Sreekumar v. The Divisional Manager, National Insurance Co. Ltd., Kollam

MACA.No.480/2012 1 # _IN THE HIGH COURT OF KERALA AT ERNAKULAM_ # _PRESENT_ _THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A._ _FRIDAY, THE 20[TH] DAY OF OCTOBER 2023 / 28TH ASWINA, 1945_ ## _MACA NO. 480 OF 2012_ _AGAINST THE ORDER/JUDGMENT OPMV 610/2008 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,KOLLAM_ _APPELLANT/PETITIONER:_ _SREEKUMAR, S/O.GOPALAKRISHNA PILLAI, DEVA VILASOM, CHEMMAKKADU, PERINAD, KOLLAM._ _BY ADV.SRI.PRATHEESH.P_ ## _RESPONDENT/S:_ _THE DIVISIONAL MANAGER, THE NATIONAL INSURANCE CO. LTD., KOLLAM KOLLAM-691 001._ _BY ADVS. SMT.DEEPA GEORGE SRI.M.A.GEORGE SMT.P.K.SANTHAMMA_ _THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 20.10.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:_ MACA.No.480/2012 2 ## **JUDGMENT** The appellant is the petitioner in O.P.(MV). No.610 of 2008 on the file of the Motor Accidents Claims Tribunal, Kollam. The said claim petition was submitted by the appellant seeking compensation for the injuries sustained to him in a motor accident that occurred on 11.06.2007. According to him, the accident occurred when the motorcycle on which the appellant was travelling was hit by another motorcycle bearing registration No.KL-2/Z 5487, driven by the 2[nd] respondent in a rash and negligent manner. According to the appellant, he was a businessman with a monthly income of Rs.2,500/-. His age was 32 at the time of the accident. Consequent to the injuries sustained, he suffered permanent disablement, which was certified by the Medical Board as 30%. The claim petition was submitted in such circumstances. 2. The 3[rd] respondent alone contested the matter by filing a written statement, wherein they admitted the coverage of policy regarding the motorcycle. However, they disputed the liability on various grounds. The negligence, as well as the quantum of compensation, were also disputed by them. MACA.No.480/2012 3 3. The evidence in this case consists of Exts.A1 to A13 from the side of the appellants, and the disability certificate was marked as Ext.C1. After the trial, the Tribunal came to the conclusion that the accident occurred due to negligence on the part of the 2[nd] respondent in riding the motorcycle. Therefore, being the insurer of the said vehicle, the 3[rd] respondent was held liable to pay the compensation. The quantum of compensation was fixed as Rs.1,07,526/-, which was rounded to Rs.1,07,600/-. The said amount was directed to be deposited by the 3[rd] respondent Insurance Company with interest at the rate of 7.5% per annum from the date of petition till realization. This appeal is submitted by the appellant seeking enhancement of compensation. 4. Heard Sri.Pratheesh P., learned counsel for the appellant and Smt.Deepa George, learned counsel for the Insurance Company. 5. The main contention put forward by the learned counsel for the appellant is with respect to the inadequacy in the compensation under the head of loss of earning power owing to the physical disability. It was pointed out that the monthly income taken by the Tribunal was only Rs.2,500/- which was on MACA.No.480/2012 4 the lower side. Even though the amount claimed as monthly income in the claim petition was Rs 2,500, the learned counsel for the appellant would place reliance upon the observations made in **Minu Rout v. Satya Pradyumna Mohapatra, [(2013)** **10 SCC 695],** wherein the Honourable Supreme Court has taken the monthly income higher than what is claimed in the claim petition. It was pointed out that going by the standards prevailing in the year 2007, which was the year of the accident, under no circumstances, the monthly income of Rs.2,500/- can be treated as a reasonable figure. 6. The learned counsel for the Insurance Company would stoutly oppose the aforesaid contention by pointing out that as the appellant is the best person to know his monthly income, it is unnecessary to take a monthly income over and above what is claimed. 