Point of law: Tribunal took a probable view to fix the disability as 6% excluding the disability assessed for the infirmity pre-existing. In fact, the said finding need not be interfered and therefore I am not inclined to disturb the disability at 6% as fixed by the Tribunal.

JUDGMENT :

This appeal is at the instance of the original petitioner in OP(MV) No.1551/2014, on the file of M.A.C.T, Irinjalakuda. Award dated 08.02.2018 is under challenge in this appeal, where the respondents before the Tribunal got arrayed as respondents 1 to 3. The parties in this appeal will be referred as to their status before the Tribunal.

2. The precise allegation is that the petitioner met with an accident on 27.06.2014 at 9 p.m. while he was travelling as pillion rider on a motorcycle bearing Registration No.KL-64-4743 driven by the 2nd respondent in a rash and negligent manner through Pongam-Mambra public road. Attributing negligence against the 2nd respondent the rider of the motorcycle, the petitioner claimed compensation to the tune of Rs.5,02,500/- jointly from respondents 1 to 3.

3. Respondents 1 and 2 remained ex-parte before the court below. The 3rd respondent filed a written statement. Valid policy in relation to the alleged offending vehicle was admitted. But negligence attributed against the 2nd respondent was disputed and quantum of compensation was challenged.

4. The Tribunal adduced evidence confined to Exts.A1 to A13 marked on the side of the petitioner, Ext.B1 marked on the side of the respondents and Ext.X1 as court's exhibit. After analysing evidence, the Tribunal awarded compensation to the tune of Rs.2,03,900/- along with 8% interest per annum.

5. The learned counsel for the petitioner submitted that the Tribunal went wrong in fixing monthly income of the petitioner as Rs.6,000/-. According to the learned counsel for the petitioner, since the petitioner claimed to be a mason, his income ought to be fixed as Rs.15,000/- as claimed. However, the learned counsel conceded the fact that no evidence, either oral or documentary to support this contention was adduced. He urged that Rs.9,500/- as income ought to be fixed following the ratio in [(2011) 13 SCC 236], Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited. The learned counsel for the insurance company strongly disputed fixation of income of the petitioner as Rs.15,000/- holding him as a mason, without support of convincing and cogent evidence.

6. Going by the petition averments, the petitioner claiming to be a mason asserted his income as Rs.15,000/-per month. But no evidence including oral evidence adduced to support this contention. In view of the matter, the contention regarding his job as mason and income therefrom not proved at all. But following the ratio in Ramachandrappa's case (supra), Rs.9,500/- ought to be fixed as the monthly income for the purpose of calculating loss of earnings and loss of disability. Thus Rs.9,500/- is fixed as the monthly income of the petitioner.

7. Coming to the other challenge, according to the learned counsel for the petitioner though the disability of the petitioner was assessed as 13% by the Medical Board, on reference to him by the Tribunal, the Tribunal reduced the same to 6%. He submitted further that in the decision reported in [2011 (1) KLT 620], Raj Kumar v. Ajay Kumar, the Apex Court held that when disability assessed by the medical board is let in evidence, the same as such has to be accepted unless contra evidence to disbelieve the same is not forthcoming.

8. However, the learned counsel for the insurance company submitted that though 13% disability was assessed by the medical board, the Tribunal after elaborate discussion, as could be seen from paragraphs 9 and 10 of the award, reduced the same on the finding that assessment of disability based on the petitioner's difficulty in breathing as certified in Ext.A9 and Ext.X1 was liable to be accepted and the other assessment made by the medical board was probably towards wedge fracture unconnected with the accident.

9. While addressing this issue it could be noticed that as per Ext.A9 dated 26.06.2017 Dr. Jyothish issued disability