MACA Nos. 2225 of 2012 & 2558 of 2012

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN** **THURSDAY, THE 2[ND] DAY OF DECEMBER 2021 / 11TH AGRAHAYANA,** ## **1943** ## **MACA NO. 2225 OF 2012** **AGAINST THE AWARD DATED 19.06.2012 IN OP(MV) 1949/2009 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, ERNAKULAM APPELLANT : 3RD RESPONDENT** **THE NEW INDIA ASSURANCE COMPANY LIMITED, THIRUVANANTHAPURAM, NOW REPRESENTED BY ITS MANAGER, REGIONAL OFFICE, M.G.ROAD, KOCHI-11. BY ADVS. SRI.MATHEWS JACOB, SR. STANDING COUNSEL SRI.P.JACOB MATHEW, STANDING COUNSEL** ## **RESPONDENT : PETITIONER** **A.I.SHIHAB, S/O.ISMAIL, KARINGAMTHURUTHI PARAMBIL, C.C.-III/573, MASS ROAD, KOCHI-682 002. BY ADV SRI.M.A.ASIF** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 24.11.2021, ALONG WITH MACA.2558/2012, THE COURT ON 02.12.2021 DELIVERED THE FOLLOWING:** M.A.C.A.Nos.2225/2012 & 2558/2012 2 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN** **THURSDAY, THE 2[ND] DAY OF DECEMBER 2021 / 11TH AGRAHAYANA,** ## **1943** ## **MACA NO. 2558 OF 2012** **AGAINST THE AWARD DATED 19.06.2012 IN OP(MV) 1949/2009** **OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, ERNAKULAM** **APPELLANT/CLAIMANT IN O.P.(MV) :** **A.I.SHIHAB, AGED 31, S/O.ISMAIL, KARINGAMTHURUTHI PARAMBIL, CC-III/573, MASS ROAD, COCHIN-682 002.** **BY ADV SRI.M.A.ASIF** ## **RESPONDENTS/RESPONDENTS IN O.P.(MV):** - **1 THE MANAGING DIRECTOR, KERALA STATE ROAD TRASPORT CORPORATION, THIRUVANANTHAPURAM-695 023.** - **2 SEBASTIAN ROY, S/O.YOHANNAN, NEW HOUSE, EAST PANAYAMKODU, KUNDARA, KOLLAM, PIN-691 501.** - **3 THE NEW INDIA ASSURANCE COMPANY LTD., IIND FLOOR, REMA PLAZA, SS COIL ROAD, THAMPANOOR, THIRUVANANTHAPURAM-695 001.** **BY ADV.SRI.ALEX ANTONY SEBASTIAN P.A. R3 BY SRI.P.JACOB MATHEW, STANDING COUNSEL R3 MATHEWS JACOB, SR.STANDING COUNSEL** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 24.11.2021, ALONG WITH MACA.2225/2012, THE COURT ON 02.12.2021 DELIVERED THE FOLLOWING:** M.A.C.A.Nos.2225/2012 & 2558/2012 3 ## _**A. BADHARUDEEN, J.**_ ================================ _M.A.C.A No.2225 of 2012 and M.A.C.A.No.2558 of 2012_ ================================ _Dated this the 2[nd] day of December, 2021_ ## _**J U D G M E N T**_ The claimant in O.P(MV).No.1949/2009 on the file of Motor Accidents Claims Tribunal, Ernakulam is the appellant in M.A.C.A.No.2558/2012. The respondents before the Tribunal are the respondents in this appeal. 2. The 3rd respondent insurance company in the above case has filed M.A.C.A.No.2225/2012 challenging the same award by arraying the claimant as the sole respondent. 3. The petition averments in brief: On 18.01.2009 at about 8 p.m, the claimant was riding the motor cycle bearing No.KL-7 AN/8553 at normal speed along the Edakochi-Palluruthy road from east to west with Mr.Sunilkumar on the pillion seat. When the motor cycle M.A.C.A.Nos.2225/2012 & 2558/2012 4 reached near Pashnithodu bridge, the KSRTC stage carriage bus bearing Registration No.KL-15/6795 driven by the 2nd respondent in a rash and negligent manner, so as to endanger human life, came from the opposite side, hit against the motorcycle ridden by the petitioner. The petitioner and the pillion rider fell on the road and suffered serious injuries. The petitioner was taken to specialist hospital for treatment and he underwent treatment there as an inpatient. His right leg below knee was amputated. On the above facts, petitioner claimed Rs.16 lakh as compensation. 4. 1St and 2nd respondents filed joint written statement and denied the negligence alleged against the 2nd respondent. They also disputed the quantum of compensation while highlighting valid policy with the 3rd respondent/insurance company. 