Balakrishnan Pillai & Vilasini Amma v. Rejimon M.D. & Sabu V.D. & Oriental Insurance Co. Ltd.

MACA NO. 2005 OF 2012 1 **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **MONDAY, THE 11[TH] DAY OF OCTOBER 2021 / 19TH ASWINA, 1943 MACA NO. 2005 OF 2012** **AGAINST THE ORDER/JUDGMENT IN OPMV 561/2007 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,ERNAKULAM, ERNAKULAM** ## **APPELLANT/S:** 1 BALAKRISHNA PILLAI, AGED 63 YEARS S/O.LATE SANKARA PILLAI, PADINJATTAYIL HOUSE, KADAYANIKADU P.O., KANGAZHA, KOTTAYAM, NOW RESIDING AT GO-5, AISWARYA APARTMENTS, POONITHURA P.O., KOCHI. 2 ADDL P2. VILASINI AMMA M.R., AGED 62 YEARS AGED 62 YEARS, W/O.LATE BALAKRISHNA PILLAI, PADINJATTAYIL HOUSE, KADAYINIKADU P.O., KANGAZHA, KOTTAYAM DISTRICT, PIN- 686 541. IS IMPLEADED AS THE ADDITIONAL 2ND APPELLANT IN THE APPEAL AS PER ORDER DATED 06/09/2021 IN IA 1/2021 IN MACA 2005/2012. BY ADVS. SRI.KOSHY GEORGE C.B.SREEKUMAR ## **RESPONDENT/S:** 1 MR.REJIMON M.D., AGED 44 YEARS, S/O.DAMODARAN, VALAMANAL HOUSE, KURIANAD, P.O., MONIPPILLY, KOTTAYAM-686636. 2 SABU V.D.AGED 42 YEARS, S/O.SAROJINI DAMODARAN, VALAMANAL HOUSE, KURIANAD, P.O., MONIPPILLY, KOTTAYAM-686636. 3 THE ORIENTAL INSURANCE CO.LT BRANCH OFFICE, TR 10 CHAMBERS, KANJIKUZHY, 2 MACA NO. 2005 OF 2012 KOTTAYAM-686004. BY ADVS. SRI.P.JACOB MATHEW SRI.MATHEWS JACOB SR. THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 11.10.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: MACA NO. 2005 OF 2012 3 ## **JUDGMENT** The original appellant was the petitioner in OP(MV) No.561/2007 on the file of the Motor Accidents Claims Tribunal, Ernakulam. During the pendency of the appeal, the original appellant died and his wife was impleaded, as per the order dated 06.09.2021 in I.A.No.1/2021 by this Court, as the Additional 2[nd] appellant. The respondents in the appeal were the respondents before the Tribunal. 2. The original appellant had filed the claim petition under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of the injuries that he sustained in an accident on 01.04.1996. The original appellant had contended that on the above said date, while he was getting down from the bus at the Muvattupuzha bus stand and crossing the road, a mini lorry bearing registration No. KL.7A-3931 (lorry) driven by the 2[nd] respondent in a negligent manner, hit the original appellant. The original appellant sustained serious injuries and fell unconscious. He was treated at the Government Hospital, Muvattupuzha and at the Medical Mission Hospital, Kolenchery as an inpatient 4 MACA NO. 2005 OF 2012 for a period of 50 days from 01.04.1996 to 20.05.1996. The original appellant had sustained memory loss and he was bedridden for about 8 months. He underwent Ayurvedic treatment. The original appellant was a Forest Guard in the Kerala State Forest Department and was earning a net income of Rs.3,200/- per month. The lorry was owned by the 1[st] respondent and insured with the 3[rd] respondent. Hence, the original appellant claimed a compensation of Rs.6,68,000/- from the respondents, which was limited to Rs.6,00,000/-. 3. The respondents did not contest the proceedings. 4. The original appellant produced and marked Exts.A1 to A13 and Ext.X1 standing disability certificate in evidence. 5. The Tribunal after analysing the pleadings and the materials on record, allowed the claim petition in part, by permitting the original appellant to realise an amount of Rs.1,49,294/- from the 3[rd] respondent. 6. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioner is in appeal. 5 MACA NO. 2005 OF 2012 7. Heard; Sri.C.B. Sreekumar, the learned counsel appearing for the appellants and Sri. P. Jacob Mathew, the learned counsel appearing for the 3[rd] respondent/insurer. 8. The sole question that emerges for consideration in the appeal is whether the quantum of compensation awarded by the Tribunal is reasonable and just? ## **Negligence and Liability** 9. Ext.A5 charge sheet filed by the Muvattupuzha Police in crime no.205/1996 proves that the accident occurred due to the negligence of the 2[nd] respondent. Admittedly, the 1[st] respondent was the owner and the 3[rd] respondent was the insurer of the lorry. The 3[rd] respondent admitted that the lorry had a valid insurance coverage and had not proved that the 1[st] respondent had violated the insurance policy conditions. Therefore, the 3[rd] respondent is to indemnify the liability of the 1[st] respondent arising out of the accident. ## **Income of the appellant** 10. Undisputedly, the original appellant was working as a Forest Guard in the Forest Range Office, Erumeli and earning a monthly net salary of Rs.6,179/-. As the original MACA NO. 2005 OF 2012 6 appellant had a permanent employment and he was aged 49 years at the time of the accident, and that he would have superannuated at the age of 55 years, the Tribunal adopted the split multiplier method and fixed the notional monthly income of the appellant at Rs.3,000/-. 