Partly allowed

National Insurance Company Limited v. Antony

Kerala HC18 Mar 2016MACA/2681/2012

Case brief

AI extract

What is this about?

In this motor accident claim appeal, the High Court, Kerala, addressed two main issues: the admissibility of a belated cross objection and the quantum of compensation. The Court dismissed the cross objection due to inordinate delay without sufficient cause. Regarding the appeal, the Court held the Tribunal erred in treating 'permanent partial disablement' as total loss of earning capacity, reducin

What did the court decide?

Cross objection dismissed for delay. Appeal allowed; compensation reassessed to Rs.10 lakhs by reducing disability percentage to 50% and fixating income at Rs.6000.

National Insurance Company Limited Vs Antony — Motor Accident Claims | Kerala HC (2016)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR

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THE HONOURABLE MRS. JUSTICE MARY JOSEPH

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FRIDAY, THE 18TH DAY OF MARCH 2016/28TH PHALGUNA, 1937

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MACA.No. 2681 of 2012 ()

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AGAINST THE AWARD IN OPMV 609/2008 of MACT ALAPPUZHA DATED 16-07-2012

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APPELLANT(S)/3RD RESPONDENT:

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NATIONAL INSURANCE COMPANY LIMITED, ALAPPUZHA, NOW REPRESENTED BY ITS MANAGER, KOCHI REGIONAL OFFICE, OMANA BUILDING, M.G. ROAD, KOCHI -35

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BY ADVS.SRI.MATHEWS JACOB (SR.)

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SRI.P.JACOB MATHEW

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RESPONDENT(S)/PETITIONER:

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ANTONY,

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S/O OUSEPH, VADAKKEARACKAL VEEDU, KOKKOTHAMANGALAM P.O, CHERTHALA, PIN- 688320

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BY ADV. SRI.J.OMPRAKASH

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THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 18-03-2016, ALONG WITH CO. 38/2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

C.T. RAVIKUMAR

MARY JOSEPH, JJ.

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M.A.C.A. No.2681 of 2012 & Cross Objection No.38 of 2016

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==========================

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Dated this the 18^th day of March, 2016

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JUDGMENT

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Ravikumar, J.

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The captioned appeal has been preferred by the third respondent in O.P.(MV)No.609/2008 against the award dated 16.07.2012 passed thereon by the Motor Accidents Claims Tribunal, Alappuzha. The appellant was the insurer of the offending vehicle involved in the said case. The claim petition was filed by the respondent/petitioner in the cross objection, seeking compensation for the injury sustained by him in the accident that occurred in 23.02.2008. The third respondent before the Tribunal who filed the appeal is described as 'the appellant' and the claimant before the Tribunal who is the respondent in the appeal is described as 'the respondent', hereinafter in this judgment unless otherwise specifically mentioned. Initially, the claim petition

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was filed for a total compensation of Rs.5 lakhs. Subsequently, the respondent/claimant filed I.A.No.3604/2011 and got amended the claim to the tune of Rs.10 lakhs. Still later, I.A.No.1646/2012 was filed seeking amendment to make the total claim of Rs.16,99,500/but, limiting it to Rs.16,00,000/-. That application was allowed on 24.04.2012. The said amendment was made subsequent to the production of Ext.A1 income certificate issued by PW1, the then Village Officer of Kokkothamangalam Village, Cherthala. The case of the respondent/claimant is that on 23.02.2008, at about 6 p.m., he was riding the motor cycle bearing Reg.No.KL-32/5355 through Cherthala -Thannermukkom public road and when he reached Mullappally, the autorikshaw bearing Reg.No.KL-04/R.7096, driven by the first respondent (before the Tribunal) and owned by the third respondent (before the Tribunal) and insured with the appellant, hit on the motorcycle. The respondent and the pillion rider sustained injuries and the latter succumbed to the injuries. The respondent who survived with injuries filed the claim petition for compensation of Rs.16 lakhs,

