Correct evaluation of compensation for damages, focusing on permanent disability and the claimant's earning capacity.

J UDGMENT

[MACA Nos.3337/2015, 1260/2016]

Since these two appeals arise from the same award in O.P.(MV) 805/2012 on the file of the Motor Accidents Claims Tribunal, Irinjalakuda, the appeals are heard together and are disposed of by this judgment. M.A.C.A.No.3337 of 2015 is filed by the 2nd respondent/insurer, challenging the compensation awarded, whereas M.A.C.A.No.1260 of 2016 is filed by the claimant, dissatisfied with the quantum of compensation awarded by the tribunal. The parties are hereinafter referred to as arrayed in the Original Petition.

2. The brief facts of the case are as follows: on 21.04.2012, at about 07.00 p.m., while the claimant was riding on a motorcycle bearing registration No.KL-08-AC-1398 through Pudukad – Amballur public road, a car bearing registration No.KL-48-6806 driven by the first respondent in a rash and negligent manner hit against the motorcycle and as a result, the claimant sustained serious injuries. The claimant approached the tribunal, claiming a total compensation of ₹20,13,000/- which is limited to ₹15,00,000/-.

3. Though notice was served on the first respondent, the owner-cum-driver of the offending vehicle, he remained absent and was set ex parte before the tribunal. The second respondent – insurer filed a written statement, admitting the insurance policy, disputing the liability and the quantum of compensation claimed. They contended that the claimant was not having a valid driving licence at the time of the accident. Before the tribunal, PW1 was examined and Exts.A1 to A18 were marked. The tribunal, after analysing the pleadings and materials on record, found that the accident was due to negligence on the part of first respondent and the claimant was awarded a sum of ₹13,61,723/- as compensation under different heads with interest @ 8% per annum from the date of petition till realization against the second respondent being the insurer. Dissatisfied with the quantum of compensation awarded as well as challenging the compensation awarded, the claimant as well as the insurer have come up with the above appeals.

4. Heard the learned standing counsel for the insurance company and the learned counsel for the claimant.

5. The learned counsel for the claimant as well as the insurer mainly challenged the quantum of compensation under the following heads:

I. Notional Income

The learned standing counsel appearing for the insurance company submitted that the injured was working in BSNL as a Telecom Mechanic and was drawing a gross monthly salary of ₹23,735/-. After deducting income tax of ₹1,759/-, the tribunal assessed his net monthly income at ₹21,976/-. It was further contended that the claimant had not suffered any loss of job on account of the accident. In view of the judgment in Raju Sebastian v. United India Insurance Co. Ltd. [(2021) 6 KLT 136], wherein this Court held that at least 50% of the monthly salary of a Government employee as on the date of the accident should be taken into account for awarding compensation for permanent disability. The claimant herein was also a permanent employee. Following the judgment in Raju Sebastian (supra), since the salary of the claimant was ₹21,976/-, I find it appropriate to fix the monthly income at ₹10,988/-

II. Permanent disability

The learned counsel for the claimant submitted that as per Ext.A12 disability certificate, the disability of the claimant was assessed as 37% and the doctor who had issued Ext.A12 disability certificate was examined as PW1. However, the tribunal had reduced the percentage of permanent disability from 37% to 25% on the ground that Ext.A12 disability certificate was issued by a single doctor.

The learned standing counsel appearing for the insurance company, however, submitted that since the certificate was not issued by the Medical