Jayakumar v. Gopala Thakur and ors

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH TUESDAY, THE 14TH DAY OF JUNE 2016/24TH JYAISHTA, 1938 MACA.No. 1948 of 2012 () ------------------------AGAINST THE AWARD IN OPMV 496/2006 of MACT,THODUPUZHA DATED 28-03-2012 APPELLANT(S)/PETITIONER: -------------------------------- JAYAKUMAR S/O. NARAYANAN NAIR, NANDANAM HOUSE, KANJIRAMATTAM KARA, THODUPUZHA POST. BY ADVS.SRI.MATHEW JOHN (K) SRI.DOMSON J.VATTAKUZHY RESPONDENT(S)/RESPONDENTS: -------------------------------------- 1. GOPALA THAKUR S/O. MANGHANDAS THAKUR, M/S AMBIKA TRAVELS, 19/2 TSP ROAD, KALASIPALAYAM P.O., BANGALORE- 560 001. 2. THE ORIENTAL INSURANCE CO. LTD., REPRESENTED BY ITS DIVISIONAL MANAGER, MUVATTUPUZHA P.O., PIN- 686 661. 3. THANKARAJ, S/O. KRISHNAN, MAANKOM, 127-H-ANNA NAGAR II STREET, SALEM P.O., SALEM DISTRICT, TAMILNADU- 636001. R2 BY ADV. SRI.TITUS MANI BY SRI.GEORGE CHERIAN (THIRUVALLA) THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 14-06-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **C.T. RAVIKUMAR** ## **&** ## **K. P. JYOTHINDRANATH, JJ.** **========================== M.A.C.A. No.1948 OF 2012 ==========================** Dated this the 14[th] day of June, 2016 ## **JUDGMENT** _Ravikumar, J._ The injured-claimant preferred this appeal against the judgment and award in O.P.(MV).No.496 of 2006 passed by the Motor Accidents Claims Tribunal, Thodupuzha. He filed the said claim petition under section 166 of the Motor Vehicles Act seeking a total compensation of `1,75,000/- for the injuries sustained by him in a motor vehicle accident that occurred on 10.7.2005. He was travelling in a van bearing Reg.No.KL.2B/2172 which was being driven from Kaduthuruthy to Manjoor. A bus bearing Reg.No.KL.01.AD/8100 driven by the fifth respondent collided with the said van on its course causing injuries to the appellant. He was initially taken to Medical **M.A.C.A.1948/2012** 2 College Hospital, Kottayam and subsequently, he got admitted in Amritha Institute of Medical Sciences, Kochi. The appellant was an Upper Division Clerk in the Chief Judicial Magistrate Court, Thodupuzha. He sustained multiple abrasion on right side face and lacerated wound 6 x 1 cm on the dorsal aspect of left foot skin deep. Investigation on X-ray revealed fracture on anterior aspect of talus, calcanium posterior aspect cuboid and navicular (R), dissociation of calcaneo cuboid and talo naviator front. He had been an inpatient there from 11.7.2005 to 15.7.2005. Ext.A5 discharge summary would reveal that the appellant was managed conservatively with reduction of tarsometatarsal subluxation and slab application on right foot. In Ext.A8 disability certificate, it was certified that he had incurred 16% of permanent disability owing to the accident. It is in such circumstances that the aforementioned claim petition was filed. 2.No oral evidence was adduced by both sides. On the side of the appellant, Ext.A1 to A10 series and on the side of the respondents, **M.A.C.A.1948/2012** 3 Exts.B1 and B2, which are respectively the policy certificates in respect of the vehicles involved in the accident, were got marked. The Tribunal, on considering all the evidence on record and the rival contentions, passed the impugned award for a total compensation of `73,300/- with interest @ 7.5% per annum from the date of the petition till realisation. It is aggrieved by and dissatisfied with the quantum of compensation that the above mentioned appeal has been preferred seeking enhancement of the quantum of compensation. 3.We have heard the learned counsel for the appellant and the learned counsel for the second respondent. Evidently, the main grievance of the appellants is regarding the fixation of monthly income and the percentage of disability assessed by the Tribunal. According to the learned counsel, erroneous fixation of the monthly income and erroneous assessment of the extent of permanent disability resulted in denial of just compensation to the appellant. On the other hand, the learned counsel contended that the compensation **M.A.C.A.1948/2012** 4 granted under the head loss of amenities is also on the lower side. The learned counsel further contended that the Tribunal has also erred in adopting the multiplier as 9. On the other hand, the learned counsel for the second respondent-insurance company contended that the Tribunal cannot be found fault with in fixing the monthly income notionally as a perusal of Ext.A9 certificate would not reveal the actual salary of the appellant at the relevant period. It is further contended that the Tribunal is also justified in taking the multiplier only as 9 though the appellant was aged only 48 years at the time of the accident taking note of the fact that the appellant was hardly left with 7 years of service at that point of time. It is further submitted that a perusal of Ext.A8 certificate would not reveal the actual reasons or factors for assessing 16% of permanent disability and therefore, it is contended that the Tribunal was also right in taking only 8% as permanent disability. In short, according to the learned counsel, the appellant has failed to make out any ground warranting appellate interference. **M.A.C.A.1948/2012** 5 4.There is no dispute with respect to the occupation of the