Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE S.SIRI JAGAN & THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN WEDNESDAY, THE30H DAY OF OCTOBER20138TH KARTHIKA, 1935 MACA.No. 427 of 2008 -------------------------------- AGAINST THE AWARD IN OP(MV) 348/2003 of MOTOR ACCIDENTS CLAIMS TRIBUNAL, IRINJALAKUDA ----------- APPELLANT/PETITIONER IN OP(MV): ---------------------------------------------------- IQBAL, S/O.POKKACHIPARAMBIL MOHAMMED, AZAD ROAD, IRINJALAKUDA VILLAGE, MUKUNDAPURAM TALUK, THRISSUR DISTRICT. BY ADVS.SRI.P.V.BABY SRI.A.N.SANTHOSH RESPONDENT(S)/RESPONDENTS1TO3IN OP(MV): -------------------------------------------------------------------------- * 1. K.S.SUNILKUMAR, S/O.KOCHATH SREEDHARAN, (DELETED) PERINGOTTUKARA P.O. * 2. SHINE, S/O.VALAKKADAVIL ANANDAN, KARUVANNUR, ETTUMANA DESOM, URAKAM VILLAGE. (DELETED) 3. NEW INDIA ASSURANCE CO.LTD., THRIPRAYAR P.O. DELETED -------------- RESPONDENT NO.1 AND2ARE DELETED FROM THE PARTY ARRY AT THE RISK OF APPELLANT VIDE ORDER
DTD.10/9/2013 IN IA.NO.2407/2013 IN MACA4272008 R3 BY ADV. SMT.P.K.SANTHAMMA THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON3010-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PJ S.SIRI JAGAN & K.RAMAKRISHNAN, JJ.
================== M.A.C.A.No. 427 of 2008 ================== Dated this the 30th day of October, 2013
JUDGMENT
K.Ramakrishnan, J.: The claimant in O.P.(M.V).No.348/2003 on the file of the Motor Accidents Claims Tribunal, Irinjalakuda, is the appellant herein. The appellant filed the application for compensation for the injuries and consequential disability sustained by him in a motor vehicle accident caused on account of the negligent driving of the vehicle by the 2nd respondent, owned by the 1st respondent and insured with the 3rd respondent. After considering the evidence on record, the Tribunal found that the accident occurred due to the negligent driving of the vehicle by the 2nd respondent and awarded a total compensation of ` 63,300/- on various heads as follows: Amount Head of claim awarded ` 1 Medical expenses 33,600.00 2 Transportation 500.00 3 Bystanders expenses 1,200.00 4 Loss of income 6,000.00 5 Pain and suffering 15,000.00 6 Loss of amenities 7,000.00 Total 63,300.00 m.a.c.a.427/08 - :
2. :- Dissatisfied with the quantum of compensation awarded, the appellant has come before this Court with the above appeal.
2. Heard the learned counsel for the appellant and the learned standing counsel for the insurance company.
3. The learned counsel for the appellant submitted that the appellant was aged 33 years at the time of the accident and an electrician by profession and getting ` 5,000/- per month. He had produced documents to prove his qualification. But discarding that evidence, the Tribunal has arbitrarily fixed the monthly income of the appellant as ` 2,000/-, which is not correct. Further, he sustained severe injuries and Ext.A6 disability certificate will go to show that he had suffered 6.15% permanent disability. But the Tribunal has not considered that at all and only awarded a palpable amount under the head, loss of amenities in life alone, which is also not correct. According to him, the total compensation awarded by the Tribunal is very low considering the nature of injuries sustained by him and he is entitled to get enhancement on all heads.
4. On the other hand, the learned counsel for the insurance company submitted that the person, who issued Ext.A8 m.a.c.a.427/08 - :
3. :- employment-cum-salary certificate has not been examined and Ext.A8 has not been legally proved. So that Tribunal was justified in not relying on Ext.A8 to assess the income of the appellant. Further, the disability certificate was issued by a private doctor, which cannot be relied on. So the total compensation awarded by the Tribunal is perfectly justifiable and no interference is called for at the hands of this Court.
5. We have considered the rival contentions of both parties in detail.
6. The case of the appellant was that he was an electrician by profession and getting ` 5,000/- per month at the time of accident. It is true that he had produced Ext.P8 certificate alleged to have been issued by his employer to show that he is getting ` 5,000/- monthly and he is working under him as an electrical wireman. But that was not proved by examining the person who issued the same. Under such circumstances, the Tribunal was perfectly justified in not relying on Ext.A8 for the purpose of fixing the monthly income of the appellant. In the absence of acceptable evidence adduced on the side of the appellant to prove his income, the Tribunal has to do some guess m.a.c.a.427/08 - :
4. :- work to fix the monthly income of the appellant. The accident was in 2002. It cannot be said that the monthly income of ` 2,000/- fixed for an electrician at that time is low. So we are not inclined to enhance the monthly income fixed by the Tribunal.
7. The appellant sustained fracture of posterior Tuberosity of left calcanium with tendon injury and he was treated as an inpatient for 12 days. Considering the nature of injuries sustained, he could not have worked at least for four months and not three months as taken by the Tribunal. So the appellant is entitled to get ` 8,000/- under the head, loss of earning, instead of ` 6,000/- awarded by the Tribunal. It is true that the disability certificate was issued by a private doctor. But the doctor has evaluated nature of disability and found that he is having 9% disability for the limb and assessed the whole body disability of 6.15%. It is also mentioned in the disability certificate that he is having some difficulty to his heel on account of the injuries sustained. Being an electrician, he may have some difficulty in doing his work on account of the disability caused to his ankle. So it may have some impact on his earning capacity. The Tribunal ought to have done some guess work for the m.a.c.a.427/08 - :
5. :- purpose of fixing the occupational disability on the basis of the materials available and awarded a reasonable amount under the head, loss of earning power. So considering the nature of difficulties mentioned in Ext.A6, we feel that 5% can be taken to assess the occupational disability of the appellant. The multiplier applicable to age group of 33 years as per the decision of the Supreme Court in Sarla Varma v. Delhi Transport Corporation, 2010 (2) KLT802(SC) is 16. If a calculation is made on these inputs, the appellant will be entitled to get ` 19,200/- (` 2000 x 12 x 16 x 5%) under the head, loss of earning power and we award this amount under that head. Having taken 5% disability for calculating the occupational disability, which may have some impact on his personal life as well, we are inclined to enhance the amount under the head, loss of amenities in life, to ` 15,000/- instead of ` 7,000/- awarded by the Tribunal. We do not find any reason to interfere with the amounts awarded by the Tribunal under the other heads as the amounts awarded by the Tribunal under the other heads are just and proper. In all, the appellant will be entitled to get an additional compensation of ` 29,200/- over and above the compensation awarded by the m.a.c.a.427/08 - :
6. :- Tribunal, which the 3rd respondent-insurance company is liable to pay with 9% interest per annum from the date of petition till date of payment. Two months' time is granted to the insurance company to deposit this amount as well. With the above modification of the impugned award of the Tribunal, the appeal is disposed of. Sd/- S.SIRI JAGAN, JUDGE Sd/- sdk+ K.RAMAKRISHNAN, JUDGE ///True copy/// P.A. to Judge