Kerala High Court
Raja @ Kiran vs The Manager, Hdfc Ergo General ... on 1 November, 2024
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE EASWARAN S.
FRIDAY, THE 1ST DAY OF NOVEMBER 2024 / 10TH KARTHIKA, 1946
MACA NO. 156 OF 2021
AGAINST THE AWARD DATED 02.08.2018 IN O.P.(M.V.) NO.713 OF
2016 OF II ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL, THODUPUZHA
APPELLANT/PETITIONER:
RAJA @ KIRAN
AGED 23 YEARS
S/O. KARUPPASWAMI, K.H.D. NAYAMAKADU ESTATE,
WEST DIVISION, EZHUMURILAYATHIL 4TH ROOM, MUNNAR,
IDUKKI, PIN-685 612
BY ADV ELSON SIMON
RESPONDENTS/RESPONDENT NO.3:
THE MANAGER, HDFC ERGO GENERAL INSURANCE CO.LTD,
2ND FLOOR CHICAGO PLAZA, RAJAJI ROAD ,
NEAR TO KSRTC BUS STAND ERNAKULAM-682 335
BY ADVS.
SRI.GEORGE CHERIAN (SR.)
SMT.LATHA SUSAN CHERIAN
SMT.K.S.SANTHI
SRI.ALEXY AUGUSTINE
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD
ON 01.11.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
MACA NO. 156 OF 2021 -2-
2024:KER:81632
JUDGMENT
The claimants before the Additional Motor
Accident Claims Tribunal-II, Thodupuzha in O.P.(M.V.)
No.713 of 2016 is the appellant. The facts for disposal of
the case are as follows:
2. On 22.04.2016 at 2.15 p.m. while the petitioner
was riding a motorcycle bearing Registration No.KL/56/
C/5752 through Moonnar - Adimaly road, a jeep bearing
Registration No.KL/05/B/4962 negligently driven by the
first respondent, before the tribunal, hit against the
vehicle and thus causing severe injury to the claimant -
appellant. The claimant contended that he was working
as an Assistant Manager in Maharaja Resort, Munnar
and was earning an amount of Rs.15,000/- as monthly
income. The claimant had suffered serious injuries
which lead to the claimant being examined by the
Medical Board and a Disability Certificate was issued by
2024:KER:81632
the District Hospital, Thodupuzha on 21.06.2018 which
was marked as Ext.A12. In order to support the claim of
the appellant that he was drawing a monthly income of
Rs.15,000/-, the claimant could not adduce any evidence
and therefore the tribunal fixed the monthly income as
Rs.9,000/-. In so far as the disability is concerned,
though under Ext.A12 Disability Certificate it was shown
as 18% of disability, the tribunal fixed the disability at
12% and granted the following compensation:
"
Sl. Head of Claim Amount Amount Basis vital
No. Claimed Awarded details in
Rs. Rs. a nut shell
1 Loss of earning 3,00,000 72,000 9,000x8
months
2 Medical and 2,00,000 1,53,490 Acceptable
miscellaneous bills for
expenses ₹1,53,492/-
produced
3 Bystander 50,000 20,750 ₹250x83
expense days one
person
4 Transportation 50,000 35,000
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expenses
5 Extra nourishment 50,000 17,000
6 Damage to 35,000 1,000
clothing etc
7 Pain and suffering 2,00,000 60,000
8 Loss/reduction in 2,00,000 2,33,280 9000x12x
earing capacity 18x12/100
9 Loss of amenities 1,00,000 15,000
and conveniences
Total Claim ₹6,07,520/- ₹6,07,520/-
limited to along with
₹10,00,000 interest at
the rate of
9% p.a.
from
28.11.2016
"
3. Heard Sri.Elson Simon, learned counsel
appearing for the appellant and Sri.George A.Cherian,
learned Standing Counsel appearing for the insurance
company.
4. Learned counsel for the appellant submitted
that the appellant was having the qualification of
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Bachelor of Business Administration and was working as
an Assistant Manager in Maharaja Resort, Munnar. Due
to the accident the appellant suffered severe injury and
though assessed with 18% disability the tribunal
erroneously reduced it to 12% without assigning any
cogent reasons. It is also contended that even going by
the principles laid down by the Supreme Court in
Ramachandrappa Vs. Manager, Royal Sundaram
Alliance Insurance Company Limited [(2011) 13
SCC 236] the tribunal ought to have fixed a minimum
notional income at Rs.10,500/-. Considering the
occupation and also the qualification of the appellant, the
tribunal ought to have fixed the income slightly over the
income liable to be fixed in respect of a coolie worker.
5. On the other hand learned Standing Counsel
for the insurance company submitted that no evidence
was produced before the tribunal to show that the
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claimant was working as an Assistant Manager in
Maharaja Resort, Munnar. Therefore, the tribunal
rightly fixed the notional income at Rs.9,000/-. In so far
as the disability is concerned, the tribunal has rightly
adopted the percentage of disability following the
judgment of the Hon'ble Supreme Court in Raj Kumar
Vs. Ajay Kumar [2011 (1) KLT 620 (SC)]. Therefore,
according to the learned counsel, no interference in the
award is called for.
6. I have Considered the rival submissions raised
across the Bar.
7. Indisputedly, going by the statement in FIS,
the claimant's avocation as an Assistant Manager of
Mahraja Resort, Munnar stands proved.
8. It is true that no independent evidence has
been produced by the claimant. It is also admitted fact
that the insurance company also did not dispute the
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contents of Ext.A1. Be that as it may, the question
before this Court would be in the absence of any
corroborative evidence at the side of the claimant,
whether the tribunal could have fixed the monthly
income at Rs.9,000/-.
9. At any rate, going by the principles laid down
by the Supreme Court in Ramachandrappa(supra), the
claimant - appellant was entitled to have the notional
income fixed at Rs.10,500/-. Considering the peculiar
facts and circumstances of the case, this Court deems it
appropriate to fix the monthly income slightly above the
normal rates considering the educational qualification of
the appellant.
10. Coming to the next question as to whether the
tribunal was justified in fixing the disability at 12%, this
court takes notice of the fact that in Manikantan G. Vs.
K.Janardhanan Nair & Others (2021 (5) KHC 305),
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this Court has already held that the tribunal cannot
unilaterally reduce the percentage of disability without
referring the claimant to the Medical Board under Rule
387 of the Motor Vehicles Rules, 1989. Therefore, this
Court is left with no alternative but to interfere with the
award passed by the tribunal and restore the percentage
of disability to 18% as fixed under Ext.A12. In the result,
the appeal stands allowed. Notional income of the
appellant is fixed at 13,500/-. The appellant is entitled
for following enhanced compensations:
Sl. Head of Claim Amount Enhanced amount
No. awarded
Loss of earnings 72000 36000
1 (13500x8=108000
-72000)
2 Loss/reduction in 2,33,280 291600
earning capacity (13500x12x18x18/
100=524880-
233280)
3 Loss of amenities 15000 15000
and conveniences (30000-15000)
TOTAL 342600
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Thus, a total amount of Rs.3,42,600/- (Rupees
Three lakh forty two thousand six hundred only) is
awarded as enhanced compensation. The said amount
shall carry interest at 9% per annum from the date of the
application till realization. The appellant would also be
entitled for proportionate costs in the case. The claimant
shall furnish the details of the bank account to the
insurance company for transfer of the amount. The
appeal is ordered accordingly.
Sd/-
EASWARAN S.
JUDGE
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