National Insurance Company Ltd. v. Vadakkedath Abdurehiman

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT :** **THE HONOURABLE MR. JUSTICE R.BASANT THE HONOURABLE MRS. JUSTICE M.C.HARI RANI** ## **TUESDAY, THE 16TH AUGUST 2011 / 25TH SRAVANA 1933** **MACA.No. 2050 of 2009() ------------------------------OPMV.169/1995 of MOTOR ACCIDENT CLAIMS TRIBUNAL, VADAKARA ....................** ## **APPELLANT/3RD RESPONDENT :** **NATIONAL INSURANCE COMPANY LTD., BRANCH OFFICE, P.B.NO.439, JAIL ROAD, CALICUT.** ## **BY ADV. SRI.RAJAN P.KALIYATH** ## **RESPONDENT/CLAIMANT:** **VADAKKEDATH ABDUREHIMAN, S/O. AMMED, VADAKKEDATH HOUSE, CHEMMARATHUR POST, BADAGARA (VIA), CHEMMARATHUR AMSOM, ARAYANNUR DESOM, KOZHIKODE DISTRICT.** ## **ADV. SRI.JACOB ABRAHAM FOR R1 SMT.KOCHUMOL KODUVATH FOR R1** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 16/08/2011, THE COURT ON THE SAME DAY PASSED THE** ## **R. BASANT & M.C.HARI RANI, JJ.** ## **-----------------------------------------------------------------** **M.A.C.A. No.2050 of 2009 ---------------------------------------------------Dated this the 16[th ] day of August, 2011** ## **JUDGMENT** ## **R. BASANT,J.** Insurance company is the appellant. The claimant claimed compensation for personal injuries suffered by him in a motor accident, which took place on 27.12.1990. Initially, the claim was for an amount of Rs. 1,00,000/-. Later the claim was amended to Rs.2,50,000/-. The Tribunal had earlier disposed of the case, the matter came up in appeal before this court and the case was sent back to the Tribunal for fresh disposal. 2. Against the claim for Rs.2,50,000/-, the Tribunal by the impugned award directed payment of an amount of Rs.3,44,123/along with interest at the rate of 9% per annum from the date of the claim to the date of realisation. The relevant details of the amount awarded are given below: |**_Head_**|**_Amount awarded_**| |---|---| |Loss of earnings(4X5000)|Rs.20,000/-| |Transport to hospital|Rs.6,928/-.| **M.A.C.A. No.2050 of 2009 2** |**_Head_**|**_Amount awarded_**| |---|---| |Treatment|Rs.13,695/-| |Pain and Sufferings|Rs.30,000/-| |Mental Shock|Rs.15,000/-| |Disability<br>(5000X12X25/100X17)|Rs.2,55,000/-| |Bystander expenses(35X100)|Rs.3,500/-| |Total|Rs.3,44,123/-<br>===========| 3. Heard. Called upon to explain and be specific, the learned counsel for the appellant assails the impugned award on two specific grounds. First of all, it is contended that the Tribunal in the absence of any better evidence erred grossly in assuming that the monthly income of the claimant was Rs.5,000/-. The accident taken place on 27.12.1990. There was evidence to show that for an anterior period - which period ended on a day about 4 months prior to the accident, the appellant was employed abroad. According to him, he was earning a monthly income of about Rs.23,000/- while employed abroad. The learned counsel for the appellant submits that there is nothing in evidence to show that the appellant was employed abroad at the relevant **M.A.C.A. No.2050 of 2009 3** time. There is no better evidence whatsoever available to ascertain the quantum of his monthly income as a salesman in India at the time of the accident. Merely because the appellant was allegedly earning a large amount(said to be Rs.25,000/-per mensem), while he was employed earlier abroad, the Tribunal erred grossly in assuming the monthly income is to be Rs.5,000/-. This was incorrect. The quantum of monthly income had reflections in the amounts awarded as compensation both for the loss of earning and for reduction in earning capacity employing the multiplier multiplicand method. The amount awarded under both the heads deserve to be further refixed on a realistic acceptance of the monthly income, contends counsel. 4. The learned counsel for the Appellant/Insurance Company further contends, that the Tribunal erred in meekly following the disability certificate to jump to the conclusion that there must have been 25% disability and the said 25% disability has led to reduction in earning capacity to the same extent. Challenge is raised on these two specific grounds only before us. 5. We take note of the evidence available about the **M.A.C.A. No.2050 of 2009 4** monthly earnings of the claimant at the time of the accident. There is significantly no acceptable evidence to indicate the monthly income of the claimant in India after he returned to India from his employment abroad earlier. The mere fact that he had a visa at the relevant time or could have secured foreign employment for a later period of time, is no reason for the Tribunal to blindly and ritualistically accept that his earlier employment abroad can afford an indication to his possible earning in India at the time of the accident. Notwithstanding the indications available that the claimant was earlier employed abroad as salesman and that at the relevant time he could have gone abroad to work are no reasons according to us, to blindly accept the inflated claims about the monthly income which the claimant was earning at the time of the accident. 