Kerala High Court
M.H.Hunaise vs Peter on 6 March, 2025
M.A.C.A. No. 901/2022 :1:
2025:KER:18822
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE JOHNSON JOHN
THURSDAY, THE 6TH DAY OF MARCH 2025 / 15TH PHALGUNA, 1946
MACA NO. 901 OF 2022
AWARD DATED 28.01.2011 IN OP(MV) NO.970 OF 2004 OF MOTOR ACCIDENT
CLAIMS TRIBUNAL, THRISSUR
APPELLANT/PETITIONER:
M.H.HUNAISE. AGED 37 YEARS
S/O. HASSAN, MAMMASRAILLATH HOUSE, THOOVANOOR DESOM,
KECHERY P.O., CHOONDAL VILLAGE, THRISSUR TALUK, THRISSUR
DISTRICT 680 501. (REPRESENTED BY POWER OF ATTORNEY HOLDER
HASSAN, AGED 63, S/O. MAMUTTY MAMMASRAYILLATH HOUSE,
THOOVANNOOR DESOM, CHOONDAL VILLAGE, P.O. KECHERY,
THALAPPILLY TALUK, THRISSUR DISTRICT 680 501.).
BY ADVS.
SRI. A.R.NIMOD
SRI. M.A.AUGUSTINE
RESPONDENTS/RESPONDENTS:
1 PETER
S/O. THOMAS, THATTIL HOUSE, ELTHURUTH DESOM, ARANATTUKARA
VILLAGE, THRISSUR TALUK, THRISSUR DISTRICT 680 611.
2 VASUDEVAN,
S/O. VELU, KUNNATH HOUSE, KUTTANCHERRY DESOM, ERUMAPETTY
P.O., THRISSUR DISTRICT 680 584.
3 UNITED INDIA INSURANCE CO.LTD.,
IST ORISON COMPLEX, WADAKKACCHERY RD. KUNNAMKULAM,
THRISSUR 680 503, REPRESENTED BY BRANCH MANAGER.
BY ADVS.
R3 BY SRI. S GOPAKUMAR
SMT. T.M.BINITHA(K/000206/2006)
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON
05.03.2025, THE COURT ON 06.03.2025 DELIVERED THE FOLLOWING:
M.A.C.A. No. 901/2022 :2:
2025:KER:18822
JOHNSON JOHN, J.
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M.A.C.A No. 901 of 2022
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Dated this the 6th day of March, 2025.
JUDGMENT
The petitioner in O.P.(MV) No. 970 of 2004 on the file of the Motor
Accident Claims Tribunal, Thrissur filed this appeal seeking enhancement
of compensation.
2. According to the petitioner, on 27.11.2003, while he was
travelling in an autorickshaw, bus driven by the 1 st respondent in a rash
and negligent manner caused to hit the autorickshaw and thereby, he
sustained serious injuries. The 2 nd respondent is the owner of the
offending vehicle and the 3rd respondent is the insurer.
3. Before the Tribunal, Exhibits A1 to A15 were marked from the
side of the petitioner and Exhibit B1 was marked from the side of the 3 rd
respondent. The Tribunal arrived at a finding that the accident occurred
because of the negligence on the part of the 1 st respondent and that
respondents 1 to 3 are jointly and severally liable to pay compensation
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to the petitioner. The Tribunal awarded a total compensation of
Rs.55,500/- to the petitioner.
4. The learned counsel for the appellant argued that the appellant
was aged 19 years and was having a monthly income of Rs.4000/-; but,
the Tribunal fixed only Rs.1,500/- as notional income and the same is on
the lower side. The decision of the Hon'ble Supreme Court in
Ramachandrappa v. Royal Sundaram Alliance Insurance Co.Ltd.
[(2011) 13 SCC 236] 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. In this case, the accident occurred in the year
2003. Therefore, I find that monthly income of Rs.4,000/- claimed can
be accepted for the purpose of calculating the compensation.
5. The learned counsel for the appellant argued that as per Exhibit
A11 disability certificate issued by the Associate Professor of
Orthopedics, Medical College Hospital, Thrissur, the appellant is having
21% whole body disability and the Tribunal has not given any reasons
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for not accepting Exhibit A11 disability certificate. It is not in dispute
that the appellant sustained compression fracture to T9, T10, T11 and
T12 vertebra.
6. 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.
7. Considering the age of the petitioner, nature of injuries and
disability, I find that it is only reasonable to accept 20% functional
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disability for the purpose of calculating the compensation for loss of
earning capacity. 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.
8. The learned counsel for the appellant pointed out that the
Tribunal applied the multiplier of 16 and the same is not correct. As per
the decision of the Honourable Supreme Court in Sarla Varma v. Delhi
Transport Corporation [2010 (2) KLT 802 (SC)], the multiplier
applicable is 18, when the victim is aged between 15 to 20 years. When
the compensation for permanent disability and loss of earning capacity is
calculated as per the revised criteria, the same would come to
Rs.2,41,920/- [(4000 + 40%) x 12 x 18 x 20/100]. The Tribunal has
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already granted Rs.23,040/- under this head. Therefore, the appellant is
granted an additional compensation of Rs.2,18,880/- under this head.
9. The learned counsel for the appellant pointed out that the
Tribunal had not granted any compensation towards loss of earning.
Considering the nature of injuries, period of treatment and disability, I
find that loss of earning can be granted for 3 months. Therefore,
Rs.12,000/- is granted to the appellant under the head 'loss of earning'.
10. The Tribunal has granted only Rs.16,000/- for pain and
sufferings and no amount is granted towards loss of amenities.
Considering the nature of injuries and period of treatment, an additional
compensation of Rs.10,000/- is granted to the appellant under the head
'pain and sufferings' and Rs.20,000/- is granted as compensation under
the head 'loss of amenities'. I find no reason to interfere with the
compensation awarded by the Tribunal under other heads.
11. Accordingly, the appellant is entitled to the enhanced
compensation as given below:
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Additional
Compensation amount granted
Particulars awarded by the by this Court
Tribunal (Rs.) (Rs.)
Loss of permanent
disability and loss of 23,040/- 2,18,880/-
earning capacity
Loss of earning NIL 12,000/-
Pain and sufferings 16,000/- 10,000/-
Loss of amenities; NIL 20,000/-
Total enhanced compensation
2,60,880/-
12. Thus, a total amount of Rs,2,60,880/- (Rupees Two Lakhs
Sixty Thousand Eight Hundred and Eighty 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 (excluding the
period of delay of 3242 days in filing the appeal). 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
