Lonappankutty s/o Anthony v. C.Tousephs/o Thomakutty, V.K. Sathian, and The National Insurance Co. Ltd.

MACA NO. 3031 OF 2009 1 **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **TUESDAY, THE 30[TH] DAY OF NOVEMBER 2021 / 9TH AGRAHAYANA, 1943** **MACA NO. 3031 OF 2009** **AGAINST THE ORDER/JUDGMENT IN OPMV 855/2005 OF MOTOR ACCIDENT CLAIMS TRIBUNAL , IRINJALAKUDA** ## **APPELLANT/S:** LONAPPANKUTTY S/O.ANTHONY,NEDUMBAKKAN HOUSE,, RESIDING AT MATTATHUR DESOM, MATTATHUR VILLAGE, MATTATHURKUNNU PO, MUKUNDAPURAM TALUK, THRISSUR DISTRICT. BY ADVS. SRI.P.V.BABY SRI.A.N.SANTHOSH ## **RESPONDENT/S:** 1 C.T.OUSEPHS/O THOMAKUTTY, CHEENIKKAL HOUSE, KUNNATHANGADI, P.O.VELUTHUR, THRISSUR DISTRICT 680 018. 2 V.K.SATHIAN SO.KUTTAN VAZHINADAKKAL HOUSE, MANAKODY DESOM, P.O.MANAKODY, THRISSUR DISTRICT. 3 THE NATIONAL INSURANCE CO.LTD AMBIKA ARCADE ,M.G.ROAD, THRISSUR. THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 30.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: MACA NO. 3031 OF 2009 2 ## **JUDGMENT** The appellant was the petitioner in OP(MV) No.855/2005 on the file of the Motor Accidents Claims Tribunal, Irinjalakkuda. The respondent in the appeal was the 3[rd] respondent 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 19.03.2005. It was his case that, on the above said date, while he was riding his motor cycle bearing registration No.KL-8N-9925 through the Ernakulam – Thrissur National Highway, when he reached a place named Kodakara, a car bearing registration No.KL-8/AA 9480 (car), driven by the 2[nd] respondent in a rash and negligent manner, hit the motor cycle of the appellant. The appellant sustained serious injuries, including a segmental compound fracture of left femur with multiple abrasions over the right temple of the knees, left ankle and right forearm and a lacerated would over his occipital area. He was treated at the Aswini Hospital, Thrissur from 19.03.2005 to 16.04.2005 and then at the Metro MACA NO. 3031 OF 2009 3 Politan Hospital, Thrissur from 08.05.2005 to 10.06.2005. The appellant was a UD Clerk in the Kodakara Grama Panchayath and was earning a monthly income of Rs.9,000/-. The motor cycle was owned by the 1[st] respondent and insured with the 3[rd] respondent. Hence the appellant claimed a compensation of Rs.7,08,000/- from the respondents, but the claim was limited to Rs.4,00,000/- 3. The respondents 1 and 2 did not contest the proceedings and were set ex-parte. 4. The 3[rd] respondent has filed a written statement admitting that the car had a valid insurance coverage. Nevertheless, it was contended that the accident occurred due to the negligence of the appellant. Therefore, the 3[rd] respondent sought for exoneration of its liability. 5. The appellant produced and marked Exts.A1 to A11 in evidence. The respondents did not let in any evidence. 6. The Tribunal, after analysing the pleadings and materials on record, allowed the claim petition in part, by permitting the appellant to recover from the 3[rd] respondent an amount of Rs.1,89,250/- with interest @ 7% per annum from MACA NO. 3031 OF 2009 4 the date of petition till the date of realisation. 7. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioner is in appeal. 8. Heard Sri. P.V. Baby, the learned counsel appearing for the appellant/petitioner and Sri. E.M. Joseph, the learned counsel appearing for the 3[rd] respondent/insurer. 9. The question that arises for consideration in the appeal is: Whether the quantum of compensation awarded by the Tribunal is reasonable and just ? ## **Negligence and Liability** 10. Ext.A2 charge sheet filed by the Kodakara Police in Crime No.167/2005 proves that the accident occurred due to the negligence of the 2[nd] respondent. Admittedly, the 1[st] respondent was the owner and the 3[rd] respondent was the insurer of the car. The 1[st] respondent did not let in any evidence to discredit Ext.A2 charge sheet. The 3[rd] respondent has also not proved that the 1[st] respondent had violated the insurance policy conditions. Therefore the 3[rd] respondent is liable to indemnify the liability of the 1[st] respondent arising MACA NO. 3031 OF 2009 5 out of the accident. ## **Income** 11. The appellant had claimed that he was a U.D.Clerk in the Kodakara Panchayath and was earning a monthly income of Rs.9,000/-. In order to substantiate his assertion, the appellant had produced Ext.A11 salary certificate which shows that the appellant was drawing a monthly salary of Rs.10,291/- in the year 2005. The Tribunal, after deducting the HRA of Rs.150/-, fixed the monthly income of the appellant at Rs.10,141/-, for the purpose of calculating his loss of earnings for a period of six months. 12. In **Kalpana Raj and others vs. Tamilnadu State Transport Corporation** [2015 (2) SCC 764] , the Honourable Supreme Court has laid down the manner in which the net income of a claimant has to be calculated, that is to deduct the income tax and professional tax of the claimant from the gross income. 13. In the instant case, the appellant was drawing a gross annual salary of Rs.1,21,692/-. Going by the income tax MACA NO. 3031 OF 2009 6 slab for the assessment year 2005-2006, 10% of the income above Rs.50,000/- has to be deducted towards income tax. Therefore, I refix the net annual salary of the appellant at Rs.1,14,593/- i.e., Rs.9,543/- per month. ## **Disability** 14. The appellant had produced Ext.A9 disability certificate issued by an orthopedic surgeon, who had found that the appellant had difficulty to stand and sit, to climb stairs, to walk for a long period and to bend his right knee. Accordingly, the Doctor has assessed the permanent disability of the appellant at 11%. 