M.A.C.A. No.1987/2012

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. TUESDAY,THE 19[TH] DAY OF DECEMBER 2023/28TH AGRAHAYANA, 1945 ``` ## **`MACA NO. 1987 OF 2012`** ``` OPMV 683/2008 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,KOTTAYAM ``` ## **`APPELLANT:`** ``` M.C. RAJU, AGED 63 YEARS S/O.VARGHESE CHANDY, MAMPARAYIL HOUSE, KOLLADU P.O.,KOTTAYAM BY ADVS. SRI.M.V.THAMBAN SRI.B.BIPIN SRI.R.REJI SMT.THARA THAMBAN ``` ## **`RESPONDENTS:`** - `1 GOPALAKARISHNAN, 432,ARACKAL HOUSE, NEDUMUDI,ALAPPUZHA, PIN-688503` - `2 ANOOP, SIVAMPURATHU, NEAR SANKARAPURAM,KURCHY P.O.,PIN-686532` - `3 THE RELIANCE GENERAL INSURANCE CO LTD REP.BY ITS DIVISIONAL MANAGER, DIVISIONAL OFFICE, COCHIN, PIN-682001` - `SMT. LATHA SUSAN CHERIAN` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ``` ``` ADMISSION ON 19.12.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` M.A.C.A. No.1987/2012 : 2 : ## JUDGMENT The appellant was the petitioner in OP(MV) No.683/2008 on the files of the Motor Accident Claims Tribunal, Kottayam. 2. The aforesaid claim petition was submitted by the appellant seeking compensation for the injuries sustained to him in a motor accident that occurred on 13.02.2008. The accident occurred when the scooter ridden by the appellant was hit by a motorcycle bearing registration No.KL4/T-843, ridden by the 2nd respondent. The said vehicle was owned by the 1st respondent and was insured with the 3rd respondent herein. The appellant was a retired Assistant Executive Engineer of Kerala State Electricity Board, aged 62 years. He claimed a monthly income of Rs.10,000/- from the electrical contract works carried on by him. The injuries sustained to him resulted in physical disablement and the compensation was claimed in such circumstances. 3. The 3rd respondent insurance company alone contested the matter by filing the written statement, wherein they admitted the coverage of policy. However, they contended that, the cheque issued by the registered owner towards the premium was M.A.C.A. No.1987/2012 : 3 : dishonoured and therefore they cancelled the policy. Hence they sought exoneration from the liability. They also disputed the negligence as well as the quantum of compensation. 4. The evidence in this case consists of Exts.A1 to A19 from the side of the appellant and Exts.B1 to B5 were marked from the side of the respondents. 5. After the trial, the tribunal came to the conclusion that the accident occurred due to the negligence on the part of the rider of the motorcycle and therefore, being the insurer, the 3rd respondent was held liable to pay the compensation. With respect to the contention of the insurance company regarding the cancellation of policy, it was found that, as the notice of cancellation of policy was served after the date of accident, no exoneration could be granted. The quantum of compensation was fixed as Rs.3,54,025/- and the same was directed to be deposited by the 3rd respondent insurance company with interest at the rate of 7.5% per annum from the date of petition till realisation with proportionate costs. This appeal is submitted by the appellant in such circumstances seeking enhancement of compensation. 6. Heard Sri. R. Reji, the learned counsel appearing for the M.A.C.A. No.1987/2012 : 4 : appellant and Sri. George A Cherian, the learned counsel appearing for the 3rd respondent insurance company. 7. The quantum of compensation awarded by the tribunal is under dispute in this appeal. The learned counsel for the appellant would submit that the amounts awarded by the tribunal under various heads are on the lower side. The learned counsel mainly challenges the award under the head of physical disability. It was pointed out that the tribunal took the monthly income of the appellant as Rs.3,000/- even though a monthly income of Rs.10,000/- was claimed on the basis of Ext.A15, which was a letter issued from the Executive Engineer, KSEB, showing that he was carrying out the contract work with KSEB. Besides the same, it was also pointed out that, even though in Ext.A11 disability certificate, the percentage of disability was certified as 50% the tribunal accepted only 16%. The learned counsel for the insurance company on the other hand opposes the said contention by pointing out that a reasonable amount has been awarded and hence no interference is warranted. 8. I have carefully gone through the records. As regards the percentage of disability, it is to be noted that, the appellant places reliance upon Ext.A11 certificate which was issued by the M.A.C.A. No.1987/2012 : 5 : Standing Disability Assessment Board constituted by the Superintendent of Government Hospital, Kottayam. The assessment was made mainly because of the reason that, due to the injuries there was shortening of right leg. However, the crucial aspect to be noticed is that, in Ext.A11 certificate itself it was mentioned that, it was not issued for the MACT cases. It was on that premise, the said certificate was not accepted by the tribunal and the tribunal proceeded to determine the compensation by taking the physical disability as 16%. After considering the materials placed on record, even though I do not find any illegality in not accepting Ext.A11 certificate as such, but the percentage of disability took by the tribunal appears to be on the lower side. Evidently, the certificate issued was not for the purpose of assessing the loss of earning capacity but apparently it was intended for other benefits. Moreover, the