IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS TUESDAY, THE 2ND JUNE 2009 / 12TH JYAISHTA 1931 MACA.No. 77 of 2005(C) ---------------------- OPMV.3369/1996 of MOTOR ACCIDENT CLAIMS TRIBUNAL, ERNAKULAM .................... APPELLANT(S): APPELLANT/1ST RESPONDENT: --------------------------------------- YACOB, MEKKATTUKARAN HOUSE, PEECHANIKAD KARA, ANGAMALY VILLAGE, ERNAKULAM DISTRICT. BY ADV. SRI.V.SANTHARAM RESPONDENT(S): CLAIMANT & RESPONDENTS 2 & 3: -------------------------------------------- 1. THAMPUNNI, AGED 45 YEARS, S/O. ARUMUGAN, KANNOTTKALAM HOUSE, THANISSERY P.O. PALAKKAD AND NOW AT C/O. TAMILNADU ROADWAYS, AMBALAMEDU. 2. ELDHO, THADIKARAN HOUSE, MATTOOR VILLAGE, ALUVA TALUK, ERNAKULAM. 3. THE ORIENTAL INSURANCE CO. LTD., M.G.ROAD, COCHIN-35. ADV. SRI.R.SUDHISH FOR R1 SMT.M.MANJU FOR R1 SRI.MATHEWS JACOB, SENIOR ADVOCATE FOR R3 SRI.P.JACOB MATHEW FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 02/06/2009, ALONG WITH CO NO. 54 OF 2006 THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K. M. JOSEPH & M.L. JOSEPH FRANCIS, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - M.A.C.A.No. 77 of 2005 & Cross Objection No. 54 of 2006 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 2nd day of June, 2009 JUDGMENT Joseph, J. The above appeal is filed by the first respondent (owner) in O.P.(MV) No. 3369 of 1996 and the Cross Objection is filed by petitioner in the claim petition under Section 166 of the M.V. Act. The matter arose out of an accident, which took place on 13.1.1996, in which the first respondent, who was driving a lorry, was involved in the accident. 2. The Tribunal found negligence on the part of the driver of the lorry. The learned counsel for the appellant/first respondent complained that the Tribunal has not passed an award against the Insurance Company, on the ground that the driving licence was not available. The cross objection is filed by the M.A.C.A.No. 77 of 2005 2 injured, being dissatisfied by the quantum of compensation awarded. 3. Heard the learned counsel for the appellant, Shri.V.Santharam, the Senior counsel, Shri.P. Mathew Jacob, appearing for the Insurance Company and Smt. Manju, counsel for the cross objector. 4. The learned counsel for the appellant submits that there is no basis to exclude the liability of the Insurance Company, as there was licence for the driver of the lorry, which was produced. More over, a connected case was settled between the parties. Shri. Jacob Mathew, learned counsel appearing for the Insurance Company, does not seriously contest the submission that another matter arising out of the same accident was settled. We feel that the Tribunal erred in not passing an award against the Insurance Company. In these circumstances the appeal is only to be allowed. 5. As far as the cross objection is concerned, no doubt, the learned counsel for the Insurance Company would contend that the cross objection as such may not lie. The contention taken in the M.A.C.A.No. 77 of 2005 3 appeal by the owner of the lorry relates to fastening of the liability on the owner, without making the Insurance company liable, he contends. The learned counsel for the claimant, on the other hand, relied on the decision in Oriental Insurance Co. Ltd. v. Usha Gopalakrishnan (2004 (2) KLT 679). It was held as follows: “ A cross objection will lie in view of O.XLIR.22 if claimant's rights are affected. In this case quantum of compensation is disputed by the Insurance Company. Therefore, the relief claimed in the appeal is only against the claimant and claimant's right will be affected if appeal is allowed. Claimant will certainly be entitled to file cross objection when quantum of compensation awarded is disputed in the appeal by the insurance company after getting permission under S.170 or by the owner or any other party. Hence the cross objection filed in this case is maintainable.” That was a case where the cross objection was found to be maintainable. In this case, it is pointed out by the claimant that in the appeal filed by the owner, he had impugned the award passed in favour M.A.C.A.No. 77 of 2005 4 of the claimant by questioning the amount awarded also. Having regard to the purport of the cross objection, it cannot be said that the cross objection is not maintainable. We think that the cross objection is maintainable. 6. The learned counsel for the claimant points out that the income of the claimant was taken as Rs.2,000/- But for fixing the loss of earning power, the income was fixed as Rs.1,500/- There is no basis for the same, she contends. The counsel would further complain that the claimant was a driver of a lorry and his disability was assessed at 40% by the Medical Board. But the Tribunal has taken the percentage of disability as 30%. According to the counsel for the claimant, he was actually incapacitated from driving vehicles. He was aged 45 years at the time of the accident. 