Kerala High Court
Satheesh Kumar vs The Divisional Manager on 26 September, 2024
2024:KER:71832
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE EASWARAN S.
THURSDAY, THE 26TH DAY OF SEPTEMBER 2024/4TH ASWINA, 1946
MACA NO. 114 OF 2021
AGAINST THE ORDER/JUDGMENT DATED IN OPMV NO.1229 OF 2017 OF
MOTOR ACCIDENT CLAIMS TRIBUNAL ,ERNAKULAM
APPELLANT:
SATHEESH KUMAR,
AGED 41 YEARS,
S/O. BALAKRISHNAN NAIR, PUNARTHAM HOUSE,
KUSUMAGIRI P.O, KAKKANAD VILLAGE,
KANAYANNUR TALUK, ERNAKULAM DISTRICT,
PINCODE - 682 030.
BY ADVS.
MATHEWS K.PHILIP
SMT.T.MANASY
SMT.MINISHA K DAS
RESPONDENT:
THE DIVISIONAL MANAGER,
M/S. UNITED INDIA INSURANCE COMPANY LIMITED,
BANK OF BARODA BUILDING, PALACE ROAD,
ANAVATHIL, KOCHI, ERNAKULAM DISTRICT,
PINCODE - 682 002.
BY ADV PREETHY R. NAIR
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD
ON 26.09.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
M.A.C.A.No.114 of 2021
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-2-
JUDGMENT
(Dated this the 26th day of September, 2024)
The claimant in OP(MV) No.1229 of 2017 before the Motor
Accidents Claims Tribunal, Ernakulam is before this Court
aggrieved by the inadequacy in the amount of compensation
awarded by the tribunal.
2. The facts, in brief, are as follows. The claimant aged 38
years, stated to be working in Tata Global Beverages Ltd., met
with an accident on 12.02.2017 at about 16.15 p.m., with respect
to which Crime No.1109 of 2017 of City Traffic East Police Station
was registered. On preferring the claim, the Insurance Company
appeared and contested the claim. Exts.A1 to A13 were marked in
evidence and Ext.X1 is the disability certificate issued by the
Medical Board assessing the disability of the claimant as 12%.
Among of the documents produced before the tribunal, Ext.A10 is
the Loss of Pay Certificate from Tata Global Beverages Ltd., dated
06.05.2017, which evidence that the claimant was drawing a salary
of Rs.28,554/-. The tribunal however, took the view that Ext.A10
was not sufficiently proved, and proceeded to fix the notional
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income of the claimant at Rs.12,000/- and accordingly awarded
the following compensations:
Heads Amount Amount
Claimed awarded (in Rs.)
Loss of earning 1,40,000/- 72,000/-
Transport to hospital and back 5,000/- 10,000/-
to home
Extra nourishment 10,000/- 20,000/-
Damage to clothes and articles 5,000/- 2,000/-
Attendant expenses 10,000/- 9,750/-
Treatment expenses 50,000/- 7,500/-
Compensation for pain and 2,00,000/- 60,000/-
sufferings
Compensation for loss of 1,00,000/- 80,000/-
amenities and comforts
Compensation for disability 5,00,000/- 2,59,200/-
Total 10,40,000/- 5,20,450/-
Claim amount Rs.10,40,000/-
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3. I have heard Smt.Manasy.T, the learned counsel
appearing for the appellant and Smt.Preethy.R.Nair, the learned
counsel appearing for the Insurance Company.
4. The learned counsel appearing for the appellant
pointed out that, the finding of the tribunal that the appellant has
not proved Ext.A10 is erroneous, in so far as the tribunal failed to
notice that Ext.A10 was issued by a reputed company. She further
pointed out that the actual loss of earning of the claimant was
Rs.1,37,687/- and therefore, the tribunal erred in not granting the
same and restricting it to Rs.72,000/-. If instead of notional
income so fixed, an amount of Rs.28,554/- is taken as monthly
income, certainly the appellant is entitled for compensation under
the head compensation for future disability also.
