Seby @ Souriar M.K. Manjaly House v Viswanath Saraf & Others and Oriental Insurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** # **TUESDAY, THE 03RD DAY OF DECEMBER 2019 / 12TH AGRAHAYANA, 1941** ## **MACA.No.890 OF 2009** **AGAINST THE AWARD IN OPMV 1665/2000 DATED 16-10-2008 OF MOTOR ACCIDENT CLAIMS TRIBUNAL , IRINJALAKUDA** ## **APPELLANT/S:** **SEBY @ SOURIAR.M.K. MANJALY HOUSE,THIRUMUDIKUNNU DESOM,, KORATTYKIZHAKKUMMURI,KORATTY EAST P.O.,, MUKUNDAPURAM TALUK,THRISSUR DISTRICT.** **BY ADVS. SRI.P.V.BABY SRI.A.N.SANTHOSH** ## **RESPONDENT/S:** - **1 VISWANATH SARAF & OTHERS PLOT NO.285,PANAMPILLY NAGAR,COCHIN.** - **2 JAYARAJANAYYAPPANCHALIL HOUSE PERAMBRA,KOZHIKODE JILLA.** - **3 MANAGERORIENTAL INSURANCE CO.LTD. NEAR EDAPPALY GOVT.HIGH SCHOOL,ERNAKULAM.** ## **R1 BY ADV. DR.ELIZABETH VARKEY** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 03.12.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **-2-** **MACA.No.890 OF 2009** ## **JUDGMENT** The appellant is the claimant in O.P(MV)No.1665 of 2000 on the file of the Motor Accidents Claims Tribunal, Irinjalakuda, a claim petition filed under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of the injuries sustained by him in a motor accident, which occurred on 30.09.1999, while he was riding a motorcycle bearing registration No.KL-8/M-7851. At the place of accident, the motorcycle was hit by a lorry bearing registration No.KL-7/A3425 owned by the 1[st] respondent, driven by the 2[nd] respondent and insured with the 3[rd] respondent. In the accident, the appellant/claimant sustained injuries. Alleging that the accident occurred due to the rash and negligent driving of lorry by the 2[nd] respondent driver, claim petition was filed before the Tribunal claiming a total compensation of Rs.33,31,000/-, under various heads, which was limited to Rs.12,00,000 /- for the purpose of payment of Court Fee. 2. Before the Tribunal, the 1[st] respondent owner and 2[nd] respondent driver of the lorry remained absent and they were **-3-** **MACA.No.890 OF 2009** set ex-parte. 3. The 3[rd] respondent insurer filed written statement admitting the insurance coverage of the lorry involved in the accident; however, denying negligence alleged against the 2[nd] respondent driver. The insurer contended that the accident occurred due to the rash and negligent riding of motorcycle by its rider. The insurer contended further that the compensation claimed is highly excessive. 4. Before the Tribunal, the claim petition was tried along with the connected matters. Exts.A1 to A33 were marked on the side of the claimants and PWs 1 to 3 were examined. On the side of the respondents, the insurance policy of the offending vehicle was marked as Ext.B1 and certified copy of the scene mahazar was marked as Ext.B2. The document marked as X1 is the disability certificate issued by the Medical Board assessing the permanent disability of the appellant/claimant, on account of the injuries sustained in the motor accident. 5. After considering the pleadings and materials on record, the Tribunal arrived at a conclusion that the accident occurred due to the rash and negligent driving of the lorry by **-4-** ## **MACA.No.890 OF 2009** the 2[nd] respondent driver. Since insurance coverage of the offending vehicle was not in dispute, the insurer was held liable to indemnify the insured. Under various heads, the Tribunal awarded a total compensation of Rs.5,48,900/-, and the insurer was directed to satisfy the award, together with interest at the rate of 7% per annum from the date of petition till date of deposit, with proportionate cost. 6. Dissatisfied with the quantum of compensation awarded by the Tribunal, the appellant/claimant is before this Court in this appeal. 7. Heard the learned counsel for the appellant/claimant and also the learned Standing Counsel for the 3[rd] respondent/insurer. Since insurance coverage of the offending vehicle is admitted by the insurer, service of notice on the 1[st] respondent owner was dispensed with, by the order of this Court dated 12.11.2019. 8. The issue that arises for consideration in this appeal is as to whether the appellant is entitled for enhancement of the compensation awarded by the Tribunal under various heads. 