15. In **Raj Kumar vs. Ajay Kumar** [2011 (1) KLT 620], the Honourable Supreme Court has held that what needs to be looked into in the case of injury is the functional disability of the injured/claimant. 16. The Tribunal after accepting and marking Ext.A9 in evidence, that too without any demur or protest from the respondents, has fixed the whole body disability of the MACA NO. 3031 OF 2009 7 appellant at 4.5%. 17. Going by the law in **Raj Kumar vs. Ajay Kumar** (supra), if the Tribunal was dissatisfied with Ext.A9 disability certificate, it was the bounden duty of the Tribunal to have referred the appellant to a duly constituted Medical Board. As already observed what needs to be looked into is the functional disability of the appellant. 18. As the appellant was a UD Clerk and going by the injuries and the permanent disability assessed by the Doctor in Ext.A9, I fix the functional disability of the appellant at 10%. ## **Multiplier** 19. The appellant was aged 49 years at the time of accident. In the light of the law laid down in S **arla Varma vs.** **Delhi Transport Corporation** [2010 (2) KLT 802], the relevant multiplier to be adopted is “13”. 20. The learned counsel for the 3[rd] respondent had contended that since the appellant was a UD Clerk in a Panchayat, he had no loss of income. Therefore, the method adopted by the Tribunal by fixing the notional income of the MACA NO. 3031 OF 2009 8 appellant at Rs.3,500/- is justifiable. Hence, the same yardstick shall be followed by this Court in taking the income of the appellant while awarding compensation for 'loss due to disability'. 21. In **N.Jayasree and others vs. Cholamandalam M.S. General Insurance Company Ltd.** [LL 2021 SC 588], the Honourable Supreme Court, after relying on its own decisions in **Puttamma vs. K.L. Narayana Reddy and another** [2014 (1) KLT 739 (SC)] and **K.R.Madhusoodanan vs. Administrative Officer** [(2011) 4 SCC 689], has deprecated the practice of the Tribunals/Courts in adopting the split multiplier method or scaling down the income for the purpose of calculating compensation for the reason that thumb rule laid down by the constitutional Bench of the Honourable Supreme Court in **National Insurance Company Ltd. v. Pranay Sethi [(2017) 16 SCC 680]** has to be followed for fixing compensation. 22. In the light of the above declaration of law, I am not inclined or persuaded to reduce the monthly salary of the appellant for the reason that he was permanently employed. 9 MACA NO. 3031 OF 2009 Thus I take his net monthly income at Rs.9,543/- for the purpose of calculating compensation for 'loss due to disability'. ## **Loss due to disability** 23. Taking into account the above mentioned factors, namely, the monthly income of the appellant at Rs.9543/-, his functional disability at 10% and the multiplier at 13, I award the appellant an amount of Rs.1,48,870/- towards compensation for 'loss due to disability', instead of Rs.23,200/awarded by the Tribunal. ## **Loss of earnings** 24. As per Ext.A11 certificate issued by the Secretary of the Kodakara Grama Panchayat, it is proved that the appellant was on loss of pay for the period from 19.03.2005 to 01.11.2005 that is for a period of 7 ½ months. As the appellant was drawing a monthly salary of Rs.10,291/- at the relevant point of time, I award him an amount of Rs.77,182/- towards 'loss of earnings', instead of Rs.60,850/- 25. With respect to the other heads of compensation, I find that the Tribunal has awarded reasonable and just MACA NO. 3031 OF 2009 10 compensation. 26. On an overall re-appreciation of the pleadings and materials on record and the law referred to in the afore-cited precedents, I hold that the appellant/petitioner is entitled for enhancement of compensation as modified and recalculated above and given in the table below for easy reference. **==> picture [448 x 362] intentionally omitted <==** **----- Start of picture text -----**<br> Sl. Head of claim Amount Amount<br>No. awarded by awarded by<br>the Tribunal this Court<br>(in Rs.) (in Rs.)<br>1. Loss of earnings 60,850 77,182<br> 2. Pain and sufferings 20,000 20,000<br>3. Loss of amenities 10,000 10,000<br>4. Medical expenses 70,480 70,480<br>5. Bystander expenses 2,800 2,800<br>6. Transportation expenses 2,000 2,000<br>7. Loss due to disability 23,200 1,48,870<br>Total 1,89,250 3,31,332<br>**----- End of picture text -----**<br> In the result, the appeal is allowed in part by enhancing the compensation by a further amount of Rs.1,42,082/-. The 3[rd] 11 MACA NO. 3031 OF 2009 respondent is ordered to deposit the enhanced compensation with interest at the rate of 7% per annum from the date of petition till the date of realisation and proportionate cost within a period of 60 days from the date of receipt of a certified copy of this judgment. Immediately, after the compensation amount is deposited, the Tribunal shall disburse the deposited amount to the appellant in accordance with law. Sd/- **C.S.DIAS, JUDGE** rkc