High Court of KeralaSingle Judge2021-04-08Appeal allowed in part; impugned award modified...

Pradeesh Thomas Baby v. Shaji and The National Insurance Company Limited

Case / Petition Number:MACA.No.2139 OF 2013

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Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: P.V. Kunhikrishnan
Judgment Date: 2021-04-08
Court Decision / Holding: Appeal allowed in part. The impugned award is modified. The appellant/petitioner is entitled to an enhanced compensation of Rs.8,59,360 with interest at the rate of 7.5% per annum from the date of petition till realisation. The 2nd respondent is directed to pay the enhanced compensation with interest.
Final Disposition: Appeal allowed in part; impugned award modified; enhanced compensation awarded; insurer directed to pay.

Parties to the Case

Appellants / Petitioners

Pradeesh Thomas Baby

Respondents

Shaji, S/o Kochu Pillai
The National Insurance Company Limited

Legal Representation & Advocates

Counsels for Petitioners

• Sri. T.C. Suresh Menon
• Sri. A.R. Nimod

Counsels for Respondents

• Sri. Jacob E Simon
• Sri. P. Jacob Mathew

Case Synopsis & Summary

Pradeesh Thomas Baby v. Shaji and The National Insurance Company Limited is an appeal under MACA No.2139 of 2013 challenging the Motor Accidents Claims Tribunal, Kottayam’s award in OPMV 109/2010 dated 30 March 2013. The petitioner, a motorcyclist, sustained serious injuries when a mini lorry driven rashly by the first respondent struck his bike on 24 May 2009. The Tribunal awarded Rs 5,17,200 as compensation, applying a disability assessment and income base that the appellant contends undervalued his loss. The medical board’s Ext.X1 certificate shows a permanent disability of 29%, but the Tribunal assessed only 15%. The appellant argues Ext.X1 should be accepted; he also contends that the monthly income used for loss of earning is far too low given his engineering qualifications. He submits evidence including Ext.A16–A18 (degree, experience, salary slip), and asserts he would earn at least Rs 16,000 per month. The High Court, relying on the Supreme Court’s decisions in Pappu Deo Yadav and the principles in Syed Sadiq, Raj Kumar, and Sarla Verma, holds that disability should be assessed on actual loss of earning capacity rather than a fixed percentage. The Court fixes the disability at 29%, revises the monthly income to Rs 16,000 for calculation, and recalculates compensation using a 17 multiplier (per Sarla Verma) and age 29 at the time of accident. The result is total enhanced compensation of Rs 8,59,360 with 7.5% interest from the petition date. The appeal is allowed in part; the Tribunal’s award is modified accordingly, and the insurer is directed to pay the enhanced amount.

Provisions of Law Cited

Section 166 of the Motor Vehicles Act

Legal Doctrines & Maxims

Disability assessment should reflect loss of income generating capacity (Pappu Deo Yadav v. Naresh Kumar)
Strike a balance between disability percentage and actual loss of earning capacity; avoid stereotypical or myopic approaches (Syed Sadiq, Raj Kumar)
Multiplier principle for calculating compensation as per Sarla Verma & Others v. Delhi Transport Corporation (Mulitiplier 17)
Place the victim in the same position as before the accident; consider realities in assessment (per Pappu Deo Yadav and subsequent rulings)

Submissions & Arguments

Contentions of Appellants / Petitioners

Applicant contends that Ext.X1 Disability Certificate shows 29% permanent disability, which the Tribunal rejected; thus the impairment should be fixed at 29%. He argues the Tribunal undervalued his disability and loss of earning, pointing to Ext.A16–A18 (degree, experience, salary), asserting a monthly income of Rs.16,000. He relies on Supreme Court precedents on permanent disability and the Sarla Verma multiplier to recompute compensation, arguing for higher compensation and a correct calculation of loss of earning.

Contentions of Respondents

Respondents contend that the Tribunal correctly assessed disability at 15% based on evidence before it; Ext.X1 was not properly proved; the salary evidence was not examined; liability and quantum were correctly determined by the Tribunal, and the award should stand.