9. In **State of Haryana v. Jasbir Kaur [(2003) 7 SCC** **-5-** **MACA.No.890 OF 2009** **484]** the Apex Court held that the Tribunal under Section 168 of the Motor Vehicles Act, 1988 is required to make an award determining the amount of compensation which is to be in the real sense 'damages' which in turn appears to it to be 'just and reasonable'. It has to be borne in mind that compensation for loss of limbs or life can hardly be weighed in golden scales. But at the same time it has be to be borne in mind that the compensation is not expected to be a windfall for the victim. Statutory provisions clearly indicate that the compensation must be 'just' and it cannot be a bonanza; not a source of profit; but the same should not be a pittance. 10. In **National Insurance Company Ltd. v. Pranay Sethi [(2017) 16 SCC 680]** a Constitution Bench of the Apex Court held that, Section 168 of the Motor Vehicles Act, 1988 deals with the concept of 'just compensation' and the same has to be determined on the foundation of fairness, reasonableness and equitability on acceptable legal standard because such determination can never be in arithmetical exactitude. It can never be perfect. The aim is to achieve an acceptable degree of proximity to arithmetical precision on the basis of materials **-6-** **MACA.No.890 OF 2009** brought on record in an individual case. The conception of 'just compensation' has to be viewed through the prism of fairness, reasonableness and non-violation of the principle of equitability. 11. In the instant case, the compensation awarded by ## the Tribunal under various heads reads thus; ||The<br>compensation<br>claimed under various<br>heads|Amount<br>claimed|Amount<br>allowed|Basis/vital details<br>in a nutshell| |---|---|---|---|---| |1|Loss of earning for four<br>months|10,00,000/-|10,000/-|2500x 4 months| |2|Hospitalization expenses<br>and<br>by<br>stander's<br>expense||3,800/-|100 x 38 days| |3|Extra Nourishment and<br>clothing|||| |4|Travelling expenses||2,000/-|| |5|Pain and sufferings|1,00,000/**-**|20,000/-|| |6|Loss of amenities||20,000/-|| |7|Medical expenses||61,100/-|| |8|Permanent disability|2,00,000/-|4,32,000/-|2500 x 12x 16x<br>90/100| ||Total claim<br>Limited to|33,31,000/-<br>**12,00,000/-**|**5,48,900/-**|| 12. The accident occurred on 30.09.1999. At the time of accident, the appellant was aged 39 years. The appellant claimed a monthly income of Rs.10,000/- from Plywood business. In order to prove monthly income, the appellant mainly relied on Ext.A31 Profit and Loss Account for the period **-7-** ## **MACA.No.890 OF 2009** ended 31.03.1998, which was one prepared by PW3. The appellant has also placed reliance on other documents, including Ext.A15 Memorandum of Appeal filed before the Sales Tax Appellate Tribunal, Additional Bench, Palakkad, for the assessment year 1990-91, challenging an order dated 30.12.1998 of the Assessing Authority and also the order dated 20.11.1998 of the Additional Appellate Assistant Commissioner, Thrissur. Considering the pleadings and materials and also the oral evidence of PW3, the Tribunal found that the version of PW3 stands discredited during cross examination by the learned counsel for the 3[rd] respondent insurer. The appellant has also not chosen to mount the box. In the absence of any reliable materials, the Tribunal fixed the monthly income notionally as Rs.2,500/-, for the purpose of assessing compensation under various heads. 13. In **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited [(2011)** **13 SCC 236]** the Apex Court reckoned the monthly income of a coolie (manual labourer), who met with a road accident in the year 2004, at the age of 35 years, notionally as Rs.4,500/-. The **-8-** **MACA.No.890 OF 2009** Apex Court held that, the claimant who was working as a coolie cannot be expected to produce any documentary evidence to substantiate his claim. In the absence of any other evidence contrary to the claim made by the claimant, in the facts of the said case, the Tribunal should have accepted the claim of the claimant. The Apex Court made it clear that, in all cases and in all circumstances, the Tribunal need not accept the claim of the claimant, in the absence of supporting material. It depends on the facts of each case. In a given case, if the claim made is so exorbitant or if the claim made is contrary to ground realities, the Tribunal may not accept the claim and may proceed to determine the possible income by resorting to some guess work, which may include the ground realities prevailing at the relevant point of time. 14. In **Syed Sadiq v. Divisional Manager, United