Simon N.K v. Sabu Sebastian and The National Insurance Co. Ltd

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. WEDNESDAY, THE 13[TH] DAY OF SEPTEMBER 2023/22ND BHADRA, 1945 MACA NO. 2261 OF 2009 ``` ``` OPMV 1163/2006 OF MOTOR ACCIDENT CLAIMS TRIBUNAL PALA ``` ## **`APPELLANT/S:`** ``` SIMON N.K S/O.KURIAKOSE, AGED 49 YEARS, NEDUMPOKIL HOUSE,, MARIDOM, KARA, KIDANGOOR VILLAGE, KOTTAYAM DIST. BY ADVS. SRI.SHIJU VARGHEESE SRIPRAMOJ ABRAHAM SRI.RENDEEP PREM ``` ## **`RESPONDENT/S:`** ``` 1SABU SEBASTIAN AGE NOT KNOWN, KOICKAL HOUSE, CHERPUNKAM PO,, EAST MARIDOM BHAGAM, KIDANGOOR, VILLAGE,, KOTTAYAM DIST. 2THE NATIONAL INSURANCE CO.LTD REP.BY ITS BRANCH MANAGER, PALA,, KOTTAYAM DIST. BY ADVS. LATHA SUSAN CHERIAN GEORGE A.CHERIAN(K/611/2014) GEORGE CHERIAN (SR.)(G-81) ``` ## **`THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR`** ``` ADMISSION ON 13.09.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` M.A.C.A. No.2261/2009 : 2 : ## JUDGMENT The appellant is the petitioner in OP(MV) No.1163/2006 on the file of the Motor Accident Claims Tribunal, Pala. 2. The aforesaid claim petition was submitted by the petitioner seeking compensation for the injuries he sustained in a motor accident that occurred on 10.11.2006 when the Maruti car bearing registration No.KRB 1040, driven by the 1[st] respondent, hit the motorcycle on which the appellant was travelling. The appellant sustained serious injuries consequent to the accident. The said vehicle was insured with the 2[nd] respondent Insurance Company at the relevant time. The claim petition was filed and submitted in such circumstances. 3. The 1[st] respondent had chosen not to appear, and therefore, he was set ex-parte. The 2[nd] respondent Insurance Company filed a written statement admitting the coverage of the policy in respect of the vehicle. However, the liability was disputed mainly on the ground that the accident occurred due to negligence on the part of the appellant. The quantum of M.A.C.A. No.2261/2009 : 3 : compensation was also disputed. 4. No oral evidence was adduced from either side. Exts.A1 to A3 were marked from the side of the appellant. After examining the materials placed on record, the tribunal arrived at a conclusion that the accident occurred due to the negligence of the 1[st] respondent and being the insurer of the said vehicle, the 2[nd] respondent was held responsible for paying the compensation. The quantum of compensation was fixed as `1,70,570/-, and the 2[nd] respondent was directed to deposit the said amount along with interest at the rate of 9% per annum. Being dissatisfied with the quantum of compensation, this appeal was filed. 5. Heard Sri. Shiju Varghese, the learned counsel appearing for the appellant and Smt. Latha Susan Cherian, the learned counsel appearing for the 2[nd] respondent. 6. The learned counsel for the appellant raised various contentions highlighting the inadequacy of the compensation awarded by the tribunal. The main contention was in connection with the compensation granted under the head of loss of earnings. It was pointed out that the appellant availed leave without allowance for a period of 264 days. The tribunal granted M.A.C.A. No.2261/2009 : 4 : a meagre amount of `58,500/- by taking the loss of income at the rate of `6,500/- per month, whereas the monthly income as per the salary certificate of the petitioner was `10,275/-. From the observations in the award, I find some force in the contention put forward by the learned counsel for the appellant. It is seen that the tribunal has awarded the compensation under the said head for a period of nine months, but when fixing the monthly income, even though the monthly salary was `10,275/-, 1/3[rd] thereof was deducted towards his personal expenses. In my view, since the compensation was being granted for the loss of income sustained to the appellant, under no circumstances such a deduction was justifiable. The tribunal ought to have taken the total salary to compute the same, and therefore, I am of the view that the compensation awarded under the said head requires modification on that ground. Therefore, to compute the compensation for loss of income, the monthly salary of `10,275/- is taken for nine months. When reworking the compensation as above, the compensation under this head would come to `92,475/- and after deducting `58,500/- already granted by the tribunal, the additional M.A.C.A. No.2261/2009 : 5 : amount would come to `33,975/-. 