Hussain Rawther v. Jaison @ Anish and The Branch Manager, United India Insurance Company Ltd

``` 2025:KER:25905 ``` ``` MACA NO. 425 OF 2021 ``` **==> picture [58 x 58] intentionally omitted <==** ``` 1 ``` ``` IN THE HIGH COURT OF KERALA AT ERNAKULAM ``` ``` PRESENT ``` ## `THE HONOURABLE MR. JUSTICE EASWARAN S.` ``` WEDNESDAY, THE 19[TH] DAY OF MARCH 2025 /28TH PHALGUNA, 1946 ``` ``` MACA NO. 425 OF 2021 ``` ``` AGAINST THE ORDER/JUDGMENT DATED IN OPMV NO.586 OF 2017 OF ADDITIONAL DISTRICT COURT & MOTOR ACCIDENT CLAIMS TRIBUNAL, ``` ``` THODUPUZHA ``` ## `APPELLANT/PETITIONER:` ``` HUSSAIN RAWTHER AGED 57 YEARS S/O. THAJUDEEN, PUTHUMANAKAL HOUSE, KEETTILA KARA, KANJAR P.O, PIN 685 590 ARAKKULAM VILLAGE, THODUPUZHA TALUK. ``` ``` BY ADV N.M.MOHAMMED AYUB SRI.P.V.SHAMSUDDIN ``` ## `RESPONDENTS/RESPONDENTS:` ``` 1JAISON @ ANISH AGED 34 YEARS S/O. HENRY, THADATHIMACKAL HOUSE, MECHAL KARA, VALAKOM BHAGOM, MOONNILAVU VILLAGE, MEENACHIL TALUK, KOTTAYAM DISTRICT (OWNER CUM DRIVER OF THE MOTOR CYCLE BEARING REG NO. KL-01-AL-7947) ``` ``` 2THE BRANCH MANAGER, UNITED INDIA INSURANCE COMPANY LTD, PUTHETTU ARCADE, KOTTARAMATTOM, PALA, PIN 686 578 ``` ``` BY ADV SRI.RAJAN P.KALIYATH ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 19.03.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` 2025:KER:25905 ``` ``` MACA NO. 425 OF 2021 ``` ``` 2 ``` **==> picture [58 x 58] intentionally omitted <==** ## **JUDGMENT** ## **Dated this the 19[th] day of March, 2025** The appeal is filed by the claimant in O.P. (M.V.) No. 586 of 2017 before the Motor Accidents Claims Tribunal, Thodupuzha. 2. The appellant, a driver in the grade of SubInspector of Police in the Police Department at AR Camp Nandavanam, met with an accident on 02.12.2016 at about 5.45 PM, while he was walking through Muttom-Thodupuzha public road and when he reached near Muttom Co-operative Bank, the offending motor cycle bearing Registration No.KL-01AL-7947 came from Erattupetta Bhagam in a rash and negligent manner, hit against the appellant. As a result of the said accident, the appellant sustained severe injuries and was taken to Chazhikkattu Hospital, Thodupuzha where he was treated as an in-patient for 15 days under three different occasions. The appellant contended that he was drawing a monthly salary of Rs.63,166/-, working as a driver in the SubInspector grade in the City Police Office, Thycadu. In support of ``` 2025:KER:25905 ``` ``` MACA NO. 425 OF 2021 ``` ``` 3 ``` **==> picture [58 x 58] intentionally omitted <==** his contentions Ext.A12 salary certificate was produced. Further the appellant also contended that he suffered permanent disability on account of the injury sustained by him in the accident. In support of his case, the appellant produced Ext.A10 disability certificate which shows that the appellant has sustained a disability of 20%. The Tribunal on appreciation of the facts and evidence produced before it with a conclusion that the appellant is entitled to reckon his salary as Rs.38,864/- alone and deducted the 50% of the same and fixed the income at Rs.19,432/-. As regards the permanent disability, the Tribunal reduced the percentage of disability from 20% to 7% and granted the following compensation. |Sl.<br>No.|Head of claim|Amount<br>claimed (₹.)s<br>symbol is<br>₹.₹₹|Amount<br>determined<br>(₹.)s|Particulars| |---|---|---|---|---| |1|Loss of earning|7,00,000/-|77,728/-|(₹38,864 x 2 months)| |2|Partial loss of earning|3,50,000/-|Not allowed|| |3|Transport to hospital|10,000/-|3,000/-|Reasonable<br>assessment| |4|Extra nourishment|1,00,000/-|5,000/-|Reasonable<br>assessment| |5|Damage to clothing and<br>articles|5,000/-|1,000/-|Reasonable<br>assessment| |6|Expenses for treatment|2,00,000/-|87,540/-|Ext.A11 series of<br>medical<br>bills| ``` 2025:KER:25905 ``` ``` MACA NO. 425 OF 2021 ``` ``` 4 ``` **==> picture [58 x 58] intentionally omitted <==** |||||87,531/- rounded<br>₹<br>as 