India Insurance Co. Ltd. [(2014) 2 SCC 735]** , taking note of the earlier decision in **Ramachandrappa's case (supra)** , the Apex Court reckoned the monthly income of a vegetable vendor, who met with a road accident in the year 2008, at the age of 24 years, notionally as Rs.6,500/-. In the said decision, **-9-** ## **MACA.No.890 OF 2009** the Apex Court held that, a labourer in an unorganised sector doing his own business cannot be expected to produce documents to prove his monthly income. Therefore, there was no reason for the Tribunal and the High Court to ask for evidence to prove his monthly income. Going by the state of economy prevailing at that time and the rising prices in agricultural products, the Apex Court accepted his case that a vegetable vendor is reasonably capable of earning 6,500/- per month. 15. Having considered the pleadings and materials on record, this Court finds as per Ext.A31 Profit and Loss Account, the expenditure towards wages to workers, etc. comes to Rs.12,20,810/-. No materials were placed before the Tribunal to prove the income tax paid by the appellant/claimant for the relevant financial year. A perusal of Ext.A15 Memorandum of Appeal would show that the total Sales Turn Over for the year 1991-92 was Rs.6,06,180/-. Having considered the materials on record, the evidence of PWs 1 and 2, and also the economic conditions prevailing at the time of accident, i.e., during the year 1999, this Court deem it appropriate to re-fix the monthly **-10-** **MACA.No.890 OF 2009** income of the appellant notionally as Rs.4,000/-, for the purpose of assessing compensation under various heads. 16. As per medical records, the appellant had sustained haematoma on back of scalp, a crush laceration over the right leg at the lower 3[rd] of medical aspect and contusion over the left maxilla. The document marked as Ext.A3 is the wound certificate. Exts.A4 and A27 are the discharge summaries; Ext.A5 is the E.C.G. report; Ext.A6 is CT Scan report; and Exts.A7 and A10 are discharge summaries. Exts. A8 and A9 are medical prescriptions. Exts.A11, A12, A21, A22, A26 and A28 are medical certificates. Ext.A4 discharge summary would show that the appellant had initially undergone inpatient treatment for a period of 21 days and thereafter for 10 days. He was initially diagnosed as a case of fracture of lateral wall of orbit and fracture of left zygomatic arch. He had also undergone treatment for psychiatric illness like hallucination. PW1, the wife of the appellant, has deposed that the head injury sustained by the appellant had made him a psychic patient with restless and disorderly behaviour and resulted in loss of memory. Ext.A5 report shows that the appellant had undergone assessment for **-11-** **MACA.No.890 OF 2009** post traumatic psychosts. Ext.A6 C.T. Investigation report would show that sub dural haematoma zygomatic fracture and orbit fracture were detected on investigation. Repeated CT investigation on 2.10.1999 showed intracerebral haematoma with subdural extension and small extradural haemorrhage at the left occipito parietal region. Repeated investigation on 30.10.2000 showed small left frontal hypodense lesion. MR investigation on 11.07.2005 revealed post traumatic gliosis at left frontal lobe. Ext.A7 discharge summary issued from the Private Medical College Hospital, Kolenchery, shows that the appellant was later admitted there with organic brain syndrome and abnormal behaviour and he continued there as inpatient for 4 days. Ext.A10 discharge summary shows that he was admitted again on 17.09.2007 for 3 days with anxiety and psychosis due to extra dose of Zen Retard tablets consumed under his psychic condition. As per Ext.A11 medical certificate it is a case of severe head injury and in Ext.A12 it is certified that the appellant requires continued treatment. Exts.A23 and A24 medical bills are for a sum of Rs. 61,100/-. The appellant had undergone inpatient treatment for a total period of 38 days. **MACA.No.890 OF 2009** **-12-** 17. In Ext.X1 disability certificate, the Medical Board assessed the permanent disability of the appellant, on account of the injuries sustained in the accident, at 90%. In Ext.X1 it is certified that on account of the injuries sustained in the motor accident, the appellant is having 20% visual disability (permanent and mild). 