Kerala High Court
Nitin V.R vs The Oriental Insurance Co.Ltd on 30 October, 2024
2024:KER:80558
M.A.C.A. No.237 of 2021 1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE EASWARAN S.
WEDNESDAY, THE 30TH DAY OF OCTOBER 2024 / 8TH KARTHIKA, 1946
MACA NO. 237 OF 2021
AGAINST THE ORDER/JUDGMENT DATED 27.8.2020 IN OPMV NO.2037 OF 2018
OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, KOZHIKODE
APPELLANT/CLAIMANT:
NITIN V.R.
AGED 32 YEARS
S/O.JANARDHANAN, RESIDING AT SREE GOVINDAM, INDIRA
NAGAR, MATTANNUR P.O., KANNUR - 670 702.
BY ADVS.
JOY GEORGE
SMT.PRAICY JOSEPH
SRI.RAJU JOSEPH
SRI.VINO JOSE
SMT.TANYA JOY
RESPONDENT/2ND RESPONDENT IN OP(MV):
THE ORIENTAL INSURANCE CO.LTD
REPRESENTED BY THE BRANCH MANAGER, CHEROOTY ROAD,
KOZHIKODE DISTRICT - 673 001.
BY ADVS. SMT.K.S.SANTHI, SC
SRI.LAWRENCE D CUNHA
SRI.JIJO ISAAC
SRI.GODWIN JOSE
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON
24.09.2024, THE COURT ON 30.10.2024 DELIVERED THE FOLLOWING:
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M.A.C.A. No.237 of 2021 2
JUDGMENT
Dated this the 30th day of October, 2024
The appellant is the claimant in O.P.(M.V) No.2037/2018 on the
file of Principal Motor Accidents Claims Tribunal, Kozhikode.
2. The facts for the disposal of the case are as follows :
The appellant/claimant, aged 30 years, was working as Head of the
Department in Mechanical Engineering with a monthly income of
Rs.32,210/- at the time of the accident. On 13.01.2018 at 4.30 p.m.
when he was riding a motorcycle bearing registration No.KL-58-E-
478 from Mananchira to Vellimadukunnu and reached in front of
KTC Automobiles, Mananchira, the 1st respondent came in
a motorcycle bearing registration No.KL-11-BH-6969 in a rash and
negligent manner and caused the accident. The Insurance Company
entered appearance and contested the claim. Exts.A1 to A9 were
marked on the side of the claimant. There was no oral or
documentary evidence on the side of the Insurance Company.
3. The tribunal based on the material evidence awarded the
following compensation.
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Heads Amount Amount
claimed awarded
2 Transport to hospital and back to 11,000 10,000
home
3 Extra nourishment 8,000 20,000
4 Damage to clothes and articles 10,000 2,000
5 Bystander expenses 2,05,000 13,500
6 Medical Expenses 1,12,621 2,39,800
8 Compenstion for pain and 2,00,000 60,000
sufferings
9 disability 5,00,000 1,62,000
10 Compensation for loss of 50,000 80,000
amenities and comforts
Total 5,87,300/
-
Claim limited to Rs.16,00,000/-
4. While fixing the compensation as above, the tribunal did
not accept the certificate of salary issued by the Principal, Hassan
Haji Memorial JDT Islam Polytechnic College showing that the
claimant was having a salary of Rs.29,282/- per month. Since no
evidence was rendered for the proof regarding the loss of earning,
the tribunal did not grant any compensation under the said head. It
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is aggrieved by the same, the claimant has approached this Court
with the present appeal.
5. I have heard Sri. Joy George, learned counsel appearing
for the appellant and Sri. Lawerance B Cunha, the learned counsel
appearing for the insurance company.
6. The learned counsel for the appellant pointed out that the
tribunal was not justified in fixing the compensation under the head
permanent disability by taking the notional income at Rs.15,000/-.
Similarly, the multiplier taken was also wrong. The appellant was
entitled to have the multiplier taken at 17, but the Tribunal had
taken only at 9.
7. On the other hand, the learned counsel for the insurance
company submitted that the compensation awarded by the tribunal
is just and proper. There was no evidence to prove that the claimant
had suffered any loss of earnings and the claimant also did not prove
the salary by any corroborative evidence.
8. I have considered the rival submissions raised across the
Bar and have perused the award passed by the tribunal. On an
anxious consideration of the findings rendered by the tribunal, it
becomes clear that, only on the ground that the claimant had not
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suffered any loss caused due to the accident, the tribunal did not
grant the compensation under the head permanent disability. The
tribunal also did not accept the salary certificate. Thus, the
tribunal proceeded to fix the notional income at Rs.15,000/- and
calculated the compensation for disability after the impending
retirement of the claimant.
9. A Division Bench of this Court in Robin Babu v.
Kunjappan and Ors. [2015 (4) KHC 91] held that although the
claimant would not suffer any loss of earnings due to the accident,
still compensation has to be granted in terms of the disability for the
injury sustained by him. While holding so, the Division Bench
followed the judgment of the Hon'ble Supreme Court in Dinesh
Singh v. Bajaj Allianz General Insurance Co. Ltd. [2014 KHC
4294].
10. Applying the principles laid down by this Court as well as
by the Supreme Court, this Court is of the considered view that the
award passed by the tribunal cannot be sustained. Ext.A6 salary
certificate would certainly show that an amount of Rs.29,282/- was
being paid to the claimant. However, since there is no evidence to
substantiate the claim, this Court will not be justified in accepting
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the said certificate as sacrosanct in the absence of any corroborative
evidence to sustain the same. However, having said so, even if the
notional income as fixed by the tribunal is taken, the tribunal could
not have applied the multiplier of 9 since admittedly going by the
principles laid down by the Hon'ble Apex Court in Sarla Verma v.
Delhi Transport Corporation [2010 2 KLT 802 (SC)] the
multiplier to be adopted is 17 instead of 9. Since this Court has
already found that the findings of the Tribunal to the effect that the
claimant did not suffer any loss of earnings cannot be sustained in
view of the principles laid down in Robin (Supra), the amount of
compensation will have to be reworked. Irrespective of the heads
under which the compensation is to be granted, this Court would
always be guided by the principles enshrined under Section 166 of
the Motor Vehicles Act, 1988 which mandates that just and fair
compensation be granted to the claimants. Therefore, this Court
finds that the compensation under the heads disability and loss of
amenities will have to be reworked.
Accordingly, this appeal is allowed. It would be only just and
proper if this Court fixes the income of the claimant at Rs.15,000/-
for the purpose of calculating the disability compensation. The
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compensation under the head disability is thus worked out as
follows :-
Rs.15,000x12x17x10/100 = Rs.3,06,000 - 1,62,000= 1,44,000/-.
Compensation under the head pain and sufferings is also enhanced
by granting an amount of Rs.20,000/- additionally. Thus, a total
amount of Rs.1,64,000/- (Rupees One Lakh Sixty Four Thousand
only) is granted as enhanced compensation. The amount will carry
interest at 9% from the date of the application till the realization
with proportionate costs. The insurance company shall deposit the
enhanced compensation together with interest and proportionate
costs within a period of one month from the date of receipt of a copy
of this judgment. The appellant/claimant shall furnish details of the
bank account to the insurance company for transfer of the amount.
The appeal is ordered accordingly.
Sd/-
SCB EASWARAN S.
JUDGE
