Shyam Das v. Sreelal and The National Insurance Co. Ltd

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM** **& THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH** **MONDAY, THE 13TH DAY OF NOVEMBER 2017/22ND KARTHIKA, 1939** **MACA.No. 2069 of 2014 () -------------------------** ## **AGAINST THE AWARD IN OPMV 1669/2011 of MOTOR ACCIDENTS CLAIMS TRIBUNAL, KOTTAYAM DATED 28-04-2014** **APPELLANT(S)/PETITIONER: -----------------------** **SHYAM DAS, CHERUKARACHIRA, KOTHAVARA POST, VAIKOM** **BY ADVS.SRI.MATHEW JOHN (K) SRI.DOMSON J.VATTAKUZHY** ## **RESPONDENT(S)/RESPONDENTS:** **--------------------------** ## **1. SREELAL** **GOKULAM, CHEMPU POST, VAIKOM 686141** ## **2. THE NATIONAL INSURANCE CO. LTD, KOTTAYAM 686001** **R2 BY ADV. SRI.P.G.GANAPPAN R BY SRI.M.A.GEORGE** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 13-11-2017, ALONG WITH MACA 2118/2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **SHG/** ## **C.K. ABDUL REHIM & K.P. JYOTHINDRANATH, JJ.** **- - - - - - - - - - - - - - - - - - - - - - - M.A.C.A. Nos.2069 & 2118 of 2014 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 13[th] day of November, 2017** ## **J U D G M E N T** ## **Abdul Rehim, J.** Since both the above appeals are arising out of a common award passed by the Motor Accidents Claims Tribunal, Kottayam in OP(MV) Nos.1668/11 and 1669/2011; and since both the claims arise out of the very same accident, we have considered both the appeals together and dispose of the same through this common judgment. 2. The accident occurred on 27.5.2011 when a car hit against the motor cycle on which claimants in both the cases were travelling. The motorcycle was driven by the claimant in OP(MV) 1668/2011, from which MACA No.2118/2014 is filed. The claimant in O.P.(M.V.)No. 1669/11 relating to MACA No.2069/2014 was the pillion rider. In both these appeals the claimants are seeking enhancement of the amount of compensation awarded, mainly contending that the income adopted by the Tribunal M.A.C.A. Nos.2069 & 2118 of 2014 2 for computing the loss of earnings and the compensation for permanent disability, are highly inadequate and insufficient. There is no dispute in the present appeals regarding the findings on the aspects of negligence and liability on the 2[nd] respondent insurance company. 3. We heard learned counsel appearing for the appellants and learned standing counsel appearing for the 2[nd] respondent insurance company in both these cases. 4. The appellant in MACA 2118/2014 is the claimant in OP(MV) No.1668/2011. His claim before the Tribunal was that, at the time of the accident he was aged 25 years and was working as a carpenter, earning an amount of Rs.10,000/- per month. There is evidence to the effect that he sustained severe injuries and continued inpatient treatment at different hospitals during various spells. There is history of malunion of fracture on his right lower limb, for which various procedures were conducted, including bone grafting. Evidence adduced is to the effect that the injury sustained had resulted in causing permanent disability, the M.A.C.A. Nos.2069 & 2118 of 2014 3 extent of which was assessed through Ext.X1 certificate issued by the Medical Board at 13%. The appellant in MACA 2069/2014, who is the claimant in OP(MV) 1669/2011 had also sustained very severe injuries and continued treatment for a prolonged period. 5. Learned counsel for the appellants contented that, both of them were carpenters by profession and was earning monthly income of Rs.10,000/- each. It is pointed out that, despite such a claim, the Tribunal had adopted only a notional income for Rs.5,000/-. On a perusal of the impugned award we noticed that the Tribunal had observed that, despite the claim made by the appellants regarding their occupation and income, no proof was adduced to substantiate the same. Therefore the Tribunal had adopted notional income of Rs.5,000/- per month for the purpose of computing compensation in both the cases. We had occasion to peruse the copy of Ext.A1 FIR registered with respect to the accident in question. In the F.I. Statement given by the appellant in MACA 2118/2014, it is mentioned 4 M.A.C.A. Nos.2069 & 2118 of 2014 that he is occupied as a 'Masthiri'. But in the case of the other appellant there is absolutely no proof regarding the occupation and the said appellant was aged 19 years only. In the absence of any specific evidence regarding the occupation or with respect to the income derived by the appellants, we are not inclined to interfere with the findings of the Tribunal that the claimants have not succeeded in proving their occupation and income. But at the same time, we are of the opinion that the notional income fixed by the Tribunal needs reconsideration, taking note of the socioeconomic situations prevailed during the year 2011. It is worth noticing that the hon'ble apex court in the case of **Ramachandrappa v. Manager, Sundaram Alliance Insurance Company Limited [(2011) 13 SCC 236]** held that, even in a case of a person who is not regularly employed, that too with respect to an accident which occurred in the year 2004, the notional income can be adopted at Rs.4,500/-. Considering the above aspects we make a reasonable estimation of the notional income with M.A.C.A. Nos.2069 & 2118 of 2014 5 respect to the appellants at Rs.7,000/- per month. 6. Calculated based on the above findings, the compensation awarded in OP(MV) 1668/2011 under the head of loss of earnings need to be re fixed at Rs.35,000/[7000x5]. This will entitle the appellant for an enhancement of Rs.10,000/- on that count. Consequently, the compensation awarded under the head of permanent disability also require refixation at Rs.1,96,560/[7000x12x18x13%]. This will entitle the appellant for an enhancement of Rs.56,160/-, after deducting the amount already awarded. We do not find any reason to interfere with the amounts of compensation awarded under other heads. Accordingly we hold that the appellant in MACA 2118/2014 (claimant in OP(MV) 1168/2011) is entitled for a total enhancement of Rs.66,160/- (Rupees sixty six thousand one hundred and sixty only). 7. The compensation awarded in OP(MV) 1669/2011 is reworked based on the above findings. Loss of earnings awarded is refixed at Rs.35,000/- [70000x5] which will M.A.C.A. Nos.2069 & 2118 of 2014 6 entitle the appellant for an enhancement of Rs.10,000/- on that count. Compensation for permanent disability is re fixed at Rs.1,05,840/- [7000x12x18x7%]. This will entitle the appellant for an enhancement of Rs.30,240/-. Thus the total enhancement for which the appellant in that case is entitled is fixed at Rs.40,240/- (Rupees forty thousand two hundred and forty only). 8. In the result, the above appeals are allowed in part, as follows: (i) MACA 2118/2014 is disposed of by allowing an enhancement of Rs.66,160/-, over and above the compensation awarded by the Tribunal. The said amount will carry interest at the same rate as awarded by the Tribunal from the date of the claim petition till realisation. (ii) MACA 2069/2014 is allowed by enhancing the total compensation by a further sum of Rs.40,240/-. The said amount will carry interest at the same rate as awarded by the Tribunal from the date of the claim petition till realisation. M.A.C.A. Nos.2069 & 2118 of 2014 7 The second respondent in both these cases shall make deposit of the amount before the Tribunal within a period of two months from the date of receipt of a copy of this judgment. Needless to observe that, on such deposit the appellants in both these cases will be entitled to approach the Tribunal seeking withdrawal and the Tribunal shall pass appropriate orders thereon. Sd/- ## **C.K. ABDUL REHIM, JUDGE** Sd///True copy// ## **K.P. JYOTHINDRANATH, JUDGE** P.A. TO JUDGE shg/