New India Assurance Co. Ltd. v. Raneesh S/O Mohammed and Others

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MRS. JUSTICE MARY JOSEPH`** ``` FRIDAY, THE 1[ST] DAY OF MARCH 2024 / 11TH PHALGUNA, 1945 ``` ## **`MACA NO. 2522 OF 2016`** ``` AGAINST THE AWARD DATED 20.04.2016 IN OP(MV) NO.5 OF 2010 OF MOTOR ``` ## **`ACCIDENTS CLAIMS TRIBUNAL, MANJERI`** ## **`APPELLANT/3RD RESPONDENT:`** ``` NEW INDIA ASSURANCE CO. LTD, BRANCH OFFICE, NILAMBUR ROAD, MANJERI P.O., REPRESENTED BY ITS MANAGER, REGIONAL OFFICE, ERNAKULAM. ``` ``` BY ADV. SRI.P.G.GANAPPAN ``` ## **`RESPONDENT/CLAIMANT AND RESPONDENTS 1 & 2:`** - **`*1 DEGI K.AUGUSTINE ALIAS DEGI MANOJ, (DELETED) W/O. MANOJ K.PAUL, KOCHUPARMBIL HOUSE, VIP COLONEY, VELIYAMTHODU, CHANDAKKUNNU.`** - **`*DELETED- R1 IS DELETED FROM PARTY ARRAY AT THE RISK OF THE APPELANT AS PER ORDER DATED 31/05/2018 IN IA 1651/2018.`** ``` **THE DELETION OF ‘R1’ FROM THE PARTY ARRAY IS RECALLED VIDE ORDER DATED 7/2/2019 IN IA NO.01/2019 ``` - **`*2 RIYAS N.,(DELETED) S/O. ALAVI, NAIVATHUKKAL HOUSE, ERANHIMANGAD, CHALIYAR, NILAMBUR P.O.,`** - **`*DELETED- R2 DELETED FROM PARTY ARRAY AT THE RISK OF THE APPELLANT AS PER ORDER DATED 31/05/2018 IN IA 1651/2018.`** - **`3 RANEESH S/O. MOHAMMED, KOZHIKKODAN HOUSE, ERANHINANGAD, CHALIYAR, NILAMBUR P.O.,`** ``` BY ADV. SRI.K.RAKESH ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR HEARING ON ``` ``` 01.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA NO. 2522/2016 ``` ``` 2 ``` ## **JUDGMENT** ## **Dated this the 01[st] day of march, 2024.** This appeal is originated from an award passed by Motor Accidents Claims Tribunal, Manjeri (For short, ‘the Tribunal’) on 20.04.2016 in O.P(M.V) No.05/2010. Appellant is the 3[rd] respondent before the Tribunal. 2. For the sake of convenience, the parties to this appeal will hereinafter be referred to as the petitioner and respondents 1 to 3 in accordance with their status in the Original Petition. 3. The challenge is against the quantum of compensation stood awarded by the Tribunal in favour of the petitioner. The motor accident in question was occurred at about 3.30 p.m on 27.12.2007. Petitioner was pillion riding on a motorcycle bearing Registration No.KL-10-F-9089 from Melattur to Nilambur ridden by her husband in normal speed with due care and caution, observing traffic rules, but, an autorickshaw bearing Registration No.KL-10-F-6105 dashed ``` MACA NO. 2522/2016 ``` ``` 3 ``` against the same due to the rash and negligent driving by its driver and thereby she was thrown away from the pillion seat and sustained serious injuries. Arraying the driver of the autorickshaw in the Original Petition as the 1[st] respondent , it’s owner as the 2[nd] respondent and its insurer as the 3[rd] respondent and claiming a sum of `55,00,000/- as compensation, the Original Petition referred to above was filed. 4. Respondents were served with notice. Respondents 1 and 2 did not turn up to contest the Original Petition and therefore, declared as _ex parte_ . 3[rd] respondent filed written statement admitting insurance coverage for the autorickshaw bearing Registration No.KL-10-F-6105, as on date of the motor accident. Negligence on the part of the 1[st] respondent was denied and it was sought to be attributed to the rider of the motorcycle. Amount claimed as compensation is also disputed for its excessiveness. The age, the occupation and the monthly income of the petitioner were disputed and sought to be proved by evidence. Petitioner did not adduce any oral evidence but Exts.A1 to A14 and Ext.X1 were marked. ``` MACA NO. 2522/2016 ``` ``` 4 ``` 5. 