IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI THURSDAY, THE 28TH JANUARY 2010 / 8TH MAGHA 1931 MACA.No. 293 of 2008 ------------------------ OPMV.455/2002 of ADDL.MOTOR ACCIDENT CLAIMS TRIBUNAL,KOTTAYAM .................... APPELLANT/3RD RESPONDENT: ----------------------------------- THE ORIENTAL INSURANCE CO.LTD., THODUPUZHA, REPRESENTED BY ITS REGIONAL MANAGER, REGIONAL OFFICE, ERNAKULAM NORTH, KOCHI-18. BY ADV. SRI.GEORGE CHERIAN (THIRUVALLA) RESPONDENT(S): CLAIMANT: -------------------------------- P.C.KURIAN @ THAMPAN, S/O.P.THOMAS, PUTHUPARAMBIL HOUSE, SOUTH OF MALAYALA MANORAMA, KOTTAYAM. ADV. SRI.PHILIP T.VARGHESE FOR R1 SRI.ANIL NAMBOODIRI FOR R1 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 28/01/2010, ALONG WITH MACA NO. 818 OF 2008 , THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A. K. Basheer & P.Q. Barkath Ali, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - M.A.C.A.Nos. 293 & 818 of 2008 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 28th day of January, 2010. Judgment Basheer, J: These two appeals are being disposed of through this common judgment since they are directed against the same award. While the appellant-claimant in MACA.No.818/08 calls in question the adequacy of compensation awarded to him by the Tribunal, the Insurance Company, which is the appellant in the other appeal, impugns the award primarily on the ground that the Tribunal has committed serious illegality in reckoning the compensation on the basis of higher percentage of disability than what was indicated in Ext.A11 certificate. 2. Shorn of unnecessary details the facts which are necessary for disposal of these two cases may be briefly noticed. 3. The claimant was admittedly knocked down by a bus bearing registration No. KL-7/X 2520 which belonged to respondent No.1, while he was walking through the northern side of K.K.Road on September 19, 2000. He suffered a severe crush injury on his right leg which was ultimately amputated below the knee joint. He was treated in the Medical College hospital where he underwent the surgery. Later due to infection on the stump (site MACAs.293 & 818/08. 2 of surgery), the claimant had to undergo further treatment also for quite a few days. In Ext.A11 certificate the orthopaedic Surgeon who examined the claimant certified that he suffered a permanent disability of 41%. 4. Appellant/claimant contended before the Tribunal that he was a headload worker. He pressed into service Ext.A13 identity card allegedly issued in his favour by the competent authority under the Headload Workers' Act. He further contended that he was earning Rs.6,000/- per month from his employment. It was contended that because of the below knee amputation of his right leg, the claimant became a totally disabled person, preventing him from carrying on his avocation in life. 5. However it was contended by the Insurance Company that the negligence of the claimant was responsible for the accident. The Tribunal brushed aside the above contention and held that the accident occurred because of the rash and negligent driving of the driver of the vehicle in question. 6. The Insurance Company conceded that the offending vehicle was covered under a valid insurance policy at the time of the accident. Though no oral evidence was adduced by either side, Exts.A1 to A19 were marked on the side of the claimant. The Tribunal after considering the documentary evidence on record awarded a total compensation of Rs. 4,87,000/- with 7% interest MACAs.293 & 818/08. 3 thereon from the date of the claim petition till the date of realisation. The Insurance Company was directed to pay the said amount of compensation to the claimant with a cost of Rs.10,000/-. 7. As mentioned earlier, the claimant in his appeal impugns the award on the ground that it is too low and inadequate, while the Insurance Company in its appeal contends that the Tribunal ought not to have fixed the percentage of disability at 50% even though the Doctor had assessed the disability at 41% in Ext.A11 certificate. The insurer also calls in question the correctness of the multiplier adopted by the Tribunal. According to the insurer the multiplier could have been only 16 instead of 17 as adopted by the Tribunal. 8. Appellant-claimant at the time of the accident was admittedly aged 38. Ext.A13 identity card issued by the Head load Workers Welfare Committee will show that he was a registered head load worker. According to the claimant he was earning not less than Rs.6,000/- per month. However the Tribunal fixed the monthly income of the claimant at Rs.3,000/-. There was nothing on record to show that appellant claimant was suffering from any physical disability or ill health prior to the accident. According to the claimant he was a man of robust health and was actively engaged in his daily avocation. But still the Tribunal took MACAs.293 & 818/08. 4 the monthly income of the claimant as Rs.3,000/-. In Kerala it is common knowledge that a head load worker earns very good income. Even a menial labourer in Kerala earns handsome daily wages. 9. Having regard to the entire facts and circumstances, we are of the view that the Tribunal was not justified in fixing the monthly income of the appellant at Rs.3,000/-. In our view, it ought to have been taken as Rs.5,000/- at least. 10. Learned counsel for the Insurance Company contends that the Doctor who issued Ext.A11 certificate had assessed the disability only at 41% but the court below had arbitrarily fixed it at 50%, and that too without any supporting evidence. 11. It is true that the Doctor who issued Ext.A11 certificate was not examined. In the absence of any evidence or material before the Tribunal to enhance the percentage of disability to 50% as against the percentage assessed by the doctor in the certificate, we are satisfied that the contention raised by the learned counsel for the Insurance Company in this regard is fully justified. The Tribunal ought not to have enhanced the percentage without any supporting materials. Therefore we are satisfied that the disability of the claimant has to be restricted to 41% as assessed by the doctor in Ext.A11 certificate. Ordered accordingly. 12. The other contention raised by the learned counsel for MACAs.293 & 818/08. 5 the Insurance Company is that the multiplier ought to have been taken as 16 instead of 17 as has been done by the Tribunal. However, keeping in view the age of the claimant and other attending circumstances we do no find any reason to interfere with the view taken by the Tribunal. 13. Resultantly the compensation payable to the claimant under the head of loss of earning capacity shall be re-worked as hereunder: Rs.5,000 X 12 X 17 X 41 divided by 100 = Rs.4,18,200. 14. The Tribunal has calculated the loss of earning for three months reckoning the monthly income of the appellant as Rs.3,000/-. In view of the slight modification made by us as regards the monthly income, the amount payable to the claimant under the above head will also undergo a slight modification. In lieu of the amount of Rs.36,000/- awarded by the Tribunal under the above head it shall be revised and refixed as Rs.60,000/-. But we do not find any reason to modify the award in any manner other than as indicated above. 15. The claimant shall be entitled to get an additional compensation of Rs.1,36,200/- under the head of loss of earning capacity and also towards loss of earnings over and above the MACAs.293 & 818/08. 6 amount awarded by the Tribunal. The above sum of Rs.1,36,200/- shall carry interest at the rate of 7% from the date of petition till realisation. 16. Learned counsel for the claimant submits that the daughter of the claimant has now got admission to the Nursing course and the claimant is finding it difficult to meet the educational expenses. He therefore prays that some more amount may be ordered to be released to the claimant for the time being, in order to enable him to tide over the financial stringency. In the above facts and circumstances the Tribunal is directed to release a further sum of Rs.50,000/- to the claimant, in addition to the amount already released to him. In all other respects the directions contained in the award shall prevail. Appeals are disposed of in the above terms. A.K. Basheer Judge P.Q. Barkath Ali Judge. an.