5. The 3rd respondent insurance company filed separate written statement and admitted the policy. However, negligence as well as quantum were disputed. M.A.C.A.Nos.2225/2012 & 2558/2012 5 6. The Tribunal recorded evidence of PWs 1 and 2 and marked Exts.A1 to A20 on the side of the petitioner. No evidence let in by the respondents. Ext.X1 is court exhibit. Thereafter, the Tribunal granted Rs.10,16,237/- as compensation as against the claim of Rs.16 lakh. 7. M.A.C.A.No.2558 of 2012 has been filed by the petitioner challenging the quantum of compensation. According to the learned counsel for the petitioner, the Tribunal fixed the monthly income of the claimant at Rs.4,000/- alone though Rs.4,992/- was the income based on Ext.A15 salary certificate issued by PW2. Therefore, the learned counsel for the claimant canvassed fixation of monthly income at Rs.4,992/- for calculating loss of disability income/loss of earning. It is submitted further that the Tribunal under misconception fixed the multiplier as 15 provided for the age group 40-45 years following the ratio in [2010 (2) KLT 802(SC)], _**Sarla Verma v Delhi Transport Corporation**_ though the petitioner was aged 30 years and 2 months on the date of M.A.C.A.Nos.2225/2012 & 2558/2012 6 accident and multiplier would come to 17. 8. Whereas the learned counsel for the insurance company challenged the quantum of compensation granted by the Tribunal on the specific assertion that the Tribunal fixed earning disability of the petitioner at 100% though the Medical board assessed his whole body disability at 40%. According to the learned counsel, though it is proved that the claimant was a headload worker within the territorial jurisdiction of Kerala Headload Workers Welfare Board, Willington Island and his right leg was amputated below knee, it cannot be held that he could not do any other job and derive income. Therefore, the Tribunal ought not have fixed 100% disability in this matter. 9. However, the learned counsel for the petitioner vehemently opposed the submission and pointed out that since the claimant was a headload worker, because of amputation of his right leg below knee, he could not do the said job further and therefore his functional disability should be 100%. Matter being so, there is no reason to interfere with 100% functional M.A.C.A.Nos.2225/2012 & 2558/2012 7 disability fixed by the Tribunal. 10. While addressing the question of disability, it is noted that, in the petition, the petitioner claimed himself as a registered headload worker. PW2, who issued Ext.A15 salary certificate categorically deposed the status of the claimant as a registered headload worker under the Kerala Headload workers welfare Fund Board Port Trust Area Committee. On a perusal of the award it could be gathered that the Tribunal fixed 100% earning disability relying on a decision reported in [2007 (4) KLT 623], _**Jayaprasad v. Rejimon Philip**_ . In the said decision, this Court when dealt with a driver's case it was held that when the leg of a driver was amputated, his functional disability would come to 100%. 11. While addressing the rival arguments now advanced to decide the issue as to whether what ought to be the percentage of disability fixed in the present case, as per Ext.X1 medical board disability certificate, the whole body disability of the petitioner was assessed at 40%. It is proved that the right M.A.C.A.Nos.2225/2012 & 2558/2012 8 leg of the petitioner was amputated below knee and therefore it may be right to say that he could not do the job of a headload worker. However, it could not be held that the petitioner is incapacitated to do any other job and earn. In view of the matter, fixation of functional disability at 100% as against 40% disability assessed by the medical board, in the case of the petitioner could not be justified, as argued by the learned counsel for the insurance company. Therefore, I am of the view that the functional disability can be fixed at 75% for calculating loss of disability income. 12. Coming to the monthly income as per Ext.A15 certificate issued by PW2, the average income for the period from 1.1.2008 to 31.12.2008 is shown as Rs.4992.04. Rs.1,009/- was shown as deduction towards TBF, GWF and festival advance. Therefore, the Tribunal fixed the monthly income as Rs.4,000/-. Even though the deduction made by the Tribunal is wrong, having considered the variation of income of the claimant on each month, as borne out from Ext.A15, M.A.C.A.Nos.2225/2012 & 2558/2012 9 even for one year and in consideration of non production of income details for the previous years, it could not be held that his monthly income is static @ Rs.4,992/- and therefore, I am not inclined to increase Rs.4,000/- taken by the Tribunal for calculating loss of disability income. Therefore, Rs.4,000/- is fixed as the monthly income. 