7. After considering the materials on record, I find some force in the contention of the learned counsel for the Insurance Company. It is true that the monthly income claimed was only Rs.2,500/-. However, as rightly pointed out by the learned counsel for the appellant, going by the standards that were prevailing in the year 2007, such an amount appears to be MACA.No.480/2012 5 meagre. It is to be noticed in this regard, as per the method of computation of the monthly income the Honorable Supreme Court in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Co. Ltd. [2011 (13) SCC 236]** and **Syed Sadiq v. Divisional Manager, United India Insurance Co.** **[2014 (2) SCC 735],** monthly income of an ordinary employee has to be fixed as Rs 4,500/- even in the absence of any evidence, in respect of an accident in the year 2004. For determining the monthly income for subsequent years, the method usually adopted is to add Rs.500/- each for every passing year. Since, such a method of computation is well accepted, logical and ensures periodical increment taking note of the passage of time, it has to be accepted. Therefore, the same is ordinarily treated as the basic method for computing the monthly income, which can be accepted in all the cases. Hence, I deem it appropriate to take the said method of computation in this case as well. Such exercise needs to be done to ensure “just compensation” to the victim, which is an obligation to be fulfilled by the courts. Thus, even though the monthly income claimed was only Rs.2,500/-, while adopting the said method, the MACA.No.480/2012 6 monthly income in this case would come to Rs.6,000/- and it is accepted as such. 8. The next element to be determined is the percentage of disability. The Medical Board assessed the disability as 30%. It is discernible from the certificate that the appellant sustained loss of sight in one eye. However, the Tribunal did not accept the said percentage of disability by observing that it is not discernible from the Medical certificate as to whether it represents whole body disability or the disability of vision. However, the crucial aspect to be noticed is that the loss of one eye is a scheduled injury as per the provisions of the Employees Compensation Act, 1923. As per the same, the percentage of loss of earning capacity is fixed as Rs.30% for the loss of one eye. Therefore, the percentage of disability certified by the Medical Board is in tune with the percentage of disability included in the schedule of the Employees Compensation Act. Hence, I deem it appropriate to fix the percentage of disability as 30%. Thus, while re-assessing the compensation for permanent disability by fixing the monthly income as Rs.6,000/and the percentage of disability as 30%, the amount of compensation for disability would come to Rs.3,45,600/-(6000 x MACA.No.480/2012 7 12 x 16 x 30/100). The amount awarded by the Tribunal under this head is only Rs.48,000/-; thus, the additional amount would come to Rs.2,97,600/-. 9. When moving to the other heads, it can be seen that, towards pain and suffering, Rs.15,000/- was granted by the Tribunal. Considering the nature of the injuries and the physical disability arising therefrom, I deem it appropriate to grant a further sum of Rs.10,000/- under this head. Similarly, for the very same reason, some additional amount is required to be awarded under the head of loss of amenities as well. The amount awarded by the Tribunal is Rs.16,000/- and due to the above reasons, I deem it appropriate to grant a further sum of Rs.14,000/-. Thus, the total additional compensation is determined as Rs.3,21,600/- [297600 +10000+14000]. In the light of the aforesaid observations and findings, this appeal is allowed. The award dated 24.02.2011 in O.P. (MV).No.610 of 2008 passed by the Motor Accidents Claims Tribunal, Kollam, is hereby modified by granting an additional compensation of Rs.3,21,600/- (Rupees three lakhs twenty one thousand and six hundred only) and the respondent herein shall deposit the amount along with interest at the rate of Rs.7.5% per MACA.No.480/2012 8 annum from the date of petition till realization, and with proportionate costs. Further, it is clarified that, as the appeal was filed with a petition to condone the delay of 265 days, the respondent Insurance Company shall be entitled to exclude the period of delay while computing the interest on the additional compensation. Sd/- **ZIYAD RAHMAN A.A.** **JUDGE** DG/21.10.23