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as mentioned above, under Section 166 of the Motor Vehicles Act (for short 'M.V. Act'). To establish the claim, the respondent/claimant tendered evidence, both, oral and documentary. The respondents before the Tribunal did not adduce any evidence, either oral or documentary. Ext.C1 is the disability certificate in respect of the respondent and it is a court document. The evidence was taken in a joint trial of the aforesaid claim petition with OP(MV)No.607/2008. The petitioner in O.P.(MV)No.607/2008 was the pillion rider on the motor vehicle bearing Reg.No.KL-2/5355 ridden by the respondent. After appreciating the evidence on record and the rival contentions, as per the impugned award, the Tribunal granted a total compensation of Rs.14,48,676/- with interest at the rate of 7.5% per annum from the date of petition till realisation along with a cost of Rs.14,487/- in O.P. (MV)No.609/2008. It is aggrieved by the aforesaid award in O.P. (MV)No.609/2008 that the third respondent preferred the captioned appeal.

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2.We have heard Sri.Mathews Jacob, the learned Senior counsel

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appearing for the appellant and the learned counsel appearing for the third respondent.

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3.Before proceeding further with the appeal, we think it appropriate to consider the cross objection which was filed by the respondent/claimant with a delay of 1120 days.

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C.M.Appln.No.907/2016 is filed with the prayer to condone the said delay of 1120 days. A perusal of the affidavit accompanying with the said petition would reveal that he received notice in this appeal on 20.01.2013 and thereupon, entered appearance, on 28.01.2013. The reason stated in the affidavit accompanying C.M.Appln.No.907/2016 for condoning the delay is as hereunder.

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“It is respectfully submitted that on 20.01.2013 I got the appeal notice and on 28.01.2013 I filed the Vakkalath. Thereafter I could not meet my counsel due to my inability to go to his office. Still I am not in a position even to move my right hand and I am suffering

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acute pain on each and every moment. In fact after the accident I am in a bed-ridden condition and I am permanently using a sling in the right hand. Matters being so yesterday I met the counsel at his office with great difficulty as the appeal is posted for hearing and at that time after discussion only I came to know that the amounts awarded by the Tribunal is very low. But in the meantime there occurred a delay of 1120 days in filing this cross objection. There is no wilful delay or laches on my part in this regard. If the above delay is not condoned I will be put to irreparable injury hardship and loss.”

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4.The question is whether the reason as mentioned hereinabove can be taken as a sufficient cause for condoning an inordinate delay of 1120 days in filing the cross objection. Admittedly, the respondent/claimant received notice in the appeal on 20.01.2013 and entered appearance on 28.01.2013. According to the respondent, thereafter, he found it difficult even to move his right hand and went to the office of the counsel on coming to know about the posting of

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the appeal for hearing. It is during the discussion then held that he came to know that the compensation awarded is very low. When the appeal filed by the 3^rd respondent mainly assails the award on the ground of exorbitancy and pursuant to the receipt of notice in the appeal, admittedly, the respondent entered appearance through counsel as early as on 28.01.2013 itself, how can the averment of the respondent/claimant that he came to know that the amount awarded is

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low only after three years when he had the discussion with the counsel, be believed and accepted as the sufficient ground. The other reason assigned to the effect that his right hand was on a sling and he was suffering pain during these period, also cannot be taken as a sufficient ground to condone an inordinate delay of 1120 days, in the circumstances mentioned above. We have no hesitation to hold that the reasons aforesaid cannot be accepted as sufficient cause for condoning an inordinate delay of 1120 days. In the said circumstances, we are not inclined to condone the delay in filing the cross objection and it is liable to be dismissed.

