Vinod K.Y. v. Sunny Kurien, Jaison Cheriyan & The New India Assurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR** **& THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** **WEDNESDAY, THE 6TH DAY OF DECEMBER 2017 / 15TH AGRAHAYANA, 1939** **MACA.No. 1252 of 2014** **AGAINST THE AWARD IN OPMV 841/2009 of MACT MUVATTUPUZHA DATED 15-02-2014** **APPELLANT/PETITIONER:-** **VINOD K.Y., S/O.YOHANNAN, AGED 38 YEARS, KANNAPARAMBEL HOUSE, KALAMPOOR, ENANALLOOR VILLAGE, PIN - 686 664.** **BY ADVS.SRI.K.J.JOSEMON SRI.MATHEW SKARIA** ## **RESPONDENTS/RESPONDENTS:-:** **1. SUNNY KURIEN, NEDUMKALLEL HOUSE, PAINGOTTOOR P.O., POTHANICAD - 686 671.** **2. JAISON CHERIYAN, CHETTIYAMKUDIYIL HOUSE, POTHANICAD P.O., POTHANICAD VILLAGE, PIN - 686 671.** **3. THE NEW INDIA ASSURANCE CO.LTD., MADAPARAMBIL CHAMBERS, MUVATTUPUZHA - 686 661.** **R2 BY ADVS. SRI.BAIJU JOHN SRI.JOHN VARGHESE(THOPPIL) R1 BY SRI.ELDHO K.MATHEW R3 BY ADV. SMT.P.K.SANTHAMMA R BY SRI.A.A.ZIYAD RAHMAN** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 06-12-2017, ALONG WITH CROSS OBJECTION NO.10 OF 2015 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **SB** ## **C.T.RAVIKUMAR** ## **& A.MUHAMED MUSTAQUE, J.J.** **===================== M.A.C.A No.1252 of 2014 - D & Cross Objection No.10 of 2015 ========================== Dated this the 06[th] day of December, 2017** ## **JUDGMENT** ## **C.T.Ravikumar, J.** This appeal is preferred against the award dated 15.02.2014 in O.P.(MV) No.841 of 2009, passed by the Motor Accidents Claims Tribunal, Muvattupuzha. The appellant herein was the petitioner therein. 2. The claim petition was filed under Section 166 of the Motor Vehicles Act, 1988 (for brevity 'the M.V. Act'), seeking compensation of Rs.3,50,000/-. As per the impugned award, the Tribunal had granted an amount of Rs.1,83,700/-, as compensation with interest @8% per annum, from the date of the petition till realisation. The petitioner seeks for enhancement of the quantum of compensation, contending that the compensation granted is too inadequate and thereby M.A.C.A No.1252 of 2014 & C.O No.10/15 2 he was deprived of just compensation. 3. It is to be noted that the 1[st] respondent in the said claim petition, who is the owner of the car involved in the accident, has taken up a Cross Objection No.10 of 2015 in this appeal to the effect that the compensation granted by the Tribunal is exorbitant. It is also to be noted that as per the impugned award, upon finding that the driver of the said offending vehicle was not having a valid driving licence at the time of the accident, the Tribunal had granted liberty to the Insurer of the said vehicle to recover the amount paid by it to satisfy the award from the cross objector. Though such a liberty was granted to recover the amount from him, the cross objector has not chosen to challenge the award in that regard. In other words, his challenge in the cross-object is only against the quantum of compensation on the ground of exorbitancy. Therefore, in this appeal, in the absence of dispute regarding the accident and the cause of the M.A.C.A No.1252 of 2014 & C.O No.10/15 3 accident, the only question to be decided is whether the compensation granted as per the impugned award is inadequate. The fate of the cross-objection, in the circumstances, depends on its outcome. 4. We have heard the learned counsel for the petitioner, the learned counsel for the first respondent (the cross-objector) and the learned counsel for the third respondent. 5. The learned Counsel appearing for the appellant - petitioner submitted that the Tribunal had committed a palpable error in the matter of computation of compensation for permanent disability. In that regard, the Tribunal had erroneously fixed the income of the appellant notionally as Rs.6,000/- evenafter holding that the petitioner is an employee of the Kerala State Electricity Board (K.S.E.B) on the ground that the permanent disability caused by the injuries had not resulted in his termination from service. The M.A.C.A No.1252 of 2014 & C.O No.10/15 4 further grievance of the appellant is that for the purpose of computing compensation for permanent disability, the Tribunal had wrongly adopted '8' as the multiplier taking into account the age of superannuation of employees in K.S.E.B. and disregarding his actual age at the time of the accident. 