5. On the other hand, Smt.Preethy.R.Nair, the learned
counsel appearing for the Insurance Company relied on the
judgment of the Supreme Court in New India Assurance
Company v. Satish Chandra Sharma and another (2022 KHC
3531), to content for the proposition that the disability certificate
did not relate to the permanent disability to the entire body and
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the claimant was not prevented from carrying out his normal work.
6. I have considered the rival submissions raised across
the Bar.
7. The prime consideration in the appeal would relate to
whether Ext.A10 could be accepted or not. No doubt, the learned
counsel for the Insurance Company is justified in pointing out that
the Salary Certificate or the Loss of Pay Certificate issued by the
employer namely, the Tata Global Beverages Ltd., is not proved
by examining the signatory to the same. However, this Court
cannot be oblivious of the fact that the multi-national companies
like Tata Global Beverages Ltd. would not respond to the summons
issued by the Motor Accidents Claims Tribunals and depute its
Officers for proving the issuance of the certificates, in the nature of
Ext.A10. If in all cases, such strict view is enforced, then certainly
the claimants will find it difficult to sustain their claims and it
would be very easy to non suit them on the ground that the
certificate is not proved by examining the signatories. The
sufficiency of evidence or otherwise in the form of the salary
certificate and its acceptance would depend upon the authority
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which issues the same. Viewed in the above perspective, this
Court does not find any justification on the part of the tribunal in
non-suiting the appellants based on the fact that the signatory to
Ext.A10 is not proved. Therefore, the finding of the tribunal that
the loss of earning of the claimant was only Rs.72,000/- instead of
Rs.1,37,687/- is thus erroneous and has to be certainly interdicted
by this Court in the present appeal.
8. However having said so, the necessary corollary that
should flow out of this Court is finding of its acceptance to Ext.A10
would be as to whether the claimant is entitled to fix his salary at
Rs.28,554/-, instead of Rs.12,000/-. At this stage, the contention
raised by Smt.Preethy.R.Nair assumes significance, that except for
the period from February 2017 to August 2017, the claimant did
not suffer from any loss of earning due to the disability. In other
words, his avocation was not discontinued because of the accident
and also the resultant disability caused. Moreover, the disability
assessed was only 12%. On what basis the said disability affected
his job is also not clear.
9. Though the proposition of law as contended by the
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learned counsel for the Insurance Company has to be accepted, it
is to be noted that the Division Bench of this Court in Robin Babu
v. Kunjappan and Others [2015 (4) KHC 91] following the
judgment of the Supreme Court in Dinesh Singh v. Bajaj Allianz
General Insurance Company Ltd. [2014 (9) SCC 241] has held
that in a case where there is no loss of job for a person concerned,
the Court has to consider for awarding of Compensation for the
physical disability by providing adequate compensation for the
physical injury. Applying the above principles, this Court finds
that though the appellant is not entitled for compensation by
taking into consideration the monthly income for the purpose of
ascertaining the compensation under the head disability, certainly
the appellant is entitled for the compensation for the physical
injuries sustained by him under the accident.
10. As a result of this discussion, this Court finds that the
appellant is entitled to succeed. Thus the appeal is allowed. It is
declared that the appellant is entitled for an enhancement of the
compensation under the head loss of earning at Rs.1,37,687/-. The
amount already awarded as Rs.72,000/- would be deducted from
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the aforesaid amount and an additional compensation of
Rs.67,687/- is fixed under the head of loss of earning.
11. In addition to the above, the appellant is also entitled
for the compensation for the physical injury caused due to the
accident. Considering the peculiar facts and circumstances of this
case, this Court is of the considered view that by combining these
two heads a total compensation of Rs.2,00,000/- could be fixed
which would be reasonable on facts. Hence, the appeal is ordered
as follows:
i) The appellant is entitled to a total additional
compensation of Rs.2,00,000/- (Rupees Two lakhs).
ii) The said amount shall carrying interest at 9% per
annum from the date of the application till realization with
proportionate costs.
iii) The Insurance Company shall deposit the said
amounts within a period of two months from the date of receipt of
a copy of this judgment.
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iv). The claimant shall furnish the details of the bank
account to the respondent Insurance Company for transfer of the
amount.
The appeal is ordered accordingly. No order as to costs.
Sd/-
EASWARAN S.
JUDGE
ADS