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5.Now, we will revert to the consideration of the captioned appeal. The learned Senior counsel appearing for the appellant contended that the insurance coverage in respect of the offending vehicle, the accident, as also the cause of the accident in which the respondent sustained injuries are not at all in dispute. Furthermore, it is submitted that the challenge against the award is made based on twin grounds. The first contention is that the Tribunal erred in accepting the entire permanent disability certified in Ext.C1 for the purpose of awarding compensation for disability and loss of earning power. It is contended that though certification in Ext.C1 certificate, which was issued by a Medical Board, is to the effect that

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the respondent had incurred 80% permanent partial disability, the entire percentage ought to have been taken as the percentage of permanent disability as the term 'permanent partial disability' is different from permanent disablement or permanent disability. To drive home the said point, the learned counsel drew our attention to Second Schedule, more particularly, to Note V of the M.V. Act.

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“ 5. Disability in non-fatal accidents:

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The following compensation shall be payable in

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case of disability to the victim arising out of non-fatal accidents:-

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Loss of income, if any, for actual period of disablement not exceeding fifty two weeks. PLUS either of the following:-

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(a) In case of permanent total disablement the amount payable shall be arrived at by multiplying the annual loss of income by the Multiplier applicable to the age on the date of determining the compensation, or

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(b) In case of permanent partial disablement such percentage of compensation which would have been payable in the case of permanent total disablement as specified under item (a) above.

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Injuries deemed to result in Permanent Total Disablement/Permanent Partial Disablement and percentage of loss of earning capacity shall be as per Schedule I under Workmen's Compensation Act, 1923.”

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It is stated therein that the injuries deemed to result permanent

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total disablement/permanent partial disablement and percentage of loss of earning capacity shall be as per Schedule 1 under Workmen's

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Compensation Act, 1923. True that Second Schedule to Section 163A is not at all applicable in the case of a claim under Section 166 of the M.V. Act. The term 'permanent disablement' has been employed in the M.V Act only under Sections 140, 141, 142 and Section 163A and the term 'permanent disability' has been employed only under explanation to Section 163A which reads thus: For the purposes of this subSection, “permanent disability” shall have the same meaning and

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extent as in the Workmen's Compensation Act, 1923(8 of 1923) . The learned Senior counsel contended that the fact that what was certified under Ext.C1 is not 'permanent disability' but 'permanent partial disability' was actually not taken note of by the Tribunal and therefore, the Tribunal erred in taking the entire percentage certified thereunder as permanent disability for the purpose of computing the compensation for loss of permanent disability.

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7.Secondly, it is contended that the application was originally filed with a claim that the respondent was having a monthly income of

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Rs.4,000/- and he was earning that income through his profession as mason. In the said circumstances, it is further contended that the Tribunal erred in accepting Ext.A1 certificate issued by the Village Officer regarding the income of the respondent as Rs.6,875/-. It is the contention that the Village Officer got no authority to issue such an income certificate and at any rate, the evidence of the Village Officer who issued Ext.A1 as PW1 itself would reveal that she came to the locality in question only in the year 2009 and she was not actually aware about the wages of Mason prevalent in that area during the period 2007-'08. She also deposed that she was also not aware about the number of days the respondent engaged in masonry in a month. In the said circumstances, it is contended that the Tribunal had erred in fixing the multiplicand, as well. In short, the quantum of compensation fixed as per the impugned award is challenged under the aforesaid appeal on the ground of exorbitancy.

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8.Per contra, the learned counsel appearing for the

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respondent/claimant contended that it is incorrect to say that the Tribunal had erred in fixing the multiplicand. But at the same time, the respondent attempted to canvass the position that the Tribunal virtually went wrong in limiting the percentage of disability to 80% and that the loss of earning power ought to have been fixed as 100%. The learned counsel for the respondent further contended that merely because the respondent claimed Rs.4,000/- as his monthly income in the claim petition in the light of the Ext.A1 certificate produced by him, the Tribunal was justified in fixing the respondent's monthly income as Rs.6875/-. In short, the contention is that there is absolutely no reason to interfere with the quantum of compensation on the ground of it being exorbitant. In fact, the quantum of compensation has to be enhanced in the facts and circumstances of the case, it is contended.

