Syam Babu @ Babu v. Manikuttan, Sasidharan, and Shriram General Insurance Co. Ltd.

# IN THE HIGH COURT OF KERALA AT ERNAKULAM # PRESENT THE HONOURABLE MR.JUSTICE BASANT BALAJI SATURDAY, THE 18[TH] DAY OF DECEMBER 2021/27TH AGRAHAYANA, 1943 ## M.A.C.A. NO.1431 OF 2019 (AGAINST THE AWARD DATED 10.08.2018 IN OP(MV)No.776/2013 OF ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL, MAVELIKKARA) ## APPELLANT/PETITIONER: SYAM BABU @ BABU, AGED 39 YEARS, S/O.SHAMSUDHEEN, IDAYIL VEEDU, ERUVA P.O, KAYAMKULAM. BY ADVS. SRI.GEORGE VARGHESE(PERUMPALLIKUTTIYIL) SRI.A.R.DILEEP SRI.P.J.JOE PAUL ## RESPONDENTS/RESPONDENTS: - 1 MANIKUTTAN, ALUMMOODU HOUSE, VELLANTHURUTH, CHERIAZHEEKAL, KARUNAGAPPALLY-690 518. - 2 SASIDHARAN, VELIYIL VEEDU, KESAVAPURAM, KARUNAGAPPALLY-690 518. - 3 SHRIRAM GENERAL INSURANCE CO.LTD., 10003-E-8, RICO INDUSTRIAL AREA, SITAPURA, JAIPURA, RAJASTHAN-302 022. BY ADVS. SRI.S.SREEKUMAR (KOLLAM) SRI.MATHEWS JACOB (SR.) SRI.P.JACOB MATHEW, STANDING COUNSEL THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 18.12.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: _M.A.C.A. No.1431 of 2019_ 2 ## **JUDGMENT** **==> picture [181 x 14] intentionally omitted <==** This appeal is filed by the appellant/petitioner in O.P.(M.V.)No.776 of 2013 on the file of the Additional Motor Accidents Claims Tribunal, Mavelikkara against the award dated 10.08.2018. 2. The facts in brief are as follows: The petitioner was travelling in a car bearing Reg.No.KL04/P-5213 along the Alappuzha-Kollam National Highway from south to north direction. When the car reached near KMML, Factory, Chavara, it collided with a mini bus bearing Reg.No.KL-09/H-8532 which came from opposite direction and thereby the driver of the car died and the petitioner sustained serious injuries. The 2[nd] respondent is the owner of the bus and the 3[rd] respondent is the insurer. The petitioner claimed Rs.8,00,000/- as compensation. The 3[rd] respondent filed _M.A.C.A. No.1431 of 2019_ 3 a written statement contending that it was not due to the negligence on the part of the first respondent. The age, occupation and income of the petitioner stated in the petition were denied. The compensation claimed is exorbitant and prayed for dismissal of the petition. 3. On the side of the petitioner, Exts.A1 to A17 and X1 were marked. There was no oral evidence adduced on both sides. The Tribunal on the basis of the evidence adduced awarded a compensation of Rs.5,22,085/- with interest at the rate of 7.5% per annum from the date of petition till the date of realisation. Aggrieved by the said award, this appeal has been filed. 4. Heard the learned counsel appearing for the appellant/petitioner as well as the 3[rd] respondent. Notice to respondents 1 and 2 dispensed with being the owner and driver, since policy is admitted and they were ex-parte before the Tribunal. 5. The counsel for the appellant/petitioner _M.A.C.A. No.1431 of 2019_ 4 submitted that the Tribunal erred in taking the annual income of the petitioner as Rs.2,34,856/- and it ought to have taken Rs.2,44,000/- and the disability assessed at 19.2% and was taken as 4% by the Tribunal, without any reason. Ext.X1 is the disability certificate issued by a Medical Board and the Tribunal ought not have rejected the same. More over, the multiplier taken is '15' and since the appellant/petitioner is aged less than 36 years, the multiplier ought to have taken is '16'. 6. The counsel for the respondent on the other hand submitted that, the claim of the petitioner regarding the income was that he was earning Rs.12,000/- per month, but the Tribunal took the annual income as Rs.2,34,856/-, which comes to Rs.19,571/- per month, thus committed a grave mistake. He also submitted that, the Tribunal rightly took the disability as 4% as the appellant/petitioner was doing an agency of stationery items and that because of the _M.A.C.A. No.1431 of 2019_ 5 disability there is no loss of earning power. So the scaling down of disability from 19% to 4% is justifiable. 7. It is not in dispute that the appellant/petitioner had sustained injuries in a motor accident and the 3[rd] respondent has admitted the insurance policy also. The injuries sustained by the appellant/petitioner are: i) head injury, ii) fracture both bones forearm B/L multiple facial lacerations, iii) exposure keratitis (R) cornea. 8. The Medical Board constituted from MCH, Alappuzha issued Ext.X1 disability certificate certifying that permanent disability caused to the appellant/petitioner is 19.2%. The Tribunal after finding that the accident has caused permanent disability to the appellant and it has affected his earning capacity and reduced the disability of 19% to 4%, for the reason that though he has produced the income tax returns for the assessment year 2009-10, he _M.A.C.A. No.1431 of 2019_ 6 has not produced subsequent returns to prove his reduction in income. I find that the said reasoning cannot be sustained in view of the fact that a Medical Board attached to the Medical College Hospital has certified that his permanent disability is 19% and in such situation the Tribunal was not justified in reducing the same only for the reason that the appellant has not produced the subsequent income tax returns. Hence, I am inclined to take the disability as 19% itself. 9. The main contention raised by the counsel for the appellant was regarding the loss of disability income. The Tribunal took the monthly income of the appellant as Rs.2,34,856/- per annum, which works out to Rs.19,571/- per month, solely relying on the income tax returns. At the same time, it can be noted that his claim in the petition was only Rs.12,000/-. In the said situation, I am inclined to re-fix the monthly income of the appellant/petitioner at Rs.15,000/- per month. _M.A.C.A. No.1431 of 2019_ 7 Since the appellant/petitioner is aged less than 36 years and the multiplier applicable is '16', in view of the decision reported in _**National Insurance Company Ltd., v. Pranay Sethi & Others**_ **(2017 (16) SCC 680).** In the above cited decision, the constitution bench of the Apex Court held that, “as far as the multiplier is concerned, the claims Tribunal and the Courts shall be guided by step 2, that finds a place in paragraph 19 of _**Sarla Verma**_ **v.** _**Delhi Transport Corporation & Another**_ **(2010 (2) KLT 802)** read with paragraph 42 of the said judgment”. Since I am inclined to take the disability as 19%, the same is issued by a competent Medical Board, the disability income can be calculated as (15,000 x 12 x 16 x 19 / 100) = Rs.5,47,200/-. The appellants have already been granted Rs.1,47,930/-, so the balance amount would come to Rs.4,06,287/-. In the result, the appeal is allowed in part and the impugned award is modified and the 3[rd] respondent is _M.A.C.A. No.1431 of 2019_ 8 ordered to deposit the enhanced compensation of Rs.4,06,287/- with interest at 7.5.% before the Tribunal within a period of two months from the date of receipt of a certified copy of this judgment. The Tribunal shall disburse the enhanced compensation to the appellant/petitioner in accordance with law. _Sd/-_ BASANT BALAJI, JUDGE ss