Kerala High Court
James Joseph vs Geroge Kurian (Deleted)* on 18 February, 2025
MACA.404/2014
1
2025:KER:13382
C.R.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE C.PRATHEEP KUMAR
TUESDAY, THE 18TH DAY OF FEBRUARY 2025 / 29TH MAGHA, 1946
MACA NO. 404 OF 2014
OPMV NO.1215 OF 2006 OF MOTOR ACCIDENT CLAIMS
TRIBUNAL,ERNAKULAM
APPELLANTS/PETITIONERS IN OP(MV)1215/2006 OF MACT, ERNAKULAM
JAMES JOSEPH, AGED 51,S/O. JOSEPH, KAITHAPARAMBIL
HOUSE, MANIMALA KARA, MANIMALA VILLAGE.
BY ADV SRI.V.A.OMANAKUTTAN
RESPONDENTS/RESPONDENTS IN OP(MV)1215/2006 OF MACT,
ERNAKULAM
1 GEROGE KURIAN (DELETED), AGED 37, S/O. KURIAN,
THUNDATHIL HOUSE, TECHNO HMDES, KOTTAYAM - 686
001.
2 SINIMOL (DELETED),
MOOLAYIL, THENGOOTHOTTAM HOUSE, ATHIRAMPUZHA,
KOTTAYAM - 686 001.
(R1 AND R2 ARE DELETED FROM THE PARTY ARRAY VIDE
ORDER DATED 20/08/2019 IN IA 2/2019 IN MACA
404/2014)
3 THE NATIONAL INSURANCE CO LTD,
BY PASS JUNCTION AROOR - 688 534.
SMT.DEEPA GEORGE-SC
THIS MOTOR ACCIDENTS CLAIMS APPEAL HAVING BEEN
FINALLY HEARD ON 7.2.2025, THE COURT ON 18.02.2025
DELIVERED THE FOLLOWING:
MACA.404/2014
2
2025:KER:13382
C.R.
JUDGMENT
Dated : 18th February, 2025
The petitioner in OP(MV).1215/2006 on the file of the Motor Accidents
Claims Tribunal, Ernakulam is the appellant. He filed the OP under Section 166 of
the Motor Vehicles Act claiming compensation for the injuries sustained in a motor
vehicle accident that occurred on 28.8.2005. According to the petitioner, on
28.8.2005, at about 11.00 a.m., while he was driving his Maruti car through the
Kottayam-Ernakulam road, a lorry bearing registration No.KL-07-R-5155 driven by
the 1st respondent in a rash and negligent manner hit on the car and as a result of
which he sustained serious injuries.
2. In this case the petitioner sustained T-shape fracture of acetabulam
with posterior wall fracture in addition to pain and tenderness over right knee. The
petitioner was treated as inpatient for a total period of 63 days on two occasions in
the Medical Trust hospital, as revealed from Exts.A15 and 16 discharge summaries.
From Ext.A14 discharge summary, it is revealed that he was admitted in
Chazhikkadu hospital, Thodupuzha on 9.4.2007 for Ostero arthritis right hip
treatment and surgery was conducted and the hip was replaced totally and then he
was discharged on 23.4.2007. From Exts.A15 and A16 it is also revealed that
"closed reduction and upper tibial skeletal traction done under GA, Gastrosurgery
consultation given for abdominal pain CT abdomen - Normal study, ORIF done
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with extended illeofemoral approach post column fixed with 9 holed Recomplate
and 6 screws, Anterior column 5 holed Recomplate and 4 screws roof fixed with 2 K
wires. Patient had collection haematoma at wound site, wound wash given for the
same.
3. The Tribunal has awarded a total compensation of Rs.4,15,087/-,
major portion of which, namely Rs.3,17,487/- was medical expense supported by
bills. Out of the remaining amount, Rs.40,000/- was for pain and suffering,
Rs.30,000/- for loss of amenities and Rs.5000/- each towards extra nourishment,
together for transportation and damage to clothing and compensation for leave.
Another Rs.12,600/- was awarded on the head bystander's expenses. Dissatisfied
with the compensation awarded by the Tribunal, the petitioner preferred this
Appeal.
4. During the pendency of the appeal, the petitioner was referred to a
medical Board in the Government Medical College, Ernakulam. After examining
the petitioner, the Medical Board sent a disability certificate assessing his
permanent physical disability at 15%. Since the said disability certificate was issued
by the medical board, I find no grounds to disbelieve the same. Accordingly, the
disability of the petitioner is fixed as 15%.
