Dayan Babu vs Sunil P. Parameswaran
2021 Latest Caselaw 23548 Ker

MACA.No.4146/2018                    1



            IN THE HIGH COURT OF KERALA AT ERNAKULAM
                            PRESENT
         THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.
  SATURDAY, THE 27TH DAY OF NOVEMBER 2021 / 6TH AGRAHAYANA,
                              1943
                     MACA NO. 4146 OF 2018
    AGAINST THE ORDER/JUDGMENT IN OPMV 1238/2013 OF MOTOR
                ACCIDENT CLAIMS TRIBUNAL ,KOLLAM
APPELLANT/PETITIONER:

           DAYAN BABU,
           AGED 29 YEARS,
           S/O.REMESH BABU, INCHAVILAYIL,
           MARUTHADI, KOLLAM.

           BY ADV AJAYA KUMAR G.


RESPONDENT/RESPONDENTS 1 TO 3:

     1     SUNIL P.PARAMESWARAN,
           ATTUPARAMBATHU VEEDU, KUREEPUZHA,
           KAVANADU P.O., KOLLAM, PIN - 691 003.

     2     RAJEEVAN,
           S/O.GOPALAN, RR NIVAS,
           KASTHUBHAM JUNCTION, KANNIMELCHERRY,
           SAKTHIKULANGARA, KOLLAM, PIN - 691 003.

     3     THE DIVISIONAL MANAGER,
           M/S.ORIENTAL INSURANCE COMPANY LTD.,
           LIC BUILDING, CHINNAKKADA, KOLLAM, PIN - 691 001.

           BY ADV SRI.A.R.GEORGE

     THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR
ADMISSION ON   27.11.2021, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
 MACA.No.4146/2018                  2



                           JUDGMENT

The appellant is the petitioner in O.P.(MV).No.1238 of 2013

on the file of the Motor Accidents Claims Tribunal, Kollam. The

aforesaid claim petition was filed by him seeking compensation for

the injuries sustained to him in a motor accident occurred on

08.08.2013. At the relevant time the appellant was riding a motor

cycle and the same collided with an autorikshaw driven by the 2 nd

respondent, owned by the 1st respondent and insured with the 3rd

respondent. It is contended that, consequent to the injuries, he

sustained permanent disablement. According to him, he was

working as a Finance Sales Executive in HDFC, Kollam and

earning an amount of Rs.12,000/- per month. The total amount of

compensation claimed was Rs.25,00,000/-.

2. The 1st and 2nd respondents did not contest the matter.

The 3rd respondent insurance company filed a written statement

disputing the negligence as well as the quantum of compensation.

However they admitted the coverage of policy.

3. In support of the claim petition, the appellant got

himself examined as PW1 and marked Exts.A1 to A14. Disability

certificate was marked as Ext.C1 and discharge summary and

inpatient records of the appellant was marked as Ext.X1. After

appreciating the materials available on record, the Tribunal came

to the conclusion that the accident occurred due to the negligent

driving of the 2nd respondent and being the insurer of the vehicle,

the 3rd respondent is liable to pay compensation. The quantum of

compensation was fixed as Rs.17,81,565/-, which was directed to

be deposited by the 3rd respondent with interest at the rate of 9%

per annum. Being aggrieved by the quantum of compensation,

this appeal is filed.

4. Heard Sri.Ajayakumar G., learned counsel for the

petitioner and Sri.A.R.George, learned counsel for the insurance

company.

5. The main argument of the learned counsel for the

appellant is with regard to the monthly income fixed by the

Tribunal. Even though, an amount of Rs.12,000/- was claimed, the

Tribunal had taken only Rs.6,000/- as monthly income. It is true

that, the appellant could not produce any document in support of

the employment as also the monthly income. However, in the light

of the principles laid down by the Honourable Supreme Court in

various judgments, the amount of Rs.6,000/- in respect of the

accident occurred in the year 2013 is very low. In

Ramachandrappa v. Manager, Royal Sundaram Alliance

Insurance Co.Ltd [(2011) 13 SCC 236] , the Honourable

Supreme Court was pleased to fix the monthly income as

Rs.4,500/- for a coolie in respect of an accident occurred in the

year 2004. In Syed Sadiq v. Divisional Manager, United India

Insurance Company [(2014) 2 SCC 735], the Honourable

Supreme Court was pleased to take the monthly income as

Rs.6,500/- for a vegetable vendor in respect of an accident

occurred in the year 2008. Based on the principles laid down in

the above judgment, this Court is consistently fixing the monthly

income by taking the base income as Rs.4,500/- for the year 2004

and making an addition of Rs.500/- per year, for fixing the monthly

income in respect of accidents occurred in subsequent years.

While adopting the aforesaid method of computation the monthly

income in this case comes to Rs.9,000/- as the accident has

occurred in the year 2013. Hence the said amount is taken as the

monthly income.

6. Another contention put forward by the learned counsel

for the appellant is with regard to the percentage of disability.

Exhibit C1 is the disability certificate issued by the Medical Board,

wherein 43% was certified as the percentage of disability.

However, the Tribunal has taken the disability as 40% only,

without mentioning any specific reasons. It is a well settled

position of law that unless there is any serious discrepancy in the

medical certificate, the percentage of disability certified therein

cannot be deviated from. In this case, no such discrepancy is

pointed out and it is also a fact that the certificate was issued by a

Medical Board. In such circumstances, the percentage of

disability of 43% as certified in Ext.C1 has to be taken.

7. In the light of the revised monthly income and

percentage of disability, the compensation under the head of

permanent disability comes to Rs.8,35,920/- [9000 x 12 x 18 x

43%] (Rupees eight lakhs thirty two thousand nine hundred and

twenty only). The Tribunal has already awarded an amount of

Rs.5,18,400/- under this head. The balance amount receivable by

the appellant comes to Rs.3,17,520/- (Rupees three lakhs fourteen

thousand five hundred and twenty only). Consequent to the

revision of monthly income the appellant shall be entitled for

revision of compensation for loss of earning. It is seen that the

Tribunal has awarded an amount of Rs.72,000/-, which was

calculated @ Rs.6,000 for a period of 12 months. As I have

already fixed the monthly income as Rs.9,000/-, the amount under

this head comes to Rs.1,08,000/- (9000 x 12). After deducting the

amount awarded, the balance amount comes to Rs.36,000/-.

In such circumstances, the appeal is allowed by granting an

additional amount of Rs.3,53,520/- [3,17,520+36000] (Rupees

three lakhs fifty three thousand five hundred and twenty only) and

the 3rd respondent insurance company is directed to deposit the

said amount along with interest and proportionate costs as

ordered by the Tribunal, within a period of three months from the

date of receipt of copy of the judgment. However, it is made clear

that, while computing the interest, the insurance company shall be

entitled to exclude 785 days which was the extent of delay in filing

the appeal, as the aforesaid delay was condoned by this Court

subject to that condition.

Sd/-

ZIYAD RAHMAN A.A.

JUDGE DG/29.11.21