3[rd] respondent failed to adduce any evidence. The Tribunal found on the basis of the evidence on record that the motor accident in question was occurred due to the rash and negligent driving of the autorickshaw bearing Registration No.KL-10-F-6105 by its driver, who was arrayed as the 1[st] respondent in the Original Petition. The Tribunal also found from the medical documents marked in evidence that the petitioner had sustained serious injuries in the motor accident. A sum of `67,64,000/- was arrived at as the compensation payable to the petitioner and interest at the rate of 9% per annum from the date of the Original Petition till the date of deposit was also ordered to be paid. Proportionate cost was also ordered to be paid in favour of the petitioner. 6. Sri.P.G Ganappan, the learned counsel for the 3[rd] respondent contended that compensation was calculated by the Tribunal for loss of disability by adopting a higher sum as the monthly income of the petitioner. According to him, a certificate issued from Sree Vivekananda Higher Secondary School, Palemad P.O, Edakkara, Malappuram district was ``` MACA NO. 2522/2016 ``` marked in evidence as Ext.A9, where the basic pay received by the petitioner was certified as `10,070/-, dearness allowance as `1,511/- and HRA as `150/-. Thus the total sum earned by the petitioner monthly was certified as `11,731/-. According to the learned counsel, despite marking of the certificate in evidence as Ext.A9, the Tribunal took `20,740/- as the monthly income of the petitioner while calculating compensation for disability. According to him, the Tribunal has relied on the 9[th] and 10[th] pay revision orders, which came into force respectively on 01.07.2009 and 01.01.2016 while fixing the monthly income as aforestated. Infact, those pay revision orders were not produced and marked in evidence before the Tribunal. According to him, the Tribunal has considered loss of future prospects on the basis of the pay revision orders whereas it ought to have added only 50% to the monthly income earned by the petitioner at the relevant time as directed by the Apex Court in **National Insurance Company Ltd. v. Pranay Sethi and Others [2017 (4) KLT 662 (SC)]** . According to him, when compensation is calculated in the above manner, ``` MACA NO. 2522/2016 ``` ``` 6 ``` `1,40,772/- (`11,731/- x 12) would be the annual income wherefrom 10% is deducted towards the income tax payable. Thus the multiplicand is arrived at as `1,36,695/- ( `1,40,772/- `4,077/-). 7. The learned counsel contended further that loss of earning was calculated by the Tribunal for three years. **Lalan D and another Vs. Oriental Insurance Company Ltd [2020 (ACJ) 2517]** was relied on by the learned counsel to contend that when 100% is considered as the disability suffered by the petitioner, the Tribunal ought not to have awarded compensation for loss of earning. 8. The learned counsel has pointed out further that the Tribunal has ordered interest at the rate of 9% for the compensation awarded towards future medical treatment and medical attendant expenses from the date of the Original Petition till the date of payment. According to him, the Tribunal is highly erred in ordering interest for those sums, since those are only meant to be spent in future. ``` MACA NO. 2522/2016 ``` ``` 7 ``` 9. The learned counsel for the respondents canvassed on the contrary to maintain the sum stood awarded by the Tribunal as compensation. 10. The petitioner, who sustained injuries in the motor accident was a teacher in a Higher Secondary School. Her monthly income is certified in Ext.A9 as `11,731/-. The contention of the learned counsel for the 3[rd] respondent was that for a sum over and above `1,00,000/-, tax is liable to be paid. Therefore, when monthly income is fixed as `11,731/-, the corresponding annual income would be `1,40,772/-. Being a lady, for `1,00,000/-, income tax is not liable to be paid. Only for `40,772/-, which is over and above `1,00,000/-, 10% is liable to be deducted as income tax. Therefore, the balance amount would be `1,36,695/-. As rightly pointed out by the learned counsel, compensation for disability ought