87,540/-<br>₹| |---|---|---|---|---| |7|Salary of bystander|30,000/-|4,200/-|(14 days x 300 =<br>4200/-)<br>₹| |8|Loss of enjoyment and<br>amenities of life|2,00,000/-|20,000/-|Reasonable<br>assessment| |9|Compensation for pain<br>and sufferings|2,00,000/-|50,000/-|Reasonable<br>assessment| |10|Compensation<br>for<br>continuing permanent<br>disability|8,00,000/-|1,79,552/-|19,432 x 11 x 7 x<br>₹<br>12/100<br>=<br>1,79,551.68/-<br>₹<br>rounded<br>as<br>1,79,552/-<br>₹| |11|Compensation for loss<br>of earning power|4,00,000/-|Not allowed|| ||**Total**|**Limited to**<br>**20,00,000/-**<br>**₹**|**4,28,020/-**|| 3. Heard Sri. N.M. Mohamed Ayub, the learned Counsel appearing for the appellant and Sri. Rajan P. Kaliyath, the learned Counsel appearing for the Insurance Company. 4. The learned Counsel appearing for the appellant submitted that the Tribunal was not justified in taking the net salary drawn by the appellant. Ext.A12 is the certificate of salary which shows a total amount of Rs.63,166/-. The deduction except towards income tax and professional tax are not liable to be taken for the purpose of calculating the salary. Still further it is pointed out that the Tribunal could not have ``` 2025:KER:25905 ``` ``` MACA NO. 425 OF 2021 ``` ``` 5 ``` **==> picture [58 x 58] intentionally omitted <==** applied the split multiplier and reduced the compensation. Still further it is pointed out that the appellant was on leave for eight months from the date of accident which is supported by Ext.A13 and the Tribunal ought not have discarded the same. 5. On the otherhand Sri. Rajan P. Kaliyath, the learned Counsel for the Insurance Company opposed the plea of the appellant on the ground that, no evidence has been produced before the Tribunal to show that the leave taken by the appellant on loss of pay was on account of the injury sustained by him in the accident. It is also pointed out that the Tribunal has rightly taken this split multiplier since there is no loss caused to the appellant. 6. I have considered the rival submissions raised across the Bar. 7. The first question to be considered is what should be the income of the appellant. This Court in **Reliance General Insurance Co.Ltd v. Bindu** [2025 KHC 228] has held that except the deduction towards income tax and professional tax, no other deduction can be taken into consideration for the purpose of calculating the income of the ``` 2025:KER:25905 ``` ``` MACA NO. 425 OF 2021 ``` ``` 6 ``` **==> picture [58 x 58] intentionally omitted <==** claimant in a motor accidents claim. In the present case Ext.A12 salary certificate shows that an amount of Rs.63,166/is the amount drawn by the appellant. Deducting an amount of Rs.5,000/- and the amount towards the professional tax, the total deduction should come only to Rs.5,104/-. Thus, the appellant was entitled to have an amount of Rs.58,062/reckoned as the amount drawn by him as salary. 8. The next question to be considered is as to whether the appellant has suffered any loss of earning due to the accident. This Court in **Akhilesh Chandran v. Sabu Varghese** [2024 KHC OnLine 7008] following a Division Bench judgment of this Court in **Robin Babu v. Kunjappan & Others [2015 (4) KHC 91]** held that even if a Government employee has not sustained any loss of income on account of the accident, compensation is being awarded towards the injury suffered by him in the road traffic accident. Therefore, this Court is of the considered view that the appellant is certainly entitled to have the compensation towards permanent disability reckoned with the monthly income of Rs.58,062/-. ``` 2025:KER:25905 ``` ``` MACA NO. 425 OF 2021 ``` ``` 7 ``` **==> picture [58 x 58] intentionally omitted <==** 9. In **N. Jayasree v. Cholamandalam M/S General Insurance Company Ltd.