IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON WEDNESDAY, THE 9TH SEPTEMBER 2009 / 18TH BHADRA 1931 MFA.No. 599 of 2001(D) ---------------------- AGAINST THE JUDGMENT IN OP(MV).618/1997 of MOTOR ACCIDENT CLAIMS TRIBUNAL, OTTAPALAM .................... APPELLANT(S): PETITIONER -------------- MERCY, W/O.SIMON, PULLIKKATTIL HOUSE, NIRAVU, PALAKAYAM P.O. MANNARKKAD TALUK, PALGHAT DISTRICT. BY ADV. SRI.T.M.SUNIL SMT.S.CHITHRA SMT.M.PREETHA RESPONDENT(S): --------------- 1. DEVASSIKUTTY S/O.OUSEPH, PALATTIL HOUSE, PALAKAYAM P.O. MANNARKKAD TALUK, PALGHAT DISTRICT. 2. THE UNITED INDIA INSURANCE COMPANY LTD. BRANCH OFFICE, HOSPITAL JUNCTION, MAIN ROAD, MANNARKKAD. BY ADV. SRI.P.JAYASANKAR FOR R2 THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 09/09/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.R.RAMAN & P.R.RAMACHANDRA MENON ------------------------------- M.F.A.No. 599 of 2001 ------------------------------- Dated this the 9th September, 2009 J U D G M E N T Ramachandra Menon, J. The claimant in O.P. (M.V.) No.618 of 1997, on the file of the Motor Accidents Claims Tribunal, Ottapalam, is the appellant before this Court, seeking enhancement of the compensation awarded. The appellant, along with her husband, was travelling in a jeep on 18.5.1997, the vehicle capsized on the road, causing injuries to both the persons, leading to the separate claim petitions filed before the Tribunal, which were tried jointly. In respect of the injuries sustained by the claimant in O.P.(M.V.)No. 618/1997 (appellant herein), a total sum of Rs.67,150/= was awarded as compensation with 12% interest from the date of the petition. 2. The grievance of the appellant is that, despite her being a construction worker, earning a wage of Rs.80/- per MFA.No.599 of 2001 2 day, the actual facts and figures have not been appreciated by the Tribunal, while fixing the compensation for disability and in turn, the award has been passed reckoning her income only at a notional level of Rs.1200/- per month, which according to her is too low. The learned counsel appearing for the appellant submits that the Tribunal has gone wrong in fixing the compensation under different heads which are not having any rationale. It is also contended that the appellant had sought to substantiate the permanent disability to an extent of 15% orthopedic disability and also 5% neurological disability, which, however, was not considered properly and only a consolidated sum of Rs.25,000/- was awarded by the Tribunal for disability. The learned counsel further submits that 'disability' and 'loss of earning capacity' are entirely different concepts and as such, the Tribunal ought to have awarded compensation in respect of 'loss of earning capacity' as well. 3. Heard both the sides including the learned counsel appearing on behalf of the Insurance Company, in detail. MFA.No.599 of 2001 3 4. On going through the materials on record, including the various documents stated as produced and marked on the part of the claimant, as borne by Exts.A1 to A15, and the evidence let in by examining Pws.1 to 3, the relevant aspects which are liable to be reckoned for the purpose of awarding compensation are seen considered by the Tribunal. However, the fact that the appellant was a 'Construction Worker' and was a member of the Construction Workers' Welfare Fund (showing the enlistment by producing Ext.A13), is not seen properly weighed by the Tribunal, while fixing the monthly income. 5. True, the appellant did not produce any documentary evidence to substantiate her income. But the fact remains that she was a general worker, having enlisted before the District Executive Officer of the Construction Workers' Welfare Fund, as revealed by Ext.A13. As such, the notional income fixed by the Tribunal at the rate of Rs.1200/- per mensem is on the lower side. After considering the facts and figures, this Court finds it fit, just and proper to have the MFA.No.599 of 2001 4 monthly income of the appellant fixed at Rs.2000/- per mensem, so as to compute the compensation in respect of the 'disability'. 6. On re-computing the figures under this head, also taking note of the fact that the appropriate multiplier in the case of the appellant, who is aged more than 40 years is 16, we find that a total compensation of Rs.50,000/-, as claimed by the appellant before the Tribunal, can be awarded for the disability. However, since the Tribunal has already awarded a sum of Rs.25,000/- towards compensation for 'disability' and yet another sum of Rs.10,000/- towards 'head injury', the appellant is entitled to get only the balance amount of Rs.15,000/- under this head. 7. The learned counsel for the appellant submits that the appellant is entitled to get compensation for 'loss of earning capacity' as well. This Court is not at all impressed with the said contention, in view of the position as made clear by a Full Bench of this Court in Oriental Insurance Company Ltd. v. Hariprasad (2005 (4) KLT 977 (FB)) holding that, once MFA.No.599 of 2001 5 compensation is awarded under the head 'disability', no further compensation can be awarded in respect of the 'loss of earning capacity', for the obvious reason that the loss of earning capacity is resulted because of the disability, which has already been compensated. 8. However, in view of the fact that we have already reckoned the notional income of the appellant as Rs.2000/- per mensem, instead of Rs.1200/- , the appellant stands entitled to have the compensation towards the temporary 'loss of earning' for four months, to an extent of Rs.8000/-. Since, the Tribunal has awarded only Rs.4800/- under this head, the appellant will be entitled to get Rs.3200/- more under this head. 9. In the above circumstances, the appellant is entitled to get a balance compensation of Rs.18,200/-, which is hereby rounded up as Rs.20,000/-. It is made clear that the said amount will carry interest only at the rate of 7.5% from the date of petition, till payment, which shall be deposited by the MFA.No.599 of 2001 6 Insurer before the Tribunal within a period of three months from the date of receipt of a copy of this judgment. The Appeal is allowed to the above extent. No cost. P.R.RAMAN, JUDGE P.R.RAMACHANDRA MENON, JUDGE. nj. P.R.RAMAN & P.R.RAMACHANDRA MENON, JJ. ------------------------------- M.F.A.No.599 of 2001 J U D G M E N T Dated: 9th September, 2009. -------------------------------