IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON TUESDAY, THE 22ND SEPTEMBER 2009 / 31ST BHADRA 1931 MACA.No. 26 of 2009() --------------------- OPMV.320/2005 of MOTOR ACCIDENT CLAIMS TRIBUNAL, PALA .................... APPELLANT: -------------- RAJAN, S/O.NARAYANA PANICKER, THOTTAPPALLIL HOUSE, VELIYEPPALLY KARA, MEENACHIL VILLAGE, KOTTAYAM DIST. BY ADV. MR. SHIJU VARGHEESE MR. PRAMOJ ABRAHAM MR. RANDEEP PREM MS. A.K. RANI RESPONDENTS: RESPONDENTS -------------------------- 1. JIJU,S/O.VISWANATHAN NAIR, KAIPPANATHU HOUSE, PL;ASANAL.P.L., THALAPPALAM KARA, THELLIYAMATTOM BHAGAM. 2. ANITHA RADHAKRISHNAN,W/O.RADHAKRISHNAN, SANKARAVILASAM, THALAPPALAM KARA, THELLIYAMATTOM BHAGAM. 3. THE MANAGER, OLRIENTAL INSURANCE CO.LTD. BAKER JUNCTION, KOTTAYAM BRANCH, KOTTAYAM. R3 BY ADV. DR.ELIZABETH VARKEY THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 22/09/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.R. RAMAN & P.R. RAMACHANDRA MENON, JJ. ........................................................................ M.A.C.A. No. 26 OF 2009 ......................................................................... Dated this the 22nd September, 2009 J U D G M E N T P.R. Ramachandra Menon, J: The claimant before the M.A.C.T. is the appellant before this Court, who, while standing on the side of the road was knocked down by a Goods Carrier Auto bearing Reg. No. KL- 5S/7528 driven by the first respondent, owned by the second respondent and insured by the third respondent, on 10.03.2005 at about 9.45 p.m. causing serious injuries to him, which led to the Claim Petition. 2. The owner as well as the driver of the vehicle contested the matter by filing a joint written statement, disputing negligence attributed on the first respondent, stating that the accident was only because of the negligence of the claimant. The third respondent /Insurer contested the matter raising similar contentions and hence that there is no liability for them M.A.C.A. No. 26 OF 2009 2 to satisfy the claim. 3. No oral evidence was adduced from either side. The documents produced from the part of the claimant were marked as Exts. A1 to A12. On conclusion of the trial, the Tribunal appreciated the materials on record and arrived at a finding that the accident was because of negligence on the part of the driver of the Auto. 4. The case of the claimant was that he was a a local correspondent in 'Janmabhumi' daily and that his monthly salary was Rs.3000/-, plus 'transportation allowance' of Rs.2,000/- and some other amounts under other 'Heads'. Ext. A9 salary certificate was produced before the Tribunal. However, taking note of the fact that the said document was not proved and also observing that 'transportation allowance' was not obtainable when the person was not working and further that the 'commission' obtainable on procuring advertisements was only a speculative amount, the total monthly income of the injured was fixed notionally at Rs. 3,000/-. Observing that the appellant had to undergo treatment in various hospitals, necessitating M.A.C.A. No. 26 OF 2009 3 treatment for six months, temporary loss of earning was computed as Rs.18,000/-. However, after deducting 1/3rd towards personal expenses, only a sum of Rs.12,000/- was awarded under this 'Head'; simultaneously granting such other amounts under different 'Heads' including a sum of Rs. 14,400/- towards 'Permanent disability' (reckoned the same as 4%), thus fixing the total compensation at Rs.68, 500/- along with interest @ 9% per annum. The claimant has approached this Court, seeking for enhancement of the award amount. 5. Heard both the sides. 6. On considering the available materials on record, absolutely no blame can be put on the Tribunal for having limited the monthly income at Rs. 3000/-, particularly in view of the fact that Ext.A9 salary certificate was not sought to be proved from the part of the claimant. Moreover, the claimant did not even choose to enter into the box, in support of his claim. However, this Court finds that the amount computed by the Tribunal towards 'temporary loss of earning' by deducting 1/3rd towards 'personal expenses' from the actual amount payable M.A.C.A. No. 26 OF 2009 4 under this head does not appear to be correct. As such, we find it fit and proper to award the entire sum of Rs. 18,000/- computed towards loss of earning for six months at the rate of Rs.3000/- per month; i.e., by allowing the balance amount of Rs.6000/- under this Head. 7. With regard to the extent of 'permanent disability', the appellant had produced the medical certificate issued from the Medical College Hospital showing the extent of permanent disability at 8%. However, the Tribunal, after a detailed discussion, has observed as follows: “As per the Composite Schedule of Representative Disabilities and Graded Ratings , in the case of half inch shortening of femur, the disability is 1%. In the case of limitation of motion from 180 degrees to 20 degrees, the disability as per the previously mentioned Schedule is 3%. Therefore, the total disability is only 4% even going by the doctor's disability certificate”. Accordingly, Ext.A12 disability certificate was ignored and compensation for disability was worked out, reckoning the M.A.C.A. No. 26 OF 2009 5 disability as 4%. That apart, the Tribunal while fixing the amount of compensation payable under this Head, chose to grant only a sum of Rs.2000/- as his monthly income , i.e., after deducting 1/3rd from the total income of Rs.3000/- already reckoned by the Tribunal. The course pursued by the Tribunal does not appear to be correct or proper. This Court finds that the Tribunal ought to have reckoned the monthly income as Rs.3000/- itself. So also, the Tribunal ought not to have ignored Ext.A12 certificate issued from the Medical College, Kottayam certifying the permanent partial disability of the body at 8%. Since the appellant did not choose to enter into the box, nor did take any steps to examine the Doctor, who issued the certificate, the petitioner cannot be given the full benefit of Ext. A12. Striking a balance, this Court finds that the disability of the appellant can be taken as 6%. 8. On re-working the compensation as above, this Court finds that the appellant is entitled to get a balance sum of Rs.6000/- towards the 'loss of earning' for six months and another sum of Rs.28,800/- towards compensation for the M.A.C.A. No. 26 OF 2009 6 permanent partial disability caused to him. Thus the petitioner is entitled to have a sum of Rs.34,800/- as the balance compensation payable . We make it clear that the said amount will carry interest at the rate of 7% per annum from the date of the application, till its realisation. The third respondent/Insurance Company shall deposit the said amount before the Tribunal within three months from the date of receipt of a copy of this judgment. The Appeal is disposed of as above. P.R. RAMAN, JUDGE. P.R. RAMACHANDRA MENON, JUDGE. lk