13. Coming to the multiplier, as per Ext.A10, copy of driving licence produced, the date of birth of the petitioner is shown as 16.11.1978 and therefore he completed 30 years of age on the date of accident on 18.01.2009. Therefore, the petitioner to be placed in the age group between 30-35 years following the ratio in _**Sarla Verma**_ 's case ( _supra_ ) and the appropriate multiplier to be taken is 17 instead of 15. Therefore, the multiplier is refixed as 17. 14. Here no addition towards future prospects was given by the Tribunal. In the decision reported in [2020 KHC 6547], _**Pappu Deo Yadav v. Naresh Kumar & Ors.** ,_ the Apex Court held that 40% addition to be given while calculating disability M.A.C.A.Nos.2225/2012 & 2558/2012 10 income in cases of high percentage disability. Hence it is held that if the disability is above 50%, 40% addition also must be given considering the age of the petitioner as 30. Therefore, the loss of disability income required to be recalculated as under: 5600 [4000 + 1600 (4000X40%)] X 12 X 17 X 75/100 = Rs.8,56,800/-, out of which Rs.7,20,000/- was granted by the Tribunal. Hence **Rs.1,36,800/- more** is granted under the head . **loss of disability income** 15. Though it is contended by the learned counsel for the insurance that the court below company granted Rs.2,12,000/- under the head compensation for future treatment without justification, perusal of the award would justify the Tribunal. In fact, the Tribunal reduced Rs.46,000/- initially spent for purchasing BK artificial limb and the amount required for purchasing a new artificial limb to the tune of Rs.2,12,000/alone was granted. I am not inclined to interfere with the said finding. At the same time, the learned counsel for the M.A.C.A.Nos.2225/2012 & 2558/2012 11 insurance company is right in arguing that the Tribunal wrongly granted interest in relation to the said sum also from the date of petition to the date of realisation. Therefore, the interest granted by the Tribunal for the said sum stands reversed and it is ordered that the said sum (Rs.2,12,000/-) will carry interest @ 8% per annum from the date of award (19.06.2012) till date of deposit or realisation. 16. Coming to the other heads, the Tribunal granted Rs.20,000/- under the head **pain and suffering** in a case of this **more** nature. Therefore, the same also required to be increased to the tune of **Rs.20,000/-** . Similarly, the compensation granted by the Tribunal under the head loss of amenities and enjoyment in life to the tune of Rs.10,000/- also required to be increased. Therefore, **Rs.20,000/- more** is granted under the head **loss of** . **amenities and enjoyment in life** 17. In the result, M.A.C.A.No.2225 of 2012 filed by the insurance company is allowed in part. Thereby, the percentage of functional disability fixed by the Tribunal is reduced to 75% M.A.C.A.Nos.2225/2012 & 2558/2012 12 and also the interest granted by the Tribunal for Rs.2,12,000/under the head compensation for future prospects from the date of award is scaled down with a specific order that the said amount will carry 8% interest from the date of the award (19.06.2012) to the date of realisation or deposit. M.A.C.A.No.2558 of 2012 is also allowed in part. It is held that the appellant/petitioner is entitled to get Rs.1,76,800/(Rupees One lakh seventy six thousand eight hundred only) as enhanced compensation and the award impugned is modified as above with the same rate of interest granted by the Tribunal from the date of petition till the date of deposit or realisation. The insurance company is directed to deposit the same in the name of the appellant within two months from today and the appellant is at liberty to release the same, on deposit. _Sd/-_ ## _**(A. BADHARUDEEN, JUDGE)**_ _rtr/_