Shanavas v. Jayakrishnan J.K.Sadanam, Mani, Oriental Insurance Co. Ltd.

## IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN TUESDAY, THE 23RD DAY OF MAY 2017/2ND JYAISHTA, 1939 MACA.No. 1657 of 2013 () ------------------------- AGAINST THE AWARD IN OPMV 1384/2008 of MOTOR ACCIDENT CLAIMS TRIBUNAL (ADDL.DISTRICT COURT & SESSIONS COURT.-II), MAVELIKKARA DATED 30-04-2013 ## APPELLANT/PETITIONER: ------------------------------------ SHANAVAS VALIYAVILAPADINJATTATHIL, SOORANAD SOUTH MURI, KOLLAM. BY ADV. SRI.NIRMAL V NAIR RESPONDENTS/RESPONDENTS: --------------------------------------------- 1. JAYAKRISHNAN J.K.SADANAM, THRIPPERUMTHARA MURI, THRIPPERUMTHARA VILLAGE, MAVELIKKARA-690 101 2. MANI, VIDHYA BHAVAN, THEKKEMURI, VALLIKUNNAM PO, ALAPPUZHA DISTRICT-688 001. 3. THE ORIENTAL INSURANCE CO.LTD. BRANCH OFFICE, KAYAKULAM P.O.- 690 502 REP.BY ITS BRANCH MANAGER` R3 BY SRI.GEORGE CHERIAN (THIRUVALLA) ADV. SRI.R.AJITH KUMAR THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 23-05-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **APPENDIX IN M.A.C.A.No.1657/2013** EXT.X1: DISABILITY CERTIFICATE OF SRI SHANAVAS PREPARED BY THE MEDICAL BOARD OF DISTRICT HOSPITAL, KOLLAM. TRUE COPY P.S. TO JUDGE dsn ## **C.T. RAVIKUMAR & ANIL K. NARENDRAN, JJ. -------------------------------------------------M.A.C.A.No.1657 OF 2013** **-------------------------------------------------DATED THIS THE 23[rd] DAY OF MAY, 2017** ## **JUDGMENT** ## **C.T. RAVIKUMAR, J.** The injured appellant comes up in appeal on being aggrieved by and dissatisfied with the quantum of compensation granted by the Motor Accidents Claims Tribunal, Mavelikara in O.P. (MV)No.1384/2008. He is a conductor in the Kerala State Road Transport Corporation('KSRTC' for short). On 29.6.2008 at about 9.45 p.m., he sustained injuries in a motor vehicle accident. He was then riding his motorcycle bearing registration No.KL-2R/4183 through Oachira-Kayamkulam National Highway. When he reached near KPAC Junction, a car bearing registration No.KL-4M/9777 driven by the 1[st] respondent in a rash and negligent manner dashed against his vehicle. He sustained injuries and was taken to Government Hospital, Kayamkulam. Thereafter, he underwent treatment at Upasana Hospital, Kollam. Altogether, he had been an inpatient for a period of 65 days. The claim petition was filed seeking a compensation of 3,50,000/-. The claim was later₹ enhanced to 9,40,000/-.₹ M.A.C.A.No.1657/13 -2- 2. The appellant got himself examined as PW1 besides examining one Rajan Babu as PW2. On the side of the appellant, Exts.A1 to A14 were got marked. No oral or documentary evidence was adduced by the respondents. The Tribunal, on evaluating the evidence on record, awarded an amount of ₹2,00,100/- as compensation with interest @ 7.5% per annum from the date of petition till realisation. As noticed hereinbefore, it is seeking enhancement of such quantum of compensation that the captioned appeal has been preferred. 3. We have heard the learned counsel for the appellant and also the learned counsel appearing for the 3[rd] respondent. Though, notice was issued to respondents 1 and 2 they had not chosen to enter appearance and to contest the matter. 4. The contention of the appellant is that he was deprived of just compensation. It is contended that the injuries sustained by him in the accident resulted in permanent disability. However, his application for assessment of permanent disability was rejected by the Tribunal. In such circumstances, as per order dated 9.6.2015, this Court directed the Superintendent of M.A.C.A.No.1657/13 -3- General Hospital, Kollam, to constitute a Medical Board to assess permanent disability, if any, incurred by the appellant consequent to the accident and to forward a report. On such medical examination, a report was furnished to this Court. We have perused the disability certificate issued by the Medical Board on such examination. The said certificate dated 01.07.2015 marked as Ext.X1 would reveal that on orthopaedic examination, the following difficulties and disabilities were found. - “1. varus deformity of lower 3[rd] of left leg 10 degree inversion (3% body as whole, 10% specific part). 2. Partial ankylosis of left ankle joint 90 degree angle to 125 degree plantar (5% body as whole, 15% specific part). 3. Movement of right ankle normal. 4. Partial ankylosis of shoulder right scapula free, active painless motion to 90 degree abdution and rotation full flexion and extension (8% body as whole, 17% specific part.” 5. On such orthopaedic examination, the Medical Board determined the degree of permanent disability of the appellant as 16% (whole body disability). True that 42% is the disability of the specified part as per Mc Bride Scale. The learned counsel for M.A.C.A.No.1657/13 -4- the appellant submitted that in view of the fact that the injury sustained by the appellant in the accident resulted in permanent disability, he is entitled to get compensation for the disability sustained by him. Evidently, no compensation was granted to the appellant for permanent disability. In the light of Ext.X1, the question is whether the appellant is entitled to be compensated for permanent disability. The Tribunal took the monthly income of the appellant as 5,550/-. It was so fixed taking into account₹ the evidence let in by the appellant. Admittedly, the appellant was drawing only 5,550/- as salary during the relevant period.