RAMESAN ACHARI v. SANISH BABU, CHANDRAMATHI SREEDHARAN, and UNITED INDIA INSURANCE COMPANY LTD.

## `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` THURSDAY, THE 17[TH] DAY OF MARCH 2022 / 26TH PHALGUNA, 1943 ``` ``` MACA NO. 421 OF 2011 ``` ``` AGAINST THE AWARD DATED 25.01.2010 IN OP(MV)NO.110/2004 OF II ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL ,KOLLAM. ``` ## `APPELLANT/PETITIONER:` ``` RAMESAN ACHARI, AGED 56, S/O.THANKAPPAN, ATHIRA, THEVALLI, KOLLAM. ``` ``` BY ADVS.SRI.K.S.MANU (PUNUKKONNOOR) SRI.P.SREEKUMAR ``` ## `RESPONDENTS/RESPONDENTS:` ``` 1SANISH BABU (DRIVER) S/O.DINESH BABU, KALIVILAKATHU VEEDU, AYANTHI, CHERUNNIYOOR, PALACHIRA P.O.,VARKKALA-697612. ``` - `2 CHANDRAMATHI SREEDHARAN(OWNER),` ``` KUZHUVILA HOUSE, PALACHIRA P.O., VARKKALA-697612. ``` ``` 3THE DIVISIONAL MANAGER, UNITED INDIA INSURANCE COMPANY LTD., DIVISIONAL OFFICE, ATTINGAL, THIRUVANANTHAPURAM (INSURER)-695711. ``` ``` BY ADV SMT.P.A.REZIYA ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 17.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` M.A.C.A.No.421/2011 -:2:- Dated this the 17[th] day of March,2022 ## **J U D G M E N T** The appellant was the petitioner in O.P (MV) No.110/2004 on the file of the II Additional Motor Accidents Claims Tribunal,Kollam. The respondents in the appeal were the respondents before the Tribunal. 2. The appellant had filed the claim petition under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of the injuries sustained to him in an accident on 05.04.2003. It was his case that, while he was driving his car bearing registration No.KL-02-N-9756 from Attingal to Kazhakkoottam, another car bearing registration No.KL-01-V-1933(offending car), driven by the first respondent in a negligent manner, hit the car of the appellant. The appellant had suffered multiple injuries and was treated at the S.P. Fort Hospital, Thiruvananthapuram from 05.04.2003 to 11.04.2003 and from 16.06.2003 to 19.06.2003. He had suffered a M.A.C.A.No.421/2011 -:3:- fracture of both bones of the left forearm, fracture of the femur and fracture of the right tibial condyle. The second respondent was the owner and the third respondent was the insurer of the offending car. The appellant was working as an Executive Engineer, in the Irrigation Department, Government of Kerala, and was earning a monthly salary of Rs.15,000/-. Hence, the appellant claimed a compensation of Rs.7,00,000/from the respondents. 3. The wife of the appellant, who was also travelling in the car had filed O.P.(MV)No.81/2004 before the same Tribunal, against the respondents, seeking compensation on account of the injuries sustained to her. 4. The respondent Nos.1 and 2 did not contest the proceedings and were set ex parte. 5. The third respondent had filed separate written statements in the two claim petitions denying the allegations in the claim petitions. It was contended M.A.C.A.No.421/2011 -:4:- that the accident occurred due to the negligence of the appellant. However, the third respondent admitted that the offending car had a valid insurance coverage. 6. The Tribunal consolidated and jointly tried the two claim petitions. 7. The petitioners in the two claim petitions had produced and marked Exts.A1 to A13 in evidence. The disability certificate of the appellant was marked as Ext.X1. 8. The Tribunal, after analysing the pleadings and materials on record, by its common award allowed the captioned claim petition in part, by permitting the appellant to recover from the third respondent an amount of Rs.1,66,114/- with interest and cost of Rs.3,000/-. 9. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioner is in appeal. 10. Heard; Sri.K.S. Manu, the learned counsel M.A.C.A.No.421/2011 -:5:- appearing for the appellant/petitioner and Smt. P.A. Raziya, the learned counsel appearing for the third respondent-insurer. 11. The sole point that arises for consideration in this appeal is whether the quantum of compensation awarded by the Tribunal is reasonable and just?. 12. After going through the impugned award and materials on record, and hearing the learned counsel on both sides, I have found that the Tribunal has awarded reasonable and just compensation under all the heads, except compensation for ‘loss of earning capacity’. 13. The appellant was a permanent employee with the Irrigation Department, Government of Kerala. Therefore, the Tribunal awarded him only an amount of Rs.25,000/- under the head ‘loss of earning capacity’. 14. In fact, the appellant was examined by the Medical Board attached to the District Hospital, M.A.C.A.No.421/2011 -:6:- Kollam, who has found that the appellant has a ‘functional disability’ of 15% , for the reason that he had suffered shortening of his right leg by 01 inch and wasting of his right thigh muscles by 02 cms. 15. The Hon'ble Supreme Court in **Puttamma v. K.L.Narayana Reddy & Anr.** [2014(1) KLT 738] has held that the split multiplier method can be adopted only for cogent reasons. 16. On a consideration of the fact that the appellant was aged 47 years at the time of accident and that he had suffered shortening of his right leg by one inch and wasting of his right thigh muscles by 02 cms, I am of the firm view that the appellant is entitled for ‘loss of earning capacity’, after his post retirement, i.e., on attaining the age of superannuation of 55 years. Accordingly, I adopt the multiplier of ‘11’ and fix the notional monthly income of the appellant at Rs.7,500/-, following the principles in **Ramachandrappa v. Manager, Royal Sundaram** M.A.C.A.No.421/2011 -:7:- **Alliance Insurance Company Limited** [(2011) 13 SCC 236]. 17. On a consideration of the permanent disability assessed by the Medical Board in Ext.X1, I fix the appellant’s ‘functional disability’ at 10%. ## **Loss of earning capacity:** 18. Taking into account the above factors, namely; the monthly notional income of the appellant at Rs.7,500/-, his functional disability at 10%, and the multiplier at '11', I award him an amount of **Rs.99,000/-,** instead of Rs.25,000/- awarded by the Tribunal under the head ‘loss of earning capacity’, i.e., an enhancement by Rs.74,000/-. 19. With respect to the other heads of compensation, I find that the Tribunal has awarded reasonable and just compensation. In the result, the appeal is allowed, by enhancing the compensation by a further amount of **Rs.74,000/-** with interest at the rate of 6% per annum from the M.A.C.A.No.421/2011 -:8:- date of petition till the date of deposit and a cost of Rs.5,000/-. The third respondent-insurer is ordered to deposit the enhanced compensation with interest and cost before the Tribunal within a period of sixty days from the date of receipt of a certified copy of this judgment. Immediately on the compensation amount being deposited, the Tribunal shall disburse the deposited amount to the appellant/petitioner in accordance with law. All pending interlocutory applications will stand closed. ``` Sd/- ``` ## **C.S.DIAS,JUDGE** DST/17.03.22 //True copy/ P.A.To Judge