11. In **Puttamma vs. K.L. Narayana Reddy and another** [2014 (1) KLT 739 (SC)], the Honourable Supreme Court has held that unless cogent reasons are established, the Tribunals and courts should not adopt the split multiplier method. 12. In the instant case, since the original appellant had only 5 more years of service left, I hold that there are cogent reasons to adopt the split multiplier method, as done by the Tribunal. Hence, I confirm the finding of the Tribunal to adopt the split multiplier method. 13. The original appellant had claimed a notional monthly income of Rs.3,200/- after his retirement and the Tribunal fixed his notional monthly income at Rs.3,000/-. 14. In **Ramachandrappa vs. Manager, Royal Sundaram Alliance Insruance Company Ltd** . [(2011) 13 MACA NO. 2005 OF 2012 7 SCC 236] the Honourable Supreme Court has fixed the notional income of a coolie worker in the year 2004 at Rs.4,500/ per month. 15. Following the yardstick in the above cited decision and keeping in mind the fact that the accident happened in the year 2002, I fix the monthly notional income of the original appellant at Rs.3,200/-, as claimed in the claim petition. ## **Multiplier** 16. Admittedly, the original appellant would have superannuated from service on attaining the age of 55 years. In **Sarla Varma vs. Delhi Transport Corporation [** 2010 (2) KLT 802] the Honourable Supreme Court has held that in the case of the persons, who completed the age of 55 years, the relevant multiplier to be adopted is ‘11’. However, the Tribunal adopted the multiplier at ‘8’, which is erroneous. ## **Disability** 17. The permanent disability of the original appellant was assessed by the Standing Disability Assessment Board as per Ext.X1, wherein it is certified that as the original 8 MACA NO. 2005 OF 2012 appellant had sustained recurrent seizures, his neurological disability has to be fixed at 12%. I confirm the above assessment as the functional disability of the original appellant, as per the law laid down in **Raj Kumar vs. Ajay** ## **Kumar [2011 (1) KLT 620].** 18. Taking into account the above mentioned factors, namely, the monthly income of the original appellant at Rs.3,200/-, the multiplier at ‘11’ and the functional disability of the original appellant at 12%, I refix the compensation for loss due to disability at Rs.50,688/- instead of Rs.34,560/awarded by the Tribunal. ## **Future Treatment** 19. In Exts.A7 to A9 certificates, the Doctors who treated the petitioner have clearly stated that as he was suffering from post traumatic seizure disorders and he requires life long medical treatment. 20. Considering the above opinion, I hold that the original appellant is entitled for a reasonable amount of Rs.25,000/- as compensation for future treatment. ## **Bystander expense** MACA NO. 2005 OF 2012 9 21. The original appellant was undisputedly treated as an inpatient for a period of 50 days from 01.04.1996 to 20.05.1996. The Tribunal awarded an amount of Rs.10,000/towards bystander expenses, which according to me is on the lower side. Thus, I enhance the compensation under the said head by a further amount of Rs.5,000/- i.e. Rs.300/- per day for 50 days. 22. With respect to the other heads of compensation, I find that the Tribunal has awarded a reasonable and just compensation. In the result, the appeal is allowed in part by enhancing the compensation by a further amount of Rs.46,038/- (i.e. Rs.16,038/- as enhancement of compensation under the head loss due to disability, Rs.5,000/- towards bystander expenses and Rs.25,000/- towards future treatment). The 3[rd] respondent-insurer is directed to deposit the enhanced compensation of Rs.46,038/- with interest at the rate of 8% per annum on the amount of Rs.21,308 **/** - from the date of petition till the date of realisation and cost of Rs.4,000/-. As the original appellant expired, the Tribunal shall disburse the MACA NO. 2005 OF 2012 10 enhanced the compensation to the additional 2[nd] appellant in accordance with law. Sd/- **C.S.DIAS JUDGE** rkc