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9.We will firstly, deal with the question whether the Tribunal has erred in taking the permanent disability as 80% for the purpose of

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fixing the compensation payable under the head loss of disability and

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loss of earning power. For a proper appreciation of the rival contentions on that issue, it is only apposite to refer to Ext.C1 disability certificate issued by the Medical Board constituted in TD Medical College Hospital, Alappuzha. After conducting an examination of the respondent with respect to the percentage of disability, the Board opined as follows. “As a result of the above, the Board is of opinion that the above person is having 80% permanent partial disability.” A bear perusal of the impugned award would reveal that the Tribunal actually did not give pointed attention to the aspect that 80% has been certified under Ext.C1 not as 'permanent disability' but only as 'permanent partial disability'. As noticed hereinbefore, under the M.V. Act, the expression permanent disability has been employed only under explanation to Section 163A. It reads thus:-

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“163A. Special provisions as to payment of compensation on structured formula basis :

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Explanation- (1) For the purposes of this sub-Section, “permanent disability” shall have the same meaning and extent as in the Workmen's Compensation Act, 1923(8 of 1923).

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(2) In any claim for compensation under sub-section (1), the claimant shall not be required to plead or establish that the death or permanent disablement in respect of which the claim has been made was due to any wrongful act or neglect or default of the owner of the vehicle or vehicles concerned or of any other person.”

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10.Going by the same, it is evident that what was stated under the explanation is that for the purpose of sub-Section 1 of Section

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163A, the expression “permanent disability” shall have the same meaning and extent as in the Workmen's Compensation Act, 1923(8 of

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23). Whether the term permanent disability has been defined or has been employed in Workmen's Compensation Act and what would be the actual meaning of the term 'permanent disability' employed under the explanation to Section 163A(1) has been considered by a decision

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of the Division Bench of in New India Assurance Co.Ltd v. Remya reported in 2011(4) KLT 869 . After considering the explanation to Section 163A(1) of the M.V. Act and the relevant provision under Section 2(9) of the Workmen's Compensation Act, it was held therein that though the expression 'permanent disability' is used in the explanation under Section 163A(1) of the M.V. Act virtually it is to be understood as permanent disablement. It was held that in the body of Section 163A(1) of the M.V. Act, what is referred to is only 'permanent disablement' and whereas in the explanation what was referred to is “permanent disability”. In the explanation, it is stated that the expression 'permanent disability' for the purpose of subSection 1 of Section 163A of the M.V. Act would have the same meaning and extent as in the Workmen's Compensation Act. It was further observed: 'when the Section 163A only speaks of “permanent disablement” we fail to understand how and why “permanent disability” must be defined in the explanation'. Moreover, the Workmen's Compensation Act, 1923 (The Employees Compensation

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Act now) does not define permanent disability at all. It also speaks only of partial disablement and total disablement. It is therefore easy to assume that though the explanation refers to “permanent disability” what is really intended to be explained is 'permanent disablement' used earlier in Section 163A(1) of the M.V. Act, that it is intended to carry the distinction between 'partial and total disablement' defined in Section 2(g) and 2(l) of the Workmen's Compensation Act. It is thus obvious that the expression 'permanent disability' when it used in the context of a claim for compensation in the absence of any definition in the M.V. Act, it could be taken only as total disablement as has been defined under Section 2(l) of the Workmen's Compensation Act. So also, the expression 'permanent partial disability' has to be understood as 'partial disability' as defined under Section 2(g) of the Workmen's Compensation Act. Section 2(g) and 2(l) of the Workmen's Compensation Act defines the expression 'partial disablement' and 'total disablement' respectively as hereunder.

