Tribunal is required to fix such compensation which is just.

A.P. Shah, CJ.

When C.M.A.No.231 of 1994 came up for hearing, Justice K.P.Sivasubramaniam noticed that apparently conflicting views expressed by two Division Benches on the question canvassed by the appellant – Cholan Roadways Corporation Limited namely, whether compensation could be awarded separately on account of permanent disability and also on account of loss of earning capacity. There being conflict of opinions by two Division Benches of this Court, the learned single Judge deemed it fit to refer the matter to the Full Bench.

2. The facts giving rise to the present CMA are that on 27.05.1991 the 1st respondent was travelling on a TVS-50 motor cycle from Ayyampettai to Thanjavur. The 1st respondent was the pillion rider and one M.R.Abu Bakker was driving the motor cycle. When they were nearing Pasubathi Temple the appellant – transport corporation’s bus bearing Registration No.TN-49-N-0099 coming from opposite direction hit the motor cycle. Abu Bakker died on the spot. The 1st respondent, who was the pillion rider suffered serious injuries. The 1st respondent was 35 years old and was working as supervisor in Rahman Shop at Kumbakonam. He was earning Rs.1,500/- per month. He was the sole bread-winner of the family. The 1st respondent filed a claim petition before the Tribunal claiming compensation of Rs.1,50,000/-. The Tribunal awarded Rs.6,000 as loss of income, Rs.4,000/- towards extra nourishment and Rs.30,000/- as compensation towards pain and suffering. It was found that he suffered 50% partial permanent disability. Therefore, towards this head the tribunal awarded Rs.20,000/- as against Rs.50,000/- claimed by the respondent. As against the claim of Rs.50,000/- towards the future loss of earning, the tribunal awarded Rs.10,000/-. Thus, a total compensation of Rs.70,000/- was awarded to the respondent. The contention of the appellant is that when the tribunal had awarded Rs.20,000/- towards partial permanent disability, there was no justification for awarding Rs.10,000/- towards loss of earning. The learned single Judge noticed the apparent conflict of the views expressed by the two Division Benches and referred the matter to a Larger Bench.

3. On behalf of the appellant it is argued by the learned Advocate General that the award made by the tribunal cannot be sustained, as it would amount to double compensation. Reliance is placed on the ruling of the Division Bench in National Insurance Co. Ltd. Vs. A.Kala Mohan and Another, 1998 ACJ 295, where it was held that when tribunal has awarded compensation for disability no amount is separately payable for loss of earning power. It is submitted that when once an injured is compensated for permanent disability as a result of the accident, it will be illogical for him to contend that he should be compensated for his loss of earning capacity, once again in a separate head. They are really not separable and perhaps could be considered as mutually excluding. Our attention is also drawn to the decision of a Full Bench of the Kerala High Court in Oriental Insurance Co. Ltd. Vs. Hariprasad, 2006 (1) CTC 81, where it was held that the tribunal should not take into consideration loss of earning power as separate head after the fixation of compensation for permanent disability.

4. In reply, learned counsel for the respondent contended that the submissions made on behalf of the appellant may not be fully acceptable. He firstly referred to the form prescribed by the Motor Accident Claims Tribunal Rules, wherein compensation for the permanent disability and compensation for the loss of earning power are shown as separate heads of compensation. According to him, this is an indication of the intention of the rule making authority, and this has to be sufficiently taken notice of. He placed reliance on a decision of another Division Bench of this Court in Managing Director, Tiruvalluvar Transport Corporation, Madras Vs. Thangavelu and Another, 1995 (2) MLJ 571. In that judgment, t