[(2022) 14 SCC 712]** and following the decision of **Kamala v. Bajaj Alliance General Insurance Company Limited [2024 KHC 791]** this Court held that, adopting split multiplier is impermissible under law. While calculating compensation payable under Section 166 of the Motor Vehicles Act, 1988. Therefore, on this point also the appellants appeal is entitled to succeed. 10. As regards the fixing of the percentage of disability at 7%, this Court cannot subscribe through the findings rendered by the Tribunal. In **Manikandan.G v. Janardanan Nair [2021 (5) KHC 305]** a Single Bench of this Court has held that, the Tribunal cannot reduce the percentage of disability without refering the claimant to the medical board. In the present case, the disability certificate Ext.A10 produced by the appellant before the Tribunal, shows that he was examined by the District Hospital, Thodupuzha. In the said certificate the disability noticed is 20%. Therefore, this Court is of the view that unless a reassessment is ordered by the Tribunal, the Tribunal could not have reduced the percentage of ``` 2025:KER:25905 ``` ``` MACA NO. 425 OF 2021 ``` ``` 8 ``` **==> picture [58 x 58] intentionally omitted <==** disability to 7%, and therefore the appellant is entitled to have the disability reckoned as 20%. 11. Lastly, it is contended before this Court that the appellant was granted only compensation for loss of earning for two months. In **George v. Krishnavenu** [2020(4) KLT 239] the Single Bench of this Court has held that a Government employee who suffers loss of earning on account of taking earned leave due to the injury sustained by him in the road traffic accident is entitled to be compensated for the same. Though the learned Counsel for the Insurance Company vehemently contended that the contends of Ext.A12 cannot be accepted unless there is a further proof regarding the fact that the leave was on account of the injury sustained by the claimant in the road traffic accident, this Court is of the view that on perusal of Ext.A13, it is evidently clear that the claimant was granted leave without allowance from 02.12.2016 till 31.07.2017, and the terms of provisions contained in Part-I Rule 88 of Kerala Service Rules. This prima facie shows that the leave was availed by the appellant on account of the injury sustained by him in the road traffic accident. ``` 2025:KER:25905 ``` ``` MACA NO. 425 OF 2021 ``` ``` 9 ``` **==> picture [58 x 58] intentionally omitted <==** 12. As an uphold of these discussions, this Court finds that the appellant is entitled to succeed. Accordingly, the appeal is allowed and the appellant is granted enhanced compensation as follows:- a) The income of the appellant is fixed at Rs.58,062/-. b) The loss of earning is fixed at Rs.3,86,768/- (Rs.58,062/- x 8 – Rs.77,728/-). c) compensation towards permanent disability: Rs.13,53,285/- (Rs.58,062/- x 12 x 11 x 20 / 100 – Rs.1,79,552/-. d) An addiditional compensation towards Pain and Suffering is fixed at Rs.15,000/-. e) An addiditional compensation towards Loss of amenities is fixed at Rs.15,000/-. Thus, the appellants are entitled for a total amount of Rs. 17,70,053 /- (Rupees Seventeen Lakhs Seventy Thousand Fifty Three only) as an enhanced compensation with interest at 8% ``` 2025:KER:25905 ``` ``` MACA NO. 425 OF 2021 ``` ``` 10 ``` **==> picture [58 x 58] intentionally omitted <==** from 19.09.2018 till realisation and proportionate cost. The Insurance Company shall deposit the amount within a period of two months from the date of receipt of a copy of this judgment, directly to the bank account of the appellant. The appellant shall furnish his bank account details to the insurance company for enabling the insurance company to transfer the amount. The appeal is ordered accordingly. Sd/- **EASWARAN S.** **JUDGE** mea ``` 2025:KER:25905 ``` **==> picture [58 x 58] intentionally omitted <==** ``` MACA NO. 425 OF 2021 ``` ``` 11 ``` ## `APPENDIX OF MACA 425/2021` ``` PETITIONER ANNEXURES ``` ``` Annexure IISERVICE CERTIFICATE DATED.17.02.2021 ISSUED BY DISTRICT POLICE CHIEF, IDUKKI ```