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“ Section 2(g): “Partial disablement ” means, where

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the disablement is of a temporary nature, such disablement as reduces the earning capacity of a workman in any employment in which he was engaged at the time of the accident resulting in the disablement, and where the disablement is of a permanent nature, such disablement as reduces his earning capacity in every employment which he was capable of undertaking at that time: provided that every injury specified in Part II of Schedule I shall be deemed to result in permanent partial disablement.

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Section 2(l): “Total disablement” means such disablement, whether of a temporary or permanent nature, as incapacitates a workman for all work which he was capable of performing at the time of the accident resulting in such disablement: Provided that permanent total disablement shall be deemed to result from every injury specified in Part I of Schedule I or from any combination of injuries specified in Part II thereof where the aggregate percentage of the loss of earning capacity, as specified in the said Part II against those injuries,

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amounts to one hundred percent or more;”

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11.To understand the scope of the expressions, we will have to consider the meanings of the following terms in P.Ramanatha Aiyar's

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Concise Law Dictionary, Fourth Edition, 2012:-

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“ Disable . To incapacitate; make unable to act; to cause a disability; to do “something which creates a permanent disability and not merely a temporary injury.

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Disablement . The state of being disabled. (Workmen's Compensation Act (8 of 1923), S.2(1)(g) and Constitution of India, Art 41).

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Permanent disability . The `Permanent disability' for which recovery may be had in an action for personal injuries is the permanent reduction of the injured person's power to earn money, resulting from the injury, caused by the negligent act of the other party.

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“ Permanent partial disablement ” means such disablement of a permanent nature, as reduces the earning capacity of an employee in every employment which he was capable of undertaking at the time of the accident resulting in the disablement:

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Provided that every injury specified in Part II of the Second Schedule shall be deemed to result in permanent partial disablement. (Employees' State Insurance Act (34 of 1948), S.2(15-A)

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“ Permanent total disablement ” means such disablement of a permanent nature as incapacitates an employee for all work which he was capable of performing at the time of the accident resulting in such disablement.

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Provided that permanent total disablement shall be deemed to result from every injury specified in Part I of the Second Schedule or from any combination of injuries specified in part II thereof where the aggregate percentage of the loss of earning capacity, as specified in the said Part II against those injuries, amounts to one hundred percent or more. (Employees' State Insurance Act (34 of 1948), S.2 (15-B))”

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12.Thus, a consideration, bearing in mind the definitions and meaning of the different terms mentioned above, would reveal that the certification under Ext.C1 disability certificate could not be understood to have the meaning that the respondent was incapacitated by a disablement of permanent nature which would incapacitate him for all works which he was capable of performing at the time of accident resulting in such disablement whereas it is a disablement of permanent nature which would only reduce his earning capacity in every employment which he was capable of undertaking at the time of accident resulting in the disablement.

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We are of the view that this distinction has to be taken note

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of while appreciating the contentions raised by the learned counsel for the appellant. Another aspect has also to be looked into for appreciating the said contention by the learned Senior counsel for the appellant. The learned counsel contended that a perusal of Ext.C1 would reveal that it is not stated therein as to what is the percentage of the whole body disability and that apart, the functional disability was also not assessed thereunder. There is no room for any dispute in that regard as the aforesaid fact is very much discernible from Ext.C1 certificate itself. It is evident that what was certified thereunder is that the respondent is having 80% permanent partial disability and nowhere there the percentage of whole body disability or the functional disability has been certified. There can be no doubt with respect to the position that the term functional disability cannot be a substitute to the term permanent disability. In other words, when permanent disability is assessed it is incumbent on the part of the Medical Board or the medical practitioner who issues a disability

