Kerala High Court
Padmini vs Amal Raj on 7 March, 2025
M.A.C.A. No. 3354/2022 :1:
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE JOHNSON JOHN
FRIDAY, THE 7TH DAY OF MARCH 2025 / 16TH PHALGUNA, 1946
MACA NO. 3354 OF 2022
AWARD DATED 18.02.2021 IN OP(MV) NO.707 OF 2017 OF MOTOR ACCIDENT
CLAIMS TRIBUNAL ,KOTTAYAM
APPELLANT/PETITONER:
PADMINI, W/O. SURENDRAN, KARIPPAL HOUSE, PERIYAPURAM P.O.,
ONAKKOOR, PIRAVOM, ERNAKULAM-686 668.
BY ADVS.
SRI. P.R.VENKATESH
SMT. ASHA P.KURIAKOSE
RESPONDENTS/RESPONDENTS:
1 AMAL RAJ
S/O. RAJU, KARIPPAL HOUSE, PERIYAPURAM P.O., ONAKKOOR,
PIRAVOM, ERNAKULAM-686 668.
2 UNITED INDIA INSURANCE COMPANY LTD.,
REPRESENTED BY ITS DIVISIONAL MANAGER, DIVISIONAL OFFICE,
KOTTAYAM-686 001.
BY ADV. SRI. RINNY STEPHEN CHAMAPARAMPIL
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON
06.03.2025, THE COURT ON 07.03.2025 DELIVERED THE FOLLOWING:
M.A.C.A. No. 3354/2022 :2:
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JOHNSON JOHN, J.
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M.A.C.A No. 3354 of 2022
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Dated this the 7th day of March, 2025.
JUDGMENT
The petitioner in O.P.(MV) No. 707 of 2017 on the file of the Motor
Accident Claims Tribunal, Kottayam filed this appeal seeking
enhancement of compensation.
2. According to the petitioner, on 31.01.2017, while she was
travelling as a pillion rider in a motorcycle ridden by the 1 st respondent
in a rash and negligent manner, the motorcycle fell in a gutter and
thereby, the petitioner fell down and sustained serious injuries. The 1 st
respondent is also the owner of the vehicle and the 2 nd respondent is
the insurer.
3. Before the Tribunal, Exhibits A1 to A9 and X1 were marked.
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
and 2 are liable to pay compensation to the petitioner. The Tribunal
awarded a total compensation of Rs.1,82,570/- to the petitioner.
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4. Heard Sri. P.R. Venkatesh, the learned counsel for the
appellant and Sri. Rinny Stephen Champarampil, the learned counsel for
the 2nd respondent insurance company.
5. The learned counsel for the appellant argued that the appellant
was aged 48 years and was earning Rs.12,000/- per month from her
occupation as a tailor and the Tribunal fixed only Rs.11,000/- as notional
income for the purpose of calculating the compensation. Admittedly, no
evidence is adduced to prove the income of the petitioner. Exhibit A8,
identity card of the petitioner issued as per the provisions of the
National Rural Employment Guarantee Act, indicates that the petitioner
is a coolie worker. 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
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per year. If the monthly income of the appellant is calculated by
adopting the above principle, it will come to Rs.11,000/-, as the accident
occurred in the year 2017. Therefore, I find no reason to interfere with
the monthly notional income fixed by the Tribunal.
6. The learned counsel for the appellant argued that as per Exhibit
X1 disability certificate, the petitioner is having 6% permanent disability
and the Tribunal accepted only 2% functional disability for the purpose
of calculating the compensation and the same is on the lower side.
7. 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
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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.
8. Exhibit X1 disability certificate shows that the petitioner
sustained type 3 B open fracture olecranon right with raw area. It is
further noted in Exhibit X1 that there is partial ankylosis elbow and
range of motion limited to 300 to 1100 flexion and she has pain on lifting
weight. Considering the age and occupation of the appellant and the
nature of injuries and physical disability assessed in Exhibit X1, I find
that 5% functional disability can be accepted for the purpose of
calculating loss of earning capacity. When the compensation for loss of
earning capacity is calculated as per the revised criteria, the amount
would come to Rs.85,800/- [11000 x 12 x 13 x 5/100]. The Tribunal has
already granted Rs.34,320/- under this head. Therefore, an additional
compensation of Rs.51,480/- is granted to the appellant towards loss of
earnings capacity.
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9. The learned counsel for the appellant pointed out that the
Tribunal has granted bystander's expenses at the rate of Rs.250/- per
day for 40 days and the same is on the lower side. Considering the facts
and circumstances, I find that the bystander's expenses can be
calculated at the rate of Rs.400/- per day and therefore, the appellant is
entitled for Rs.16,000/- towards bystander's expenses. The Tribunal has
already granted Rs.10,000/- and hence, an additional compensation of
Rs.6,000/- is granted to the appellant towards bystander's expenses.
10. The Tribunal granted only Rs.10,000/- towards loss of
amenities. Considering the nature of injuries, period of treatment and
disability, I find that the same is on the lower side and therefore, an
additional compensation of Rs.10,000/- is granted to the appellant
towards 'loss of amenities'. I find that the compensation granted by the
Tribunal under other heads are reasonable and requires no interference.
11. Accordingly, the appellant is entitled to the enhanced
compensation as given below:
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Additional
amount
Compensation
granted by
Particulars awarded by the
this Court
Tribunal (Rs.)
(Rs.)
Loss of earning power 34,320/- 51,480/-
Bystander's expenses 10,000/- 6,000/-
Loss of amenities 10,000/- 10,00/-
Total enhanced compensation
67,480/-
12. Thus, a total amount of Rs.67,480/- (Rupees Sixty Seven
Thousand Four 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 142 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