appellant. He was working as U.D Clerk in the Chief Judicial Magistrate Court, Thodupuzha. But at the same time, Ext.A9 certificate cannot strictly be construed as a certificate for the purpose of computing compensation. A bare perusal of the same would reveal that there is absolute absence of any indication regarding the deductions being made from the salary of the deceased. Surely, in the case of government servant, invariably there will be deductions from the salary. In such circumstances, the contention of the learned counsel for the appellant that the entire amount shown in Ext.A9 should be taken for the purpose of fixing the monthly income cannot be accepted. Since the gross salary alone was reflected in Ext.A9 certificate, we are inclined to take `7,500/- as the monthly income for the purpose of calculating compensation for permanent disability. As noticed hereinbefore, the appellant got grievance regarding the adoption of multiplier by the Tribunal. It is contended that though the **M.A.C.A.1948/2012** 6 appellant was aged only 48 years at the time of the accident, the Tribunal took only 9 as the multiplier. It is to be noted that going by the age of the appellant at the time of the accident, it is certain that he was left with 7 years of service. But at the same time, we are of the view that it is not desirable to apply split multiplier in the light of the decision of the Hon'ble Apex Court in **Puttamma v. Narayana Reddy [2014(1) KLT 738]** . In the said decision, the Apex Court held that in the absence of any specific reasons and evidence on record, the Tribunal or court should not apply split multiplier and to avoid inconsistencies in selection of multiplier. The Apex Court prepared a table in **Sarla Verma v. Delhi Transport Corporation [2010 (2) KLT 802 (SC)]** and therefore, in the absence of specific reasons and evidence on record, the multiplier has to be taken based on the table in the said case. Going by **Sarla Verma** 's case, the multiplier to be adopted in this case with reference to the age of the appellant is 13. In such circumstances, we are taking the multiplier as 13. Now, the question to be considered is whether the Tribunal has erred in not **M.A.C.A.1948/2012** 7 taking the entire percentage of disability certified by the medical board in Ext.A8 certificate. We have carefully gone through Ext.A8. The only reason assigned therein for holding that the appellant incurred permanent disability is that on examination it was found that he was having a mild limp on the right side, angulation at talo calacanium junction, pain on walking and standing and muscle cramps on right calf. It is not specifically mentioned in Ext.A8 as to how 16% permanent disability has been arrived at ? What exactly is the restriction of movement is also not discernible from Ext.A8. In such circumstances, we are of the view that the Tribunal cannot be found fault with, in not taking the entire disability under Ext.A8. But at the same time, taking note of the injuries and that the disability was assessed by the medical board stating such reasons, we are of the view that 12% can be taken as the extent of permanent disability for the purpose of computing the compensation. In such circumstances, taking note of the modification made by us with respect to the monthly income, multiplier as also the percentage of disability, the **M.A.C.A.1948/2012** 8 compensation payable for the disability has to be re-assessed. On such re-assessment with substitution of the aforesaid factors, the appellant would be entitled to get an enhanced amount of `1,23,400/(7500x12x13x12/100-17000) under the said head. Towards loss of amenities, the appellant claimed an amount of `10,000/- and the Tribunal granted only an amount of `5,000/-. Taking note of the injuries as noted hereinbefore, we are of the view that there is no justification for making any deduction from the amount claimed. In other words, we are of the view that the appellant is entitled to get the entire amount claimed under the said head. Since the Tribunal has already granted `5,000/-, the appellant is entitled to get `5,000/- more under that head. Towards bystanders expenses, an amount of `3,000/was claimed and the Tribunal granted only an amount of `500/- for a period of five days @ `100/- per day. Taking note of the fact that the accident occurred in the year 2005, we are of the view that the rate of bystander's expenses ought to have fixed as `200/- per day and accordingly, the appellant is entitled to get `500/- more under that **M.A.C.A.1948/2012** 9 head. Thus, the appellant is entitled to get an additional compensation of `1,28,900/- which is rounded off to `1,29,000/-. The said amount will carry interest @ 8% per annum from the date of the petition till realisation. The second respondent is directed to deposit the said amount along with interest within a period of two months from the date of receipt of a copy of this judgment failing which the amount remaining to be paid will carry interest @ 9% . There will be no order as to costs. **Sd/C.T. RAVIKUMAR (JUDGE)** **Sd/K. P. JYOTHINDRANATH (JUDGE)** **spc/** //true copy// P.A.to Judge **M.A.C.A.1948/2012** 10 **C.T. RAVIKUMAR, J.** **M.A.C.A.1948/2012** 11 **JUDGMENT September, 2010** # **M.A.C.A.1948/2012** 12