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certificate to certify thereunder the percentage of loss of earning power. In the contextual situation, it is relevant to refer to a decision of the Honourable Apex Court in Raj Kumar v. Ajay Kumar reported in 2011(1) KLT 620 SC , whereunder the Apex Court dealt with the method of ascertainment of the effect of permanent disability on actual earning capacity. The Apex Court held that the ascertainment of the effect of permanent disability on the actual earning capacity involves 3 steps. The Apex Court further went on to hold “The Tribunal has to first ascertain what activity the claimant could carry on in spite of the permanent disability and what he could not do as a result of permanent disability(this is also relevant for awarding compensation under the head loss of amenities of life)”. The second issue to be ascertained is his avocation, profession and nature of work before the accident as also his age. The third step is to find out whether (i) the claimant is totally disabled from earning any kind of livelihood or (ii) whether in spite of permanent disability, the claimant could still effectively carry on the activities and functions which he

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was earlier carrying on or (iii) whether he was prevented or restricted from discharging his previous activities and functions but could carry on some other or lesser scale of activities and functions so that he continues to earn or can continue to earn his livelihood. Thus, it is evident that for the purpose of ascertaining the effect of permanent disability on actual earning capacity, the steps mentioned by the Honourable Apex Court in paragraph 10 have to be undertaken. It is to be noted that paragraph 18 of the said decision would reveal that in the case which was dealt with by the Honourable Apex Court, the permanent disability of the injured was actually assessed as 45% and the loss of his future earning capacity was also assessed as 45%. That was a case where 45% of disability was assessed with reference to the left lower limb and not with regard to the entire body. The Apex Court held that the said extent of permanent disability of the limb would not have been considered to be a functional disability of the body nor it could be assumed to result in corresponding extent of loss of earning capacity, as the disability would not have prevented him

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from carrying on his avocation, though it might impede his smooth functioning. In the light of the said decision, it is evident that the Tribunal ought not have blindly accepted the entire percentage of permanent disability certified under Ext.C1 certificate and treated it as the percentage of loss of earning power. It is also to be noted that no discussion has been made in the impugned award as to why 80% was taken as the permanent disability or loss of earning power. The learned counsel for the respondent attempted to support and sustain the percentage of disability fixed by the Tribunal for the purpose of calculating the compensation payable under the head loss of disability and loss of earning power. The learned counsel relied on the decision of the Honourable Apex Court in Rekha Jain v. National Insurance Co.Ltd reported in 2013(8) SCC 389 . In Rekha 's case (supra), the claimant did not suffer 100% permanent disability. She was a film and TV actress, aged 24 years. The Tribunal reckoned the permanent disability as 30%. True that in that case taking note of the nature of the injuries, the Apex Court held that the permanent disability of the

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appellant therein ought to be treated as 100% functional disability. Virtually, what was held by the Apex Court in Rekha 's case (supra) is that even though a claimant did not suffer 100% physical permanent disability as a result of an accident, he or she could be treated to have incurred 100% functional disability if she or he losses the capacity to pursue his work as a result of the accident.

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14.The term permanent disability means 'disability lasting till the end'. The word partial when used in conjunction with the term 'permanent' may give the meaning 'always existing although only occasionally manifesting'. The word 'permanent partial disablement' has been defined under section 2(15)A of the Employees State Insurance Act 1948. Going by the same, it means such disablement of a permanent nature, as reduces the earning capacity of an employee in every employment which he was capable of undertaking at the time of the accident resulting in the disablement provided that every injury specified in Part II of the Second Schedule shall be deemed to result

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in permanent partial disablement. We have referred to the aforesaid provisions of law as also the positions of law settled by the Hon'ble Apex Court in the decision referred above to conclude that the term permanent disability cannot be the synonym of permanent partial disability and the word 'partial' has to have a telling impact on the capability of the disabled to earn his/her livelihood. In other words, for the purpose of deciding the loss of earning power with reference to the effect of the permanent disability at three stages, contemplated in the decision in Ajay 's case, has to be looked into. In the case on hand, the respondent has incurred permanent partial disability going by Ext.C1 certificate. As noticed hereinbefore, in Ext.C1 what exactly is the percentage of whole body disability and the percentage of the loss of earning power were not at all assessed. The respondent claims to be a mason. To establish the said fact, he has produced Ext.A10. The learned counsel further submitted that though the respondent got himself examined as PW4, his claim to the effect that he was a mason was not actually challenged going by the nature of the cross

