Gijeesh Babu V.K v. Branch Manager, Cholamandalam MS General Insurance Company Limited, Calicut

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **WEDNESDAY, THE 31ST DAY OF MARCH 2021 / 10TH CHAITHRA, 1943** ## **MACA.No.593 OF 2013** **AGAINST THE AWARD IN OPMV 183/2010 DATED 25-06-2012 OF DISTRICT COURT & SESIONS & MOTOR ACCIDENT CLAIMS TRIBUNAL ,KALPETTA** ## **APPELLANT/PETITIONER:** **GIJEESH BABU V.K AGED 33 YEARS S/O.GANGADHARAN NAIR, NADUVIL VEEDU, KOTTATHARA POST, VYTHIRI TALUK, WAYANAD DISTRICT** **BY ADV. SMT.CELINE JOSEPH** ## **RESPONDENT/S:** **THE BRANCH MANAGER CHOLAMANDALAM MS GENERAL INSURANCE COMPANY LIMITED, SRIVALSAM BUILDING,NO 5 BLOCK 9, 2ND FLOOR,EAST NADAKAVU, WAYANAD ROAD,CLAICUT** **R1 BY ADV. SRI.P.JACOB MATHEW R1 BY ADV. SRI.MATHEWS JACOB SR.** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 31.03.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA.No.593 OF 2013 2 ## **`P.V.KUNHIKRISHNAN, J`** ``` --------------------------------------- M.A.C.A. No. 593 of 2013 ------------------------------------------ Dated this the 31[st] day of March 2021 ``` ## **`JUDGMENT`** ``` This appeal is filed by the petitioner in O.P(M.V) No.183/2010 on the file of the Motor Accidents Claims Tribunal, Kalpetta. This is a claim petition filed under section 166 of the Motor Vehicles Act. (Hereinafter parties are mentioned in accordance to their rank before the Tribunal). ``` ``` 2. The short facts are like this:- On 10.01.2010 at about 5.30 a.m., the petitioner was travelling on a motor bike bearing Registration No.KL-12D/8908 as a pillion rider from Meppadi to Kalpetta. When the bike reached at Karpoorakade, a Pickup Jeep bearing Registration No. KL-12C/3171 driven by the 1[st] respondent in a rash and negligent manner, from the ``` MACA.No.593 OF 2013 3 ``` opposite direction hit on the bike. As a result of the same, petitioner had sustained serious injuries. Therefore, the petitioner claimed an amount of Rs.7,00,000/- as compensation from respondent Nos. ``` ``` 1 to 3, who are the driver, owner and the insurer of the offending vehicle. ``` ``` 3. To substantiate the case Exhibit A1 to A12 were marked on the side of the petitioners. Exhibit C1 is the disability certificate. After going through the evidence and documents, the Tribunal awarded a total compensation of Rs.2,31,949/- (Rupees Two Lakhs Thirty One Thousand Nine Hundred and Forty Nine Only) with interest at the rate of 7.5% from the date of petition till realisation. Aggrieved by the quantum of compensation, this appeal is filed. ``` `4. Heard the learned counsel for the appellant` `and the learned counsel for the Respondent.` `5. The learned counsel for the petitioner` MACA.No.593 OF 2013 4 ``` submitted that the petitioner was working as a Clerk in a Co-Operative Bank and he produced Exhibit A10 Salary Certificate to show that he was getting an amount of Rs.7,231/- per month. But the Tribunal fixed the notional income of the petitioner as Rs.3,000/- per month instead of relying Exhibit A10 salary Certificate. ``` ``` 6. I think there is force in the arguments of the learned counsel for the petitioner. The accident in this case was happened in the year 2010 and the petitioner was aged 30 years at the time of accident. InRamachandrappa v. The Manager, Royal Sundaram [2011(13) SCC 236],the Apex Court held that even a coolie will get Rs.4,500/- per month in the year 2004. If that principle is taken as a basis, the claim of the petitioner that he was getting Rs.7,231/- per month in the year 2010 can be safely accepted. It is also submitted by the learned counsel ``` MACA.No.593 OF 2013 5 ``` that the multiplier used by the Tribunal for assessing permanent disability is wrong. The multiplier used by the Tribunal is '9' instead of '17'. It is conceded by the counsel for the respondent. If that is the case, the compensation for disability is to be recalculated like this:- ``` ``` 7231x12x17x12/100=Rs. 1,77,014/- ``` ``` The Tribunal awarded an amount of Rs.38,880/- and that is to be deducted. Therefore, the appellant is entitled an additional amount of Rs.1,38,134/- (Rupees One Lakh Thirty Eight Thousand One Hundred and Thirty Four Only) towards compensation for permanent disability. ``` ``` 7. The learned counsel submitted that the Tribunal erred in fixing Rs.14,269/- towards loss of earnings. The learned counsel submitted that the Tribunal granted only 40% of the salary towards loss of earnings during the relevant period. I think ``` MACA.No.593 OF 2013 6 ``` there is some force in the arguments of the learned counsel. The relevant paragraph of finding of the Tribunal is extracted herein:- ``` ``` “13. Ext.A11 is a certificate issued by the Secretary of Kottathara Co- Operative Bank to the effect that the claimant had availed commuted leave from January 2010 till 07.06.2010. The basic pay of the petitioner is shown as Rs.7,231/-. He had availed commuted leave for 148 days. So, the total salary for the above period is worked out as follows:- ``` ``` 