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2017 Supreme(Ker) 1297

IN THE HIGH COURT OF KERALA AT ERNAKULAM
C.T. RAVIKUMAR, ANIL K.NARENDRAN, JJ.
Jinto John, S/O. John – Appellant
Versus
V.J. Linto and Others – Respondents
M.A.C.A. No.2783 Of 2012
Decided On : 17-07-2017

Advocates Appeared:
For the Appellant : Sri. P.V. Baby, Sri. A.N. Santhosh, Advs.
For the Respondent: Sri. P.Jayasankar, Sri. A.A. Ziyad Rahman, Advs.

Headnote:Motor Vehicles Act 1988, S.166 -Assessment of the compensation is done to grant the compensation as the denial and rejection of the assessment will reject the fair compensation as the tribunal grant the compensation for the permanent disability.

JUDGMENT

Ravikumar, J.

The injured petitioner comes up in appeal seeking enhancement of the quantum of compensation granted by the Motor Accidents Claims Tribunal, Irinjalakuda as per the award dated 22.11.2012 in O.P.(MV).No.802 of 2008. He filed the said claim petition under section 166 of the Motor Vehicles Act seeking a compensation of Rs.7,00,000/- for the injuries sustained by him in a motor vehicle accident that occurred on 13.01.2008. On that day, while he was riding his motor cycle, another motor cycle bearing Reg.No.KL-8/C 3369, ridden by the second respondent hit against it. Going by Ext.A3 wound certificate and Ext.A4 discharge summary, he sustained the following injuries:-

1. Head injury with left temporal SDH with intracerebral haematoma and hemorrhage, contusion temporal lobe.

2. Focal subarachnoid haemorrhage, diffuse cerebral oedema with mass effect and midline shift. Opacque paranasal sinuses and mastoid air cells, fractures of right occipital, left frontal, temporal bones and lateral walls of left maxillary sinus.

3. Decreased mass effect with contusion, decreased in size of EDH

2. After considering the materials and evidence on record, the Tribunal arrived at a conclusion that the accident occurred due to the negligence of the second respondent. The first respondent, being the insured owner of the said vehicle, was found vicariously liable and the third respondent was held liable to indemnify the insured owner. The said findings and the mulcting of liability are not at all disputed before us. Hence, the sole question to be considered in this appeal is as to whether the appellant is entitled to get enhanced compensation.

3. We heard the learned counsel for the appellant and also the learned counsel for the third respondent.

4. The main grievance of the appellant is regarding the notional fixation of monthly income by the Tribunal. In the claim petition, it was averred that the appellant was a heavy vehicle driver and he was earning a monthly income of Rs.6,000/-. He was aged 25 years at the time of the accident. To prove his averments regarding occupation and income, he got examined PW2 who was the managing partner of the firm in which he was then working. Taking into account the fact that he had not produced any records including pay roll and his version that he was not collecting any professional tax from the appellant for the purpose of remittance, the Tribunal declined to accept the monthly income of the appellant certified under Ext.A9 certificate. As noticed hereinbefore, the appellant claimed Rs.6,000/- as his monthly income. Even if it is taken that the oral testimony of PW2 was not sufficient to prove Ext.A9, we are of the view that there is absolutely no reason for fixing the monthly income of the appellant only as Rs.3,000/-. The accident in question had occurred on 13.1.2008. Taking into account the fixation of the monthly income of a coolie who met with an accident in the year 2004 by the Hon'ble Apex Court in Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Ltd. [(2011) 13 SCC 236] and taking into account the year of accident and the age of the appellant at the time of the accident, we find no reason to disbelieve the claim of the appellant that he was earning Rs.6,000/- per month. At any rate, it is only reasonable to fix the monthly income notionally at Rs.6,000/- for calculation purpose in the aforesaid circumstances. To prove the extent of disability certified under Ext.A7 disability certificate, the petitioner got examined the doctor who issued the same as PW3. The Tribunal accepted the entire extent certified thereunder viz., 40%. Evidently, the Tribunal has fixed the monthly income of the appellant as Rs.3,000/-, the multiplier as 18' with reference to his age at the time of the accident and accepted the entire extent of disability certified under Ext.A7 to assess the compensation payable to the appellant towards permanent disability as Rs.2,59,200/-. At the same time, the Tr






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