Paul v. Sheril Sebastian and The National Insurance Company Ltd.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN THURSDAY, THE 27TH DAY OF JULY 2017/5TH SRAVANA, 1939 MACA.No. 3087 of 2014 () ------------------------AGAINST THE AWARD IN OPMV 498/2010 of MACT, IRINJALAKUDA DATED 29-08-2014 APPELLANT(S)/PETITIONER: ----------------------- PAUL, S/O.PAULOSE, KALLELY HOUSE, KUTTIKAD DESOM AND P.O., PARIYARAM VILLAGE, MUKUNDAPURAM TALUK, THRISSUR DISTRICT. BY ADVS.SRI.P.V.BABY SRI.A.N.SANTHOSH RESPONDENT(S)/RESPONDENTS 1 AND 3: ---------------------------------- ## 1. SHERIL SEBASTIAN, S/O.SEBASTIAN, PAYYAPPILLY HOUSE, KUTTIKKAD P.O., THRISSUR DISTRICT - 680 721. 2. THE NATIONAL INSURANCE COMPANY LTD., THRISSUR - 680 001. R2 BY ADV.SRI.M.A.GEORGE R2 BY ADV.SRI.P.K MANOJ KUMAR THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 27-07-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **C.T. RAVIKUMAR & ANIL K. NARENDRAN, JJ. ========================== M.A.C.A. No.3087 OF 2014** **==========================** Dated this the 27[th] day of July, 2017 ## **JUDGMENT** _Ravikumar, J._ The appellant-petitioner sustained injuries in an accident occurred due to the collision between two motor cycles viz., one bearing Reg.No.KL-8/AH 9525 and another bearing Reg.No.KL 45/C 9209. The appellant-petitioner was the motorist in one of the motor cycles involved in the accident. On sustaining injuries, he was taken to hospital and he remained there as an inpatient for a period of 82 days. The injuries resulted in physical disability as well as opthalmologic disability. It is in the said circumstances that the petitioner filed O.P.(MV).No.498 of 2010 under section 166 of the Motor Vehicles Act seeking a total compensation of Rs.10,00,000/-. 2. Before the Tribunal, the appellant got himself examined as **M.A.C.A.3087/2014** 2 PW1 and Dr.Jose Kurian and Dr.K.C.Joseph were examined as PW2 and PW3 respectively. On the side of the appellant, Exts.A1 to A19 were marked. No evidence, either oral or documentary, was adduced by the respondents. As per the impugned award, the Tribunal had awarded a total compensation of Rs.4,30,040/- with interest at the rate of 7.5% per annum from the date of the petition till realisation. The captioned appeal has been preferred seeking enhancement of the quantum of compensation awarded by the Tribunal. 3. We have heard the learned counsel for the appellant and the learned counsel for the second respondent. It is submitted before us that the only question to be decided in this appeal is regarding the entitlement of the appellant for enhanced compensation. The learned counsel for the appellant contended that the Tribunal had erroneously estimated the monthly income of the appellant. In the claim petition, it was averred that the claimant was an automobile mechanic in Sree Subramanian Auto Garrage and was earning a monthly income of Rs.6,000/-. He was aged 51 years at the time of accident. Ext.A17 **M.A.C.A.3087/2014** 3 certificate would reveal that the appellant was qualified in Automobile Technology. Ignoring the said aspects, the Tribunal had fixed the monthly income of the appellant notionally at Rs.3,500/-, it is submitted. The learned counsel for the second respondent-insurance company resisted the contention and submitted that the amount fixed as notional income is reasonable and warrants no interference. Taking into account the fact that the accident had occurred on 4.2.2010 and at the time of the accident, the appellant was aged only 51 years and that he claimed only Rs.6,000/- as the monthly income and above all, taking into account the decision in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Ltd.** [ **(2011) 13 SCC 236]** wherein the Hon'ble Apex Court took the monthly income of a coolie as Rs.4,500/- in respect of an accident occurred in the year 2004, we do not find any reason to disbelieve the claim of the appellant regarding his monthly income. In such circumstances, the monthly income of the appellant is fixed notionally as Rs.6,000/- for calculation purpose. The Tribunal had fixed the disability of the **M.A.C.A.3087/2014** 4 appellant as 30% for the purpose of granting compensation for permanent disability. The multiplier was correctly adopted as '11' with reference to the age of the appellant at the time of the accident. In such circumstances, the compensation for permanent disability is to be re-assessed by substituting the re-fixed monthly income. On such re-assessment, the amount payable under the said head will be Rs.2,37,600/-. The Tribunal had already granted a sum of Rs.1,38,600/-. After deducting the said amount, the appellant would be entitled to get an additional sum of Rs.99,000/- as compensation for permanent disability. A glance at the schedule of compensation given in the impugned judgment would reveal that after granting compensation for permanent disability, the Tribunal had granted Rs.25,000/- towards loss of earning power. Since the ingredient for granting compensation for disability and loss of earning power is the extent of disability, having granted compensation under the head permanent disability, the Tribunal ought not to have granted compensation under the head loss of earning power. [See the Full **M.A.C.A.3087/2014** 5 Bench decision of this Court in **Oriental Insurance Co. Ltd. v. Hariprasad** reported in **2015 (4) KLT 977 (FB)].** Hence, the said amount has to be deducted from compensation payable for permanent disability. After deducting the said amount, the appellant would be entitled to get an amount of Rs.74,000/- additionally towards compensation for permanent disability. Taking into account the year of the accident, we are of the view that the bystander's expenses ought to have been granted at the rate of Rs.200/- per day and expenses for extra nourishment ought to have been granted at the rate of Rs.100/per day. In that view of the matter, the appellant is entitled to get Rs.4,100/- additionally towards bystander's expenses and an amount of Rs.7,700/- additionally towards extra nourishment. Towards damage to clothing, we are inclined to grant Rs.500/- additionally. Based on the re-fixed monthly income but maintaining the same period fixed by the Tribunal, the appellant would be entitled for an additional sum of Rs.30,000/- under the head loss of earning. The petitioner was adequately compensated under all the other heads. In **M.A.C.A.3087/2014** 6 such circumstances, the appellant will be entitled to get an additional compensation of Rs.1,16,300/-. It is awarded. The said amount will carry 8% interest from the date of the petition till realiation. Since there is no dispute regarding the liability of the second respondent to indemnify the first respondent, the second respondent is directed to deposit the said amount along with interest thereon, 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/-** **ANIL K. NARENDRAN (JUDGE)** **spc/** **M.A.C.A.3087/2014** 7 **C.T. RAVIKUMAR, J.** **M.A.C.A.3087/2014** 8 **JUDGMENT September, 2010**