Cited Precedents (4)

Case Name	Citation	Treatment	Explanation
Pappu Deo Yadav v. Naresh Kumar and others	AIR 2020 SC 4424	Positive	Cited for the principle that permanent disability assessment must reflect loss of earning capacity and reality of the claimant's situation, not a mechanical percentage.
Syed Sadiq and others v. Divisional Manager, United India Insurance Company	2014 (2) SCC 735	Positive	Cited as authority for evaluating disability and compensation with a practical, reality-based approach rather than a stereotypical method.
Raj Kumar v. Ajay kumar and anr.	2011 (1) KLT 620 (SC)	Positive	Cited to support the approach of considering actual circumstances and not rigidly sticking to old formulas.
Sarla Verma & Others v. Delhi Transport Corporation & another	2010 (2) KLT 802	Positive	Cited to justify the use of multiplier 17 in calculating the compensation for disability.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **THURSDAY, THE 08TH DAY OF APRIL 2021 / 18TH CHAITHRA, 1943** ## **MACA.No.2139 OF 2013** **AGAINST THE AWARD IN OPMV 109/2010 DATED 30-03-2013 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,KOTTAYAM** ## **APPELLANT/PETITIONER:** **PRADEESH THOMAS BABY AGED 34 YEARS S/O.LATE THOMAS BABY, RESIDING AT POOVANOLICKAL (KOCHUPLAPARAMBIL) HOUSE, VAKATHANAM PO, KOTTAYAM DISTRICT.** **BY ADVS. SRI.T.C.SURESH MENON SRI.A.R.NIMOD** ## **RESPONDENTS/RESPONDENTS:** **1 SHAJI, S/O KOCHU PILLAI, RESIDING AT KANNAYIL HOUSE, THOYIPRA BHAGOM, KEEZHU PURAPUZHA, KARIMKUMMAM, THODUPUZHA - 685 586. 2 THE NATIONAL INSURANCE COMPANY LIMITED, DIVISIONAL OFFICE, SASTRI ROAD, KOTTAYAM-686 001.** **R1 BY ADV. SRI.JACOB E SIMON R2 BY ADV. SRI.P.JACOB MATHEW** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 08.04.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA.No.2139 OF 2013** **2** ## **JUDGMENT** **Dated this the 8th day of April 2021** The appellant is the petitioner in O.P. (MV)No.109/2010 on the files of Motor Accidents Claims Tribunal, Kottayam. It is a claim petition filed under 166 of the Motor Vehicles Act. (Hereinafter the parties are mentioned in accordance to their rank before the Tribunal). 2. Short facts are like this:- On 24.05.2009 at about 9.15 a.m., the petitioner was riding a motorcycle bearing Reg.No.KL 33 – 6522 along the Puthupally – Kaithepalam road and when he reached at Kaithepalam, the mini lorry bearing Reg.No. KL 05/T-3058 driven by the first respondent came in a rash and negligent manner and hit on the motorcycle ridden by the petitioner and the petitioner fell down and sustained serious injuries. The petitioner was taken to the hospital. According to the petitioner, the accident occurred due to the rash and negligent driving of the 1[st] respondent - mini lorry driver. **MACA.No.2139 OF 2013** **3** The 1[st] respondent is the owner cum driver of the mini lorry. The claim petition was filed for compensation from the respondents jointly and severally for the personal injury sustained to the petitioner. 3. To substantiate the case Exts. A1 to A22 were marked. Ext.X1 is the Disability Certificate. After going through the evidence and documents the Tribunal passed a total compensation of Rs.5,17,200/- with interest at the rate of 7.5% per annum form the date of petition till realisation. 4. Aggrieved by the quantum of compensation, this appeal is filed. 5. Heard the learned counsel for the appellant and the learned counsel for the 2[nd] respondent. 6. The learned counsel for the appellant submitted that, as per Ext.X1 disability assessment of the Medical Board, the petitioner is having a total disability of 29%. But the Tribunal concluded that there is only 15% **MACA.No.2139 OF 2013** **4** disability. The counsel submitted that the Tribunal erred in rejecting Ext.X1 Disability Certificate. I think there is some force in the argument of the petitioner. The Medical Board examined the petitioner and concluded that there is 29% disability. There is nothing to disbelieve Ext.X1 issued by the Medical Board. 