IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA FRIDAY, THE 5TH AUGUST 2011 / 14TH SRAVANA 1933 MACA.No. 1149 of 2010() ----------------------- OPMV.583/2007 of MOTOR ACCIDENT CLAIMS TRIBUNAL, IRINJALAKUDA .................... APPELLANT/ PETITIONER IN OP(MV) ---------------------------------- DEVASSY, S/O.OUSEPH, PALATHINGAL HOUSE, PUDUKAD DESOM, THORAVU VILLAGE, PUDUKAD P.O., MUKUNDAPURAM TALUK, THRISSUR DISTRICT. BY ADV. SRI.P.V.BABY RESPONDENTS/RESPONDENTS IN OP(MV) ------------------------------------ 1. JOSE, S/O.JOHN, PALATHINGAL HOUSE, KALPARAMBU, ARIPALAM P.O. 2. NEW INDIA ASSURANCE CO.LTD., IRINJALAKUDA. ADV. SRI.VPK.PANICKER FOR R2 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 05/08/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.HEMA ,J. ------------------------- M.A.C.A No.1149 of 2010 -------------------------- Dated this the 5th August, 2011 J U D G M E N T This appeal is filed challenging the quantum of compensation fixed by the Motor Accidents Claims Tribunal ('The Tribunal', for short) on various grounds, in a petition filed under Section 166 of the Motor Vehicles Act. 2. Appellant is the claimant. Respondents are the owner-cum-driver and insurance company. Appellant sustained injuries in a motor accident which was due to the rash and negligent driving on the part of the 1st respondent. The vehicle was insured with 2nd respondent. Exts.A1 to A8 were marked on the side of the appellant. Ext.B1 was marked on the side of respondent no.2 before the Tribunal, but no oral evidence was adduced. The Tribunal allowed the claim at `.61,000/- as compensation and fixed the liability on the respondents to pay the amount at 7% interest till realisation, from date of petition till realisation. The amount was ordered to be paid by the 2nd respondent-insurer. 3. The Tribunal fixed the monthly income of the M.A.C.A No.1149 of 2010 2 appellant at Rs.2000/-. According to learned counsel for appellant-claimant is doing business and is running a poultry farm. This fact was stated in the First Information Statement itself. According to petitioner, he is getting a monthly income of Rs.4000/- from the business, but the income fixed by the Tribunal is too low. Learned counsel for 2nd respondent argued that there is no evidence to prove the income, except the averments made in the petition. Respondent in the counter statement has averred that various relevant facts have to be proved by the claimant himself, it is pointed out. 4. On hearing both sides, I am satisfied that except a bare averment there is no proof for the income. Therefore, I am not inclined to interfere with the amount fixed by the Tribunal. Learned counsel for appellant argued that Tribunal has granted only `.4800/- under head “disability compensation” but the appellant had produced Ext.A7 disability certificate from a Medical Practitioner certifying 10% as the permanent disability. M.A.C.A No.1149 of 2010 3 5. The Tribunal has relied upon the disability certificate to hold that there is a disability, but the whole body disability was fixed only at 4%. This finding cannot be sustained, since as per the settled law the disability assessed by a Medical practitioner cannot be reduced by the Tribunal, it is argued. Learned counsel for 2nd respondent pointed out that the disability certificate is not issued by a Medical Board and hence there can be a variation in the percentage of disability and there is nothing wrong in reducing the disability to 4%. 6. On hearing both sides and on going through the impugned award, it is clear that the Tribunal has acted upon the disability certificate but it reduced the percentage of disability to 4% without there being any sufficient reason to do so. It is also to be noted that as pointed out by learned counsel for appellant as per Ext.A7 the disability was assessed, in respect of whole body but the Tribunal proceeded as though it is in respect of the disability to limb only and converted the disability into whole body disability on the usual ratio of 35 to 40%. On going through M.A.C.A No.1149 of 2010 4 Annexure A7, I find that the details of the disability are stated in the said certificate itself. In such circumstances, the disability assessed by the doctor in Ext.A7 is to be accepted as whole body disability. 7. On the basis of the income at the rate of ` 2000/- the compensation which is payable to the appellant for permanent disability at 10% will be, admittedly, `12,000-, by deducting the amount which is already awarded, namely ` 4800/-. The amount payable towards permanent disability will therefore be `.7200/-. Hence the following order is passed: 8. Petitioner is allowed to realise an additional amount of `.7200/- also from the respondents at the rate of 7% per annum from date of petition till realisation and also proportionate costs. The amount shall be payable by the 2nd respondent insurer. This appeal is allowed. (Sd/-K.HEMA, JUDGE) ma /True copy/ P.A to Judge M.A.C.A No.1149 of 2010 5 M.A.C.A No.1149 of 2010 6