Full Judgment
MACA NO. 24 OF 2015 1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN FRIDAY, THE 28TH DAY OF OCTOBER 2022 / 6TH KARTHIKA, 1944 MACA NO. 24 OF 2015 AGAINST THE ORDER/JUDGMENT IN OPMV 140/2011 OF MOTOR ACCIDENT CLAIMS TRIBUNAL PALA APPELLANT/PETITIONER: SUNIL S/O.THANKAPPAN, MOONNANIPALLIL @ PULICKAL HOUSE, MEENACHIL KARA, VAYANASALA BHAGOM, KOTTAYAM DISTRICT. BY ADVS. SRI.MATHEW JOHN (K) SRI.DOMSON J.VATTAKUZHY RESPONDENTS/RESPONDENTS:
1 RAMESH S/O.SHESHAPPA, DOSAKERE, SETTIKARE POST, CHIKKANAYAKNAHALLI TALUK, TUMKUR DISTRICT, KARNATAKA STATE - 572 101. 2 MADHUPRASAD ALIAS MAJESH S/O.NANJUNTAPPA, NO.21/1, AZEEM BUILDING, A V ROAD, KALSIPALAYAM, BANGALORE - 560 002. 3 THE MANAGER I.C.I.C.I. LOMBARD INSURANCE CO.LTD., ZENITH HOUSE, KESAVA RAO, KHADE MAREG, MAHALAKSHMI, MUMBAI - 400 034. SRI.R.AJITHKUMAR VARMA, SC FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR HEARING
ON 28.10.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: MACA NO. 24 OF 2015 2 C.JAYACHANDRAN,J ---------------------------- MACA No.24 of 2015 ---------------------------- Dated this the 28th day of October, 2022
JUDGMENT
This appeal is preferred by the claimant, who got injured in a road accident on 08.12.2010, the injuries sustained ultimately leading to amputation of his right leg. The instant appeal is preferred essentially seeking enhancement of compensation granted by the Tribunal under various heads.
2. Heard Sri. Mathew John, learned counsel for the appellant and Sri.R. Ajith Kumar Varma, learned counsel for the 3rd respondent Insurance Company. Perused the records.
3. The learned counsel for the appellant would submit that the petitioner claimed a monthly income of Rs.15,000/- on the strength of Ext.A8 salary certificate, duly supported by the evidence tendered by PW2, the Manager of the firm. The claimant, at the relevant time, was engaged in doing metal work in an Engineering
workshop, owned by one Mr.Job V.George. However, the Tribunal has reckoned the monthly income at Rs.10,000/-, which, according to the learned counsel, is not proper. The MACA NO. 24 OF 2015 3 second ground canvassed is with respect to the permanent disability reckoned by the Tribunal. As against the disability of 85% found in Ext.X1 disability certificate issued by the Medical Board, the Tribunal only reckoned 50%. According to the learned counsel, the functional disability has to be reckoned as 100%, since the Board recommended 85% and the accident resulted in amputation of his right leg.
4. Per contra, these submissions were opposed by the learned counsel for the 3rd respondent Insurance Company. It was pointed out that the monthly income is not duly
proved. Ext.A8 salary certificate does not contain the seal of the firm, where the claimant was working. That apart, the person who issued Ext.A8 was not examined.
Still the Tribunal reckoned Rs.10,000/- as monthly income. Insofar as disability is concerned, although the learned counsel would submit that the disability reckoned by the Tribunal is on the lower side, 85% disability as found in
Ext.X1 is not liable to be taken. What has to be reckoned is the functional disability and not the physical disability, submits the learned counsel. It was also
pointed out that even though the claimant cannot undertake the same work he was doing at the time of accident, he can MACA NO. 24 OF 2015 4 profitably engage himself in any other job.
