## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT:**
**THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH**
**MONDAY, THE 11TH DAY OF JULY 2016/20TH ASHADHA, 1938**
**MACA.No. 1996 of 2011 ( ) -------------------------AWARD IN OPMV 1752/2006 OF M.A.C.T., ERNAKULAM DATED 20-04-2011**
## **APPELLANT(S): ------------**
**K.B.RAJAPPAN, AGED 58 YEARS, SON OF BHASKARAN PILLAI, SATHI BHAVANAM, MYTHRI LANE, EDAPPALLY NORTH P.O., EDAPPALLY VILLAGE, KANAYANNUR TALUK, ERNAKULAM DISTRICT.**
**BY ADVS.SRI.ANIL S.RAJ SRI.G.ARUN GOPAN SMT.K.N.RAJANI SRI.J.VIVEK GEORGE**
**RESPONDENT(S):**
**--------------**
**1. SOPHY SAGEER, 33/2825 (41/2035), MANAKERIYIL HOUSE, PALARIVATTOM, KOCHI-682 025.**
**2. MANOJ.N.G., S/O.GOPI, NADAYILKUTTYIL HOUSE, NEAR GOVT. HIGH SCHOOL, VENNALA, KOCHI-682 028.**
**3. UNITED INDIA INSURANCE COMPANY LIMITED, DIVISIONAL OFFICE, ERNAKULAM, KOCHI-682 016.**
**BY ADV.SRI.JOHN JOSEPH VETTIKAD R3 BY ADV.SRI.N.S.MOHAMMED USMAN**
**THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 11-07-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:**
**BKA/-**
## **C.T. RAVIKUMAR & K.P. JYOTHINDRANATH, JJ.**
-------------------------------------------------M.A.C.A. No. 1996 of 2011 -------------------------------------------------Dated this the 11[th] day of July, 2016
## **J U D G M E N T**
C.T. Ravikumar, J.
The petitioner in O.P.(M.V.) No.1752/2006 on the file of the Motor Accidents Claims Tribunal, Ernakulam, is the appellant. He filed the claim petition seeking compensation for the injuries sustained by him in a motor accident that occurred on 16.04.2006. On that day, he was riding his motorcycle through Vennala - Arakakadavu Road from north to south. The offending vehicle, which came from a pocket road, hit on his motorcycle and consequently, he sustained injuries. Immediately, he was taken to Ernakulam Medical Centre and he remained there as inpatient for 24 days. It is in the said circumstances that he filed the above mentioned claim petition seeking a total compensation of 3,50,000/-. ₹
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2. Before the Tribunal, the doctor, who issued Ext.A10 disability certificate, was examined as PW1 and Exts.A1 to A14 were got marked. There was no evidence from the side of the respondents. The Tribunal, as per the impugned award, granted a total compensation of ₹1,26,718/- with interest at the rate of 8% per annum from the date of petition till realization. The appellant seeks for enhancement of compensation.
3. We have heard the learned counsel for the appellant as also the learned counsel appearing for the third respondent.
4. It is submitted by the counsel on both sides that the only issue that has to be decided is regarding the entitlement of the appellant to get enhanced compensation. The main grievance of the appellant is that ignoring his specific averments in the claim petition that he was working with a construction company and was earning 3,000/- per month, the Tribunal fixed his income₹ notionally at 2,500/- per month. His further grievance is₹
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that the Tribunal adopted the multiplier as '8'. Considering the fact that at the time of the accident, the appellant was aged only 53 years, the Tribunal went wrong in adopting '8' as the multiplier; and according to the learned counsel for the appellant, in the light of the schedule given in the decision of the Hon'ble Supreme Court in **Sarla Verma v. Delhi Transport Corporation** [2010 (2) KLT 802 (SC)], the multiplier to be adopted ought to have been '11'. The learned counsel further submitted that the Tribunal granted only meager sums under the heads 'damage to clothing' and 'extra nourishment' and also erred in calculating compensation under the head 'loss of income'.
5. Per contra, the learned counsel for the third respondent submitted that the appellant had failed to establish the contention taken up in the claim petition regarding the occupation and income and in such circumstances, it cannot be said that the Tribunal had erred in fixing the monthly income notionally.
