Raju Sebastian v. United India Insurance Co. Ltd.

## CR IN THE HIGH COURT OF KERALA AT ERNAKULAM ## PRESENT THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. TUESDAY, THE 28[TH] DAY OF SEPTEMBER 2021 / 6TH ASWINA, 1943 ## MACA NO. 2153 OF 2014 [AGAINST THE AWARD IN OP(MV)No.1756/2010 DATED 7.5.2013 ON THE FILE OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, KOZHIKODE] ## APPELLANT/PETITIONER: RAJU SEBASTIAN, AGED 54 YEARS S/O.DEVASSYA, VETTIKAVUNGAL HOUSE, POST KODANCHERRY, KOZHIKODE. BY ADV SMT.CELINE JOSEPH ## RESPONDENT/RESPONDENT NO.3: UNITED INDIA INSURANCE CO. LTD K.M.O TOWER, MAIN ROAD, P.O.THAMARASSERY, KOZHIKODE. BY ADV SRI.THOMAS MATHEW NELLIMOOTTIL THIS MOTOR ACCIDENTS CLAIMS APPEAL HAVING COME UP FOR HEARING ON 10.09.2021, THE COURT ON 28-09-2021 DELIVERED THE FOLLOWING: MACA No.2153 of 2014 2 ## JUDGMENT The appellant is the petitioner in OP(MV)No.1756/2010 on the file of the Motor Accidents Claims Tribunal, Kozhikode. The said original petition was filed seeking compensation for the injuries sustained to him on a motor accident occurred on 22.07.2010, when the motor cycle ridden by him was hit by a car. The car was driven by the 1[st] respondent, owned by the 2[nd] respondent and insured with the 3[rd] respondent. Consequent to the accident, he sustained very serious injuries. He was treated at Baby Memorial Hospital, Kozhikode for several days. According to the appellant, he was working as a Draftsman Gr.1 in Kerala Water Authority and he was aged 50 at the time of accident. He contends that he sustained permanent disablement of serious nature consequent to the injuries. Accordingly, he claimed a total compensation of Rs.20 lakhs. MACA No.2153 of 2014 3 2. The driver and the owner who are respondents 1 and 2 remained absent and they were set ex-parte. The 3[rd] respondent filed a written statement disputing the negligence on the part of the 1[st] respondent and contended that the accident occurred due to the negligence of the appellant himself. The quantum of compensation was also disputed. However, the existence of valid policy in respect of the said vehicle was admitted. 3. The appellant got himself examined as PW1 and Exts. A1 to A13 were marked from the side of the appellant. Disability certificate issued by the Medical Board was marked as Ext.C1. No evidence was adduced from the side of the respondents. 4. After the trial, the Tribunal came to the finding that the accident occurred due to the negligence of the 1[st] respondent and, therefore, being the insurer of the vehicle, the 3[rd] respondent was held responsible to pay the amount of MACA No.2153 of 2014 4 compensation. As quantum of compensation, the Tribunal fixed an amount of Rs. 8,60,307/- and the 3[rd] respondent was directed to deposit the said amount along with interest at the rate of 8% per annum from the date of petition till realization. Being dissatisfied with the quantum of compensation, this appeal is filed. 5. Heard the learned counsel for the appellant and the learned counsel for the 3[rd] respondent. 6. The learned counsel for the appellant would contend that the quantum of compensation awarded by the Tribunal is very low particularly in the heads of loss of earning power, medical expenses and actual loss of earnings. 7. Per contra, the learned counsel for the 3[rd] respondent disputed the contentions put forward by the appellant by submitting that the award passed by the Tribunal does not warrant any interference as MACA No.2153 of 2014 5 the amount mentioned therein is reasonable in the facts and circumstances of this case. 8. One of the crucial contentions raised by the learned counsel for the appellant is that, even though the Medical Board certified his percentage of disability as 86%, the Tribunal granted compensation for loss of earning power only by taking into account the probable loss of earning capacity after his retirement. The learned counsel further points out that the monthly income taken by the Tribunal was Rs.3,500/- whereas the documents produced by him would clearly reveal that as on the date of accident, he was getting monthly income of Rs.26,400/-. From the materials available on record, it can be seen that, despite the injuries sustained by the appellant, he continued in his employment and the finding of the Tribunal that he has not sustained any loss of earning capacity during the period of his service with the Kerala Water MACA No.2153 of 2014 6 Authority is a probable view. In my view it is a sustainable finding as he could continue in the service upto his retirement age at 56. Consequently, the question of loss of earning power would arise only for the period after his retirement. In this regard, it is to be noted that, even though Ext.C1 certified the percentage of disability as 86%, the Tribunal accepted the functional disability as 50% in view of the reason that the percentage of disability as certified in Ext.C1 was with respect to a particular limb. In such circumstances, 50% functional disability taken by the Tribunal, is reasonable. However, I am of the view that the monthly income taken by the Tribunal for computing such compensation is very low. Considering the nature of employment the appellant was engaged in and also the educational qualifications as well as the experience which he would acquire from his service with the Kerala Water Authority, in all probabilities, he would have earned much more than MACA No.2153 of 2014 7 the monthly income fixed by the Tribunal, even after his retirement. At this juncture the