATH PARAMBIL HOUSE, KAYLIYAD,
PALAKKAD - 679 122 (DRIVER OF KL-48 F-8584 MOTOR CYCLE).
2 SIVADASAN PILLAI
S/O.BALAKRISHNAN PILLAI, 8/224 A(5/216), LAKSHMI VILASAM,
P.O.MANALITHAR,VEEROLIPADAM, ENKAKAD - 680 589
(OWNER OF KL-48-F-8584 MOTOR CYCLE).
3 THE NEW INDIA ASSURANCE CO.LTD.
1ST FLOOR, KEEZHADAYIL COMPLEX, OTTAPALAM ROAD,
CHERPULASSERY, PALAKKAD - 679 503 (INSURER OF KL-48-F-8584
MOTOR CYCLE), POLICY NO.76270431180200001431 VALID FROM
14/07/2018 TO 13/07/2019 REP. BY ITS BRANCH MANAGER).
BY ADVS.
R3 BY SRI. AJEESH EMMANUEL
SRI. TIJIMOL VARGHESE(K/0001102/2006)
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON
28.02..2025, THE COURT ON 03.03.2025 DELIVERED THE FOLLOWING:
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JOHNSON JOHN, J.
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M.A.C.A No. 3332 of 2021
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Dated this the 3rd day of March, 2025.
JUDGMENT
The petitioner in O.P.(MV) No. 350 of 2019 on the file of the Motor
Accident Claims Tribunal, Ottapalam filed this appeal seeking
enhancement of compensation.
2. According to the petitioner, on 26.02.2019, while he was riding
a motorcycle, another motorcycle ridden by the 1 st respondent in a rash
and negligent manner hit on the motorcycle of the petitioner and
thereby, the petitioner fell down and sustained serious injuries. The 2 nd
respondent is the owner of the offending vehicle and the 3 rd respondent
is the insurer.
3. Before the Tribunal, PW1 examined and Exhibits A1 to A11
were marked from the side of the petitioner, and from the side of the
respondents, Exhibits B1 to B3 were marked.
4. The Tribunal recorded a finding that the accident occurred
because of negligence on the part of the 1st respondent and that there is
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violation of policy conditions on the part of the 2 nd respondent, owner of
the vehicle, as the 1st respondent was not having a valid driving licence.
5. The Tribunal allowed a total compensation of Rs.3,27,110/- to
the petitioner and also allowed the 3 rd respondent insurance company to
recover the award amount from respondents 1 and 2 after payment to
the petitioner. The findings of the Tribunal regarding negligence and
liability are not under challenge.
6. Heard Shri. Sheji P. Abraham, the learned counsel for the
appellant and Sri. Ajeesh Emmanuel, the learned counsel for the
respondent insurance company.
7. The learned counsel for the appellant argued that the petitioner
was a mason aged 21 years and earning Rs.25,000/- per month at the
time of the accident and the Tribunal fixed only a notional income of
Rs.10,000/- for the purpose of calculating the compensation and the
same is on the lower side.
8. The decision of the Hon'ble Supreme Court in
Ramachandrappa v. Royal Sundaram Alliance Insurance Co.Ltd.
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[(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.12,000/-.
9. The learned counsel for the appellant pointed out that the
monthly income fixed as per the above decisions is for an ordinary
worker without any skills and in this case, the appellant is a mason by
profession, which is a skilled employment. The learned counsel for the
appellant argued that as per Government notification dated 29.7.2019,
the minimum wage of a mason is Rs.820/- per day. But, the learned
counsel for the respondent insurance company pointed out that the
accident in this case occurred on 26.02.2019 and the Government
notification dated 29.07.2019 has no retrospective effect and that the
said notification is applicable only with respect to persons employed in
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the areas specified in the said notification. It is pertinent to note that the
averment in the claim petition that the appellant is a mason, is not
seriously disputed in the written statement of the respondent insurance
company. Therefore, considering the facts and circumstances of the
case, I find that the monthly income of the appellant at the time of the
accident can be fixed at Rs.16,000/- for the purpose of calculating the
compensation.