₹ In such circumstances, the fixation of the monthly income for calculation purpose cannot be said to be wrong. The learned counsel for the appellant contended that the multiplier has to be adopted with reference to the age of the appellant at the time of accident. However, the learned counsel appearing for the 3[rd] respondent submitted that the multiplier cannot be adopted taking into account the Schedule given in **Sarla Verma** v. **Delhi Transport Corporation (2010(2) KLT 802)** for various reasons. It is submitted that the percentage of permanent M.A.C.A.No.1657/13 -5- disability incurred by the appellant consequent to the accident did not result in termination of his employment. He is still continuing as an employee of the KSRTC. In such circumstances, though he will have to suffer physical disability, it would not have any impact on his employment till his retirement on superannuation. Taking into account the rival contentions, we are of the considered view that the multiplier which is to be adopted in terms of the Schedule given in the decision in Sarla Verma's case (supra) cannot be applied. The age of superannuation in the KSRTC is 58 years. Taking into account the average life span of an Indian citizen and also the aforesaid aspect, we are of the view that it would only be appropriate to adopt the multiplier as '9' for calculating compensation payable for the permanent disability incurred by the appellant. Taking into account the aforesaid factors, the compensation payable for disability has to be calculated. The learned counsel for the appellant contended that instead of granting compensation for permanent disability, the appellant is entitled to get compensation for loss of earning capacity. We have taken note of the fact that despite the M.A.C.A.No.1657/13 -6- disability incurred due to the accident in question, he continues to be in service. In such circumstances, merely because he was on leave without allowances for some period, it cannot be a ground for holding that the accident had actually affected his earning capacity. It is also to be noted that the appellant got no case and he has also not adduced any evidence, that subsequent to the accident and taking note of the disability a category change was necessitated and thereby, there occurred a deduction in his salary. In such circumstances, we are of the view that the appellant is entitled only to get compensation for the disability sustained by him in the accident. Taking into account the fact that the age of superannuation in KSRTC is 58 years and the nature of the permanent disability, we are of the view that the appellant would be in a position to earn the same amount as has been fixed by the Tribunal on monthly basis, even after his retirement. In other words, according to us, he would be capable of earning that much amount even after his retirement. Therefore, for calculation purpose, we fix the monthly income as ₹5,550/-. Taking into account the multiplier as '9' and the M.A.C.A.No.1657/13 -7- percentage of disability certified under Ext.X1, viz; '16', the appellant is entitled to get a compensation of **₹95,904/-** (5550x12x9x16/100) for permanent disability. 6. The nature of the accident would indicate that the dresses worn by the appellant at the time of accident have been damaged. He claimed an amount of 500/- as compensation for₹ the same. However, no amount was granted by the Tribunal under that head. We are inclined to grant an amount of **₹500/-** under that head. 7. Towards pain and suffering, the Tribunal had granted an amount of 22,000/- as against a claim of 75,000/-. Taking₹ ₹ note of the nature of injuries sustained and period of hospitalisation for 65 days, we are of the view that for the excruciating pain suffered by the appellant during the said period, he is entitled to get a compensation of 30,000/- under that₹ head. After deducting the amount of 22,000/- granted by the₹ Tribunal, the appellant would be entitled to get an amount of ₹ **8,000/-** more under this head. Despite the persuasive arguments of the learned counsel for the appellant, on going M.A.C.A.No.1657/13 -8- through the impugned judgment, especially, the schedule of compensation, we are of the view that there is absolutely no scope for any further modification of the compensation under any other head. In such circumstances, the appellant is entitled to get an additional compensation of 1,04,404/-, which is rounded off to₹ **₹1,04,500/-** (Rupees One Lakh Four Thousand Five Hundred only), which is awarded. The additional compensation will carry interest @8% per annum from the date of petition till realisation. The 3[rd] respondent shall deposit the said amount together with interest thereon as stipulated above, within a period of one month from the date of receipt of a copy of this judgment. There will be no order as to costs. Sd/- ## **C.T. RAVIKUMAR,** ## **JUDGE** Sd/- **ANIL K. NARENDRAN, JUDGE** dsn //True copy P.S. to Judge//