6. The learned counsel for the first respondent resisted the contentions and submitted that there is no substance in the aforesaid contentions of the appellant and in fact, the compensation granted as per the impugned award itself is exorbitant. The learned counsel for the third respondent has also resisted the contentions and submitted that no error could be attributed on the assessment of monthly income as also in the identification of multiplier. 7. A bare perusal of the impugned judgment more particularly paragraph 10 thereof, itself would reveal that the Tribunal had, in fact, considered Annexure A9 Salary M.A.C.A No.1252 of 2014 & C.O No.10/15 5 Certificate and found that the gross salary of the appellant was Rs.11,466/- and the monthly income of the appellant can be taken as Rs.10,961/- after deducting the allowances. The grievance of the appellant is that after fixing, rather, finding his monthly income as Rs.10,961/-, there was absolutely no reason for the Tribunal to effect further deduction and to take the monthly income, for calculation purpose, as only Rs.6,000/-, notionally. The further grievance is that having found the age of the appellant at the time of the accident as 33 years it was improper on the part of the Tribunal to adopt the multiplier as '8', taking into account the age of superannuation of employees of K.S.E.B. It is submitted that in the light of the decision reported in **Sarla Verma** v. **Delhi Transport Corporation [2010 (2) KLT 802 (SC)]** , that got confirmance in **National Insurance Company Ltd.** v. **Pranay Sethi [2017(4) KLT 662 SC]** , the Tribunal ought to have adopted the multiplier with M.A.C.A No.1252 of 2014 & C.O No.10/15 6 reference to the age of the injured appellant, at the time of the accident. The learned counsel for the appellant relied on the recital in paragraph 42 of the decision in **Pranay Sethi's case (supra),** to drive home the point that the selection of multiplier shall be as indicated in the table in **Sarla Verma's case (supra)** . Paragraph 42 of the decision in **Pranay Sethi's case (supra)** reads as follows: 42. We therefore hold that the multiplier to be used should be as mentioned in column (4) of the Table above (prepared by applying Susamma Thomas, Trilok Chandra and Charlie), which starts with an operative multiplier of 18 (for the age groups of 15 to 20 and 21 to 25 years), reduced by one unit for every five years, that is M-17 for 26 to 30 years, M-16 for 31 to 35 years, M-15 for 36 to 40 years, M-14 for 41 to 45 years, and M-13 for 46 to 50 years, then reduced by two units for every five years, that is, M-11 for 51 to 55 years, M-9 for 56 to 60 years, M-7 for 61 to 65 years and M-5 for 66 to 70 years. 8. We will now, deal with the aforesaid contentions. In M.A.C.A No.1252 of 2014 & C.O No.10/15 7 the case on hand, it is true that the injuries sustained by the appellant which resulted in permanent disability had not adversely affected his earning capacity. But, at the same time, that cannot be a reason for denying compensation to the appellant-petitioner for loss of his bodily integrity due to the tortious action of another. The evidence on record would reveal that the appellant had sustained fracture of both bones of right leg, flap avulsion of right heel, laceration on right ankle, laceration of right foot on dorsal aspect and laceration on right leg. The fact that they led to loss of his bodily integrity is evident from the fact such injuries ultimately resulted in permanent disability. Ext.C1, which is the disability certificate issued by a duly constituted Medical Board of Medical College Hospital, Kottayam would reveal that the appellant had incurred 7% permanent disability due to the aforementioned injuries. In such circumstances, merely because of the fact that the appellant was an M.A.C.A No.1252 of 2014 & C.O No.10/15 8 employee at the time of the accident and the injuries causing permanent disability had not resulted in his termination from his service, how can it be said that he is not entitled to get compensated for the loss of bodily integrity. In the contextual situation it is relevant to refer to the decision of a Full Bench of this