disability was assessed by mainly placing reliance upon the shortening of the leg. It is also discernible from the materials placed on record that, the appellant is not a person who is engaged in manual labour and he was a contractor by profession who used to cause the work to be done by engaging other employees. Therefore, when the nature of disability sustained M.A.C.A. No.1987/2012 : 6 : by the appellant is taken into consideration, I do not think that, it would result in 50% of loss of earning capacity. However, it is evident that, he will be having some difficulty in pursuing the said employment which may affect his productivity. Therefore, considering the nature of the avocation of the appellant and the impact of the disability which he had suffered, upon such avocation and other relevant circumstances, I deem it appropriate to fix it as 30%. While considering the same, I have also taken note of the fact that he was 62 years old at the time of the accident, and therefore, the impact could be higher than the person with a younger age. 9. The next aspect is relating to the monthly income. The tribunal accepted the monthly income as Rs.3,500/- which appears to be on the lower side. The accident occurred in the year 2008. Admittedly, the appellant was a retired Assistant Executive Engineer who was engaged in electrical contract work. Ext.A11 is the certificate evidencing the same. Even if the said certificate is accepted, that would only show that he was working as a contractor, and there is nothing to indicate the income which he used to derive from the said work. The appellant also did not produce any contracts which he entered into with the KSEB for executing the M.A.C.A. No.1987/2012 : 7 : works as well. Therefore, in the absence of any such materials, the monthly income as claimed by the appellant as such cannot be accepted. However, it is to be noted that, when the method of computation of monthly income evolved from the principles laid down by the Hon’ble Supreme Court in Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Co.Ltd [(2011) 13 SCC 236], and Syed Sadiq v. Divisional Manager, United India Insurance Company [(2014) 2 SCC 735] is applied even in respect of an ordinary employee without any specialised skills, the monthly income can be fixed as Rs.6,500/-, in respect of an accident occurred in the year 2008. In this case, the appellant retired from KSEB as an Assistant Executive Engineer and therefore, he was an experienced person. In such circumstances, it could be possible for him to earn more than what an ordinary worker would earn in any employment. Therefore, I am of the view that, a slightly higher income than the income usually taken for an ordinary worker can be taken. Thus, in the facts and circumstances of the case, I deem it appropriate to take the monthly income as Rs.8,000/- 10. Another contention raised by the learned counsel for the appellant is that, the age of the appellant was only 59 and not 62 as M.A.C.A. No.1987/2012 : 8 : mentioned in the award. The learned counsel places reliance upon Ext.A19 which is the copy of the SSLC certificate of the petitioner wherein the Date of Birth was shown as 19.12.1949. The accident in this case was occurred on 13.02.2008. From the above it evident that, the age on the date of the accident was only 49. Therefore, the proper multiplier applicable was 9, which was applicable to the age group of 55-60. While reassessing the compensation with the revised monthly income and the percentage of disability as 30%, the amount would come to Rs.2,59,200/- (8000x12x9x30/100). The tribunal has already awarded an amount of Rs.47,040/- and thus the additional amount would come to Rs.2,12,160/-. 11. Consequent to the revision of monthly income, the appellant would be entitled to an additional amount under the head of loss of earnings as well. The tribunal awarded compensation for eight months under this head. Therefore, a further sum of Rs.36,000/- is awarded under this head (8000x8-28000). 12. The amount awarded by the tribunal towards pain and sufferings was Rs.28,000/- which appears to be on the lower side. This is particularly because the petitioner had undergone 45 days of inpatient treatment, and the nature of the injuries sustained were also serious as they resulted in the shortening of the leg. In such M.A.C.A. No.1987/2012 : 9 : circumstances, taking note of the above aspect, a further sum of Rs.20,000/- is awarded under the said head. 13. Another head which requires reconsideration is the loss of amenities. Considering the disabilities sustained by the appellant and the fact that he has to live with the disability for remaining period of his life, I deem it appropriate to grant a further sum of Rs.15,000/under the said head as well. Thus the total additional compensation is determined as Rs.2,83,160/-. (2,12,160+36000+20000+15000). In the light of the aforesaid observations and findings, this appeal is allowed. The award dated 06.06.2012 passed by the Motor Accident Claims Tribunal, Kottayam in OP(MV) No. 683/2008 is hereby modified by granting an additional compensation of Rs.2,83,160/-(Rupees two lakhs eighty three thousand one hundred and sixty only) and the said amount shall be deposited by the 3 rd respondent insurance company with interest at the rate as ordered by the tribunal and with proportionate costs within a period of three months from the date of receipt of a copy of this judgment. Sd/ZIYAD RAHMAN A.A. JUDGE ncd