6. On going through the records, it is evident that
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despite taking up the contentions regarding occupation and income, the petitioner had not adduced any evidence to establish such contentions. In such circumstances, we do not find any illegality or error in the matter of fixation of the income notionally by the Tribunal. But, at the same time, it is to be noted that the accident occurred in the year 2006. The appellant claimed only an amount of 3,000/- as₹ his monthly income. There is absolutely no justification for disregarding the claim of the appellant in respect of income, especially, taking note of the fact that he was only 53 years at the time of the accident. We are of the considered view that the claim of the petitioner regarding income ought to have been accepted and acted upon. In that view of the matter, his monthly income is fixed as ₹3,000/- for calculation purpose.
7. With respect to the multiplier, the sustainability of the contention has to be decided in the light of the decision in **Sarla Verma** 's (cited supra) case. Taking note of the fact that the appellant was aged only 53 years on the date of the accident he would fall within the age group
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51-55 years. Going by the schedule in **Sarla Verma** 's case (supra), the multiplier applicable to persons belonging to the said age group is '11'. In such circumstances, it has to be held that the Tribunal had erred in adopting the multiplier. Accordingly, the proper multiplier '11' with reference to the age of the appellant on the date of the accident, is adopted.
8. For the purpose of computing compensation towards permanent disability, the appellant produced Ext.A10 disability certificate issued by Dr.Mohammed Ali, who was examined as PW1. Evidently, PW1 deposed in terms of Ext.A10. We have gone through the discussion in para 13 of the impugned award. Ext.A10 would reveal that on examination, PW1 noted the following aspects:-
“On examination - (R) knee deviated laterally. Surgical scar lateral to (R) thigh & knee. Both knees cannot be apposed. (R) knee flexion - from 180[0] to 100[0] . 2.5 cms shortening (R) thigh. (R) hip movements - IR - 5[0] , ER - 10[0] , Adduction - 15[0] , Abduction - 25[0] .”
Based on the findings on examination, evidently, PW1 found that the whole body permanent physical disability of the appellant is 22%. Going by Ext.A9 medical certificate, the
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appellant might require total knee replacement after an year since the date of Ext.A9. Taking note of the nature of the injuries and the disability incurred by the appellant in the accident, we are of the view that it is only appropriate to take the whole body disability as 15%. In fact, a perusal of the impugned award would also reveal that the Tribunal had, in fact, taken the whole body disability as 15%. Therefore, the assessment of permanent disability needs no interference. It is evident from the impugned award that the Tribunal had fixed compensation under the combined head of compensation for disability and loss of earning power. There cannot be any dispute with respect to the position that a person who incurred disability pursuant to a motor accident, cannot be granted compensation both for the disability incurred and for loss of earning power. In such circumstances, we are of the view that taking into account the modified monthly income and multiplier and the percentage of permanent disability fixed by the Tribunal at 15%, the amount of compensation for permanent disability has to be reassessed. Based on such
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calculation, the amount payable towards permanent disability is 59,400/- (3000 x 12 x 11 x 15/100). But, the₹ Tribunal has already granted an amount of ₹24,000/-. Therefore, after deducting the said amount, the appellant would be entitled to get an amount of 35,400/- additionally₹ under that head.
9. Taking note of the nature of the injuries sustained and the permanent disability incurred, we are of the view that the period of loss of income ought to have been taken as 5 months instead of 3 months. Based on the monthly income refixed by us for a period of 5 months, the appellant would be entitled to get an amount of 7,500/-₹ more under the head, loss of income; and it is granted.
10. Towards damage to clothing, the Tribunal granted an amount of 500/-. We are inclined to grant₹ ₹500/- more under that head.
11. The appellant had been an inpatient for a period of 24 days. In such circumstances, according to us, he was entitled to get 100/- per day towards extra nourishment.₹ Based on such calculation, a further sum of 400/- is₹
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## granted to the appellant under that head.
In the light of the discussion as above, the appellant would be entitled to get a total enhanced compensation of ₹43,800/- (Rupees forty three thousand and eight hundred only). The said additional compensation will carry interest at the rate of 8% per annum from the date of petition till realization. The third respondent is directed to deposit the enhanced amount along with interest within a period of one month from the date of receipt of a copy of this judgment. There will be no order as to costs.
## The appeal is disposed of accordingly.
Sd/- **C.T. RAVIKUMAR JUDGE**
Sd/- **K.P. JYOTHINDRANATH JUDGE**
bka/-
//True copy//
PA to Judge
