IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MRS. JUSTICE K.HEMA TUESDAY, THE 12TH FEBRUARY 2008 / 23RD MAGHA 1929 MFA.No. 651 of 2001(B) ------------------------------- OP(MV.) 933/1995 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, TRIVANDRUM ..................................... APPELLANT/3RD RESPONDENT --------------------------------------------- THE DIVISIONAL MANAGER, THE ORIENTAL INSURANCE CO. LTD., THIRUVANANTHAPURAM, NOW REP. BY ITS ASST. MANAGER, REGIONAL OFFICE, METRO PALACE,KOCHI-18. BY ADV. SRI.MATHEWS JACOB (SR.) RESPONDENTS/PETITIONER AND IST RESPONDENT --------------------------------------------------------------------------- 1. JOSHWA KUTTY, S/O. BABY, PUTHUVAL PUTHEN VEEDU, KANNANMOOLA, THIRUVANANTHAPURAM. 2. M. CHERIYAN, KUNNEL HOUSE, KANNIYOOR P.O., PUNALOOR, KOLLAM DIST. R1 BY ADV. SRI.B.S.SWATHY KUMAR R2 ADV. SMT.P.A.ANITHA THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 12/02/2008, ALONG WITH MACA NO. 1635 OF 2004 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON CMP NO. 5470/2001 IN M.F.A NO. 651/2001 B. DISMISSED 12/02/2008. SD/- J.B.KOSHY, JUDGE. SD/- K.HEMA, JUDGE. True copy tga J.B.KOSHY & K.HEMA, JJ. ------------------------------- M.F.A.NO.651 OF 2001 & M.A.C.A.NO.1635 OF 2004 ----------------------------------- Dated this the 12th day of February, 2008 J U D G M E N T KOSHY,J. Both Insurance company and claimant challenged the award of the Motor Accidents Claims Tribunal, Thiruvananthapuram, in O.P.(MV).No.933/1995. The tribunal found that accident occurred due to the fault of the lorry in which petitioner was a cleaner and the lorry driver was responsible for the accident and lorry was insured by the 3rd respondent Insurance company and Insurance company is liable to pay the amount. Originally, award was passed on 4th October 1999, awarded a compensation of Rs.1,51,460/- with interest at the rate of 12% per annum from the date of application till realisation. The above award was passed assessing monthly wages of the appellant as Rs.1,500/- per month. Tribunal assumed that owner of the vehicle deposed MFA.651/2001 & MACA.1635/2004 2 before him that monthly wages of the claimant was Rs.900/- per month. Later a review petition was filed questioning the assessment of monthly income. That review petition was allowed by order dated 6th October 2000, in I.A.No.926/2000. Thereafter, impugned award was passed on 10.1.2001 fixing the monthly income at Rs.2,000/- and awarded an amount of Rs.1,97,660/- with interest at 12% per annum. Both sides filed appeal. Insurance company filed M.F.A.No.651/2001 and claimant filed M.F.A.1635/2004 with long delay of more than 1000 days. 2. The main contention raised by the Senior counsel for the Insurance company is that the tribunal went wrong in revising the order reassessing the monthly income and enhancing the compensation awarded. If the monthly income assessed was not proper, remedy of the claimant was to file an appeal before this Court even if there is power to the tribunal to review the order awarded. But we note that review order was passed on 6th October 2000. Review oder passed is as follows: MFA.651/2001 & MACA.1635/2004 3 “According to the petitioner, his income at the time of the accident was Rs.4,500/- p.m. In order to prove his income he has produced Ext.A9 certificate. But inspite of due diligence this aspect was not considered by this tribunal. On going through the case records, I find that the income taken is very low and as such the award dated 4.10.1999 is liable to be reviewed. So found.” Both sides did not file any appeal against the review order. If Insurance company felt that review order was not correct and tribunal went wrong in reviewing the judgment, the Insurance company ought have questioned the review order at that time and no appeal was filed. Even now, order dated 6.10.2000 to review the earlier order is not challenged. Therefore earlier award is no more in force and we have to consider whether present award is correct or not. 3. The evidence of PW2 shows that he was paid Rs.3,000/- per month apart from bata and Ext.A11 receipt for payment was also produced. But he has not produced any account books etc. to prove the same. However he was a MFA.651/2001 & MACA.1635/2004 4 cleaner aged 26 years at the time of accident and tribunal fixed Rs.2,000/- as the monthly income which is not even Rs.100/- per day. We cannot say that monthly income assessed by the tribunal is arbitrary or excessive. In fact earlier tribunal did not consider the deposition of PW2 as well as the salary certificate issued by him. In any event, Rs.2,000/- assessed as monthly income cannot be stated to be very high. The next contention is regarding the percentage of disability. His left leg below knee was amputated. There is no dispute for that. Doctor certified 41% disability. But tribunal fixed only 35% disability. We note that though medical practitioner certified 41% disability under the Workmen's Compensation Act for amputation below knee, loss of earning capacity is assessed as 50%. But we are not computing compensation under the Workmen's Compensation Act. Here in the review petition, claimant has no case that the assessment of disability at 35% was incorrect. He questioned only assessment of monthly income. So, we are of the view that no enhancement of assessment of disability needed at the instance of the claimant. Third contention is that interest awarded was very high. MFA.651/2001 & MACA.1635/2004 5 But in this case, we note that his left leg was amputated below knee and 12% interest was awarded in the first award and Insurance company did not question the same. The amputation of the leg to the youngster is a very serious matter and even though doctor assessed 41% disability tribunal granted compensation for 35% disability. According to claimants he had 100% loss of earning capacity but the rate of interest in 1999 awarded by the tribunal is 12%. Considering the totality of circumstances, we are of the view that amount awarded with interest by the tribunal cannot be stated to be unreasonable and arbitrary or illegal or exorbitant so as to get interference and tribunal has awarded just and reasonable compensation. In the above circumstances, both appeals filed by the claimant and Insurance company are dismissed. J.B.KOSHY, JUDGE K.HEMA, JUDGE prp MFA.651/2001 & MACA.1635/2004 6 J.B.KOSHY & K.HEMA, JJ. -------------------------------------------------------- M.F.A.NO.651 OF 2001 & M.A.C.A.NO.1635 OF 2004 --------------------------------------------------------- J U D G M E N T --------------------------------------------------------- 12th February, 2008