7. The Apex Court in _**Pappu Deo Yadav v. Naresh Kumar and others**_ [AIR 2020 SC 4424] after considering a plethora of decisions on a point 'permanent disability' has held that the inquiry that has to be conducted by the Court is the resultant loss of income generating capacity of the claimant. The principle to be followed by the court in assessing motor vehicles compensation claims is to place the victim in the same position as he was before the accident. The Bench referred to the earlier decisions in _**Syed Sadiq and others v. Divisional Manager, United India Insurance Company**_ [2014 (2) SCC 735] and _**Raj Kumar v. Ajay kumar and anr.**_ [2011 (1) KLT 620 (SC)] and held that the court should not adopt a stereotypical or myopic **MACA.No.2139 OF 2013** **5** approach, but instead, view the matter taking into account the realities supplied, both in the assessment of extent of disabilities and compensation under various heads. 8. In the light of the above dictum laid down by the Apex Court, I think the disability of the petitioner can be safely fixed as 29%. 9. Then the counsel submitted that the monthly income fixed by the Tribunal is too low. For assessing loss of earning the Tribunal has taken a monthly income of Rs.12,000/-. For assessing the disability compensation Rs.4,000/- is taken as monthly income. The counsel submitted the petitioner is a Software Engineer having B.Tech Degree. Ext.A16 is the Degree Certificate. Ext.A17 is the Experience Certificate. Ext.A18 is the salary slip of the petitioner. The Tribunal rejected the claim of the petitioner that he was getting salary as per Ext.A18, because the person who issued the certificate was not examined. The finding of the Tribunal may be correct, but **MACA.No.2139 OF 2013** **6** the fact remains that the petitioner is an Engineering Graduate and he will get at least an amount of Rs.16,000/- per month. This Court can take judicial notice of the same. Therefore, the monthly income of the petitioner can be safely fixed as Rs.16,000/-. 10. If that is the case, the loss of earning is to be reassessed in the following manner:- = Rs.16,000 x 7 Rs. 1,12,000/- The Tribunal already awarded an amount of Rs.84,000/-. The same is to be deducted from the above amount. Then the balance amount will be:- = Rs.1,12,000 - Rs.84,000 Rs.28,000/- 11. The compensation for the permanent disability is to be reassessed based on the monthly income now fixed. The multiplier used by the Tribunal is 15. But as per Ext.A19 – Learners Licence of the petitioner the date of birth of the petitioner is 12.12.1979. If that is the case, the petitioner was aged 29 years at the time of accident. **MACA.No.2139 OF 2013** **7** In the light of the decision of the Apex Court in _**Sarla Verma & Others v. Delhi Transport Corporation & another**_ _**[2010 (2) KLT 802]**_ the multiplier ought to have been17. Therefore, the compensation for permanent disability is to be reassessed in the following manner:- 16,000 x 12 x 17 x 29/100 = Rs.9,46,560/- The Tribunal already awarded an amount of Rs.1,15,200/-, the same is to be deducted from the above amount. Then the balance amount will be:- = Rs.9,46,560 - Rs.1,15,200 Rs.8,31,360/- Therefore, the enhanced compensation entitled by the petitioner can be summerised like this:- Compensation for Disability = Rs.8,31,360/Loss of Earning = Rs. 28,000/- ____________ Total Rs.8,59,360/========== **MACA.No.2139 OF 2013** **8** Therefore, the appeal is allowed in part. The impugned award is modified. The appellant/petitioner is entitled an enhanced compensation of Rs.8,59,360/with interest at the rate of 7.5% per annum from the date of petition till realisation. The 2nd respondent is directed to pay the enhanced compensation with interest. **Sd/P.V.KUNHIKRISHNAN JUDGE** VPK