MANOJ @ R. NARAYANAN v. GEEVARGHESE @ PAPPACHAN; P.K. ANANDAN; THE NATIONAL INSURANCE COMPANY LIMITED

## **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 3RD DAY OF OCTOBER 2016/11TH ASWINA, 1938** ## **MACA.No. 2808 of 2016 ()** ## **------------------------AGAINST THE AWARD IN OPMV 805/2009 OF ADDITIONAL MOTOR ACCIDENTS CLAIMS TRIBUNAL-I, ALAPPUZHA. DATED 19-08-2015** ## **APPELLANT(S)/PETITIONER:** **----------------------MANOJ @ R. NARAYANAN, S/O. RAVEENDRAN, RAVI SADANAM, EAST OF BLOCK OFFICE, PUNNAPRA P.O., ALAPPUZHA.** **BY ADVS.SRI.GEORGE VARGHESE(PERUMPALLIKUTTIYIL) SRI.A.R.DILEEP SRI.MANU SEBASTIAN SRI.P.J.JOE PAUL** ## **RESPONDENT(S)/RESPONDENTS:** - **-------------------------1. GEEVARGHESE @ PAPPACHAN, S/O. SAMUEL, PUNNAMPURACKAL VEEDU, KOMMADI WARD, ALAPPUZHA MUNICIPALITY, ALAPPUZHA-688001.** **2. P.K. ANANDAN, THYPARAMBIL, ZACHARIA WARD, ALAPPUZHA-688001.** **3. THE NATIONAL INSURANCE COMPANY LIMITED, REPRESENTED BY ITS DIVISIONAL MANAGER, NELLAI COMPLEX, ALAPPUZHA-688001.** ## **R3 BY SRI.M.A.GEORGE** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 03-10-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **shg/** ## **C.T. RAVIKUMAR & K.P. JYOTHINDRANATH, JJ.** **- - - - - - - - - - - - - - - - - - - - - - - M.A.C.A.No.2808 of 2016 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 3[rd] day of October, 2016** ## **J U D G M E N T** ## **Ravikumar, J.** This appeal is preferred by the injured claimant feeling aggrieved by and dissatisfied with the quantum of compensation granted by the Tribunal as per the judgment and award in O.P.(M.V.)805/2009 on the file on the Additional Motor Accidents Claims Tribunal-I, Alappuzha. The accident which led to the filing of the claim petition occurred on 9.12.2008. On the day of the accident he was riding his motorcycle bearing registration No.KL-4/H-6969. At about 8.am. on that day the offending vehicle which is a lorry bearing registration No.KL-5/C-757 dashed against his motorcycle and he sustained severe injuries and was immediately hospitalized. The injury sustained in the accident caused permanent disability. It is in the said circumstances that the above mentioned claim petition was filed claiming a total compensation of Rs.1 lakh. The Tribunal as per the impugned award granted a M.A.C.A.No.2808 of 2016 2 compensation of Rs.79,340/- with interest at the rate of 9% per annum from the date of petition till realisation. This appeal has been filed soliciting enhancement of the compensation. 2. We have heard the learned counsel for the appellant Sri. George Varghese Perumpallikuttiyil and also the learned counsel appearing for the third respondent Sri.M.A. George. The cause of the accident as the negligence from the part of the first respondent who drove the offending lorry at the time of the accident, the valid insurance coverage of the offending vehicle are not in dispute. We are of the view that the only question to be considered in this appeal is only regarding the entitlement of the appellant to get enhanced of compensation. In such circumstances, we do not think it necessary to issue notice to respondents 1 & 2 and we also ween that this appeal can be disposed of at the admission stage itself. 3. The appellant was aged only 32 years on the day of the accident. Though the learned counsel appearing for M.A.C.A.No.2808 of 2016 3 the third respondent submitted that to prove the age the appellant had not adduced any evidence before the Tribunal it is evident that the appellant had produced Ext.A10 disability certificate before the Tribunal. A copy of the same was handed over to us by the learned counsel appearing for the appellant. It is evident from the judgment itself that the appellant did not take any dispute regarding the age of the appellant shown therein. In such circumstances, when it is evident that the age of the appellant was recorded therein as 32 years we do not think that there can be any doubt with respect to the age of the appellant on the date of the accident. The learned counsel appearing for the appellant contends that though the age of the appellant was only 32 years on the day of the accident the Tribunal took the multiplier as 9 for calculation purpose. We are of the view that no volume of argument is required to identify the correct multiplier. There can be little doubt with respect to the fact that the multiplier has to be taken with reference to the age of the appellant/injured. He was only 32 years and M.A.C.A.No.2808 of 2016 4 in such circumstances in the light of the decision of the Hon'ble Apex Court in **Sarla Varma v. Delhi Transport Corporation [2010 (2) KLT 802 (SC)** the multiplier applicable in this case is 16. 