Court in **Oriental** v. . **Insurance Company Ltd. Hariprasad [2005(4) KLT 977]** Permanent disability is a physical impairment, which results in distinct personal, social and financial consequences to be classified as one head requiring compensation to be worked out as one entitling for non-pecuniary damages. In certain cases, such permanent disability incurred due to the injuries sustained in an accident may also result in reduction of earning capacity. Going by the decision of the Full Bench in **Hariprasad's case (Supra)** , compensation could not be awarded separately for permanent disability and then, for loss of earning capacity even if the permanent disability M.A.C.A No.1252 of 2014 & C.O No.10/15 9 incurred resulted in reduction of earning capacity. But, that does not and cannot mean that the extent of loss of bodily integrity caused to a permanent employee in any service should be ignored and held as non-compensatory in case such physical impairment does not result in reduction of earning capacity on account of consequential termination from service. In the case of a peon or a clerk holding that post in permanence it will be against the spirit of tortious law to say that even in case of amputation of one hand or one leg consequent to a motor vehicle accident that he would not be compensated for the resultant loss of bodily integrity for the simple reason that it would result in his termination from service. We are of the firm view that in such circumstances the entitlement to receive compensation for the loss of bodily integrity shall not depend upon the question whether he is employed or unemployed. The question of being employed or unemployed got relevancy M.A.C.A No.1252 of 2014 & C.O No.10/15 10 only in the matter of assessment of the quantum of compensation therefor. 9. There can be little doubt with respect to the question that compensation for permanent disability can be quantified by following the most recognized mode of multiplicand-multiplier method. The Tribunal had identified the multiplier applicable in this case as '8', taking into account the fact that though the appellant was aged only 33 years at the time of accident, he could continue in his employment till 56 years viz., age of superannuation applicable to the employee of the K.S.E.B. The question is whether the identification of the multiplier as '8' by the Tribunal assigning such a reason can be sustained? 10. While considering the said question, the decision of the Apex Court in **Puttamma** v. **Narayana Reddy [2014** **(1) KLT 738 (SC)]** has to be looked into. The Hon'ble Apex Court held therein that in the absence of any specific reason M.A.C.A No.1252 of 2014 & C.O No.10/15 11 and evidence on record, Tribunal should not apply split multiplier in routine course and should apply the multiplier as per its decision in **Sarla Verma's case (supra)** . Therefore, the question is whether if any specific reason could be assigned for applying split multiplier in the case on hand? A Division Bench of this Court in **Kumaran** v. **Roy Mathew reported in [2017 (1) KLT 668]** held thus:- “When there is a certainty with respect to the future earnings of the deceased, if he/she would have been alive, the Tribunal shall not shut its eyes with respect to such certainty. Therefore, when there is clear evidence with respect to the date or year of retirement of the deceased, on attaining superannuation, it cannot be contended that the Tribunal should adopt the same rate of earning as also for the period of attaining superannuation.” It is also held therein that in such circumstances, it is possible to use split multiplier. It is relevant to note that the said decision was rendered in an M.A.C.A No.1252 of 2014 & C.O No.10/15 12 appeal arose from an award passed in a claim petition for compensation for death filed under Section 166 of the M.V.Act, for the purpose deciding the quantum of compensation for dependency. 