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examination. Even then, the question is what exactly is the permanent nature of the disability of the respondent. Going by the certification, he had incurred total brachial plexus injury right. It is dated 22.9.2011. The term 'brachial' means of or pertaining to the arm, especially the upper arm and the term 'plexus' means 'a complication of the structures, such as nerves'. Ext.A11 contains another certificate produced by the respondent himself, issued by Dr. Ashok Pillai then associated with the Department of Neurosurgery at Amritha Institute of Medical Sciences, Kochi. In fact, it was issued subsequent to Ext.C1 disability certificate dated 22.9.2011 viz., on 10.11.2011. It reads thus:-

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This is to certify that Mr.V.O.Antony, 38Yrs/M (AIMS MRD No.827633) was seen in our OPD on 12.11.2010 with the diagnosis of right pan brachial plexus palsy sustained on 23.02.2008 following RTA. He underwent free function muscle for elbow function on may 2009 at Specialist hospital. For finger flexion he underwent free function muscle transfer at AIMS on 30.11.2009. He is regularly

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following our Brachial plexus and peripheral nerve clinic. He was seen in BPPN Clinic today and for getting relief from the muscle pain he require Functional procedure-B. He also require MRI Spine-Cervical+Thoracic.

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It reveals the nature of the treatment underwent by the respondent for the purpose of deciding the rigour of the disability. Taking into account all such aspects borne out from the evidence on record and decisions referred above, we are of the view that the Tribunal went wrong in accepting the entire percentage of permanent partial disability as the loss of earning power. It is to be noted that the Tribunal actually took the entire percentage of permanent partial disability certified under Ext.C1 without making any detailed discussion on the issue. In such circumstances, it is incumbent on this Court to assess the percentage of the loss of earning power. Taking into account the nature of the disability as certified in Ext.C1 and subsequent to the issuance of Ext.C1 mentioned in Ext.A11, it cannot be said that the appellant has totally lost the earning power as a result

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of the injuries. But at the same time, it is to be noted that he had incurred permanent partial disability. At the time of the accident, the respondent was aged 37 years and he was a mason by profession. After going through Ext.C1 which was followed by Ext.A11 dated 10.11.2011 it cannot be said that the respondent was totally disabled from earning any kind of livelihood. Despite the disability as certified in Ext.C1, the respondent could carry out certain activities and functions though he will not be able to continue with the same avocation in which he had been engaged. In such circumstances, we are of the view that the permanent disability can be taken as 50% for the purpose of computing the compensation payable for disability and loss of earning power.

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15.Now, we will consider the contentions raised by the learned counsel appearing for the respondent to the effect that the Tribunal erred in fixing the multiplicand. While considering the said question certain aspects assume relevance. Evidently, the claim petition was

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filed originally with a specific averment to the effect that the appellant was working as a mason and he was earning Rs.4000/- per month. In such circumstances, the actual claim of compensation was limited to Rs.5lakhs. Subsequently, the appellant produced Ext.A1 certificate. That was issued by the Village Officer, Kokothamangalam. It is stated therein that on enquiry it was revealed that the annual income of the appellant for the year 2007-'08 was Rs.82500/-. According to the same, he was having a monthly income of Rs.6875/-. Subsequent to the production of the said document, the respondent carried out an amendment with respect to the amount of compensation through I.A.No.3604/2011 as Rs.10 lakhs. That amendment was allowed. Subsequently, the appellant filed another application viz., I.A.No.1646 of 2012 to enhance the claim amount from Rs.10 lakhs to Rs.16 lakhs. That was also allowed. To substantiate the claim that during the period 2007-2008 he was earning Rs.6875/- as monthly wages in tune with the certification in Ext.A1 the respondent got examined the Village Officer who issued Ext.A1 certificate as PW1. On behalf of

