High Court of KeralaSingle Judge2021-12-18Appeal allowed; impugned award modified; enhanc...

Binumol v. Saju S/o Gangadhar; Rajesh S/o Sudharshanachari; The Manager, Shri Ram General Insurance Company Limited

Case / Petition Number:MACA NO. 3139 OF 2019

Neutral Citation:/

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: Basant Balaji, J.
Judgment Date: 2021-12-18
Court Decision / Holding: In the result, the appeal is allowed and the impugned award is modified and the 3rd respondent is ordered to deposit the enhanced compensation of Rs.83,280/- with interest at 7% from the date of petition till the date of deposit, before the Tribunal within a period of two months from the date of receipt of a certified copy of this judgment. The Tribunal shall disburse the enhanced compensation to the appellant/petitioner in accordance with law.
Final Disposition: Appeal allowed; impugned award modified; enhanced compensation ordered.

Parties to the Case

Appellants / Petitioners

Binumol aged 37 years W/O Samuel Kutty, Vayilirakkathu Veedu, Nethaji Junction, Urukunnu, Thenmala Village, Kollam District

Respondents

1 Saju S/O Gangadhar, Padmaragam, Maravoor, East Kallada, Kollam, PIN-691502
2 Rajesh, S/O Sudharshanachari, Ramya Sadanam (Chamavila Thekkethil), Punukannur, Perumpuzha, Kundara, PIN-691501
3 The Manager, Shri Ram General Insurance Company Limited, E8-EPIP RICCO Ind Area, Sitapura, Jaipur, Rajasthan, PIN-302022

Legal Representation & Advocates

Counsels for Petitioners

• Adv. Anchal C. Vijayan

Counsels for Respondents

• Sri Vinoy Varghese Kallumoottil
• Sri P. Jacob Mathew

Case Synopsis & Summary

This High Court of Kerala, in MACA No. 3139 of 2019, heard an appeal from Binumol, the appellant/petitioner in O.P.(M.V.) No.5 of 2014, challenging an award under Section 166 of the Motor Vehicles Act by the Motor Accidents Claims Tribunal (MACT), Punalur. The accident occurred on 13 December 2012 when the appellant's scooter KL25C/2315 was hit by a lorry KL-02 AB/3509, causing serious injuries. The MACT awarded Rs.2,72,835 with 7% interest and Rs.2,000 costs against the insurer. On appeal, the core dispute centered on the assessment of the appellant’s monthly income: the tribunal fixed Rs.7,000 notional income, while the appellant claimed Rs.10,000 per month backed by Annexure A-15 from Vijayakrishna Jewellers; the issuer, however, was not examined. The insurer contended lack of valid proof for the higher earnings. The court relied on Ramachandrappa to justify notional income and proceeded to adopt Rs.8,500 per month (for 2012) alongside a permanent disability of 14% per McBride’s Scale, with the age multiplier of 16 (per Sarla Verma). The tribunal’s prior disability calculation and the loss of earnings head were revised, resulting in an enhanced compensation of Rs.83,280, payable with 7% interest. The appeal was allowed, with the impugned award modified and directions issued to deposit the enhanced amount within two months, for disbursement as per law.

Provisions of Law Cited

Section 166 of the Motor Vehicles Act

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellant contends that the MACT erred in fixing notional income at Rs.7,000 per month, arguing for Rs.10,000 per month supported by Annexure A-15 from Vijayakrishna Jewellers. However, since the issuer was not examined, the higher income evidence was not accepted. The appellant argues for revising notional income upwards and recalculating compensation, relying on Ramachandrappa to justify higher notional income for 2012.

Contentions of Respondents

The Insurance Company contends that Annexure A-15 lacks probative value as the issuer was not examined; in the absence of valid proof, the Tribunal’s Rs.7,000 per month should stand. It asserts that the appellant failed to establish higher earnings and challenges the revised compensation computation.

Cited Precedents (2)

