Kerala High Court
Unnikrishnan vs Hareesh P.M on 4 January, 2024
MACA.No.3367/2018 1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.
THURSDAY, THE 4TH DAY OF JANUARY 2024 / 14TH POUSHA, 1945
MACA NO. 3367 OF 2018
AGAINST THE ORDER/JUDGMENT OPMV 1489/2015 OF MOTOR ACCIDENT
CLAIMS TRIBUNAL , IRINJALAKUDA
APPELLANT/PETITIONER:
UNNIKRISHNAN,
AGED 51 YEARS,
S/O.GOPINATHAN, VADUTHALA HOUSE, KUZHOOR DESOM,
KURUVILASSERY VILLAGE, 680732.
BY ADV. V.BINOY RAM
RESPONDENTS/RESPONDENTS:
1 HAREESH P.M.,
S/O.MOHANAN P.K, PONATH HOUSE, NEAR MOSQUE,
VALIKYAPARAMBU PO, KURUVILASSERY, PIN 680 732.
2 AKHIL RAJU,
S/O.RAJU, THARUVILA HOUSE, VALIYAPARAMBU DESOM,
KURUVILASERY VILLAGE, PIN - 680 732.
3 THE MANAGER,
UNITED INDIA INSURANCE CO.LTD.,
IRINJALAKUDA, PIN - 680 121.
BY ADVS.
SRI.M.SHAJU PURUSHOTHAMAN
SRI.P.K.MANOJKUMAR,SC,UNITED INDIA INSU
SRI.K.S.RAJESH
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR
ADMISSION ON 04.01.2024, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
MACA.No.3367/2018 2
JUDGMENT
The appellant herein was the petitioner in O.P(MV)
No.1489 of 2015 on the files of the Motor Accidents Claims
Tribunal, Irinjalakkuda.
2. The claim petition was filed by him seeking
compensation for the injuries sustained in a motor accident on
16.08.2015. According to him, the accident occurred when the
motorcycle he rode was hit by another motorcycle bearing
registration No.KL-64-B-7818, ridden by the 2nd respondent in a
rash and negligent manner. The said motorcycle was owned by the
1st respondent and was insured with the 3 rd respondent. The
appellant was aged 48 years and was working as a Senior
Accountant in M/s.BRD Car World, Konnikara, a dealer of Maruti
Suzuki cars, with a monthly income of Rs.28,000/-. Consequent to
the injuries, the appellant sustained permanent disablement and
compensation was sought in such circumstances.
3. The 3rd respondent/Insurance Company alone
contested the matter by filing a written statement wherein they
admitted the coverage of the insurance policy. However, they
disputed the liability in various heads. They also disputed the
negligence and quantum of compensation.
4. The evidence in this case consists of Exhibits A1 to A16
from the appellant's side. The Medical Board report pertaining to
the disablement of the appellant was marked as Exhibit X1. Exhibit
B1 was marked from the respondents' side.
5. After trial, the Tribunal came to a conclusion that the
accident occurred due to the negligence on the part of the 2nd
respondent in riding the motorcycle bearing Reg.No.KL-64-B-7818.
Being the insurer of the said vehicle, the 3 rd respondent was held
liable to pay the compensation and the quantum of compensation
was fixed as Rs.4,76,400/-. The said amount was directed to be
deposited by the 3rd respondent with interest @8% per annum from
the date of the petition till realization with proportionate costs. The
Tribunal also found that there was violation of policy conditions,
and therefore, the 3rd respondent was permitted to recover the
compensation from the respondents 1 and 2, after satisfaction of
the award. This appeal is filed by the appellant seeking
enhancement of compensation.
6. Heard learned counsel for the appellant, Sri.Binoy
Ram.V. and Sri.P.K.Manoj Kumar, learned counsel for the 3 rd
respondent Insurance Company.
7. The learned counsel for the appellant contends that the
amounts awarded by the Tribunal in various heads were grossly
inadequate and require reconsideration. The main contest was on
the head of disability and the consequential loss of earning power.
According to the learned counsel, the Tribunal took a meagre
monthly income to assess the compensation.
8. On the other hand, the learned counsel appearing for
the 3rd respondent/Insurance Company would point out that the
materials would indicate that despite sustaining injuries and
disablement, the appellant continued his employment, and
therefore, there was no actual loss of earning capacity.