7. The learned Senior counsel appearing for the Insurance Company would point out that it is not as though whatever disability is certified, it is ipso facto to be accepted by the Court. The Court has the discretion to take into consideration all the facts and nature of the M.A.C.A.No. 77 of 2005 5 injuries. He would also point out that this is a case, where the Tribunal had occasion to see the claimant in Court. It is thereafter that the amount has been reduced to 30% from 40%. He would also point out that in the claim petition, against Col.No.14, it is mentioned that the claimant has 'partial disability'. He further points out that after awarding a sum of Rs.72,000/- towards loss of earning power, there is no warrant in awarding Rs.10,000/- towards disability. The matter is covered by the decision of the Full Bench in Oriental Insurance Co. Ltd. v. Hariprasad (2005 (4) KLT 977). 8. The first question to be considered is regarding the income taken for calculating the compensation under the head loss of earning power. We notice that the Tribunal has reckoned the income of the claimant as Rs.2,000/- for the purpose of calculating the loss of earning. Thereafter, when income is applied for arriving at the loss of earning power, the Tribunal has taken the amount as Rs.1,500/- The objection in this regard in the cross objection has merit. Therefore, we fix Rs.2,000/- p.m. in the calculation for loss of earning power. We M.A.C.A.No. 77 of 2005 6 must immediately accept the contention of the learned Senior Counsel appearing of the Insurance company and delete the direction to pay Rs.10,000/- towards disability, as it is contrary to the principle laid down by the Full Bench in the decision cited above. 9. The next question to be considered is whether the Tribunal was right in reducing the percentage of disability from 40% to 30%. The finding of the Tribunal is at page 7, which we extract below: “The petitioner has applied before me for medical examination by the Medical Board which was allowed. After examination by the Medical Board Ext.A11 disability certificate was issued finding that the petitioner is having permanent disability of 40% as per Mebrides Guideline. Petitioner is a driver. After the accident he was not renewed the driving licence. It has been contended on behalf of the Insurance Company that the petitioner had not renewed the driving licence only to make it appear that he is disabled. This contention is not without force. On the date of the accident the claimant had valid driving licence. He has not renewed the same and no sufficient and satisfactory explanation has been M.A.C.A.No. 77 of 2005 7 spoken by him for not renewing the same. As contended by the Insurance Company it is possible to infer that the petitioner has purposely not renewed the driving licence and that is with the idea of getting compensation for the disability. I have had occasion to notice the injury suffered by the petitioner. Though there is some difficulty for the petitioner to drive heavy vehicles there is no physical disability which affects his ability to earn. Therefore the disability certificate by the Board can relate only to the physical disability of the petitioner to drive heavy vehicles and not with reference to his ability to earn income by doing some other job. Therefore loss of earning power can be reckoned only at a lower percentage and considering all circumstances I think 30% can be taken as the disability affecting the earning power.” 10. We notice that the principle which was in the mind of the Tribunal was that the disability certificate can only relate to the physical disability of the petitioner to drive heavy vehicles and not his ability to earn income by doing some other job. No doubt, the Tribunal has noticed some difficulty to the petitioner to drive heavy vehicle. M.A.C.A.No. 77 of 2005 8 According to the learned counsel for the claimant, it is a case where there is virtual paralysis of the left hand of the claimant and having regard to the age of the claimant, there is no basis to deduct the percentage of disability from 40% to 30%. 11. We think that the interests of justice would be met by raising the percentage of disability from 30% to 35%, in view of the facts and circumstances of the case. On the said basis the calculation is made. Therefore, the appellant would be entitled to a sum of Rs.1,09,200/- towards loss of earning power. From the said amount the amount already awarded, Rs.70,200/-, is to be deducted. Thus, the claimant is entitled to an amount of Rs.39,200/- more. However, as already noticed, the claimant is not entitled to Rs.10,000/- This means, the claimant is entitled to Rs.29,200/- which is rounded of to Rs.29,000/- 12. The cross objection is allowed. There will be an award for Rs.29,000/- more with interest at the rate of 7.5% from the date of the petition till the date of realisation against the respondents. M.A.C.A.No. 77 of 2005 9 13. M.A.C.A. 77 of 2005 is also allowed. It is ordered that the claimant can realise the amount from the Insurance Company (3rd respondent). (K. M. JOSEPH) Judge (M.L. JOSEPH FRANCIS) Judge tm