60% permanent neuropsychiatric disability and 90% loss of earning capacity. The Tribunal accepted the percentage of permanent disability assessed by the Medical Board, for the purpose of awarding compensation under various heads. The reasoning of the Tribunal, as contained in paragraph 9 of the award reads as follows: “On assessment the Medical Board found serious behavioural changes and abnormalities amounting to post traumatic personality changes. It was submitted that the petitioner is not in a position to be brought into court and that is why, his wife was examined as PW1. In view of the disability certificate issued by the Medical Board certifying serious permanent disability including mental impairement and also assessing 90% loss of earning capacity this court feels that such assessment and the per centage can be accepted and that compensation for permanent disability can be granted for 90% whole body disability, causing near total loss in the income.” **-13-** **MACA.No.890 OF 2009** 18. Towards loss of earning, the Tribunal awarded a sum of Rs.10,000/-, at the rate of Rs.2500/- for a period of 4 months. Considering the nature of injuries sustained and the treatment the appellant had undergone, as borne out from medical records, the period of 4 months fixed by the Tribunal for granting loss of earning is re-fixed as 6 months. Since the monthly income of the appellant is re-fixed notionally as Rs.4,000/-, the compensation under the head loss of earning is re-fixed as Rs.24,000/- (4,000 x 6), resulting an additional compensation of **Rs.14,000/-** . (24,000- 10,000) 19. On account of the injuries sustained in the accident, the appellant had undergone inpatient treatment for 38 days. The accident is of the year 1999. Towards transportation to hospital, the Tribunal awarded a sum of Rs.2,000/-. Considering the nature of injuries sustained and the treatment the appellant had undergone, as borne out from medical records, the compensation under this head is re-fixed as Rs.3,000/-, resulting an additional compensation of **Rs. 1,000/-** (3,000 - 2,000). **MACA.No.890 OF 2009** **-14-** 20. Towards bystander expenses the Tribunal awarded a sum of Rs. 3,800/- (100 x 38). Towards extra nourishment, the Tribunal awarded no compensation. The accident is of the year 1999 and the appellant had undergone inpatient treatment for 38 days. Considering the nature of injuries sustained and the treatment the appellant had undergone, as borne out from medical records, the compensation under the head bystander expenses is re-fixed as Rs. 5,700/- (150 x 38), resulting an additional compensation of **Rs.1,900/-** (5,700 - 3,800). Under the head extra nourishment the appellant is granted a sum of **Rs.3,800/-** (100 x 38). 21. Towards damage to clothing, no amount has been awarded by the Tribunal. Considering the fact that the accident is of the year 1999, the compensation under this head is fixed as **Rs.750/** -. 22. Towards medical expenses, the Tribunal awarded a sum of Rs.61,100/-, covered by Ext.A23 and A24 series of medical bills. In the absence of any further materials, the compensation awarded by the Tribunal under this head represents just and reasonable compensation, which requires no **-15-** **MACA.No.890 OF 2009** enhancement in this appeal. 23. As compensation towards pain and suffering, the Tribunal awarded a sum of Rs.20,000/-. Considering the nature of injuries sustained and the treatment the appellant had undergone, as borne out from medical records, the compensation awarded by the Tribunal under the head pain and suffering is re-fixed as Rs.30,000/-, resulting an additional compensation of **Rs.10,000/-** (30,000 - 20,000). 24. In **Sarla Verma v. Delhi Transport Corporation [(2009) 6 SCC 121]** , the Apex Court, after referring to its earlier decisions in **Kerala State Road Transport Corporation v. Susamma Thomas [(1994) 2 SCC 176]** , **U.P. State Road Transport Corporation v. Trilok Chandra [(1996) 4 SCC 362]** and **New India Assurance Co. Ltd. v. Charlie [(2005) 10 SCC 720]** held that the multiplier to be used should be as mentioned in column (4) of the Table in paragraph 40 of the said decision [prepared by applying **Susamma Thomas** , **Trilok Chandra** and **Charlie** ], which starts with an operative multiplier of **18** [for the age groups of 15 to 20 and 21 to 25 years], reduced by one unit for every five years, i.e., multiplier of **17** for **-16-** ## **MACA.No.890 OF 2009** 26 to 30 years, multiplier of **16** for 31 to 35 years, multiplier of **15** for 36 to 40 years, multiplier of **14** for 41 to 45 years, and multiplier of **13** for 46 to 50 years, then reduced by two units for every five years, i.e., multiplier of **11** for 51 to 55 years, multiplier of **9** for 56 to 60 years, multiplier of **7** for 61 to 65 years and multiplier of **5** for 66 to 70 years. 