10. 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.
11. The learned counsel for the appellant invited my attention to
the evidence of PW1 and Exhibit A1 disability certificate and argued that
the Tribunal has accepted only 7% whole body disability for the purpose
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of calculating the compensation for loss of earning capacity and the
same is not in accordance with the settled principles for ascertainment of
loss of earning capacity due to permanent disability.
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
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. As per Exhibit A1, the appellant is having permanent disability
of 28.61%. The injuries sustained by the appellant are fracture 4 th, 5th
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Metacarpal right hand and proximal phalanx 4 th finger right hand. The
problems noted in Exhibit A1 are: (i) difficulty in gripping objects due to
deformity of 4th finger flexion deformity; (ii) loss of ROM mcp joint of 4 th
finger RT 40%; (iii) grip power reduced by 50%; and (iv) dominant right
hander. PW1 is the doctor who issued Exhibit A1 disability certificate and
he deposed that the whole body permanent disability is only 14%.
14. It is well settled that the percentage of loss of earning
capacity need not be the same as the percentage of permanent disability
and the same depends upon the age, occupation and other factors. The
principle consistently followed by the court in assessing motor accident
compensation claims, is to place the victim in as near a position as she
or he was in before the accident as held by the Hon'ble Supreme Court
in Pappu Deo Yadav v. Naresh Kumar and Others (2020 KHC
6547).
15. It is in evidence that the appellant was working as a mason
and that he was aged 21 years at the time of occurrence. The nature of
injuries sustained by him and the present problems noted in Exhibit A1
would clearly show that the appellant will not be in a position to continue
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his work effectively as a mason. The injuries sustained to his right hand
and fingers can have a significant impact on his ability to work
effectively and safely as a mason. Therefore, considering the facts and
circumstances of the case, I find that 18% functional disability can be
accepted for the purpose of calculating the loss of earning capacity.
16. When the compensation for functional disability and loss of
earning capacity is calculated as per the revised criteria, the same would
come to Rs.8,70,912/- [(16000 + 40%) x 12 x 18 x 18/100]. The
Tribunal has already granted Rs.1,51,200/- under this head. Therefore,
the appellant is granted an additional compensation of Rs.7,19,712/-
under this head.
17. The Tribunal granted loss of earnings for 2 months only and
considering the nature of injuries and period of treatment, I find that
loss of earnings can be granted for a period of 4 months and as per the
revised notional income, the same would come to Rs.64,000/-. The
Tribunal has already granted Rs.20,000/- under this head. Therefore, an
additional compensation of Rs.44,000/- is granted to the appellant under
the head 'loss of earnings'.
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18. The learned counsel for the appellant pointed out that the
Tribunal granted only Rs.30,000/- towards 'pain and sufferings' and
Rs.20,000/- towards 'loss of amenities' and the same is on the lower
side. Considering the nature of injuries, period of treatment and
disability, additional compensation of Rs.10,000/- each is granted to the
appellant under the heads--'pain and sufferings' and 'loss of amenities'.
I find that the compensation awarded by the Tribunal under other heads
are reasonable and requires no interference.
19. Accordingly, the appellant is entitled to the enhanced
compensation as given below:
Additional
amount
Compensation
granted by
Particulars awarded by the
this Court
Tribunal (Rs.)
(Rs.)
Compensation for
functional disability
1,51,200/- 7,19,712/-
and loss of earning
capacity
Loss of earnings 20,000/- 44,000/-
Pain and sufferings 30,000/- 10,000/-
Loss of amenities 20,000/- 10,000/-
Total enhanced compensation
7,83,712/-
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20. Thus, a total amount of Rs.7,83,712/- (Rupees Seven Lakhs
Eighty Three Thousand Seven Hundred and Twelve 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
claimant 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