learned Counsel for the insurance company points out that, the appellant would be getting pensionary benefits upon his retirement and this is to be taken into consideration while fixing the amount. However, I am of the view that, it is not a matter which would come within the zone of consideration. Pensionary benefits are statutory benefits and is a right of an employee on account of the services rendered by him to the institution. Entitlement of a person to receive pension would not preclude him from taking up any other avocation and open up another source of income, after his retirement. In this case, as he continued in his employment despite the injury and disability, no compensation is being granted pertaining to his period of service. The compensation that is being awarded is to address the loss of earning capacity after his retirement and therefore, what we are concerned is the probable MACA No.2153 of 2014 8 monthly income which he could have earned after his retirement. While considering the same, the criteria to be applied should be educational qualification, experience etc of the persons concerned. In Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited [(2011)13 SCC 236], the Honourable Supreme Court was pleased to take Rs.4,500/- as the monthly income for a coolie in respect of an accident occurred in the year 2004. In Syed Sadiq v. Divisional Manager, United Indian Insurance Company Limited [(2014)2 SCC 735], the Honourable Supreme Court fixed the monthly income of a vegetable vendor as Rs.6,500/- in respect of an accident occurred in the year 2008. In this case what we are determining is the probable monthly income of a person with educational qualification and experience, after his retirement from a Government Institution. Going by the age and service conditions of the appellant, the year of retirement is 2016 and therefore the criteria to be MACA No.2153 of 2014 9 adopted should be by keeping in mind the economic standards prevailing at that point of time. When we apply the standards adopted by the Honourable Supreme Court in fixing the monthly income in the judgments referred above, that too in respect of persons who had no educational qualifications, the monthly income of Rs.3,500/- fixed by the Tribunal is very low. I am of the view that, considering the qualifications and experience, at any rate, the probable monthly income after retirement, should be fixed by taking 50% of the income of the person concerned, while he was in service unless there are valid reasons to adopt another method. In Special Grade Secretary, Kumily Panchayath v. Maniammal and others (2017 (4) KLT 909), a Division Bench of this court considered the question of applicability of split multiplier in the case of a Government Servant who died in an accident. In the said judgment, while computing the compensation for loss of dependency, pertaining to the post retirement period, this court MACA No.2153 of 2014 10 took the monthly income as 50% of the income of the deceased as on the date of accident. In such circumstances, I am of the view that, the probable monthly income of the appellant has to be taken at the rate of 50% of his income as on the date of accident, for the purpose of computing the compensation for probable loss of earning power after the date of his retirement. The Tribunal by relying upon Exts.A11 and A13, fixed the monthly income of the appellant as on the date of accident as Rs.26,400/-. Therefore, his monthly income can be fixed as Rs.13,200/- being 50% of the income, for the post retirement period. While re-working the compensation for loss of earning capacity owing to permanent disability, the amount receivable by the appellant would come to Rs.7,12,800/- (Rs.13,200x12x9x50/100). The Tribunal has already awarded an amount of Rs.1,89,000/- under this head. Therefore, the balance amount receivable by the appellant comes to Rs.5,23,800/-. MACA No.2153 of 2014 11 9. The next contention is regarding the compensation for loss of earnings. The learned counsel for the appellant would rely upon Ext.A9 certificate dated 12.2.2013 issued by the Executive Engineer, Kerala Water Authority to establish the leave which he was compelled to avail, consequent to the injuries sustained. The said document indicates that he availed commuted leave with effect from 23.7.2010 to 31.8.2010 on medical grounds and leave without allowance for three months from 1.8.2010 to 30.11.2010. The Tribunal awarded compensation only for the period of three months pertaining to the period of leave without allowance. The learned counsel would contend that he could have utilized the commuted leave for his other purposes, had he not sustained the injuries in the accident. The learned counsel also relies on a recent judgment rendered by this Court in George v. Krishna Venu & Others [2020(4) KLT 239] . As rightly pointed by the learned counsel for the appellant, the aforesaid MACA No.2153 of 2014 12 question was specifically considered by this Court in the said judgment and categorically held that the victim of a motor accident shall be entitled for compensation for loss of pay during the period he availed commuted leave, consequent to the injuries. I am in full agreement with the aforesaid decision and hence I hold that the appellant herein is entitled for compensation in respect of the period of commuted leave ie. from 23.7.2010 to 31.8.2010. I have already found that the monthly income of the deceased was Rs.26,400/- as on the date of accident and when the compensation is calculated for the said period it comes to Rs.35,200/-. 