6. We are thus left with no evidence about the actual income of the claimant at the relevant time. The Tribunal looked into the matter in detail and came to the conclusion that there is no acceptable evidence to indicate that the appellant had resumed his employment abroad after the accident. **M.A.C.A. No.2050 of 2009 5** 7. We now consider the question as to what can be said to be the reasonable income which a salesman in India like the appellant at the relevant time would have earned. We take note of the presumption of prudence under clause 6 of the Second Schedule which came into force only in 1994 that even a non earning person can be assumed to draw a monthly income of Rs.1,250/-. We do, of course, take note that the appellant had the option to go abroad and take up an employment as his visa appears to have been valid at the relevant time. Except this meagre input, there is nothing to assume that the claimant could have earned a larger amount than an ordinary salesman in India at the relevant time. Even in the absence of better evidence, we are satisfied in the totality of circumstances available in this case, that this Court would be justified in assuming that the monthly income of the claimant can be accepted as Rs.3,000/-. We are unable to persuade ourselves to accept any higher amount as his monthly wages. 8. There were materials before the Tribunal to show that physical disability to the tune of 25% has been suffered by the ## **M.A.C.A. No.2050 of 2009 6** claimant. The Tribunal, in the absence of better evidence, assumed that reduction in earning capacity to the same extent must have resulted. We have indications about the nature of the disability from the disability described by the Tribunal. The Tribunal extracted relevant portions from the disability certificate in the impugned award. We are, at any rate, satisfied that it would be absolutely safe to assume that reduction in earning to the extent 25% must have resulted because of the disability suffered consequent to the accident. 9. The learned counsel for the Insurance Company submits that not 17 and 16 must be reckoned as the multiplier, considering the age of the claimant at the time of the accident and going by the dictum in **Sarla Verma v. Delhi Transport Corporation [(2009) 6 SCC 1211].** We accept the same. 10. The above discussions persuade us to come to the conclusion that the appellant shall be entitled only for the following amounts under the heads of loss of earnings and compensation for reduction in earning capacity. ## **M.A.C.A. No.2050 of 2009 7** i) Loss of earnings : Rs. 12,000.00 (Rs.3,000/- X 4) ii) Reduction in earning capacity (3,000 X 12 X 16 X 25/100) : Rs.1,44,000.00 ## 11. Against the said amounts, Rs.20,000/- and Rs.2,55,000/- respectively have been awarded. That means the total amount awarded under the impugned award will have to be reduced to the above extent. 12. The learned counsel for the claimant/respondent submits that the claimant/respondent is entitled to challenge the impugned award on other reasons also though he has not preferred any appeal or cross objection. The learned counsel argues that only an amount of Rs.15,000/- under the head of mental shock has been awarded for the physical disability suffered. Physical disability suffered by the claimant/respondent is bound to leave behind two reflections on his life; it reduces the earning capacity. It also reduces the quality of enjoyment of life. **M.A.C.A. No.2050 of 2009 8** For reduction of amenities of life (in all dimensions) the amount of Rs.15,000/- awarded under the head of mental shock is not fair, adequate or sufficient and appropriate further amount is liable to be awarded under the head of loss of amenities in all its dimensions including impaired enjoyment of life and shortened expectation of life contends counsel. We find merit in that contention. We are satisfied that an amount of Rs.35,000/- can safely be fixed as the quantum of compensation under the head of loss of amenities. That is, Rs.20,000/- in addition to the amount awarded under the head of mental shock already by the Tribunal. 13. The above discussions lead us to the conclusion that the claimant is entitled for a total amount of Rs.2,45,123/- as per the details shown below: |**_Sl.No._**|**_Head_**|**_Amount_**|**_Awarded by the_**<br>**_Tribunal_**| |---|---|---|---| |i)|Loss of earning|Rs.12,000.00 (3,000 X 4)|Rs.20,000.00(5000X4)| |ii)|Transport to hospital|Rs. 6,928.00|Rs.6,928.00| |iii)|Treatment|Rs. 13,695.00|Rs.13,695.00| |iv)|Pain and suffering|Rs. 30,000.00|Rs.30,000.00| |iv)|Loss of amenities(mental<br>shock)|Rs. 35,000.00|Rs.15,000.00<br>(mental shock)| ## **M.A.C.A. No.2050 of 2009 9** |**_Sl.No._**|**_Head_**|**_Amount_**|**_Awarded by the_**<br>**_Tribunal_**| |---|---|---|---| |v)|Reduction in earning<br>capacity (3000 X 12 X 16<br>X 25/100)|Rs.1,44,000.00|Rs.2,55,000.00<br>Disability<br>(5000X12X17X25/100)| |vi)|Bystander's expenses|Rs. 3,500.00|Rs.3,500.00| ||Total|Rs.2,45,123.00<br>= = = = = = = = =|Rs.3,44,123.00<br>= = = = = = = = =| ## 13. Though there is a contention that the interest awarded @ 9% is excessive, we are not persuaded to agree that the said discretion exercised by the Tribunal under Section 171 of the Motor Vehicles Act deserves or warrants any interference by invoking our jurisdiction under Section 173 of the Motor Vehicles Act. ## 14. In the result: a) This appeal is allowed in part; - b) In supersession of the directions issued by the Tribunal, the claimant/respondent is found entitled to receive only an amount of Rs.2,45,123/- (Rupees Two lakhs forty five thousand one hundred and twenty three only) as compensation; **M.A.C.A. No.2050 of 2009 10** ## c) All other directions of the Tribunal are upheld. ## **R. BASANT, JUDGE** ## **M.C.HARI RANI, JUDGE** ## **ln/rtr** **/True copy/** **P.A.to judge**