25. In **National Insurance Company Ltd. v. Pranay Sethi [(2017) 16 SCC 680]** a Constitution Bench of the Apex Court held that, as far as the multiplier is concerned, the Claims Tribunal and the Courts shall be guided by Step 2 that finds place in paragraph 19 of **Sarla Verma** , read with paragraph 42 of the said judgment. 26. In the instant case, as on the date of accident, the appellant was aged 39 years. In the light of the decisions of the Apex Court in **Sarla Verma's case** and **Pranay Sethi's case** referred to supra, the multiplier of 16 applied by the Tribunal is not correct and the proper multiplier to be applied is **15** . 27. Towards compensation for permanent disability, the Tribunal awarded a sum of Rs.4,32,000/- (2,500 x 12 x 16 x 90/100). Placing reliance on the judgment of the Apex Court in **-17-** **MACA.No.890 OF 2009** ## **Syed Sadiq v. Divisional Manager, United India Insurance** **Co. Ltd. [(2014) 2 SCC 735]** , the learned counsel for the appellant would contend that considering the functional disability of 90% assessed in Ext.X1 disability certificate, the appellant is entitled for assessment of disability compensation taking future prospects and towards future prospects 40% of his notional monthly income has to be added, in view of the law laid down by the Apex Court in **National Insurance Company Ltd. v. Pranay Sethi [(2017) 16 SCC 680]** . 28. In **Mekala v. Malathi M. [(2014) 11 SCC 178]** the appellant/claimant before the Apex Court was a student of 11th Standard, when the accident took place on 11.04.2005. She was holding first rank in her school. She had an excellent career ahead of her, but for the accident in which she sustained grievous injuries, and became a permanently disabled. In Ext.P12 disability certificate, the doctor - PW2 certified a permanent disability of 70% on account of the fractures sustained to both the legs. Upon examination PW2 opined that the appellant is not able to squat. She is not able to sit with cross legged comfortably on the floor and the right range of **-18-** **MACA.No.890 OF 2009** movement (goniometer) - Fixed Flexion Deformity (FFD) of 850 - ligament instability on account of grievous injuries. PW2 deposed that the appellant has sustained fracture of both bones in both the legs. The knee folding is restricted between 25 degree to 85 degree and the legs could not be stretched fully and the knee bones are mal-united and she cannot walk without crutches. PW2 deposed further that the appellant is suffering from severe pain while walking and the thickness of her both legs are reduced. The High Court of Judicature at Madras awarded compensation under the head loss of earning, taking a notional monthly income of Rs.6,000/-, in the absence of any document on record, as she was a student. The Apex Court held that, the fact that the appellant was a brilliant student at the time of the accident should also be taken into consideration while awarding compensation to her. Therefore, taking Rs.6,000/- as monthly notional income for the purpose of awarding compensation under the head loss of earning is too meager an amount. Considering the fact that the appellant is a brilliant student, as she has secured first rank in the 10th Standard, she would have had a better future in terms of **-19-** **MACA.No.890 OF 2009** educational career to acquire basic or master degrees in the professional courses and she could have got a suitable public or private employment. But, on account of the permanent disablement she suffered due to injuries sustained in the accident, that opportunity is lost to her and therefore, she is entitled to compensation as per law laid down by the Court in the cases of **Raj Kumar v. Ajay Kumar [(2011) 1 SCC 343], R.D. Hattangadi v. Pest Control (India) Pvt. Ltd. [(1995) 1 SCC 551]** and **Govind Yadav v. New India Insurance Company Limited [(2011) 10 SCC 683]** . Further, having regard to the undisputed fact that there has been inflation of money in the country since the occurrence of the accident, the same has to be taken into account by the Tribunal and the High