Kerala High Court

Thankamma vs Babu T on 24 March, 2025

M.A.C.A. No. 426/2020              :1:

                                                          2025:KER:24731

                 IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                   PRESENT

                 THE HONOURABLE MR. JUSTICE JOHNSON JOHN

          MONDAY, THE 24TH DAY OF MARCH 2025 / 3RD CHAITHRA, 1947

                           MACA NO. 426 OF 2020

      AWARD DATED 04.09.2019 IN O.P(MV) NO.509 OF 2016 OF            MOTOR
ACCIDENT CLAIMS TRIBUNAL,THODUPUZHA

APPELLANT/PETITIONER:

             THANKAMMA, AGED 75 YEARS,
             W/O. RAMAN, KUTTIKATTU HOUSE, PANDIPPARA KARA, THANKAMONY
             VILLAGE, THANKAMONY P.O., IDUKKI-685 515.


             BY ADV DINNY THOMAS


RESPONDENTS/RESPONDNTS:

     1       BABU T.,
             S/O. THANKAPPAN, VAZHAVILA HOUSE, THANKAMONY KARA,
             THANKAMONY P.O., UDUMBANCHOLA, IDUKKI-685 609 (DRIVER).

     2       ARUNKUMAR T.T., THAKIDIYEL HOUSE, KALTHOTTY, KANCHIYAR P.O.,
             IDUKKI-685 511. (OWNER)

     3       THE NEW INDIA ASSURANCE CO. LIMITED,
             REPRESENTED BY ITS DIVISIONAL MANAGER, 2ND FLOOR,
             POLACHIRACKAL CHAMBERS, KOTTAYAM P.O., KOTTAYAM-686 002.
             (INSURER)


            BY ADVS.
            SRI. THOMAS C.ABRAHAM
            R3 BY SRI.A.C.DEVY



      THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON

      21.03.2025, THE COURT ON 24.03.2025 DELIVERED THE FOLLOWING:
 M.A.C.A. No. 426/2020                :2:

                                                                2025:KER:24731


                            JOHNSON JOHN, J.
           ---------------------------------------------------------
                         M.A.C.A No.426 of 2020
            --------------------------------------------------------
               Dated this the 24th day of March, 2025.

                                    JUDGMENT

The petitioner in O.P.(MV) No. 509 of 2016 on the file of the Motor

Accident Claims Tribunal, Thodupuzha filed this appeal seeking

enhancement of compensation.

2. According to the petitioner, on 16.12.2015, while he was

travelling in an autorickshaw driven by the 1 st respondent in a rash and

negligent manner, it caused to hit a lorry and thereby, he sustained

serious injuries. The 2nd respondent is the owner of the autorickshaw and

the 3rd respondent is the insurer.

3. Before the Tribunal, Exhibits A1 to A5 were marked from the

side of the petitioner and no evidence adduced from the side of the

respondents.

4. The Tribunal recorded a finding that the accident occurred

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

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respondents 1 to 3 are liable to pay compensation to the petitioner. The

Tribunal granted a total compensation of Rs.84,400/- to the petitioner.

The Tribunal also found that the 1st respondent was not having a valid

driving licence and there is violation of policy conditions on the part of

the owner of the vehicle and hence, pay and recovery was allowed in

favor of the 3rd respondent insurance company as against the 2 nd

respondent.

5. Heard Sri. Dinny Thomas, the learned counsel for the appellant,

Sri. Thomas C. Abraham, the learned counsel for the 1 st respondent and

Sri. A.C. Devy, the learned counsel for the respondent insurance

company.

6. The learned counsel for the appellant argued that at the time of

occurrence, the appellant was aged 72 years and even though she

claimed Rs.10,000/- as monthly income, the Tribunal fixed only

Rs.3000/- and the same is on the lower side.

7. 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.10,000/-, as the accident

occurred in the year 2015. Considering the fact that the appellant is a

house wife, I find that it is only reasonable to fix her monthly notional

income as Rs.10,000/- for the purpose of calculating the compensation.

8. The learned counsel for the appellant argued that as per Exhibit

A4 disability certificate, the appellant is having 20% permanent disability

and the Tribunal accepted only 5% functional disability for the purpose

of calculating the compensation for physical disability and loss of

earnings capacity.

9. 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:

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(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.

10. The learned counsel for the appellant argued that Exhibit A4

was marked in evidence without any objection and the genuineness of

the said certificate is not in dispute and in that circumstance, the

Tribunal is not justified in rejecting the same for non-examination of the

doctors, who signed the said certificate.

11. A perusal of Exhibit A4 shows that the said disability

certificate is issued by a Medical Board constituted by the

Superintendent of District Hospital, Thodupuzha. In Exhibit A4, it is

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stated that the appellant sustained fracture shaft of humerus right and

regarding the right shoulder movement, it is stated that abduction is

only 200; flexion only 100; and rotation only 50. The learned counsel for

the appellant pointed out that the normal shoulder range of motion is:

flexion 160-1800; abduction 170-1800; extension 600; and external

rotation 90-1050.

12. On the rear side of Exhibit A4 disability certificate, the doctor

has noted that the patient is having pain on right arm while doing her

daily activities and household activities and she is unable to lift heavy

objects.

13. Considering the fact that the appellant is a house wife aged

72 years at the time of the accident, I find that 20% functional disability

can be accepted for the purpose of calculating the compensation. When

the compensation for permanent disability and loss of earnings capacity

is calculated as per the revised criteria, the same would come to

Rs.1,20,000/-[10,000 x 12 x 5 x 20/100. The Tribunal has already

granted Rs.9,000/- under this head and therefore, an additional

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compensation of Rs.1,11,000/- is granted to the appellant under this

head.

14. The Tribunal has granted 'loss of earnings' for the period from

16.12.2015 to 16.06.2016 and considering the facts and circumstances

of the case, I find that loss of earnings can be calculated for 6 months

as per the revised notional income. The Tribunal has already granted

Rs.10,000/- towards 'loss of earnings'. Therefore, an additional

compensation of Rs.50,000/- is granted to the appellant under this head.

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

has not granted any compensation towards 'pain and sufferings' and

'loss of amenities'. Considering the nature of injuries, period of

treatment, disability and the age of the appellant, an additional

compensation of Rs.15,000/- is granted under the head 'pain and

sufferings' and Rs.10,000/- towards 'loss of amenities'. I find that the

compensation granted by the Tribunal under other heads are reasonable

and requires no interference.

16. 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.)

Compensation for permanent disability and loss of earning 9,000/- 1,11,000/-

     capacity
     Loss of earnings                      10,000/-          50,000/-
     Pain and sufferings                     NIL             15,000/-
     Loss of amenities                       NIL             10,000/-
     Total enhanced compensation
                                                             1,86,000/-

17. Thus, a total amount of Rs.1,86,000/- (Rupees One Lakh

Eighty Six Thousand only) is awarded as enhanced compensation. The

said amount shall carry interest at the rate of 7.5% 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.