Suresh Kumar K.P. v. Philip K.V and Royal Sundaram Alliance Insurance Co. Ltd.

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. FRIDAY, THE 15[TH] DAY OF SEPTEMBER 2023 / 24TH BHADRA, 1945 ``` ## **`MACA NO. 90 OF 2019`** ``` AGAINST THE AWARD DATED 28.07.2018 IN OP(MV) 884/2014 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, PATHANAMTHITTA ``` ## **`APPELLANT/PETITIONER:`** ``` SURESH KUMAR K.P MUKKATTU HOUSE, CHATHENKERI P.O., PERINGARA VILLAGE, THIRUVALLA TALUK. BY ADVS. T.K.KOSHY SRI.SABU I.KOSHY SMT.V.V.RISANI ``` ## **`RESPONDENTS/RESPONDENTS 1 & 2:`** ``` 1PHILIP K.V KURAVAKKAL HOUSE, NALKKALICKAL, ARANMULA P.O., KOZHENCHERY, PIN - 689 533. 2BRANCH MANAGER ROYAL SUNDARAM ALLIANCE INSURANCE CO.LTD., SUNDARAM TOWERS, 46 WHITES ROAD, ROYAPETTAH, CHENNAI - 600 014. ``` ``` BY ADV ADV SRI.P.J.MATHEW P JACOB MATHEW -R2 ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 15.09.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA NO. 90 OF 2019 ``` ``` 2 ``` ## **`JUDGMENT`** The appellant is the petitioner in O.P.(M.V.) No.884/2014 on the files of the Motor Accident Claims Tribunal, Pathanamthitta. 2. The aforesaid claim petition was filed by him seeking compensation for the injuries sustained to him in a motor accident that occurred on 28.07.2013 when the motorcycle on which he was pillion riding was hit by a Maruti car bearing Registration No.KL 03 M 5950 driven by the 1[st] respondent and insured with the 2[nd] respondent. Consequent to the accident, he sustained severe injuries. According to the appellant, he was a heavy driver with a monthly income of Rs.18,000/-. The amount of compensation sought was Rs.9,00,250/-. 3. The 1[st] respondent remained ex parte, and the 2[nd] respondent filed a written statement admitting the coverage of policy in respect of the Maruti car but disputed the liability on various grounds. The quantum of compensation was also disputed by them. ``` MACA NO. 90 OF 2019 ``` ``` 3 ``` 4. The evidence in this case consists of Exts.A1 to A15 from the appellant's side. No evidence was adduced from the side of respondents. After appreciating the materials placed on record, the Tribunal arrived at the conclusion that the accident occurred due to the negligent driving of the 1[st] respondent and being the insurer of the said vehicle, the 2[nd] respondent was held liable to pay the compensation. The quantum of compensation was fixed as Rs.3,96,240/-, and the 2[nd] respondent was directed to deposit the said amount along with interest @ 9% per annum from the date of petition till the date of realisation. This appeal is submitted by him seeking enhancement of compensation. 5. Heard Sri.T.K.Koshy, learned counsel for the appellant, Sri.P.J. Mathew, learned counsel appearing for the 1[st] respondent and Sri.P.Jacob Mathew, learned counsel appearing for the 2[nd] respondent. 6. The learned counsel appearing for the appellant contends that the amount awarded under the head of ‘permanent ``` MACA NO. 90 OF 2019 ``` ``` 4 ``` liability’ is on the lower side. The aforesaid contention was raised by him, mainly highlighting the percentage of disability taken and also the monthly income of the appellant. Even though the Ext A9 disability certificate issued from the General Hospital, Pathanamthitta, was produced wherein the disability was certified as 15%, the Tribunal did not accept the same and instead took only 11%. It is discernible from the records that the reason for rejecting the said certificate is that it was issued by the Standing Disability Assessment Board, General Hospital and therefore, it was not binding on the Tribunal. 7. However, after considering the materials placed on record, I am of the view that unless there are any discrepancies or irregularities in the percentage of disability determined in the disability certificate issued by a competent Doctor, the said certificate ought not have been rejected. In this case, I do not find any reason to discard the said certificate, and therefore, I deem it appropriate to accept the percentage of disability as certified in the ``` MACA NO. 90 OF 2019 ``` ``` 5 ``` said document. When it comes to the question of monthly income, it is discernible that the income taken is only Rs.8,000/- which appears to be on the lower side. Evidently, the appellant was a heavy driver by profession, and to substantiate the same, Ext.A10, which is a driving license issued to him by the State of Qatar and Ext.A11, a driving license issued by the Kerala State, were produced. There is also no dispute as to the avocation of the appellant. Since the accident occurred in the year 2013, even as per the method of computation devised from the principles laid down by the Hon’ble 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 Company** [(2014) 2 SCC 735] the monthly income of an ordinary employee can be fixed as Rs.9,000/-. Since the appellant was a skilled employee, a slightly higher monthly income can be fixed. Besides the same, the learned counsel for the appellant also places reliance upon the decision rendered by the Hon’ble ``` MACA NO. 90 OF 2019 ``` ``` 6 ``` Supreme Court in **Rajani v. Oriental Insurance Co. Ltd.** [2022 (5) KLT Online 1012 (SC)] wherein the income of a skilled worker was fixed as Rs.15,000/- in respect of the accident occurred in the year 2015. Besides the same, in **Manusha Sreekumar v. United India Insurance Company Ltd.** [2022 5 KLT online 1024], by placing reliance upon the notification issued by the Government of Kerala under the Kerala Motor Transport Workers’ Payment of Fair Wages Act, 1971, the monthly income was taken as Rs.15,600/- for driver, by the Hon’ble Supreme Court, in respect of an accident that occurred in the year 2015. In such circumstances, I am of the view that the facts and circumstances of this case would justify a monthly income of Rs.13,000/-. 8. When reworking the compensation under the head of ‘permanent disability’ with the above revised criteria, the amount comes to Rs.3,04,200/- (13,000 x 12 x 13 x 15/100). After deducting Rs.1,37,280/- awarded by the Tribunal under this head, the additional amount would come to Rs.1,66,920/-. ``` MACA NO. 90 OF 2019 ``` ``` 7 ``` 9. When moving on to the other heads, it can be seen that the amount awarded under the head of ‘loss of amenities’ is only Rs.5000/- which is on the lower side. The facts and circumstances of this case would justify a further sum of Rs.20,000/- under the said head. 10. Consequent to the revision of monthly income, the appellant would be entitled to a further amount under the head of ‘loss of income’. The Tribunal has granted compensation under this head for a period of five months. Therefore, an additional amount of Rs.25,000/- would be payable under this head. Thus, the additional amount to be awarded as compensation in this case would be Rs.2,11,920/- (166920 + 20000 + 25000). Accordingly, this appeal is allowed, and the award dated 28.07.2018 in O.P.(M.V.) No.884/2014 passed by the Motor Accident Claims Tribunal, Pathanamthitta, is modified by granting a further sum of Rs.2,11,920/- (Rupees Two lakhs eleven thousand nine hundred and twenty only) and the 2[nd] respondent is directed to ``` MACA NO. 90 OF 2019 ``` ``` 8 ``` deposit the said amount along with interest at the rate as ordered by the Tribunal with proportionate costs within a period of three months from the date of production of copy of this judgment. ``` Sd/- ZIYAD RAHMAN A.A. JUDGE ``` scs