10. The learned counsel for the appellant would further point out that the Tribunal made unnecessary deductions from the medical expenses which were claimed on the basis of the medical bills produced as Ext.A12 series. The said contention necessitated a detailed examination of the records. The appellant MACA No.2153 of 2014 13 was directed to file a statement specifically highlighting the details of the bills which were omitted to be considered by the Tribunal. Consequent to which, the appellant submitted a statement dated 30.07.2021. The Insurance Company has not submitted any objection to the said statement. But the learned counsel for the Insurance Company would contend that the Tribunal had taken note of each and every bills produced scrupulously and made certain deductions with proper application of mind and hence the interference is not necessary. As the statement of the appellant contained specific details as to certain omissions, I have examined Ext.P12 medical bills carefully. It is discernible from the award that, the Tribunal did not consider bills produced as serial Nos. 6,8,39,237 and 281 on the ground that the amounts mentioned therein are the advance payments made to the hospital. On scrutiny of the records, it is seen that the amount covered by serial Nos. 6 and 8 which are Rs.5,000/- and MACA No.2153 of 2014 14 1,00,000/- respectively, are seen adjusted in bill produced as serial number 41. In serial No.41, the total amount paid by the appellant is shown as Rs.98,029/- and after adjusting the amount of 1,05,000/-, he was granted a refund of Rs.6,971/-. Thus the actual amount spent by the appellant is Rs.98,029/- and he is entitled to get reimbursement of the same. However, in the award, Rs.6,971/- was added to the compensation receivable by the appellant even though it was an amount which the appellant received as refund. Thus it is evident that, out of Rs 1,05,000/- covered by advance payment receipts produced as Serial Nos 6 and 8 in Ext P12 series, he has already received an amount of Rs.6,971/- as refund from the Hospital itself, but despite the above, the Tribunal once again granted an amount of Rs.6,971/-. Therefore, to that extent, there is duplication. In the light of the above, even while I am holding that he is entitled for an amount of Rs.98,029/- as covered in serial No.41 in MACA No.2153 of 2014 15 Ext.A12 bill, an amount of Rs.6,971/-, which is wrongly added to the compensation, is to be deducted therefrom. Thus the amount which the appellant is entitled as per the said bill is Rs.91,058/(Rs.98029-6971). Similarly, the amount covered by the bill with serial No.39 is Rs.1,00,000/- which is also an advance payment. It is seen that the said amount is adjusted in bill with serial No.143. On examination of bill produced as serial No.143, it is seen that the actual amount paid by the appellant is Rs.86,540/- and after adjusting the amount of Rs.1,00,000/- covered by the bill with serial No.39, he was granted refund of Rs.13,460/-. As mentioned above, in this case also, instead of deducting the amount of Rs.13,460/-, the Tribunal has added the same to the compensation and thus it amounts to duplication. In such circumstances, the actual entitlement of the appellant is Rs.86,540-13460 which comes to Rs.73,080/- and the said amount is awarded. Similarly, advance payment made as per MACA No.2153 of 2014 16 serial No.237 is Rs.5,000/- and the same is seen adjusted in bill with serial number 249. Therefore, this amount is also should be included in the compensation receivable by the appellant. However, with regard to advance payment made as per bill with serial No.281, I could not find any adjustment of the said amount even though as per the statement submitted by the appellant it was made against the bill with serial No.288. In such circumstances, I am not granting the said amount. 11. Apart from the above, the Tribunal deducted the amounts covered as per serial Nos.62,193 and 233 on the ground that those are not bills. However on examination of the same, it can be seen that serial No.62 is indeed a bill issued by Baby Memorial Hospital, Kozhikode on 2.8.2010 towards miscellaneous charges and the amount mentioned therein is Rs.10,984/-. The appellant is entitled for the said amount as well. MACA No.2153 of 2014 17 12. Another omission pointed out by the learned counsel for the appellant are the bills with serial Nos.297 to 310, which are the bills for the purchase of ayurvedic medicines. However, there are no materials to conclude that the said treatment was availed by the appellant in connection with the injuries sustained in the accident. In such circumstances, I do not find any reason to interfere with the finding of the Tribunal in this regard. Thus, in the light of the above observations and findings made above, the appellant is found entitled for an additional amount of Rs.7,39,122/- (Rupees Seven Lakhs Thirtynine thousand One hundred and Twentytwo only) (Rs.523800+35200+91058+73080+5000+10984). The 3[rd] respondent shall deposit the said amount along with interest at the rate of 8% per annum and proportionate costs, within a period of three months from the date of receipt of a copy of this judgment. It is made clear that the said amount will not carry MACA No.2153 of 2014 18 interest for 357 days as the delay in filing the appeal has been condoned on such terms vide order dated 21.2.2017 in C.M.Appl.No.2486 of 2014. The appeal is disposed of as above. Sd/ZIYAD RAHMAN A.A. JUDGE pkk