5. At the time of the accident, the petitioner was aged 45, getting
monthly salary of Rs.12,958/-. Therefore, the learned counsel for the petitioner
submitted that 30% of the income is to be added towards future prospects and
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multiplier to be applied is 14. On the other hand, according to the learned counsel
for the 3rd respondent, since the petitioner retired at the age of 60, there will be
reduction in his income only after the age of 60 and hence, the multiplier to be
applied should be that of the year of his retirement. He has also relied upon the
decision of a learned Single Judge of this Court in Raju Sebastian v. United India
Insurance Co.Ltd., 2021 (6) KLT 136, in support of his argument.
6. In the above decision, in paragraph 8, the learned judge held that:
".....From the materials available on record, it can be seen that,
despite the injuries sustained by the appellant, he continued in his
employment and the finding of the Tribunal that he has not sustained
any loss of earning capacity during the period of his service with the
Kerala Water Authority is a probable view. In my view it is a sustainable
finding as he could continue in the service upto his retirement age at 56.
Consequently, the question of loss of earning power would arise only for
the period after his retirement."
7. Thereafter the learned Judge proceeded to assess the loss of
disability by taking about 50% of the salary as notional income and applying
the multiplier 9, though the victim was aged 50 and the normal multiplier to
be applied as per the decision in Sarla Verma v. Delhi Transport Corporation,
(2009) 6 SCC 121] -(DB) was 13.
8. However, in the decision in Dinesh Singh v. Bajaj Allianz
Genl.Insurance Co.Ltd., 2014 (9) SCC 241, the Hon'ble Supreme Court while
considering the loss of income of an Engineer employed in a Company, in which
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the High Court denied compensation on the head 'loss of earning' on the ground that
he has not sustained any loss of future income as he has subsequently took up
another employment, held that, once permanent disability is fixed, taking into
consideration, its impact on employment/ profession of the claimant, the
compensation has to be awarded. In paragraph 9 and 10, the Apex Court held
thus:
"9. The Tribunal taking into consideration the monthly salary of the
appellant at Rs. 12,840/- and considering his young age at 24, applied
the multiplier 17 and having regard to the 60% permanent disability
suffered by him, arrived the compensation towards future loss of
earnings at Rs. 15,72,000/-. However, while agreeing that the
appellant that as per Schedule I of the Workmen's Compensation Act,
he suffered 80% permanent disability, taking into consideration the
subsequent employment of the appellant in Industrial Development
Bank of India as a Grade - B Officer, held that the appellant did not
suffer any loss of future earnings on account of his permanent
disability, and accordingly, disallowed the claim of the appellant under
the head 'loss of earnings'.
10. We have considered the material placed before us, particularly the
evidence of the Doctor, who stated that the appellant suffered 60%
disability of the total body, and in his cross - examination denied the
suggestion that the appellant does not require any further treatment.
The fact that the appellant has resigned as Quality Engineer from
Hospet Steels Ltd and took up desk job in Industrial Development
Bank of India because of his permanent disability, suffered by him in
the accident is not in dispute. Obviously, because of the permanent
disability suffered by the appellant, who is an Engineer by profession,
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cannot take up such profession, which requires moving from one place
to other place. Therefore, the reasoning of the High Court that the
appellant has not suffered any financial loss because of permanent
disability having regard to the fact that subsequently he took up
employment in Industrial Development Bank of India as Grade - B
Officer, cannot be sustained. Once the permanent disability is fixed,
taking into consideration, its impact on the employment / profession of
the claimant, the compensation has to be awarded. Since the disability
suffered by the appellant, which is fixed at 60% and which is
permanent in nature, impacted his employment and future prospects,
we are of the considered opinion that the Tribunal has rightly
determined the compensation Rs. 12,840/- x 12 x 17 = Rs. 26,19,360/-
towards loss of future earnings, and taking into consideration the 60%
permanent disability suffered by the appellant, awarded him the actual
compensation under the head 'loss of future earnings' at Rs.
15,71,616/- by rounding off the same to Rs. 15,72,000/-."
9. In the decision in Vimal Kanwar and Others v. Kishore Dan and
Others, AIR 2013 SC 3830 the victim was working as an Assistant Engineer in
State Government service aged 28.5 years. The Tribunal applied the multiplier 15
which was held to be incorrect by the Hon'ble Apex Court and applied the
multiplier 17, relying upon the decision in Sarla Verma v. Delhi Transport
Corporation, (2009) 6 SCC 121] -(DB).
