K. J. George v. Shaji, K.R. Shaji and United India Insurance Co. Ltd.

1 MACA No.2115 of 2009 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **TUESDAY, THE 12[TH] DAY OF OCTOBER 2021 / 20TH ASWINA, 1943 MACA NO. 2115 OF 2009** **AGAINST THE ORDER/JUDGMENT IN OPMV 684/2003 OF ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL , KOTTAYAM APPELLANT/S:** K.J.GEORGE, S/O.JOSEPH,KANJIRAMKUZHI HOUSE,KOTHANALOOR KARA,KOTHANALLOOR P.O., KOTHANALLOOR VILLAGE, KOTTAYAM DISTRICT BY ADVS. SRI.R.PARTHASARATHY SRI.C.JAYACHANDRAN ## **RESPONDENT/S:** 1 SHAJI , S/O.KUTTAPPAN, KIDANGAYIL HOUSE KOONANI BHAGOM, PADINJATTUM BHAGOM KARA,, ATHIRAMPUZHA VILLAGE, KOTTAYAM DISTRICT. 2 K.R.SHAJI, S/O.RAGHAVAN. KALLUVELIL HOUSE, KAIPPUZHA P.O.,KOTTAYAM. 3 UNITED INDIA INSURANCE CO.LTD. BRANCH OFFICE, CHITTOOR ROAD,ERNAKULAM, REPRESENTED BY ITS DIVISIONAL MANAGER,, UNITED INDIA INSURANCE CO.LTD.,, DIVISIONAL OFFICE, KOTTAYAM. BY ADV SRI.P.K.MANOJ KUMAR ## **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME** **UP FOR ADMISSION ON 12.10.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 MACA No.2115 of 2009 ## **C.S.DIAS, J.** **====================== MACA No.2115 of 2009 ====================== Dated this the 12[th] day of October, 2021.** ## **JUDGMENT** The appellant was the petitioner in OP (MV) No.684/2003 on the file of the Additional Motor Accidents Claims Tribunal, Kottayam. The respondents in the appeal were the respondents before the Tribunal. 2. The appellant had filed the claim petition under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of the injuries that he sustained in an accident on 21.5.2000. It was his case that, on the said day, while the appellant was riding his motor cycle bearing registration No.KRO 4592 from MunduvellipadyVedagiri, a motor cycle bearing registration No.KL 7U 9657 (offending motor cycle) driven by the first respondent in a rash and negligent manner, hit the motor 3 MACA No.2115 of 2009 cycle of the appellant. The appellant sustained serious injuries and was treated as inpatient at the Medical College Hospital, Kottayam from 21.5.2000 to 1.6.2000. The offending motor cycle was owned by the second respondent and insured with the third respondent. The appellant was a Teacher at St.Annie's Higher Secondary School, Kurianadu, Kottayam and an Agriculturist by profession, and was earning a total monthly income of Rs.14,078/-. The appellant claimed a compensation of Rs.8,71,500/- from the respondents, which was limited to Rs.4,50,000/-. 3. The first and second respondents did not contest the proceedings and were set exparte. 4. The third respondent had filed a written statement contending that the accident occurred due to the negligence of the appellant and the compensation claimed was highly exaggerated and excessive. The third respondent also contended that there was violation of 4 MACA No.2115 of 2009 policy conditions. Therefore, the third respondent may be exonerated of its liability. 5. The appellant examined himself and three other witnesses as PW1 to PW4 and marked Exts A1 to A14 in evidence. The third respondent marked Exts B1 to B3 in evidence. 6. The Tribunal, after considering the pleadings and materials on record, allowed the claim petition, in part, by permitting the appellant to realise from the third respondent an amount of Rs.54,580/- with interest and cost. 7. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioner is in appeal. 8. Heard; Sri.Parthasarathy, the learned counsel appearing for the appellant/petitioner, and Sri.P.K.Manoj Kumar, the learned counsel appearing for the third respondent - insurer. 9. The point that arises for consideration in the 5 MACA No.2115 of 2009 appeal is whether the quantum of compensation awarded by the Tribunal reasonable and just. ## **Negligence and liability** 10. Ext A4 judgment pronounced by the Court of the Judicial First Class Magistrate, Ettumanoor in ST 4034/2000 proves the fact that the accident occurred due to the negligence of the first respondent. Undisputedly, the second respondent was the owner and the third respondent was the insurer of the offending motor cycle. The third respondent had admitted that the offending motor cycle had a valid insurance coverage and had not proved that the second respondent had violated the policy conditions. Therefore, the third respondent