5. Having heard the learned counsel appearing on
both sides, this Court will address the two issues: the first being with respect to the monthly income. As already indicated, the claimant was engaged in performing metal works attached to an Engineering workshop. PW2, the Manager of the firm gave evidence to the effect that the firm is engaged in the manufacture of iron grills, gates, etc. PW2, the Manager was working with the said firm for
the past 35 years. He offered an explanation as to why he gave evidence in support of the salary of the claimant, instead of the proprietor of the firm who issued Ext.A8 salary certificate. PW2 deposed that the proprietor is undergoing treatment for the past six months. In the chief examination, PW2 would state that Ext.A8 is prepared in the handwriting of the proprietor and that it contains his seal. A suggestion to the contrary made in the cross-
examination was denied. In re-examination, it was reiterated that the proprietor is the author of Ext.A8 and that PW2 witnessed the proprietor subscribing his hands to Ext.A8.
6. Having perused Ext.A8 and evidence tendered by the claimant/PW1, and PW2/the Manager, this Court is of MACA NO. 24 OF 2015 5
the opinion that the veracity of the evidence tendered by PW2 in the chief examination is not eroded in the cross- examination. This Court finds no infirmity in Ext.A8 for not containing the round seal of the firm, since the firm in question is a sole proprietorship concern, as could be
seen from the seal contained in Ext.A8. In the circumstances, although an income of Rs.15,000/- is indicated in Ext.A8, this Court is inclined to reckon
Rs.12,000/- towards monthly income. This Court also finds that the appellant/applicant is entitled to reckon future prospects at the rate of 40% of the income as held in National Insurance Company Ltd. v. Pranay Sethi and others [(2017) 16 SCC 680], since the disability assessed vide Ext.X1 certificate is to the extent of 85%. [Income=12,000 + 40% of 12,000=16,800]
7. The next contention is also with respect to the disability found in Ext.X1 disability certificate issued by the Medical Board. 85% disability has been found in Ext.X1, whereas the Tribunal reckoned only 50%. No reason, whatsoever, is seen assigned by the Tribunal in
reducing the disability from 85% to 50%. It is not disputed that the right leg of the claimant is amputated. Inasmuch as the disability has been fixed by the Medical MACA NO. 24 OF 2015 6 Board, this Court finds no reason to reduce the same, wherefore, disability at the rate indicated in Ext.X1 is reckoned.
8. It was pointed out by the learned counsel for the appellant/claimant that the claimant is also entitled to
future prospects. This Court finds merit in the said submission as well. In the circumstances, this MACA is allowed and the compensation amount payable to the
appellant/claimant is re-worked as follows:
Sl. Head of Claim Amount awarded Total amount
No. by the after
Tribunal(Rs.) enhancement inappeal (Rs.) 1 Loss of earnings 20,000 24,000 (10,000x2 (12,000x2 months) months) 2 Transport to hospital 3,000 3,000 3 Extra nourishment 2,000 2,000 4 Damages to clothing Not entitled 0 5 Treatment expenses 8,750 8,750 6 Bystander expenses 5,200 5,200 (200x2x13 days) 7 Pain and suffering 50,000 50,000 8 Permanent disability Not entitled 0 9 Loss of earning capacity 9,60,000 27,41,760 (10,000x12x16x (16,800x12x16x 10 Compensation for loss of 4,80,000 4,80,000 amenities 11 Future bystander’s 2,00,000 2,00,000 expenses 12 Future treatment 2,00,000 2,00,000 expenses
MACA NO. 24 OF 2015 7 Total 19,28,950 37,14,710 (rounded off to (rounded off to 19,29,000) 37,14,700) Amount enhanced = Rs.17,85,700/- (Rupees Seventeen lakhs eighty five thousand and seven hundred only)
9. The Insurance Company shall pay interest for the
amounts awarded by the Tribunal at the rate directed in the impugned award; and for the enhanced amounts at the rate of 5% from the date of petition. If any amount has already been paid, the same shall be granted set off. The claimant shall produce the details of the Bank account before the Insurance Company/Tribunal within one month from the date of receipt of a certified copy of this
judgment and amount shall be transferred to the Bank
account directly through NEFT/RTGS mode, within a period of one month thereafter. If the Bank account is not furnished within the time stipulated, it is made clear that no interest shall run on the enhanced amount after the period stipulated by this Court. However, if the Insurance Company fails to deposit the amount as directed, interest on enhanced amount shall also run at the rate ordered by the Tribunal from the date of petition. Sd/- C.JAYACHANDRAN JUDGE okb/ //True copy// P.S. to Judge