4. The appellant is also having a further grievance that the Tribunal erred in fixing the monthly income. True that the appellant had failed to establish his averments taken up in the claim petition regarding his occupation. He claimed that he was a construction supervisor by profession. True that he had produced Ext.A12 to establish the same. However it is a fact that it was issued by a private firm and no one who is competent to prove the same was examined before the Tribunal. In the said circumstances the Tribunal cannot be found fault with in not accepting and acting upon the same. It is a fact that Ext.A11 would reveal that he is a National Trade Certificate holder. That fact is not disputed. In such circumstances it is evident that the appellant who was aged only 32 years was a qualified person as he was a holder of a National Trade Certificate. M.A.C.A.No.2808 of 2016 5 The accident occurred on 9.12.2008. Taking into account all such aspects we are of the considered view that the Tribunal erred in fixing the monthly income as Rs.4,000/thought the Tribunal was justified in fixing the monthly income notionally. In such circumstances taking note of the year of the accident, the age of the appellant and also his qualification we are of the view that it is only proper to fix his monthly income as Rs.6,000/-. Accordingly it is fixed. Though the learned counsel vehemently argued that the Tribunal also went wrong in assessing the percentage of disability we do not find any force in the said contention. It is to be noted that the fracture sustained is on the lower end of the radius left hand and fracture on base of 4[th] meta carpel left. The Tribunal for calculation purpose converted it as a whole body disability and took 6% as the permanent disability for calculation purpose. We do not find any reason to hold that the the Tribunal has committed an error warranting an appellate interference in that regard. 5. In such circumstances taking note of the monthly M.A.C.A.No.2808 of 2016 6 income fixed by us and the proper multiplier the compensation payable for disability has to be reassessed. On such reassessment the appellant would be entitled to get an amount of Rs.69,120/-. However the Tribunal has already granted an amount of Rs.25,920/- under that head. Therefore after deducting the amount granted by the Tribunal the appellant is entitled to get an additional compensation of Rs.43,200/- under that head. Based on the refixed monthly income, the appellant is entitled to get a proportionate enhancement under the head loss of earning. The Tribunal took the period of loss of earning as three months. Retaining the said period fixed by the Tribunal and taking the monthly income as Rs.6,000/- the appellant would be entitled to get an amount of Rs.6,000/- additionally under the head loss of earning. Though the learned counsel for the appellant claimed that the compensation granted under other heads warrants an upward modification, we are of the view that there is absolutely no merit in the said contentions. M.A.C.A.No.2808 of 2016 7 In the light of the above discussions the appellant is entitled to get an additional compensation of Rs.49,200/(Rupees forty-nine thousand two hundred only). It is granted. The said enhanced amount will carry interest at the rate of 8% per annum from the date of petition till realisation. The third respondent insurer is directed to deposit the said amount along with interest within a period of two months from the date of receipt of a copy of this judgment. There will be no order as to costs. Sd/- **C.T. RAVIKUMAR JUDGE** Sd/- **K.P. JYOTHINDRANATH JUDGE** //True copy// P.A. TO JUDGE shg/