IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MRS. JUSTICE K.HEMA FRIDAY, THE 29TH FEBRUARY 2008 / 10TH PHALGUNA 1929 MACA.No. 1963 of 2007() ----------------------- OPMV.1626/1998 of II ADDL. M.A.C.T., KOZHIKODE .................... APPELLANT/3RD RESPONDENT: ----------------------------------------- NATIONAL INSURANCE COMPANY LIMITED, CALICUT, NOW REPRESENTED BY ITS MANAGER, KOCHI REGIONAL OFFICE, OMANA BUILDING, M.G.ROAD, KOCHI-35. BY ADV. SRI.MATHEWS JACOB (SR.) SRI.P.JACOB MATHEW RESPONDENT/PETITIONER: ----------------------- CHANDRAN, S/O. CHATHU, IYYAMKANDIYIL, EARIMALA DESOM, NAYARKUZHI P.O., REC, CALICUT. BY ADV. SRI.P.V.KUNHIKRISHNAN THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 29/02/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: J.B.KOSHY & K.HEMA, JJ. ------------------------------- M.A.C.A.NO.1963 OF 2007 (D) ----------------------------------- Dated this the 29th day of February, 2008 J U D G M E N T KOSHY,J. This appeal is filed by the Insurance company against the quantum of compensation awarded by the tribunal. Respondent while walking along the public road, was hit by the vehicle insured by the appellant Insurance company. Tribunal found that accident occurred due to the negligence of the driver of the vehicle insured by the appellant Insurance company and against a claim of Rs.6 lakhs, tribunal awarded only Rs.3,15,664/-. It is the contention of the appellant that amount awarded was very high. Main contention of the appellant is that doctor certified only 60% disability. But tribunal has granted compensation for 90% loss of earning power and tribunal cannot award the same. 2. As far as the disabilities are concerned, Ext.A3 wound MACA.1963/07 2 certificate shows the following injuries: “Lacerated wound 15 x 10 x 4cm. Anterior aspect of right elbow, lacerated wound 4 x 2 x 2 cm. over dorsal aspect of right elbow small laceration 3 x 1 x 1 cm. medial aspect of right elbow, severe crushing of muscles at elbow, brachial artery out. X-ray right elbow severally comminuted fracture, supra condylar region right humerus ad upper ulna. He was admitted in the Medical College Hospital, Calicut. Ext.A4 is the patient's name index card.” Ext.A5 is the certificate issued by the Lecturer of Orthopaedics, Medical College Hospital, Calicut. The treatment certificate shows that as a result of the accident his right hand was amputated. Even though disability certificate shows physical disability as 60%, tribunal was of the opinion that earning power was lost by 90%. He was a coconut climber by profession. The physical disability is different from loss of earning power or capacity to earn as held by the five member bench decision in Pratap Narain Singh Deo v. Srinivas Sabata (AIR 1976 SC 222). Compensation is awarded under the Motor Vehicles Act to offset the damage caused to the claimants during the life. In the above case, considered by MACA.1963/07 3 the Supreme Court, the injured was a carpenter and Supreme Court awarded 100% loss of earning capacity as his left hand was amputated. He cannot work as a carpenter. Here claimant was a coconut climber by profession. His right hand was amputated. Under Shedule I, Part II item No.1 of the Workmen's Compensation Act, only for amputation of hand through shoulder joint, loss of earning capacity is fixed statutorily as 90%. Therefore, it cannot be stated that assessment of 90% earning power needs an interference. Apart from the above, monthly income fixed is very low. Accident occurred in 1997. He was a coconut climber by profession. He was aged 42 years and was maintaining a family. In 1994, when 2nd Schedule was framed, for a non earning person, notional monthly income was fixed as Rs.15,000/- (Rs.1,250/- per month). Here a coconut climber will get more than Rs.100/- per day and he may get 24 to 26 days work. Tribunal has taken only Rs.1,500/- as the monthly income and calculated compensation. Even if Rs.2,500/- is fixed as monthly income, compensation for 60% disability (after accepting contention of the Insurance company) MACA.1963/07 4 compensation payable will be much higher than that is awarded by the tribunal. In these circumstances, no interference is required in the award, and hence, this appeal is dismissed. J.B.KOSHY, JUDGE K.HEMA, JUDGE prp J.B.KOSHY & K.HEMA, JJ. -------------------------------------------------------- M.A.C.A.NO.1963 OF 2007 (D) --------------------------------------------------------- J U D G M E N T --------------------------------------------------------- 29th February, 2008