11. But in this case, it is to be noted that the appellant had sustained injuries when he was aged 33 years. As on that date, he was left with about 23 years of service. With reference to his age at the time of the accident, the multiplier applicable in terms of **Sarla Verma's case (supra)** was only '16'. In other words, he was having left over service, which was more than the multiplier applicable in this case. In such circumstances, we have no hesitation to hold that the Tribunal had committed error, in applying or identifying the multiplier of '8', when the multiplier applicable in terms of the table given in the decision **Sarla Verma's case (supra)** with reference to the age of the appellant, at the time of the accident is '16'. There is yet another reason for M.A.C.A No.1252 of 2014 & C.O No.10/15 13 holding that the Tribunal had erred in identifying the proper multiplier. The case on hand is one where we found that the appellant-petitioner is entitled to be compensated for loss of bodily integrity and further that in such circumstances, for deciding the entitlement thereof the question of being employed or unemployed, got no relevance and it assumes relevance only for the purpose of fixing the multiplicand for calculating the compensation. The loss of bodily integrity will not cease with cessation of service on attainment of age of superannuation and it will continue to haunt him/her for the rest of his/her life. 12. Now, we will consider the question whether the fixation of the monthly income by the learned Tribunal notionally for calculation purpose could be sustained or not? Evidently, the Tribunal had found that the monthly income of the appellant is Rs.10,961/-, based on Ext.A9 Salary Certificate. There is absolutely no reason for effecting M.A.C.A No.1252 of 2014 & C.O No.10/15 14 further deduction and to fix it notionally taking into account the fact that the appellant would not be deriving the same income after his retirement, in the facts and circumstances of this case, based on our findings. We are of the considered view that in circumstances given above, there is absolutely no reason for not taking into account the monthly income originally fixed by the Tribunal and also for effecting a further deduction from it, taking into account the fact that he would be retiring only at the age of 56 years. In short, the Tribunal had committed an error in identifying the multiplier as also in fixing the multiplicand. 13. The entire percentage of disability as assessed by the duly constituted Medical Board as per Ext.C1 was taken into account for granting compensation by the Tribunal. In short, a re-assessment of compensation for permanent disability is required only by substituting the monthly income fixed by us and also the proper multiplier applicable M.A.C.A No.1252 of 2014 & C.O No.10/15 15 in this case. On such re-assessment, the amount payable to the appellant under the said head will be Rs.1,47,315/(10,961x12x7/100). The learned Tribunal had already granted an amount of Rs.40,320/- under the said head. After subtracting the said amount, the appellant is entitled to get an amount of Rs.1,06,995/- [Rupees one lakh six thousand nine hundred and ninety five only] for the loss of bodily integrity. Despite the persuasive arguments of the learned Counsel, we do not find any reason to interfere with the compensation awarded by the learned Tribunal under the other heads. We are of the considered view that the Tribunal had granted reasonable compensation under all the other heads. In the result, this appeal is allowed. The appellant is granted a total additional compensation of Rs.1,06,995/-. The said additional compensation will carry interest @ 8% per annum from the date of the petition till realisation. The M.A.C.A No.1252 of 2014 & C.O No.10/15 16 additional compensation of Rs.1,06,995/- along with interest thereon, shall be deposited by the 3[rd] respondent, within a period of two months from the date of receipt of a certified copy of this judgment. Needless to say that the order of the learned Tribunal granting liberty to the 3[rd] respondent to effect recovery of the amount payable to satisfy the award is maintained. In the light of the judgment in this appeal, the contention of the 1[st] respondent in the Cross objection that the Tribunal had granted exorbitant compensation cannot be upheld. In the result, the cross objection is dismissed. There will be no order as to costs, both in the appeal and in the cross-objection. Sd/- ## **C.T.RAVIKUMAR JUDGE.** **Sd/-** ## **A.MUHAMED MUSTAQUE JUDGE** SB/18/12/2017