Kerala High Court
The Reliance General Insurance Co.Ltd vs Vishnu Sunil on 25 March, 2025
M.A.C.A. No. 2248/2022 :1:
2025:KER:25082
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE JOHNSON JOHN
TUESDAY, THE 25TH DAY OF MARCH 2025 / 4TH CHAITHRA, 1947
MACA NO. 2248 OF 2022
AGAINST THE AWARD DATED 20.11.2021 IN O.P(MV) NO.2046 OF 2017 OF
MOTOR ACCIDENT CLAIMS TRIBUNAL, KOLLAM
APPELLANT/S:
THE RELIANCE GENERAL INSURANCE CO.LTD
FIRST FLOOR, VARINJAM TOWERS, RESIDENCY ROAD,
KOLLAM-691 001, REPRESENTED BY ITS MANAGER, REGIONAL OFFICE,
2D FLOOR, VISHNU BUILDING K.P.VALLON ROAD,
KADAVANTHRA-682 020.
BY ADVS.
SRI. GEORGE A.CHERIAN
SMT. LATHA SUSAN CHERIAN
SRI. GEORGE CHERIAN (SR.)
RESPONDENT/PETITIONER:
VISHNU SUNIL, AGED 30 YEARS,
S/O SUNIL KUMAR, VISHNU BHAVAN, KURUMANDAL.B., PUKKULAM,
PARAVOOR (P.O), KOLLAM., PIN - 691 334.
BY ADVS.
SRI. K.V.ANIL KUMAR
SRI. SWAPNA VIJAYAN(K/001165/2006)
SMT. RADHIKA S.ANIL(K/000183/2019)
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON
24.03.2025, THE COURT ON 25.03.2025 DELIVERED THE FOLLOWING:
M.A.C.A. No. 2248/2022 :2:
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JOHNSON JOHN, J.
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M.A.C.A No. 2248 of 2022
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Dated this the 25th day of March, 2025.
JUDGMENT
The 3rd respondent insurance company in O.P.(MV) No. 2046 of
2017 on the file of the Motor Accident Claims Tribunal, Kollam filed this
appeal challenging the quantum of compensation fixed by the Tribunal
under various heads.
2. The claim petitioner was a passenger in the car driven by the
2nd respondent in a rash and negligent manner on 27.08.2017 and the
vehicle caused to hit on a stone and electric post and thereby, the
petitioner sustained serious injuries. The 1 st respondent is the owner of
the offending vehicle and the 3rd respondent is the insurer.
3. Before the Tribunal, Exhibits A1 to A17 and Exhibit X1 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 2 nd 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.21,24,703/- to the petitioner.
5. Heard Sri. George A. Cherian, the learned counsel for the
appellant insurance company and Sri. K.V. Anil Kumar, the learned
counsel for the respondent/claim petitioner.
6. The appellant insurance company is not challenging the
findings of the Tribunal regarding negligence and liability. According to
the respondent/claim petitioner, at the time of the accident, he was aged
25 years and earning Rs.15,000/- per month; but, no evidence was
adduced to prove the occupation and income and therefore, the Tribunal
has fixed notional income of Rs.10,000/- per month and the same is also
not under challenge.
7. The learned counsel for the appellant insurance company
argued that the Tribunal accepted 40% functional disability for the
purpose of calculating the compensation for permanent disability and the
same is on the higher side. Exhibit X1 is the disability certificate of the
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claim petitioner issued by the Medical Board and the same shows that he
is having 40% permanent visual disability.
8. 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.
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9. The Tribunal has considered the nature of injuries and
percentage permanent visual disability assessed in Exhibit X1 for fixing
the functional disability. Even though the respondent/claim petitioner
has a case that at the time of the accident, he was employed in a private
company, no document is produced to prove the same. But there is no
reason to suspect the genuineness of Exhibit X1 disability certificate and
therefore, I find no reason to disagree with the finding of the Tribunal
that 40% permanent visual disability will have a serious impact on the
earning capacity of the petitioner and therefore, the Tribunal is justified
in fixing 40% functional disability for the purpose of calculating the
compensation.
10. The learned counsel for the appellant argued that the Tribunal
has allowed Rs. 1,00,000/- towards loss of marital prospects and the
same is on the higher side. But, I find that 40% permanent visual
disability of an unmarried person will seriously affect his marital prospect
and in that circumstance, it cannot be held that the compensation
awarded by the Tribunal is on the higher side. I find that the
compensation granted by the Tribunal under the other heads are
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reasonable and requires no interference and therefore, this appeal is
devoid of merit and liable to be dismissed.
In the result, the appeal is dismissed.
sd/-
JOHNSON JOHN,
JUDGE.
Rv