to have been calculated by the Tribunal. Petitioner was aged below 40 and was permanently employed with a fixed salary. Therefore, as directed by the Apex Court in **Pranay Sethi** supra, 50% ought ``` MACA NO. 2522/2016 ``` ``` 8 ``` to have been added by the Tribunal to the annual income, in consideration of loss of future prospects. When 50% is added to the annual income in consideration of loss of future prospects, `2,05,042/- (`1,36,695/- + 50% of `1,36,695/-) is arrived at. 11. Petitioner was examined by the Medical Board and Ext.X1 was issued certifying her permanent disability as 100%. The Tribunal had considered the same for the purpose of calculation of compensation. This Court is also of the view to maintain that consideration. When compensation for permanent disability is calculated afresh on the basis of the modified monthly income as above and maintaining the multiplier and the percentage of disability adopted by the Tribunal, the petitioner will get `34,85,714/- (`2,05,042/- x 17 x 100%) as compensation which is `4,92,150/- lesser than `39,77,864/- stood awarded by the Tribunal as compensation towards permanent disability. ``` MACA NO. 2522/2016 ``` ``` 9 ``` 12. It is found from the impugned award that the Tribunal has awarded `7,46,640/- as compensation towards loss of earning. Loss of earning was considered by the Tribunal for three years. The Apex Court has held in **Lalan D** supra that when 100% disability is taken for calculation of compensation for disability, the injured is not entitled to get compensation for loss of earning. Therefore, the Tribunal is erred in awarding `7,46,640/- as compensation for loss of earning and the same also needs to be deducted from the total compensation payable. 13. The Tribunal has also awarded a sum of `2,00,000/as compensation towards future treatment expenses and `3,50,000/- towards bystander expenses. Those being sums awarded in anticipation of the expenditure to be incurred by the petitioner in future, interest is not liable to be paid. The 3[rd] respondent thus is exonerated from paying interest for `5,50,000/- (`2,00,000/- + `3,50,000/-) stood awarded by the Tribunal in total for future treatment expenses and medical attendant expenses. `40,000/- stood awarded by the Tribunal ``` MACA NO. 2522/2016 ``` ``` 10 ``` towards transportation expense, `50,000/- towards extra nourishment, `500/- towards damages to clothing, `6,30,000/towards bystander expenses, `2,00,000/- towards future treatment expenses, `5,68,601/- towards medical expenses, `2,00,000/- towards pain and suffering, `3,50,000/- towards medical attendant are maintained. 14. In the manner of modification of compensation as above, petitioner will get only `55,24,815/- (`34,85,714/- + `40,000/- + `50,000/- + `500/- + `6,30,000/- + `2,00,000/+ `5,68,601/- + `2,00,000/- + `3,50,000/-) as total compensation. Interest at the rate of 8% per annum is payable for the amount excluding `5,50,000/-, from the date of filing of the Original Petition till the date of payment. The appellant/3[rd] respondent shall deposit the entire sum arrived at in favour of the petitioner within a period of two months from the date on which a certified copy of this judgment is received. The disbursal of the amount in favour of the petitioner shall be in accordance with the guidelines issued by this Court in Circular No.03/2019 dated 06.09.2019. ``` MACA NO. 2522/2016 ``` ``` 11 ``` It is submitted by the 3[rd] respondent that at the relevant time of passing of an interim order of stay in the appeal on hand, the appellant has already deposited `55,00,000/- with interest and costs. Therefore, the Tribunal shall verify whether any amount is outstanding to be paid in favour of the petitioner. 3[rd] respondent shall also verify whether any amount is payable towards satisfaction of the compensation awarded. ``` Sd/- ``` **MARY JOSEPH JUDGE** JJ