Bineesh @ Bineesh Philipose v. Suresh Babu P.K. and ors

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **WEDNESDAY, THE 28TH DAY OF FEBRUARY 2018 / 9TH PHALGUNA, 1939** **MACA.NO. 4233 OF 2017** **AGAINST THE AWARD IN O.P.(M.V.) NO.861/2014 OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, MANJERI 31.08.2017** **----------------** ## **APPELLANT(S)/PETITIONER :** **-----------------------** **BINEESH @ BINEESH PHILIPOSE, AGED 23 YEARS, S/O. PHILIPOSE, MUTHALPARA HOUSE, VALLIKKETTU P.O., VADAPURAM, MAMPAD, NILAMBUR TALUK, MALAPPURAM DISTRICT, PIN-676542.** **BY ADVS.SRI.K.M.SATHYANATHA MENON SMT.KAVERY S THAMPI** ## **RESPONDENT(S)/RESPONDENTS :** **-------------------------** **1. SURESH BABU P.K.,** **S/O. KESAVAN, PATHIRICODE HOUSE, KURUMALANGODE P.O, NILAMBUR TALUK, MALAPPURAM DISTRICT, PIN-679334.** **2. AHAMMAD, S/O. ABDURAHIMAN HAJI, KAVUNGALANGADI HOUSE, PULPATTA P.O., ERANAD TALUK, MALAPPURAM DISTRICT, PIN-676126.** **3. UNITED INDIA INSURANCE COMPANY LTD., A. M. BUILDING, HOSPITAL ROAD, CHETTIYANGADI P.O., NILAMBUR, MALAPPURAM DISTRICT, PIN-679329.** **R2 BY ADV. SRI.K.RAKESH** **R3 BY ADV. SMT.T.C.SOWMIAVATHY** **BY ADV. SRI.JOHN JOSEPH VETTIKAD** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 28-02-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **NS** ## **P.D. RAJAN, J.** **-----------------------M.A.C.A. No.4233 of 2017 ---------------------------------Dated this the 28[th] day of February, 2018** ## **J U D G M E N T** This appeal is preferred against the award in O.P.(M.V.) No.861 of 2004 of the Motor Accidents Claims Tribunal, Manjeri. Appellant sustained serious injuries in a motor accident on 09.04.2014 at 12.30 p.m. and the learned tribunal awarded an amount of Rs.9,71,000/(Rupees Nine Lakhs Seventy One Thousand only) with interest and cost as compensation. Being aggrieved with that, the injured preferred this appeal. 2. Appellants case in the lower court was that while he was riding a vehicle KL-10A/4449 and reached at Velliketty another vehicle, a tipper lorry, KL-59/B-4478 driven in a rash and negligent manner hit against the appellant's vehicle as a result he sustained serious injuries. Immediately he was removed to hospital. First respondent was set ex parte in the trial court. The 2[nd] and 3[rd] respondents opposed the matter by filing written statements. The insurer admitted the insurance of the M.A.C.A. No.4233 of 2017 2 offending vehicle. In the lower court, the appellant did not adduce any oral evidence, but his documents were marked as Exts.A1 to A9. Respondents documents were marked as Ext.B1. 3. Apex Court in **Rajkumar** v. **Ajay Kumar** **and Anr. [2011 ACJ 1]** held that the injured is entitled to get just amount of compensation which reads as follows: - (i) All injuries (or permanent disabilities arising from injuries), do not result in loss of earning capacity. (ii) The percentage of permanent disability with reference to the whole body of a person, cannot be assumed to be the percentage of loss of earning capacity. To put it differently, the percentage of loss of earning capacity is not the same as the percentage of permanent disability (except in a few cases, where the Tribunal on the basis of evidence, concludes that percentage of loss of earning capacity is the same as percentage of permanent disability). (iii) The doctor who treated an injured-claimant or who examined him subsequently to assess the extent of his permanent disability can give evidence only in regard the extent of permanent disability. The loss of earning capacity is something that will have to be assessed by the Tribunal with reference to the evidence in entirety. (iv) The same permanent disability may result in different M.A.C.A. No.4233 of 2017 3 percentages of loss of earning capacity in different persons, depending upon the nature of profession, occupation or job, age, education and other factors. 4. Apex Court in **R.D. Hattangadi** Vs. **M/s Pest Control (India) Pvt. Ltd. and Others 1995 ACJ** **1366** held that the damages to be assessed separately as pecuniary and special damages. The object is to compensate injured so far as money can compensate. When compensation is to be awarded for pain and suffering and loss of amenities in life, special circumstances of the claimants have to be taken into consideration. At the same time, compensation for nonpecuniary loss is not easy to determine but award must reflect that different circumstances have been taken into consideration. Subsequently, in **Rajkumar** v. **Ajay Kumar and Anr. [2011 ACJ 1]** reiterated the same principal held in **R.D. Hattangadi** Vs. **M/s Pest Control (India) Pvt. Ltd. and Others 1995 ACJ 1366.