M.A.C.A. No. 3071/2024 & : 1 : Cross Objection No. 149 of 2024 2025:KER:29859 IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE JOHNSON JOHN MONDAY, THE 7TH DAY OF APRIL 2025 / 17TH CHAITHRA, 1947 MACA NO. 3071 OF 2024 AGAINST THE AWARD DATED 14.05.2024 IN OP(MV) NO.906 OF 2018 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, PALAKKAD APPELLANT/2ND RESPONDENT: RELIANCE GENERAL INSURANCE CO. LIMITED, 2ND FLOOR, MANGALAM TOWERS, OPP. TOWN BUS STAND, TB ROAD, PALAKKAD – 678 014 NOW REPRESENTED BY ITS MANAGER, LEGAL- CLAIMS, REGIONAL OFFICE, IMPERIAL TRADE CENTER, 4TH FLOOR, M.G. ROAD, KOCHI –, PIN – 682 035. BY ADVS. SRI. JACOB MATHEW P MATHEWS JACOB (SR.) RESPONDENTS/PETITIONER AND SUPPL. RESPONDENTS 3 & 4: 1 SULFIKKAR @ SULPHI A., AGED 25, S/O. ABOOBACKER, ALANGAL PARAMBU HOUSE, THARUR, VAVULLIYAPURAM P.O., PALAKKAD., PIN – 678 543. 2 KUTTIKRISHNAN, KOLAROAD, VAVULLIYAPURAM P.O., THARUR, PALAKKAD –, PIN – 678 643. 3 RUGMINI, W/O. KUTTIKRISHNAN, KOLAROAD, VAVULLIYAPURAM P.O., THARUR, PALAKKAD –, PIN – 678 643. BY ADV. SRI. P.V.CHANDRA MOHAN THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 04.04.2025, ALONG WITH C.O.149 OF 2024, THE COURT ON 07.04.2025 DELIVERED THE FOLLOWING: M.A.C.A. No. 3071/2024 & : 2 : Cross Objection No. 149 of 2024 2025:KER:29859 IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE JOHNSON JOHN MONDAY, THE 7TH DAY OF APRIL 2025 / 17TH CHAITHRA, 1947 CO NO. 149 OF 2024 AGAINST THE AWARD DATED 14.05.2024 IN OP(MV) NO.906 OF 2018 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, PALAKKAD CROSS OBJECTORS/RESPONDENT: SULFIKKAR @ SULPHI A., AGED 25 YEARS S/O ABOOBACKER, ALINGAL PARAMBU HOUSE, THARUR, VAVULLIPURAM POST, PALAKKAD DISTRICT, PIN – 678 543. BY ADV P.V.CHANDRA MOHAN RESPONDENT/APPELLANT: RELIANCE GENERAL INSURANCE COMPANY LIMITED, REPRESENTED BY ITS BRANCH MANAGER, II FLOOR, MANGALAM TOWERS, OPPOSITE TOWN BUS STAND, T. B. ROAD, PALAKKAD, PIN – 678 014. THIS CROSS OBJECTION/CROSS APPEAL HAVING BEEN FINALLY HEARD ON 04.04.2025, ALONG WITH M.A.C.A.3071/2024, THE COURT ON 07.04.2025 DELIVERED THE FOLLOWING: M.A.C.A. No. 3071/2024 & : 3 : Cross Objection No. 149 of 2024 2025:KER:29859 JOHNSON JOHN, J. --------------------------------------------------------- M.A.C.A No. 3071 of 2024 & Cross Objection No. 149 of 2024 -------------------------------------------------------- Dated this the 7th day of April, 2025. JUDGMENT The 2nd respondent insurance company in O.P.(MV) No. 906 of 2018 on the file of the Motor Accident Claims Tribunal, Palakkad is the appellant and the cross objector is the claim petitioner. 2. According to the claimant, on 03.10.2017, while he was travelling as a pillion rider in the motorcycle ridden by the 1st respondent, it caused to hit another motorcycle and thereby, he fell down and sustained serious injuries. It is alleged that the accident occurred only because of the negligence on the part of the 1st respondent, who is also the owner of the offending vehicle. The 2nd respondent is the insurer. During the pendency of the petition before the Tribunal, the 1st respondent died and his legal representatives were impleaded as additional respondents 3 and 4. 3. Before the Tribunal, PW1 examined and Exhibits A1 to A11 were marked from the side of the claim petitioner and Exhibit B1 was marked from the side of the respondents. M.A.C.A. No. 3071/2024 & : 4 : Cross Objection No. 149 of 2024 2025:KER:29859 4. The Tribunal recorded a finding that the accident occurred because of the negligence on the part of the 1st respondent and that respondents are liable to pay compensation to the claim petitioner. The Tribunal awarded a total compensation of Rs.21,17,500/- to the claim petitioner. 5. Heard Sri. Jacob Mathew P., the learned counsel for the appellant insurance company and Sri. P. V. Chandramohan, the learned counsel for the cross objector/claim petitioner. 6. According to the claim petitioner, he was aged 19 years at the time of the accident and earning Rs.18,000/- per month from his occupation as a painter. But, no evidence is adduced to prove the income and therefore, the Tribunal fixed a notional income of Rs.11,000/- and the same is not under challenge. 