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M.A.C.A.2681/2012 & CO.38/2016 29

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the third respondent PW1 was cross examined and during such cross examination she deposed thus:-

¶125

¶126

It is also to be noted that she deposed during the cross examination

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that she joined as Village Officer Kokothamangalam in December 2009. In the said contextual situation it is relevant to refer to Ext.A1 dated 10.10.2011. Going by Ext.A1 PW1 certified thereunder thus:-

¶128

æµÞçAÞÄÎ¢·Ü¢ ÕßçÜï¼ßW Õ¿çA¥ùÏíAW ÕàGßW ´çØËí ÎµX ¦aÃß ®KÏÞ{áæ¿ 2007_2008 ØÞOJßµ ÕV×JßæÜ Õcµñß·Ä ÕÞV×ßµ ÕøáÎÞÈ¢ ¥çÈb×ÃJßW 82500 øâÉ (®YÉJßÏàøÞÏßøJß ¥Eâùí øâÉ) ¦Ãí ®KùßÏáK ÕßÕø¢ ØÞþfcæM¿áJáKá.

¶129

16.In such circumstances, in the light of the evidence of PW1,

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we have no hesitation to say that Ext.A1 certificate could not be given

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credence at all. At the same time, as noticed hereinbefore, the fact

¶132

M.A.C.A.2681/2012 & CO.38/2016 30

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remains that the respondent was working as a mason and he has succeeded in establishing the same by producing Ext.A10 and that apart, we have already taken note of the fact that the appellant had not made any serious challenge against the claim of the respondent that he was a mason by profession. The accident occurred on 23.2.2008. In

¶134

the circumstances obtained in this case, when it is evident that what was actually stated by the respondent regarding his income in the claim petition is not the correct figure and the income which was certified under Ext.A10 is also not correct. We are left with no other option to fix the monthly income notionally. For that purpose, we are

¶135

of the view that the decision of the Hon'ble Apex Court in Ramachandrappa v. Manager, Royal Sundaram Alliance

¶136

Insurance Company Ltd. [ (2011) 13 SCC 236] assumes relevance. That was a case where the accident occurred in the year 2004. The claimant thereunder was a coolie. In that case, the Hon'ble Apex Court fixed his income as Rs.4500/- notionally. Taking into account the price index as also the cost of living and also taking note of the

¶137

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fact that the accident occurred in 2008, we are of the view that the monthly income of the respondent herein has to be fixed on a higher side especially taking into account the fact that he was a mason. Taking into account all such circumstances, we ween that it is appropriate to fix the monthly income of the respondent notionally at Rs.6000/-. In such circumstances, while accepting the contentions of the learned counsel for the appellant to the aforesaid extent, the compensation payable to the respondent for his disability and loss of earning power has to be re-assessed. In the light of the discussions as above, while following the same formula for the compensation payable under the said heads, we will have to substitute the multiplicand and the percentage of permanent disability. While making such a re-assessment, it is to be noted that there is absolutely no dispute with regard to the multiplier which was identified by the Tribunal with reference to the age of the respondent. Going by such calculation, the amount payable thereunder would become Rs.5,40,000/-. We make it clear that we are not going to interfere with

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the compensation granted by the Tribunal under the other heads. In such circumstances, the amount of total compensation payable to the respondent in such circumstances is Rs.9,98,676/- which is rounded off to Rs.10 lakhs. We make it clear that we are not interfering with the rate of interest awarded by the Tribunal as also the cost. The appeal is allowed as above. Since we have declined to condone the delay, the application for condoning the delay in filing the cross objection is dismissed. Consequently, the cross objection will stand dismissed. There will be no order as to costs.

Sd/-

C.T. RAVIKUMAR

(JUDGE)

Sd/MARY JOSEPH (JUDGE)

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Vs/spc

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