** 5. Appellant was working as a Sales Man and was getting an amount of Rs.12,500/- per month but no documents were producded to prove the income. Now he M.A.C.A. No.4233 of 2017 4 is permanently disabled and unable to do his normal work. He cannot walk without the help of crutches even now. He was present before this court in crutches. Apex Court in **Dixit Kumar and Ors.** Vs. **Om Prskash Goel 2017 ACJ 2057** held that, in the absence of any contra evidence, the income stated by the claimant has to be considered. Considering the facts and circumstances of the case, even though no documents were produced, I take Rs.10,000/- as his monthly income. 6. Apex Court in **National Insurance Company Limited** v. **Pranay Sethi 2017 (4) KLT 662** ## **(SC)** held that: 61. In view of the aforesaid analysis, we proceed to record our conclusions:- (i) The two-Judge Bench in Santhosh Devi should have been well advised to refer the matter to a larger Bench as it was taking a different view than what has been stated in Sarla Verma, a judgment by a coordinate Bench. It is because a coordinate Bench of the same strength cannot take a contrary view than what has been held by another coordinate Bench. (ii) As Rajesh has not taken note of the decision in Reshma Kumari, which was delivered at earlier point of time, the decision in Rajesh is not a binding precedent. ## M.A.C.A. No.4233 of 2017 5 (iii) While determining the income, an addition of 50% of actual salary to the income of the deceased towards future prospects, where the deceased had a permanent job and was below the age of 40 years, should be made. The addition should be 30%, if the age of the deceased was between 40 to 50 years. In case the deceased was between the age of 50 to 60 years, the addition should be 15%. Actual salary should be read as actual salary less tax. (iv) In case the deceased was self-employed or on a fixed salary, an addition of 40% of the established income should be the warrant where the deceased was below the age of 40 years. An addition of 25% where the deceased was between the age of 40 to 50 years and 10% where the deceased was between the age of 50 to 60 years should be regarded as the necessary method of computation. The established income means the income minus the tax component. (v) For determination of the multiplicand, the deduction for personal and living expenses, the tribunals and the courts shall be guided by paragraphs 30 to 32 of Sarla Verma which we have reproduced herein before. (vi) The selection of multiplier shall be as indicated in the Table in Sarla Verma read with paragraph 42 of that judgment. (vii) The age of the deceased should be the basis for applying the multiplier. (viii) Reasonable figures on conventional heads, namely, loss of estate, loss of consortium and funeral expenses should be Rs.15,000/-, Rs.40,000/- and Rs.15,000/respectively. The aforesaid amounts should be enhanced at M.A.C.A. No.4233 of 2017 6 the rate of 10% in every three years. Considering the age, for calculating income 40% of the income has to be added along with the income of the injured towards future prospects. Then, the monthly income comes to Rs.14,000/- (10,000+4,000). Disability is 80%. His age was 20 years and the multiplier is 18. The disability compensation is Rs.9,07,200/(14,000x12x18x30%). The tribunal awarded Rs.7,29,000/-. The balance is Rs.1,78,200/- (9,07,2007,29,000). 7. In this case, compensation for permanent disability and loss of earning were assessed separately. In view of the decision reported in **1995 ACJ 1366 [R.D. Hattangadi** Vs. **M/s Pest Control (India) Pvt. Ltd. and Others]** that calculation is not permissible **.** Accordingly, the award of the Motor Accidents Claims Tribunal for loss of income is modified from Forty Five Thousand to Sixty Thousand. The balance is Rs.15,000/(60,000-45,000). Learned counsel submitted that the appellant has to undergo another operation for removing ## M.A.C.A. No.4233 of 2017 7 the iron rodes fixed at the fracture site and that will cause nearly Rs.75,000/-. Even though he stated so, no documents were produced to prove that aspect. 8. Considering future medical treatment, Rs.1,00,000/- (Rupees one lakh only) is awarded on that head. Accordingly, the appellant is entitled to get a total additional compensation of Rs.2,93,200/- (Rupees Two Lakhs Ninety Three Thousand Two Hundred only) (1,78,200+1,00,000+15,000). He is entiled to get 9% interest per annum from the date of petition till realisation for Rs.1,93,200/- (Rupees One Lakh Ninety Three Thousand Two Hundred only) with proportionate cost. The insurer is directed to satisfy the award within a period of thirty days from the date of receipt of a copy of this judgment, failing which it will carry 12% interest per annum from the date of default. This M.A.C.A is disposed of as above. Sd/- **P.D. RAJAN, JUDGE** / True Copy / P.A. To Judge NS