Sajeev Sabastian v. National Insurance Company Limited

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.HARILAL WEDNESDAY, THE 7TH DAY OF FEBRUARY 2018 / 18TH MAGHA, 1939 MACA.No. 1807 of 2013 AGAINST THE AWARD DATED 31-01-2013 IN O.P.(MV) NO. 854/2010 of THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, PALA APPELLANT/PETITIONER: --------------------- SAJEEV SABASTIAN, S/O.BABU SEBASTIAN, MUKKATTU KAVUMKAL HOUSE, S.N.PURAM, AMBALAM BHAGOM, KOTHALA KARA, KOOROPADA VILLAGE. BY ADVS.SRI.THOMAS ABRAHAM (NILACKAPPILLIL) SRI.K.B.ARUNKUMAR RESPONDENT/RESPONDENT: --------------------- THE NATIONAL INSURANCE COMPANY LIMITED, REPRESENTED BY ITS MANAGER, CHERUPUSHPAM BUILDING PALA, KOTTAYAM DISTRICT. BY ADV. SRI.M.A.GEORGE THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 07-02-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: DST ## **K. HARILAL, J.** **= = = = = = = = = = = = = = = = = M.A.C.A.No.1807 of 2013(F)** **- - - - - - - - - - - - - - - - - - - - - -** _Dated this the 7[th] day of February, 2018_ ## **J U D G M E N T** The appellant is the petitioner, who obtained an award passed by the Motor Accidents Claims Tribunal, _(hereinafter referred to as 'the Tribunal'),_ Pala, in Original Petition No.854 of 2010, granting an amount of Rs.2,74,659/- to him, as compensation for the damage sustained by him in a road traffic accident. This appeal is filed, challenging the inadequacy and correctness of the quantum of compensation determined under different heads of claim only. 2. Heard the learned counsel for the petitioner and the learned counsel for the respondent Insurance Company. 3. The parties are referred to as in the Original Petition. According to the petitioner, he **M.A.C.A.No. 1807of 2013(F)** ## **-: 2 :-** was a pillion rider in a motorcycle ridden by the petitioner in Original Petition No.815 of 2010. While he was travelling as a pillion rider, the offending car owned by the 2[nd] respondent and driven by the 1[st] respondent came from opposite side in a rash and negligent manner and hit the motorcycle on which the petitioner was travelling and he sustained bodily injuries. He claimed an amount of Rs.7,00,000/-; but the Tribunal passed the impugned award granting Rs.2,74,659/- only. 4. In this appeal, it is contended that the amount of compensation determined under the head 'compensation for permanent disability' is inadequate and disproportionate with the percentage of disability quantified by the Medical Board. Though, the Medical Board had certified that he had sustained 25% of permanent disability, the Tribunal has reduced the percentage of disability from 25% to ## **M.A.C.A.No. 1807of 2013(F)** ## **-: 3 :-** 12%, without any reasoning. So also, it is contended that the quantum of amount determined, as monthly income is very low and inadequate. Though the petitioner had produced Ext.A13 salary certificate which would show that he was getting a monthly salary of Rs.8,000/-, the Tribunal discarded the same and determined monthly income at Rs.3,000/-, without any reasoning. 5. Per contra, the Insurance Company advanced arguments to justify the quantum of compensation granted by the Tribunal under the head 'compensation for permanent disability'. So also, it is contended that no reliance could have been placed on Ext.A13 certificate, as the same was not proved in accordance with law. In the absence of cogent evidence to prove the actual monthly salary, the Tribunal is justified in taking notional income only for determining the 'loss of earnings' and **M.A.C.A.No. 1807of 2013(F)** ## **-: 4 :-** 'compensation for permanent disability', the counsel argued. 6. In view of the contentions raised above, the short question that arises for consideration in this appeal is, is the Tribunal justified in determining the quantum of compensation under the heads 'compensation for permanent disability' and 'loss of earnings'? It is not disputed that the petitioner was aged 23 years only at the time of accident and according to him, he was working as an Accountant in a private company. In order to prove his monthly salary, he has produced Ext.A13 salary certificate. It shows that he is getting Rs.8,000/per month as salary. But, the employer, who issued Ext.A13 salary certificate was not examined in evidence. Therefore, the Tribunal is justified in discarding the same and taking notional income only. But, this Court is of the view that the quantum of **M.A.C.A.No. 1807of 2013(F)** ## **-: 5 :-** amount determined as notional income is inadequate, in view of the fact that the accident had occurred in the year 2010 and in the decision reported in _**Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Co. Ltd.**_ [(2011) 13 SCC 236], the Hon'ble Supreme Court held that Rs.3,500/- to Rs.4,500- can be taken as notional monthly income, if there is no other cogent evidence, for an accident occurred in the year 2004. In the above view, the quantum of amount determined as monthly income will stand enhanced and modified to Rs.4,500/- per month. 7. As rightly submitted by the learned counsel for the petitioner, Ext.X1 disability certificate issued by the Medical Board shows that the petitioner had sustained 25% disability; but the Tribunal without assigning any reason reduced the percentage of disability from 25% to 12%. No way the said reduction can be justified in the absence of ## **M.A.C.A.No. 1807of 2013(F)** ## **-: 6 :-** any reasoning. Therefore, this Court is inclined to take 25% as percentage of disability and I do so. 8. The age of the deceased was not disputed by the respondent. He was aged 23 years only at the time of accident. If that be so, the proper multiplier applicable to him is 18 and not 17; but the Tribunal went wrong and has taken 17 as multiplier instead of 18. 9. In the above view, the petitioner is given Rs.31,500/-(4,500 x 7) towards 'loss of earnings'. Thus, he is entitled to get an additional amount of Rs.3,500/- under the head 'loss of earnings' 10. Coming to 'compensation for permanent disability', for the reasons stated above, he is given Rs.2,43,000/- (4,500 x 12 x 18 x 25/100). Thus, he is entitled to get an additional amount of Rs.1,85,380/- under the head 'compensation for permanent disability'. The total additional **M.A.C.A.No. 1807of 2013(F)** ## **-: 7 :-** compensation amount is Rs.1,88,880 (Rs.1,85,380 + 3,500). Thus, the total compensation payable to the petitioner is Rs.4,63,539/- (2,74,659 + 1,88,880). All other findings of the Tribunal in the impugned award will stand undisturbed and operative. It is needless to say the entire compensation would carry interest as stipulated by the Tribunal. This Motor Accident Claims Appeal is allowed accordingly to the above extent. Sd/- **K. HARILAL** **JUDGE** DST //True copy// P.A. To Judge