## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
**PRESENT :**
**THE HONOURABLE MR. JUSTICE R.BASANT**
**&**
**THE HONOURABLE MRS. JUSTICE M.C.HARI RANI**
**FRIDAY, THE 12TH AUGUST 2011 / 21ST SRAVANA 1933**
**MACA.No. 1206 of 2011**
**----------------------OPMV.1194/2006 of II ADDL. MOTOR ACCIDENT CLAIMS TRIBUNAL, KOZHIKODE**
**....................**
## **APPELLANT: 2ND RESPONDENT**
**----------------------------**
**THE ORIENTAL INSURANCE CO. LTD., DIVISIONAL OFFICE, KOZHIKODE,REPRESENTED BY THE ASSISTANT MANAGER & AUTHORISED SIGNATORY, THE ORIENTAL INSURANCE CO. LTD.,REGIONAL OFFICE ERNAKULAM,METRO PALACE,ERNAKULAM NORTH,KOCHI-18.**
**BY ADV. SRI.A.R.GEORGE**
## **RESPONDENTS: CLAIMANT**
**-----------------------**
**1. NK SASEENDRAN,S/O. KUNHIKELUKURUP, REPRESENTED BY HIS WIFE-PADMINI,KISHOREM,38/18A, PO.WESTHILL,CHUNGAM,KOZHIKODE DISTRICT.**
**2. BIJU KN,S/O.SUKUMARAN,KATHITTANADAKKAL HOUSE,PO PERAMBRA,KOZHIKODE DISTRICT.**
**THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 12/08/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:**
## **R. BASANT & M.C. HARI RANI,JJ ==============================**
## **M.A.C.A. NO. 1206 OF 2011 ============================**
## **Dated this the 12[th] day of August 2011**
## **JUDGMENT**
## **R.Basant, J.**
The insurance company is the appellant. Claimant was awarded an amount of Rs.21,01,552/-as compensation along with interest at the rate of 7% per annum. The Insurance Company claims to be aggrieved by the quantum of compensation awarded. The Tribunal had awarded the said amount as compensation as per the details given in paragraph 11 of the
impugned award which we extract below:
|**_Sl.No._**|**_Head of claim_**|**_amount awarded_**|**_Details_**|
|---|---|---|---|
|1|Transport to hospital|Rs.3,000/-|no bills produced|
|2|Loss of earning|Rs.85,992/-|14,332 x 6 months|
|3|Extra nourishment|Rs. 3,000/-||
|4|Bystander's expenses|Rs.14,500/-|100 x 145|
|5|damage to clothing|Rs. 750/-||
|6|Treatment expenses|Rs.10,000/-|No bills produced|
|7|Future treatment|Rs.10,000/-||
|8|Pain and suffering|Rs.20,000/-||
|9|Permanent disability<br>Total|Rs.19,54,310/-<br>Rs.21,01,552/-|1,67,035x13x90/100|
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2. The matter is coming up for admission hearing. We have heard the learned counsel for the Insurance Company in detail. Called upon to explain and be specific, the learned counsel for the appellant submits that the appellant wants to assail the impugned award on the following specific grounds.
3. First of all, it is contended that the extent of physical disability has been assessed by the Medical Board to which the claimant was referred by the court as 90%. This is borne out by Ext.C1 certificate of physical disability issued by the Board. The Tribunal insisted on the production of the claimant before court and paragraph 10 of the award, the Tribunal noticed that :
“Petitioner was produced before me and he is totally invalid; unable to do any job or even to move himself. Reason for assessment are not stated in Ext.C1 itself. Therefore, I find no reason to doubt the percentage of disability shown in Ext.C1.”
4. An idea about the injuries suffered and the consequences of the accident can be gathered from the other materials available on file. The Tribunal had forwarded the
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claimant to the Medical Board. The Medical Board had reported 90% to be the physical disability. The Tribunal reckoned only 90% as the reduction in earning capacity also, though indication suggests that the claimant would not have been able to do any work with 90% disability that he has suffered. Multiplier was correctly reckoned as 13 going by **Sarla Verma v. Delhi Transport Corporation [(2009)6 S.C.C.121],** - the claimant being a person belonging to the age group 45-50 years.