7. As per Exhibit A7 disability certificate issued by the Medical Board of the District Hospital, Palakkad, the petitioner is having 30% permanent disability. PW1 is the doctor who issued Exhibit A8 disability certificate and the evidence of PW1 and Exhibit A8 shows that the M.A.C.A. No. 3071/2024 & : 5 : Cross Objection No. 149 of 2024 2025:KER:29859 petitioner is having 53.9% whole body permanent disability. For the purpose of calculating the compensation for permanent disability and loss of earning capacity, the Tribunal accepted 45% functional disability. The learned counsel for the appellant/ insurance company argued that the same is on the higher side and the learned counsel for the cross objector/claim petitioner argued that the same is on the lower side. 8. In Raj Kumar v. Ajay Kumar [(2011) 1 SCC 343], the Honourable Supreme Court summarised the principles for ascertainment of loss of earning capacity due to permanent disability as follows: (i) All injuries (or permanent disabilities arising from injuries), do not result in loss of earning capacity. (ii) The percentage of permanent disability with reference to the whole body of a person, cannot be assumed to be the percentage of loss of earning capacity. To put it differently, the percentage of loss of earning capacity is not the same as the percentage of permanent disability (except in a few cases, where the Tribunal on the basis of evidence, concludes that the percentage of loss of earning capacity is the same as the percentage of permanent disability). (iii) The doctor who treated an injured claimant or who examined him subsequently to assess the extent of his permanent disability can give evidence only in regard to the extent of permanent disability. The loss of earning capacity is something that will have to be assessed by the Tribunal with reference to the evidence in entirety. M.A.C.A. No. 3071/2024 & : 6 : Cross Objection No. 149 of 2024 2025:KER:29859 (iv) The same permanent disability may result in different percentages of loss of earning capacity in different persons, depending upon the nature of profession, occupation or job, age, education and other factors. 9. Considering the age, occupation, nature of injuries and physical disability assessed in Exhibits A7 and A8, I find that 45% functional disability fixed by the Tribunal is reasonable and requires no interference. 10. The decision of the Hon'ble Supreme Court in National Insurance Co. Ltd. v Pranay Sethi [(2017) 16 SCC 680] and Jagdish v. Mohan [(2018) 4 SCC 571] shows that the benefit of future prospects should not be confined only to those who have a permanent job and would extend to self-employed individuals and in case of a self-employed person, an addition of 40% of the established income should be made where the age of the victim at the time of the accident was below 40 years. But, in this case, the Tribunal has not made any addition towards future prospects. Therefore, I find that the cross objector is entitled for an addition of 40% of the established income towards future prospects. 11. When the compensation for loss of earning power due to permanent disability is calculated as per the revised criteria, the same would come to Rs.14,96,880/- [(11,000 + 40%) x 12 x 18 x 45/100]. M.A.C.A. No. 3071/2024 & : 7 : Cross Objection No. 149 of 2024 2025:KER:29859 The Tribunal has already granted Rs.10,69,500/- under this head. Therefore, the cross objector/claim petitioner is granted an additional compensation of Rs.4,27,380/- under this head. 12. The learned counsel for the cross objector argued that the Tribunal granted only Rs.75,000/- each towards ‘pain and sufferings’ and ‘loss of amenities’ and the same are on the lower side. But, considering the nature of injuries, period of treatment and disability, I find that the compensation granted by the Tribunal towards ‘pain and sufferings’ and ‘loss of amenities’ are reasonable. I find that the compensation granted by the Tribunal under all other heads are reasonable and requires no interference. 13. Accordingly, the Cross Objector is entitled to the enhanced compensation as given below: Particulars Compensation awarded by the Tribunal (Rs.) Additional amount granted by this Court (Rs.) Compensation for loss of earning power due to permanent disability 10,69,500/- 4,27,380/- Total enhanced compensation 4,27,380/- M.A.C.A. No. 3071/2024 & : 8 : Cross Objection No. 149 of 2024 2025:KER:29859 14. In the result, M.A.C.A No. 3071 of 2024 is dismissed and Cross Objection No. 149 of 2024 is allowed and a total amount of Rs.4,27,380/- (Rupees Four Lakhs Twenty Seven Thousand Three Hundred and Eighty only) is awarded as enhanced compensation. The said amount shall carry interest at the rate of 8% per annum from the date of the application till realization. The claimant would also be entitled to proportionate costs in the case. The claimant shall furnish the details of the bank account to the insurance company for transfer of the amount. sd/- JOHNSON JOHN, JUDGE. Rv