IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE EASWARAN S.

FRIDAY, THE 4^TH DAY OF OCTOBER 2024 / 12TH ASWINA, 1946 MACA NO. 74 OF 2021 AGAINST THE AWARD DATED 31.08.2019 IN O.P.(M.V.) NO.1389 OF 2016 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,ERNAKULAM APPELLANT/PETITIONER IN O.P.M.V. NO.1389/2016 OF MACT ERNAKULAM :

AKHIL AGED 39 YEARS S/O. PRASANNAN, KALATHUMKADAVIL HOUSE, H.NO. 22/1201, JETTY ROAD, EDAKOCHI, KOCHI 10.

BY ADV V.A.OMANAKUTTAN RESPONDENT/RESPONDENT NO.3 IN IN O.P.M.V. NO.1389/2016 OF MACT ERNAKULAM :

UNITED INDIA INSURANCE COMPANY LIMITED T.P. CELL. REG. OFFICE JOS TRUST BUILDING, CHITTOOR ROAD, KOCHI 31, REPRESENTED BY THE REGIONAL MANAGER, UNITED INDIA INSURANCE CO LTD, SARANYA BUILDING, P.T. USHA ROAD, ERNAKULAM, PIN- 682 11.

BY ADV SRI.THOMAS MATHEW NELLIMOOTTIL THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 04.10.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

EASWARAN S., J.

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M.A.C.A. No.74 of 2021 ------------------------------------------

Dated this the 4^th day of October, 2024

JUDGMENT

The claimant in O.P.(M.V.) No.1389 of 2016 is the appellant herein. He was aged 35 years at the time of accident.

2. The short facts of the case reads as under:

On 14.1.2016 at 1.30 p.m., while the petitioner was working as a Conductor in a bus bearing registration No. KL-43-A-9783 driven by the 2^nd respondent from east to west through Edakochi-Palluruthy road and when the bus reached near Janatha junction, the 2^nd respondent applied sudden brake in a negligent manner, as a result of which, the petitioner fell inside the bus and sustained severe injuries. Since petitioner suffered head injury, EDH and fracture base of right middle finger, he was referred to the Government Medical College Hospital, Kottayam and 5% disability was assessed as per Ext.X1 disability certificate.

3. The insurance company entered appearance and contested the claim. They filed a written statement contending that the insured neither reported the accident nor produced the vehicular documents for verification. It was also contended that, as per the provisions of Motor Vehicles Act, the covered employees of the insured are eligible to get compensation only under the Employees Compensation Act and, the claim petition was not maintainable.

4. Before the tribunal Exts.A1 to A8 were marked on the side of the appellant and Ext.X1, the disability certificate, was marked as Court Exhibit. The tribunal, based on the evidence on record, framed the following issues:

“ 1. Whether the petitioner sustained injuries due to the rash and negligent driving of the 2^nd respondent?

2. Whether the petitioner is entitled to get compensation from the respondents? and if so, what is the quantum?

3. Reliefs and costs.”

5. Though, the appellant claimed that he was drawing an income of Rs.18,000/- per month, no evidence has been produced, and hence, the tribunal fixed the notional income at Rs.10,000/-. It is against the said finding and also the insufficiency of compensation under the non pecuniary heads that the appellant has approached this Court with this appeal.

6. Heard Sri. V.A. Omanakuttan, the learned counsel appearing for the appellant and Sri. Thomas Mathew Nellimootil, the learned Standing Counsel appearing for the insurance company.

7. The learned counsel appearing for the appellant contended that, going by the provisions contained under The Kerala Motor Transport Workers’ Payment of Fair Wages Act, 1971, a conductor is considered to be a semi skilled worker. He further relied on the judgment of the Hon’ble Supreme Court in Manusha Sreekumar and Others vs. The United India Insurance Company Ltd. [AIR 2022 SC 5161] to contend that even for a driver Rs.15,600/- was fixed as the notional income and if the same parameters are adopted in this case, the income would be more than what was fixed by the tribunal. The learned counsel also submitted that under the heads pain and sufferings and also loss of amenities