7. The next ground raised by the learned counsel for the appellant is with regard to the permanent disability resulting in loss of earning capacity. The tribunal has computed the compensation for the period after the appellant's retirement since he was in Government Service. Of course, there is nothing wrong in adopting the said method for computing the compensation for a Government Servant. However, it is seen from the records that the monthly income taken by the tribunal for the said purpose is only `3,000/- which is too low. Going by the age of the appellant, the date of retirement was in the year 2017, and therefore, some reference to that period is to be taken into account while taking the monthly income. 8. In the facts and circumstances of the case, I am of the view that, under no circumstances the monthly income, in this case, should be lesser than `9,000/-, and I am inclined to fix `9,000/- as the monthly income for the said purpose. As per the principles laid down by the Hon’ble Supreme Court in Sarla Varma v. Delhi Transport Corporation [2010(2)KLT 802 (SC)], the M.A.C.A. No.2261/2009 : 6 : multiplier applicable to the age group between 55-60 is nine. Therefore, while reworking the compensation under the head of permanent disability, the amount would come to `58,320/- (9,000 x 12 x 9 x 6/100). The amount already awarded by the tribunal is `11,520/- and after deducting the said amount, the total amount would come to `46,800/-. Thus, the total compensation receivable by the appellant, in addition to the amount already awarded by the tribunal, would come to `80,775/- (33975 + 46800). 9. At this juncture, the learned counsel for the respondent Insurance Company would point out that a counter affidavit filed in the delay petition, wherein they have raised a specific contention, even though notice in the delay petition was ordered by this Court on 18.09.2009, no steps have taken to serve notice to the respondents. Notice was actually served upon the 2[nd] respondent Insurance Company only on 20.01.2023. Since there was considerable delay in taking steps by the appellant to serve notice on the respondents, the interest for the enhanced compensation pertaining to the said period should not M.A.C.A. No.2261/2009 : 7 : be awarded, contends the learned counsel for the appellant. 10. From the records, it is evident that there is a lapse on the part of the appellant in taking steps to serve notice on the respondents. Therefore, I am of the view that, the respondent Insurance Company cannot be mulcted with the liability to pay the interest at the rate as awarded by the tribunal. Even though the learned counsel for the respondent contended that no interest can be granted for the said period, I am of the view that, such a view may not be justifiable. A reasonable interest is still to be awarded in this case, even in respect of the said period. In the facts and circumstances of the case, I deem it appropriate to fix the rate of interest as 6 % for the period from 18.09.2009, the date on which notice was ordered by this Court, till 20.01.2023, the date on which the notice was given to the respondent. In such circumstances, this appeal is disposed of granting an additional amount of `80,775/- (33975 + 46800) and the 2[nd] respondent herein is directed to deposit the said amount along with interest at the rate of 9% from the date of petition till 18.09.2009 (excluding the period of 190 days of delay in filing the M.A.C.A. No.2261/2009 : 8 : appeal) and from the date of 21.01.2023 till realisation. During the period from 18.09.2009 to 20.01.2023, the interest payable shall be 6% per annum. It is further clarified that, since there was a delay of 190 days in filing the appeal, the additional amount shall not carry any interest for the said period of delay. The said amount, along with interest as mentioned above, shall be deposited within a period of three months from the date of receipt of a copy of this judgment. Sd/ZIYAD RAHMAN A.A. JUDGE ncd M.A.C.A. No.2261/2009 : 9 : ## **`APPENDIX OF MACA 2261/2009`** ``` PETITIONER ANNEXURES Annexure ATRUE COPY OF THE MEDICAL CERTIFICATE DATED 26.11.2013 ```