is to indemnify the liability of the second respondent arising out of the accident. ## **Notional Income** 11. The appellant had claimed that he was a Teacher at St.Annie's Higher Secondary School, Kottayam and 6 MACA No.2115 of 2009 drawing a monthly salary of Rs.6078/- . He also pleaded that he was an Agriculturist by profession and earning a monthly income of Rs.8,000/-, thus, having a total monthly income of Rs.14,078/-. In order to prove his assertions, the appellant produced Ext A7 salary certificate issued by the School, which shows that the appellant was drawing a monthly salary of Rs.7,000/-. Even though the appellant had claimed that he was an Agriculturist by profession, he failed to produce any material to prove his assertion. Nevertheless, the Tribunal fixed the monthly notional income of the appellant at Rs.7,000/-. 12. Taking into account the fact that the appellant was a Teacher having a salary of Rs.7,000/- per month as evidenced by Ext A7 and the fact that he had testified that he was an Agriculturist and with no evidence to the contrary, I hold that the monthly notional income fixed by the Tribunal at Rs.7,000/- is justifiable and reasonable. 7 MACA No.2115 of 2009 ## **Multiplier** 13. Admittedly, the appellant was a Teacher by profession. He was aged 48 years at the time of the accident. Going by the Rules that were in vogue, he would have superannuated from service at the age of 55. Therefore, till the date of superannuation, the appellant had no loss of earnings due to his disability. 14. In **Puttamma vs. K.L Narayana Reddy & Another [2014 (1) KLT 738]** , the Hon'ble Supreme Court has held that the split multiplier method shall be adopted only for cogent reasons. 15. Considering the fact that the appellant was a permanently employed Teacher and he continued in service till the age of superannuation, i.e., till 55 years of age, I hold that this is a fit case where the split multiplier method has to be adopted. Therefore, I fix the multiplier at '11' taking the age of the appellant at 55, and following the ratio in **Sarla Verma v. Delhi Transport** 8 MACA No.2115 of 2009 ## **Corporation [(2009) 6 SCC 121]. Loss due to disability** 16 **.** As per Ext A6 disability certificate issued by PW3, it is proved that the appellant had sustained permanent disability of 15%. 17. It is on record that the appellant had sustained left parietal extradural hematoma and he had weakness of his lower limp at the time of discharge. Subsequently, he had loss of memory and he is on anti-epileptic drugs, which has to be continued for his life time. He has minimal weakness of left lower limp, which unlikely to recover. PW3 has certified and testified that the appellant has a permanent disability of 15%. 18. In **Raj Kumar v. Ajay Kumar [2011 (1) KLT 620(SC)]** , the Hon'ble Supreme Court has held that what needs to be looked into in a case of compensation for injury is the functional disability of the injured-claimant. 19 **.** In the instant case, as the appellant has retired 9 ## MACA No.2115 of 2009 from service at the age of 55 and he was an Agriculturist by profession, I accept the assessment in Ext A6 and fix the functional disability of the appellant at 15%. 20. Taking into account the above mentioned factors, namely, the monthly notional income of the appellant at Rs.7,000/-, his functional disability at 15% and the multiplier at '11', I refix the compensation for loss due to disability at Rs.1,38,600/-. ## **Other heads of compensation** 21. With respect to the other heads of claim, I find that the Tribunal has awarded reasonable and just compensation. In the result, the appeal is allowed in part, by permitting the appellant to recover from the third respondent an amount of **Rs.1,38,600/-** (Rupees One Lakh Thirty Eight Thousand Six Hundred only) with interest at the rate of 7.5% per annum from the date of claim petition till the date of deposit and a cost of 10 MACA No.2115 of 2009 Rs.3,000/-. The third respondent/insurer is ordered to deposit the compensation amount of Rs.1,38,600/- with interest and costs before the Tribunal within a period of sixty days from the date of receipt of a certified copy of the judgment. The Tribunal shall disburse the enhanced compensation to the appellant in accordance with law. sd/- sks/12.10.2021 **C.S.DIAS, JUDGE**