7231/100x148=35,672.93/- ``` ``` Though the petitioner had received salary during the above period, he had incurred loss since the leave in his credit was exhausted and he is deprived of availing leave for 148 days in case of his personal needs. He had also suffered another loss since no leave could be earned during the absence. On ``` MACA.No.593 OF 2013 7 ``` consideration the above aspect, it is found just and proper to grant 40% of the salary during the relevant period towards loss of earning. The above amount is worked out as follows:- ``` ``` 35673x40/100=14,269/- ``` ``` so, the claim towards loss of earning is fixed as Rs.14,269/-. ``` ``` 8. This Court inGeorge v. Krishna Venu [2020 (4) KLT 239]considered this point and the relevant paragraph is extracted herein:- ``` ``` 14. The question is when an employee, consequent to a motor accident, is forced to avail leave due to his credit, whether the employee is liable to be compensated for the said period for loss of earning. It is clear that had the employee did not meet with the accident, the employee could have availed those leaves at his own leisure and may even be able to encash those leaves if permissible under the ``` MACA.No.593 OF 2013 8 ``` applicable rules. In United India Insurance Co. Ltd. v. Shyam Kumar and others [2006 ACJ 2092], the Jabalpur Bench of the Hon'ble Madhya Pradesh High Court had occasion to consider this aspect and held as follows:- ``` ``` “So far quantum of compensation is concerned, the Claims Tribunal has given proper and appropriate reasons to award the amount on each and every heads which do not require any interference, although during leave period the respondent No. 1 received his salary from his employer but such leave could have been utilized for some other purpose, so in this way he got this loss.” ``` ``` Leave is a legal entitlement of an employee, but not a prerogative. It is a conditional right and an inseparable piece of employment package. Exercise of the conditional right is always subject to sanction by employer. Earned leave is granted to an employee for planned long leaves ``` MACA.No.593 OF 2013 9 ``` for the purpose of travel, vacation, etc. Leaves under other heads are also granted for specific purposes. When an employee is forced to avail those leaves consequent to a road traffic accident, he is losing his prerogative to the extent the leave availed for treatment and recuperation. In such circumstances, there is no reason why the employee should not be compensated for loss of such leaves. ``` ``` 15. Therefore, when an employee meets with accident and is forced to undergo medical treatment for long, then even if the employee has availed eligible leave for undergoing treatment, for the purpose of calculating loss of earnings in a claim under Section 166A of the Motor Vehicles Act, 1988, a Claims Tribunal has to compensate the employee for the loss of leave period by awarding appropriate amount.” ``` MACA.No.593 OF 2013 10 ``` In the light of the above dictum laid down by the Apex Court, the petitioner is entitled an amount of Rs.35,673/-. The amount already granted is to be deducted from the above amount. Then the balance will be 35,673-14,269-=Rs.21,404/- ``` ``` 9. The learned counsel submitted that for assessing bystander’s expenses and extra nourishment only an amount of Rs.100/- per day is taken. I think that, for assessing bystander's expenses and extra nourishment Rs.200/- per day is to be taken. Therefore, an additional amount of Rs.1,500/- (Rupees One Thousand and Five Hundred Only) is also entitled by the appellant for bystander’s expenses and another amount of Rs.1,500/- (Rupees One Thousand and Five Hundred Only) is entitled by the appellant towards extra nourishment. ``` `10. Then the learned counsel submitted that` `towards pain and sufferings and towards loss of` MACA.No.593 OF 2013 11 ``` amenities, the amount awarded by the Tribunal is too low. Considering the serious nature of the injuries and also considering the period of treatment, I think that, another amount of Rs.5,000/- (Rupees Five Thousand Only) can be given for pain and sufferings and an additional amount of Rs.10,000/- (Rupees Ten Thousand Only) can be awarded towards loss of amenities. ``` ``` 11. Therefore, the enhanced compensation entitled by the appellant can be summarised like this:- ``` ``` HeadAmount Loss of earningsRs.21,404/- Loss of amenitiesRs.10,000/- Pain and sufferingsRs.5,000/- Bystander's expensesRs.1,500/- Extra NourishmentRs.1,500/- Compensation for disabilityRs.1,38,134/- Total Rs.1,77,538/- ``` MACA.No.593 OF 2013 12 ``` Therefore, this appeal is allowed in part. The impugned award is modified and the appellant is entitled an enhanced compensation of Rs.1,77,538/- (Rupees One Lakhs Seventy Seven Thousand Five Hundred and Thirty Eight Only) with interest at the rate of 7.5% p.a, from the date of petition till realisation. The respondent herein is directed to pay the enhanced compensation with interest. ``` ``` Sd/- ``` ``` P.V.KUNHIKRISHNAN JUDGE ``` ``` avs ```