Court while awarding compensation to the appellant as per the principle laid down in the case of **Govind Yadav** , which has reiterated the position of **Reshma Kumari v. Madan Mohan [(2009) 13 SCC 422]** . The Apex Court noticed that the appellant has undergone and undergoing substantial pain and suffering due to the accident, which has rendered both her legs dysfunctional. This has reduced the scope of her future **-20-** **MACA.No.890 OF 2009** prospects including her marriage substantially. It has been held in the case of **Reshma Kumari** that certain relevant factors should be taken into consideration while awarding compensation under the head of future prospect of income. In the light of the principles laid down in the said case and keeping in mind the past results of the appellant, the Apex Court took her monthly income as Rs.10,000/-, for the purpose of computation of just and reasonable compensation under the head of loss of earning. The Apex Court held that the appellant is entitled for 50% increase, taking into consideration the future prospects, as per the principle laid down in **Santosh Devi v. National Insurance Company Ltd. [(2012) 6 SCC 421]** . 29. In **Syed Sadiq v. Divisional Manager, United India Insurance Co. Ltd. [(2014) 2 SCC 735]** , the Apex Court granted disability compensation to the injured, adding 50% future prospects to the notional monthly income, based on the principle laid down in **Santosh Devi v. National Insurance Company Limited [(2012) 6 SCC 421]** , to injured persons having higher percentage of functional disability. **-21-** **MACA.No.890 OF 2009** 30. In **National Insurance Company Ltd. v. Pranay Sethi [(2017) 16 SCC 680]** , a Constitution Bench of the Apex Court held that, the determination of 'just compensation' has to be on the foundation of evidence brought on record as regards the age and income of the deceased and thereafter the apposite multiplier to be applied. The formula relating to multiplier has been clearly stated in **Sarla Verma [(2009) 6 SCC 121]** and it has been approved in **Reshma Kumari v. Madan Mohan [(2013) 9 SCC 65]** . The age and income, as stated earlier, have to be established by adducing evidence. The Tribunal and the Courts have to bear in mind that the basic principle lies in pragmatic computation which is in proximity to reality. It is a well accepted norm that money cannot substitute a life lost but an effort has to be made for grant of just compensation having uniformity of approach. There has to be a balance between the two extremes, that is, a windfall and the pittance, a bonanza and the modicum. In such an adjudication, the duty of the Tribunal and the Courts is difficult and hence, an endeavour has been made by this Court for standardization which in its ambit includes addition of future prospects on the proven income at **-22-** **MACA.No.890 OF 2009** present. As far as future prospects are concerned, there has been standardization keeping in view the principle of certainty, stability and consistency. In **Pranay Sethi** the Apex Court approved the principle of 'standardisation' so that a specific and certain multiplicand is determined for applying the multiplier on the basis of age. 31. In **Rajesh v. Rajbir Singh [(2013) 9 SCC 54]** , a ThreeJudge Bench of the Apex Court held that, in case of self-employed persons also, if the deceased victim is below 40 years, there must be addition of 50% to the actual income of the deceased while computing future prospects. In **Munna Lal Jain v. Vipin Kumar Sharma [(2015) 6 SCC 347]** another ThreeJudge Bench followed the principle stated in **Rajesh** . In **Pranay Sethi** , after expressing the opinion that the dicta laid down in **Reshma Kumari** being earlier in point of time would be a binding precedent and not the decision in **Rajesh** , the Constitution Bench observed that, in **Munna Lal Jain** , the Three-Judge Bench should have been guided by the principle stated in **Reshma Kumari** which has concurred with the view expressed in **Sarla Devi** or in case of disagreement, it should **-23-** ## **MACA.No.890 OF 2009** have been well advised to refer the case to a Larger Bench. 