Case Name	Citation	Treatment	Explanation
Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited	2011 (13) SCC 236	Positive	Relied upon to justify notional income when earnings evidence is not conclusively proved.
Sarla Verma v. Delhi Transport Corporation & Another	2010 (2) KLT 802	Positive	Cited for the appropriate multiplier (16) for age group 31–35.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE BASANT BALAJI** **SATURDAY, THE 18[TH] DAY OF DECEMBER 2021 / 27TH AGRAHAYANA,** **1943** ## **MACA NO. 3139 OF 2019** ## **OPMV 5/2014 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,PUNALUR APPELLANT/S:** BINUMOL AGED 37 YEARS W/O SAMUEL KUTTY,VAYILIRAKKATHU VEEDU,NETHAJI JUNCTION,URUKUNNU, THENMALA VILLAGE,KOLLAM DISTRICT. BY ADV ANCHAL C.VIJAYAN ## **RESPONDENT/S:** 1 SAJU S/O.GANGADHARAN,PADMARAGAM,MARAVOOR,EAST KALLADA,KOLLAM,PIN-691502. 2 RAJESH, S/O.SUDHARSHANACHARI,RAMYA SADANAM,(CHAMVILA THEKKETHIL), PUNUKANNUR,PERUMPUZHA,KUNDARA, PIN-691501. 3 THE MANAGER, SHRI RAM GENERAL INSURANCE COMPANY LIMITED,E8-EPIP RICCO IND AREA,SITAPURA,JAIPUR,RAJASTHAN, PIN-302022. BY ADVS. SRI.VINOY VARGHESE KALLUMOOTTILL SRI.P.JACOB MATHEW THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 18.12.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **MACA 3139/2019** -2- ## **JUDGMENT** (Dated this the 18[th] day of December 2021) The appellant herein is the petitioner in O.P.(M.V.) No.5 of 2014 on the files of the Motor Accidents Claims Tribunal, Pulanur, which was filed under Section 166 of M.V.Act claiming compensation for the injuries sustained in a motor accident. 2. The facts in brief are as follows: On 13.12.2012, the petitioner was driving her scooter bearing Reg.No.KL25C/2315 along with Kollam – Thirumangalam public road from east to west. When the scooter reached Edamon-34 junction, a lorry bearing Reg.No.KL-02 AB/3509 coming from the opposite side, hit against it and due to the impact of the hit, the petitioner was thrown down on the road and **MACA 3139/2019** -3- sustained serious injuries. The petitioner claimed Rs.5,00,000/- as compensation. 3. The 3[rd] respondent filed written statement admitting the policy. The 2[nd] respondent was declared ex-parte. The 1[st] respondent filed a separate written statement contending that the 2[nd] respondent was driving the lorry carefully and the accident occurred solely due to the rash and negligent riding of the scooter by the petitioner. Hence, prayed for dismissal of the petition. 4. The third respondent contended that the accident solely happened because of the rashness and negligence on the part of the injured and the 2[nd] respondent was no way responsible for the accident. 5. The evidence consisted of Annexures A1 to A17. 6. The learned Tribunal, on appreciation of the **MACA 3139/2019** -4- evidence adduced, awarded a compensation of Rs.2,72,835/- with interest at the rate of 7% per annum from the date of petition till the date of payment and a cost of Rs.2,000/- from the 3[rd] respondent and its assets. Aggrieved by the said order, this appeal is filed by the petitioner. ## 7. Heard the learned counsel on both sides. 8. The main contention raised by the learned counsel for the appellant is regarding the income of Rs.7,000/taken by the Tribunal. According to the appellant, she is working as a sales girl in Jewellery and earning Rs.10,000/per month. She has produced Annexure-A15 salary certificate from Vijayakrishna Jewellers, Punalur, which shows that she was an employee of the said Jewellery from 1.8.2012 to 12.12.2012 and she was paid a salary of **MACA 3139/2019** Rs.10,000/- per month. This was seriously objected by the third respondent Insurance Company. The counsel further submitted that fixing of notional income of Rs.7,000/- is on the lower side and on the basis of Annexure A15 salary certificate, the income should have been fixed at Rs.10,000/-. The counsel for the Insurance company submitted that in the absence of a valid proof of AnnexureA15, the Tribunal was right in fixing the notional income of Rs.7,000/- per month and the compensation was worked out on the same. 9. In the motor accident, the appellant sustained injury of fracture surgical neck of humerus. She was taken to Taluk Hospital, Punalur and was referred to Medical College Hospital, Thiruvananthapuram, where she had undergone treatment both as inpatient and outpatient. She ## **MACA 3139/2019** -6- had also availed treatment from St.Thomas Hospital, Punalur. Even though Annexure A15 was produced by the appellant to prove her income issued by Vijayakrishna Jewellers, Punalur, the person who has issued the certificate was not examined before the court. So, I am not inclined to accept the argument of the appellant that the income should have been taken at Rs.10,000/-. In the absence of the salary certificate, I am inclined to take monthly income as Rs.8,500/- as the accident happened in the year 2012 relying on the decision reported in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited [2011 (13) SCC 236].** Annexure - A13 is the disability certificate issued by the Assistant Professor of Orthopedics, Medical College Hospital, Thiruvananthapuram. The certificate shows that her **MACA 3139/2019** permanent disability is 14% as per Mc Bride's Scale. The Tribunal fixed the disability percentage at 12%. Since the appellant was aged 33 years, according to the decision reported in **Sarla Verma v. Delhi Transport Corporation & Another (2010 (2) KLT 802),** the multiplier to be taken for a person between the age group to 31 to 35 is 16. The tribunal took the multiplier as 15. So the compensation for permanent disability would be 8500 x 12 x 14 x 16/100 – Rs.2,28.480/-. The appellant is already granted an amount of Rs.1,51,200/-, so the balance amount is Rs.77,280/-. As far as the loss of earning is concerned, the Tribunal took Rs.7,000/-. Since I am inclined to take monthly income as Rs.8,500/-, the amount under the head loss of earning will be Rs.34,000/- (Rs.8,500 x 4), out of which the appellant was granted Rs.28,000/- and the balance payable is **MACA 3139/2019** Rs.6,000/-. So the total compensation will come to Rs.83,280/-. In the result, the appeal is allowed and the impugned award is modified and the 3[rd] respondent is ordered to deposit the enhanced compensation of Rs.83,280/- with interest at 7% from the date of petition till the date of deposit, before the Tribunal within a period of two months from the date of receipt of a certified copy of this judgment. The Tribunal shall disburse the enhanced compensation to the appellant/petitioner in accordance with law. SD **BASANT BALAJI, JUDGE** _dl/_