10. In the decision in Robin Babu v. Kunjappan and Others, 2015 (4)
KHC 91 a Division Bench of this Court while considering the claim of a 36 year
old Preventive Officer at Excise Department who suffered amputation of leg in a
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motor vehicle accident, applied the multiplier 15, again relying upon the decision in
Sarla Verma (supra)
11. In Akhilesh Chandran v. Sabu Varghese and Others,
MANU/KE/3976/2024, a Single Judge of this Court in the case of an employee
working in Urban Co-operative Bank has applied the multiplier 17.
12. In Kamala v. Bajaj Alliance General Insurance Company Ltd.,
2024 (5) KLT 80, another Single Judge of this Court while dealing with the claim
of a Special Tahsildar aged 50 while rejecting the multiplier of 5 applied by the
Tribunal, taken 13 as the correct multiplier, again relying upon the decision in Sarla
Verma (supra).Nat
13. In the light of the above decisions, it can be seen that the multiplier to
be applied is not that of the retirement age of the employee as contended by the
learned Standing Counsel for the insurer, but the multiplier to be applied is the one
as on the date of the accident, as fixed in the decision in Sarla Verma (supra).
14. At the time of the accident, the petitioner was working as Circle
Inspector of police, getting a monthly salary of Rs.12958/-. In this case, there
is no evidence to show that because of the injuries sustained in the accident
the petitioner lost his job or that there was reduction in his salary because of
the above accident. In the above circumstance, the notional income of the
petitioner is liable to be fixed as 50% of the income he received during the
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date of the accident, which will come to Rs.6479/-, rounded to Rs.6500/-.
15. On the date of accident, the petitioner was aged 45 years. Since
he was in permanent employment, 30% of the monthly income is to be added
towards future prospects, as held in the decision in National Insurance
Co.Ltd v Pranay Sethi [(2017) 16 SCC 680] and the multiplier to be
applied is 14, as held in Sarla Verma (supra). Therefore, the loss of disability
will come to Rs.2,12,940/-.
16. The Tribunal awarded Rs.40,000/- on the head pain and sufferings and
Rs.30,000/- on the head loss of amenities and enjoyment in life. Though the
Tribunal found that the petitioner was treated as inpatient for 63 days, only Rs.5000
was awarded towards compensation for leave. It is true that the petitioner has not
produced any documents to prove the details of leave availed by him, in connection
with the accident. Even then, considering the fact that the petitioner was treated as
inpatient for 63 days, he is entitled to get loss of earning at least for the aforesaid
period. Since his monthly salary was Rs.12958/-, it is rounded to Rs.13000/-.
Therefore, towards loss of earning he is entitled to get the salary for 2 months and 3
days, ie, 2.1 months, which will come to Rs.27300/-.
17. Considering the nature of the injuries sustained by the petitioner, the
percentage of disability suffered by him and the period of inpatient treatment
undergone by him, I hold that, the compensation awarded on the heads 'pain and
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sufferings' and 'loss of amenities' are on the lower side and hence they are enhanced
to Rs.50,000/- and Rs.40,000/- respectively. The compensation awarded on other
heads appears reasonable.
18. Therefore, the petitioner/appellant is entitled to get a total
compensation of Rs.6,70,327/-, as modified and recalculated above and given in the
table below, for easy reference.
Sl.
No. Head of Claim Amount awarded by Amount Awarded in
Tribunal (in Rs.) Appeal
(in Rs.)
1 Extra nourishment 5000 5000
2 Transport and damage to clothings 5000 5000
3 Compensation for leave 5000 27300
4 Medical expenses 317487 317487
5 Bystanders expenses 12600 12600
6 Compensation for pain and 40000 50000
sufferings
7 Compensation for continuing and Nil 212940
permanent disability
8 Compensation for loss of 30000 40000
amenities and enjoyment in life
total 415087 670327
Amount enhanced 255240
19. In the result, this Appeal is allowed in part, and Respondent No. 3 is
directed to deposit a total sum of Rs.6,70,327/- (Rupees six lakh seventy thousand
three hundred and twenty seven only), less the amount already deposited, if any,
along with 8% interest, excluding interest for a period of 553 days, the period of
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delay in filing the appeal, with proportionate costs, within a period of two months
from today.
20. On depositing the aforesaid amount, the Tribunal shall disburse the
entire amount to the petitioner, excluding court fee payable, if any, without delay, as
per rules.
Sd/- C.Pratheep Kumar, Judge
Mrcs/10.2.25
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APPENDIX
PETITIONER ANNEXURE
Annexure A(1) THE ORIGINAL OF THE LAST PAY CERTIFICATE
DATED 31.05.2020 OF THE APPELLANT