32. In **Pranay Sethi [(2017) 16 SCC 680]** the Constitution Bench held that, while determining the income, an addition of **50%** of actual salary to the income of the deceased towards future prospects, where the deceased had a **permanent job** and was **below the age of 40 years** , should be made. The addition should be **30%** , if the age of the deceased was **between 40 to 50 years** . In case the deceased was between the age of **50 to 60 years** , the addition should be **15%** . Actual salary should be read as actual salary less tax. The Apex Court held further that, in case the deceased was **selfemployed** or on a **fixed salary** , an addition of **40%** of the established income should be the warrant where the deceased was **below the age of 40 years** . An addition of **25%** where the deceased was **between the age of 40 to 50 years** and **10%** where the deceased was between the age of **50 to 60 years** should be regarded as the necessary method of computation. The established income means the income minus the tax component. **-24-** **MACA.No.890 OF 2009** 33. In the instant case, at the time of accident, the appellant was aged 39 years. He claimed a monthly income of Rs.10,000/- by conducting a Plywood business. As already noticed, no reliable materials were placed before the Tribunal to show that, at the time of accident, the appellant had a permanent job. Therefore, he can only be treated as a self employed. In view of the law laid down by the Apex Court in **Pranay Sethi,** an addition of **40%** of the notional monthly income of the appellant, as re-fixed in this appeal considering the economic conditions prevailing at the time of accident and taking note of the fixation of notional monthly income by the Apex Court in **Ramachandrappa** and in **Syed Sadiq** referred to supra, can be made towards future prospects, since the appellant was aged **below 40 years** . 34. Therefore, for the purpose of re-fixing the compensation under the head loss of earning (disability compensation), **40%** of the monthly income of the appellant notionally re-fixed in this appeal as Rs.4,000/-, i.e., a sum of Rs.1,600/- (4,000 x 40/100) has to be added towards future prospects. In the result, the monthly income of the appellant, **-25-** **MACA.No.890 OF 2009** for the purpose of re-fixing the compensation under the head loss of dependency, is reckoned as Rs.5,600/- (4,000 + 1,600). 35. Towards compensation for permanent disability, the Tribunal awarded a sum of Rs.4,32,000/- (5,600 x 12 x 15 x 90/100). In this appeal, the monthly income of the appellant has already been re-fixed as Rs.4,000/-. Adding 40% of the notional monthly income of the appellant towards future prospects (4,000 + 1,600 = 5,600); applying the multiplier of 15 applicable to the age group of the appellant; and adding the percentage of permanent disability assessed as 90%, the compensation under the head permanent disability is re-fixed as Rs.9,07,200/- (5,600 x 12 x 15 x 90/100), resulting an additional compensation of **Rs.4,75,200/-** (9,07,200 – 4,32,000). 36. Towards loss of amenities the Tribunal awarded a sum of Rs.20,000/-. In Ext.X1 disability certificate the permanent disability of the appellant, on account of the injuries sustained in the accident, is assessed as 90%. Considering the nature of injuries sustained and the permanent disability that has been certified in Ext.X1 disability certificate, the compensation awarded by the Tribunal under this head is re-fixed as **-26-** **MACA.No.890 OF 2009** Rs.90,000/-, resulting an additional compensation of **Rs.70,000/-** (90,000 - 20,000). 37. In the result, the appellant will be entitled for payment of an additional compensation of **Rs. 5,76,650/-** (Rupees Five lakh seventy six thousand six hundred and fifty only) [14,000 + 1,000 + 1,900 + 3,800 + 750 + 10,000 + 4,75,200 + 70,000] in this appeal, which will carry interest at the rate of **8%** per annum from the date of petition till realisation. The 3[rd] respondent/insurer shall satisfy the additional compensation granted in this appeal, together with interest, within a period of two months from the date of receipt of a certified copy of this judgment, after deducting the liability, if any, of the appellant/claimant towards Balance Court Fee and Legal Benefit Fund. The disbursement of the amount to the appellant shall be made taking note of the law on the point and in terms of the directives issued by this Court in Circular No.3 of 2019 dated 06.09.2019 and clarified further in Official Memorandum No.D1-62475/2016 dated 07.11.2019 This appeal is disposed of as above. No order as to costs. ## **Sd/ANIL K.NARENDRAN JUDGE** Nkr/06.12.09