Kerala High Court
Tomy Antony vs Jipson Joseph on 10 October, 2024
MACA NO. 455 OF 2021 1 2024:KER:75634
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE EASWARAN S.
THURSDAY, THE 10TH DAY OF OCTOBER 2024 / 18TH ASWINA, 1946
MACA NO. 455 OF 2021
AGAINST THE COMMON AWARD DATED 23.12.2019 IN O.P.(M.V.)
NO.212 OF 2015 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,KOTTAYAM
APPELLANT/PETITIONER :
TOMY ANTONY
AGED 50 YEARS
S/O. ANTONY, RESIDING AT KANNATTUKUNNEL,
KARIKKATTOOR P.O, MANIMALA VILLAGE,
KOTTAYAM DISTRICT-686 544
BY ADVS.
T.C.SURESH MENON
SRI.P.S.APPU
RESPONDENTS/RESPONDENTS :
1 JIPSON JOSEPH
RESIDING AT ORAKKANAMKUZHIYIL HOUSE,
IRUMPAYAM P.O, THALAYOLAPARAMBU,
KOTTAYAM-686 605
2 M. GOPAKUMARAN NAIR,
S/O. MADHAVAN PILLAI, RESIDING AT LAKSHMI NIVAS,
MANJOOR SOUTH P.O, KOTTAYAM-686 603
3 THE NEW INDIA ASSURANCE COMPANY LIMITED,
KOTTAYAM 686 001, REPRESENTED BY ITS
DIVISIONAL MANAGER.
MACA NO. 455 OF 2021 2 2024:KER:75634
BY ADVS.
PRAICY JOSEPH
TANYA JOY
VINO JOSE
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY
HEARD ON 10.10.2024, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
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EASWARAN S., J.
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M.A.C.A No.455 of 2021
-----------------------------------
Dated this the 10th day of October, 2024
JUDGMENT
The claimant in O.P.(M.V.) No.212 of 2015 on the files of the
Motor Accidents Claims Tribunal, Kottayam is the appellant herein.
Three claim petitions were jointly tried arising out of a single
accident.
2. The facts in brief are as follows:
On 17.6.2014, at 9.30 p.m., while the appellant herein,
along with his wife and son, was travelling as passengers in a car
bearing registration No.KL-36-B-5163, it hit on a post on the side of
the road near MKM hospital, Pravithanam. As a result of the accident,
they sustained serious injuries.
3. The insurance company resisted the claim on the ground
that there was no negligence on the side of the driver. The claimant
contended that he was working as an Attender in a hospital. The
salary certificate produced on behalf of the claimant shows an amount
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of Rs.11,903/- as his monthly salary. Ext.X1 is the disability issued by
the Medical Board, Medical College Hospital, Kottayam which shows
that the claimant sustained 7% disability. Since the appellant was
aged 45 years at the time of accident, the tribunal took the multiplier
at 9 applying the principles laid down in Sarla Verma and Others V.
Delhi Transport Corporation and Another [2010 (2) KLT 802]
and calculated the loss of earning capacity at Rs.37,800/
(5000x12x9x7/100). It is aggrieved by the said finding that the
appellant has approached this Court with the present appeal.
4. I have heard Sri. T.C. Suresh Menon the learned counsel
appearing for the appellant and Sri. Vino Jose, the learned Standing
Counsel appearing for the insurance company.
5. The only point to be considered in this case is as to
whether the tribunal was justified in applying the multiplier after
calculating the possible retirement of the appellant and also finding
that there was no loss of earnings caused due to the injuries suffered
by the claimant in the accident. This Court in Akhilesh Chandran
vs. Sabu Varghese [M.A.C.A. No.3599 of 2021] has held following
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the judgment of the Division Bench in Robin Babu Vs. Kunjappan
and Others [2015 (4) KHC 91] that even if there is no loss of
earning for the claimant, he/she is entitled to be compensated for the
injuries suffered in the accident. While holding that the tribunal
cannot apply the multiplier after the probable age of retirement, this
Court had adopted the principle followed by the Hon'ble Supreme
Court in Dinesh Singh vs. Bajaj Allianz General Insurance Co.
Ltd. [2014 KHC 4294] wherein the notional income was fixed for the
purpose of granting compensation for the injury suffered in the
accident. The tribunal took the notional income of the appellant at
Rs.5,000/- without assigning any reasons. In the peculiar facts of the
case, this Court feels it appropriate to take the notional income of the
appellant at Rs.9,000/- going by the principles laid down by the Apex
Court in Ramachandrappa v. Manager Royal Sundaram Alliance
Insurance Company Ltd. [(2011) 13 SCC 236]. Thus, applying
the principles laid down in Akhilesh Chandran (Supra), the
compensation granted to the appellant is modified as under:
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Heads Amount Amount awarded
awarded by this Court
by Enhanced
the compensation
tribunal
Loss of earnings Rs.40,000/ Rs.72,000/- Rs.32,000/-
- (9,000x8) (72000-40000)
Loss of earning Rs.37,800/ Rs.1,05,840/- Rs.68,040/-
capacity - (9000x12x14x7/100)
Total enhanced Rs.1,00,040/-
compensation
6. Accordingly, the appellant is entitled to get an enhanced
compensation of Rs.1,00,040/- (Rupees One Lakh and fourty only).
The aforesaid amount will carry interest at the rate of 9% per annum
from 20.2.2015 till realization with proportionate cost. The appellant
shall furnish the details of the bank account to the insurance
company for transfer of the amount. The insurance company shall
deposit the amount within a period of one month from the date of
receipt of a copy of this judgment.
Appeal ordered accordingly.
Sd/-
EASWARAN S.
JUDGE
NS