9. After perusing the records, even though I find some
force in the contention put forward by the learned counsel for the
Insurance Company. I am of the view that the method of assessment
made by the Tribunal was not proper, and the amount awarded is
not sufficient to address the grievances of the appellant. Of course,
as rightly pointed out by the learned counsel for the Insurance
Company, the appellant continued in his employment despite
sustained disablement, and therefore, during the period he was in
service, there cannot be any loss of earning power. This is mainly
because there is no case for the appellant that there was any
reduction in his monthly income owing to the disability suffered by
him. However, it is a fact that the appellant has to live with that
disability, and such disability may have an impact on the loss of
earning power after he retires from his service. Even though there
are no materials as to the retirement age of the appellant, the same
can be fixed as 58 years, which is the normal age of superannuation
in the private sector. At the time of the accident, the age of the
appellant was 48 years, and thus, his retirement age was to take
place ten years after the accident. Therefore, the compensation for
loss of earning capacity has to be assessed for the period after his
retirement.
10. For determining the compensation for disability and
loss of earning power, one of the crucial elements is the monthly
income. In the claim petition, they produced Exhibit A10 salary
certificate showing the gross salary of the appellant as Rs.28,280/-.
The Tribunal did not accept by observing that it was not properly
proved by examining any of the persons. However, considering the
educational qualifications of the petitioner as discernible from the
records and the nature of employment, I am of the view that the
monthly income mentioned in Exhibit A10 is a probable amount.
However, here I am considering the loss of earning capacity
pertaining to the period after the retirement of the appellant, and
hence, the entire monthly income, as mentioned in the said
certificate, cannot be considered. But considering the educational
qualification, the nature of employment, the year at which he was
supposed to retire (2025), etc., I am of the view that the monthly
income to be considered for determining the compensation for the
post-retirement period can be fixed at Rs.20,000/-. As regards the
percentage of disability, the Tribunal has already accepted the
extent thereof as certified in Exhibit X1, which was 10%. Since the
age of superannuation was treated as 58, the multiplier to be
applied should be the one relating to the age group of 55 to 60,
which is 9 . Thus, while re-assessing the compensation for loss of
earning capacity, the amount would come to Rs.2,16,000/-
(20000x12x9x10/100). The amount already awarded by the
Tribunal is Rs.1,26,000/-; thus, the appellant's additional
compensation would come to Rs.90,000/-.
11. In addition to the above, the appellant is to be granted
some additional compensation for the loss of amenities. This is
mainly because the amount of Rs.30,000/- awarded by the Tribunal
appears to be on the lower side. It is to be noted that compensation
for loss of earning capacity has been granted for the period after he
retires from service alone. However, the fact that he had to live
with that disability during the entire period, including the period
during which he was employed, is a matter which cannot be
ignored. He has to endure the difficulties arising from the disability
during the said period as well. The said disability may cause
difficulties in his career as well. This has to be taken care of while
assessing the compensation for amenities; therefore, some
additional amount has to be granted under that head. In such
circumstances, I deem it appropriate to grant a further sum of
Rs.30,000/- under the said head.
12. Another head highlighted by the learned counsel for the
appellant is for loss of earnings. The Tribunal awarded an amount
of Rs.45,000/- under the said head by considering the fact that the
appellant must have been bedridden for a period of 6 months by
calculating the monthly income as Rs 7,500/-. However, there
were no records before the Tribunal to indicate that the appellant
was forced to take leave for the entire period. In such
circumstances, I do not find any scope for further enhancement of
the said head. The amounts awarded under the other heads are
reasonable. In such circumstances, the additional compensation
receivable by the appellant is determined as Rs.1,20,000/-
(90000+30000).
In the light of the aforesaid observations and findings, this
appeal is allowed. The award dated 18.06.2018 in O.P.
(MV).No.1489 of 2015 passed by the Motor Accidents Claims
Tribunal, Irinjalakuda, is hereby modified by granting an additional
compensation of Rs.1,20,000/- (Rupees one lakh and twenty
thousand only). The said amount shall be deposited by the
Insurance Company with interest at the rate as ordered by the
Tribunal with proportionate costs within a period of three months
from the date of receipt of a copy of this judgment. It is clarified
that, as this Court did not interfere with the finding of the Tribunal,
permitting the 3rd respondent to recover the compensation from
respondents 1 and 2 after satisfying the award, the 3 rd respondent
shall be at liberty to recover the additional compensation from the
said respondents.
Sd/-
ZIYAD RAHMAN A.A.
JUDGE
SMV/DG/5.1.24