5. The learned counsel for the appellant Insurance company submits that Ext.C1 disability certificate does not even contain or reveal any details. Therefore, Ext.C1 should not have been accepted and acted upon, contends counsel. Copy of Ext.C1, is not made available for our perusal. We will assume that reasons are not given in Ext.C1 certificate **.** This definitely is not a case where the Tribunal went by the certificate produced. The Tribunal had seen the victim/claimant and had personally noticed the nature of disability. One cannot lose sight of the fact that the claimant did not produce a medical certificate from a doctor of his choice. He was referred by the Tribunal to a Medical Board. The Medical Board had submitted Ext.C1
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certificate to the court. The Tribunal would not be justified in finding fault with the claimant for not adducing better evidence
to prove the extent of disability. If the appellant insurance company were not satisfied with Ext.C1, it was certainly open to the appellant insurance company to call as witness any of the medical experts to whom the court had referred the victim for assessment of disability. Admittedly the Insurance company had taken no such steps. No objection appears to have been taken against the marking of Ext.C1. We do not in these circumstances find any merit in the challenge sought to be raised against Ext.C1.
6. It is next contended that the multiplier adopted is not correct. Going by the dictum in **Sarla Verma(supra)** admittedly 13 is the multiplier to be taken into reckoning. However, the learned counsel for the appellant advanced a contention that the claimant was employed in the Malayala Manorama. Counsel then argues that at Malayala Manorama, there must be a prescribed age of retirement and at any rate multiplier taken cannot exceed the rest of the term that survives before retirement on superannuation by the claimant. We have no indication whatsoever available about the age of retirement of
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persons in Malayala Manorama. He was aged only 49 years and there is nothing to assume that the claimant could not have worked upto 62 years. Even assuming that the age of superannuation would have been prior to 62 years, it is easy to assume that the claimant would have continued in some other employment had he not suffered the accident. In these circumstances reckoning of the multiplier as 13 by the Tribunal does not, according to us, warrant interference by invoking the appellate jurisdiction under Section 173 of the Motor Vehicles Act.
7. The Tribunal had deducted 25% of the entire earnings towards income tax and other cesses. His total annual income was only Rs.1,71,984/- and the deduction of 25% of the gross income towards payment of income tax is itself of doubtful validity. Be that as it may, the Tribunal thereafter gave credit for 30% prospective improvement in wages. That course adopted by the Tribunal is also perfectly justified by the dictum in **Sarla Verma(supra).** However, the learned counsel for the appellant submits that provision for enhancement of monthly earnings taking into account future improvement and prospects is one that is applicable only for case of death and not for
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permanent injury. We are unable to accept this argument. We find no reason to restrict the application of the principle of providing for improvement in prospects only to a case of death. A living injured like the claimant will have to live and endure the evil effects of disability until his death. We are in these circumstances persuaded to agree that the provision for future enhancement at 30% accepted by the Tribunal following the rationale of the dictum in **Sarla Verma (supra)** is in any way defective as to call for appellate interference by us.
8. Learned counsel for the appellant lastly contends that the claimant is shown to be only 49 years. He had undergone treatment for some period of time. Six months loss of income was awarded by the Tribunal under the impugned award. If that be so, he would have crossed the age of 50 years and therefore, he must be reckoned as one belonging to the age group of 50-55 years for assessment of compensation for future reduction in earning capacity, contends counsel. Ingenious, though the argument be, we are unable to accept the same on the basis of the data available. The claimant/injured was 49 years old. Even assuming that the treatment was completed only after a period of six months, we find no reason to assume that he would have
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crossed the age of 50 years by the time he completed his treatment and the assessment of disability and consequent reduction in earning power was undertaken. We, therefore, do not accept the argument that the claimant must have been reckoned as one belonging to the age group of 50--55 and not 4550 years.
9. No other contentions are raised. We are satisfied that this appeal, in these circumstances, does not merit admission. This appeal is accordingly dismissed.
Sd/- **R.BASANT, JUDGE**
**Sd/M.C. HARI RANI,JUDGE**
ks.
TRUE COPY
P.S. TO JUDGE
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