Kerala High Court
New India Assurance Company Ltd vs Venu on 19 February, 2025
MACA 4029/2016
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE C.PRATHEEP KUMAR
WEDNESDAY, THE 19TH DAY OF FEBRUARY 2025 / 30TH MAGHA, 1946
MACA NO. 4029 OF 2016
OPMV NO.185 OF 2014 OF MOTOR ACCIDENT CLAIMS TRIBUNAL,
KOTTAYAM
APPELLANT/2ND RESPONDENT
NEW INDIA ASSURANCE COMPANY LTD.
KOTTAYAM, REPRESENTED BY ITS MANAGER, REGIONAL
OFFICE, ERNAKULAM.
BY ADV SRI.P.G.GANAPPAN-SC
RESPONDENTS/CLAIMANT AND 1ST RESPONDENT
1 VENU, S/O. PARAMESWARAN, NADUTHOTTIYIL HOUSE,
DHURGGA NIVAS, ARATTUKULANGAARA BHAGAM,
NADUVILAMURI KARA, THEKKENADA P.O, VAIKOM,
KOTTAYAM.
2 SURESH BABU, S/O. KARUNAKARAN, PADINJAREKUNNATHU
HOUSE, PALLIPURATHUSSERY P.O, VAIKOM.
BY ADVS.
SRI.NANDAGOPAL S.KURUP
SRI.G.SREEKUMAR CHELUR
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN
FINALLY HEARD ON 6.2.2025, THE COURT ON 19.2.2025
SAME DAY DELIVERED THE FOLLOWING:
MACA 4029/2016
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JUDGMENT
Dated : 19th February, 2025
The 2nd respondent in OP(MV).No.185/2014 on the file of the Motor
Accidents Claims Tribunal, Kottayam is the appellant. (For the purpose of
convenience, the parties are hereafter referred to as per their rank before the
Tribunal)
2. The above OP has been filed under Section 166 of the Motor
Vehicles Act, claiming compensation for the injuries sustained in a motor
vehicle accident that occurred on 28.11.2012. According to the petitioner, on
28.11.2012 at about 5.45 p.m while he was riding a motor cycle bearing
registration No.KL36/0612 along the Vaikom-T.V.Puram public road, an
autorickshaw driven by the 1st respondent in a rash and negligent manner hit
against the motorcycle and as a result of which he fell down and sustained
serious injuries. The 2nd respondent is the insurer of the autorickshaw.
3. The evidence in the case consists of Exts.A1 to A13 and X1. No
evidence was adduced by the respondents.
4. After evaluating the evidence on record, the Tribunal awarded a
total compensation of Rs.433900/- and directed the 2 nd respondent/insurer to
pay the same.
5. Aggrieved by the quantum of compensation awarded by the
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Tribunal, the Respondent No. 2 preferred this appeal.
6. Now the point that arises for consideration is the following:
Whether the quantum of compensation awarded by the Tribunal is just
and reasonable.
7. Heard Sri.P.G.Ganappan the learned Standing Counsel appearing
for the 2nd respondent/appellant, and Sri.Nandagopal S.Kurup, the learned
Counsel for the petitioner.
8. The Point: In this case the accident as well as valid policy of the
offending vehicle are admitted.
9. In the accident the petitioner sustained the following injuries :-
(i) comminuted fracture shaft of radius left
(ii) compound fracture right little finger
(iii) tenderness and swelling left elbow
(iv) lacerated wound 4x3 cm right hand dorsal
aspect
(v) abrasion 3x3 cm over left knee
10. As per Ext.X1 disability certificate, the Medical Board assessed
his permanent physical disability at 5% and the same was accepted as such by
the Tribunal. Therefore, I do not find any grounds to interfere with the
percentage of disability of the petitioner as assessed by the Medical Board
and accepted by the Tribunal.
11. One of the contentions raised by the learned counsel for the 2nd
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respondent is that the petitioner was working as Civil Police Officer on the
date of the accident. The monthly income claimed was Rs.26,111/-, but the
Tribunal fixed his monthly income at Rs.23,500/-. It was argued by the
learned counsel for the 2nd respondent that the petitioner being a permanent
Government employee, there is no loss of income in his salary. Therefore, he
would argue that, the loss of income comes only on his retirement and as
such, the multiplier to be applied is that applicable on the date of his
retirement.
12. The learned counsel for the appellant has also relied upon the
decisions 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. On
the other hand, the learned counsel for the petitioner has relied upon the
decision of anther single Bench of this court in Akhilesh Chandran v. Sabu
Varghese, 2024 KHC 7008, in support of his argument.
13. In Raju Sebastian the learned Single Judge held in paragraph 8
that:
".....From the materials available on record, it can be seen that, despite
the injuries sustained by the appellant, he continued in his employhment
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
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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."
14. 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 was 13.
15. 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 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.
16. 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
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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,
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
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compensation under the head 'loss of future earnings' at Rs.
15,71,616/- by rounding off the same to Rs. 15,72,000/-."
17. 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).
18. 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 motor vehicle accident, fixed the multiplier by 15 again relying
upon the decision in Sarla Verma (supra)
19. 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.
20. 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
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applied by the Tribunal and taken 13 as the correct multiplier, again relying
upon the decision in Sarla Verma (supra).
21. 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).
22. At the time of the accident, the petitioner was working as Civil
Police Officer. 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
any reduction in his salary because of the above injuries. In the above
circumstance, the notional income of the petitioner is liable to be fixed as
50% of the income he received during the date of the accident.
23. Since the monthly income of the petitioner on the date of the
accident is Rs.23,500/- his notional income is liable to be fixed at Rs.11750/-
(23500/2). Since he was aged 48 on the date of the accident, 30% of the
notional income is to be added towards future prospects and the multiplier to
be applied is 13. Therefore, the loss of disability will come to Rs.119145/-.
24. Towards loss of income, the tribunal has awarded only
Rs.1,15,150/- being the salary for 147 days. Considering the fact that on
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account of the injuries sustained in the accident the petitioner has availed
leave for 147 days, approximately 5 months, towards loss of income the
petitioner is entitled to get the salary for a period of 5 months, which will
come to Rs.1,17,500/-.
25. Towards the head 'pain and sufferings', the Tribunal has awarded
Rs.30,000/-. Towards loss of amenities Rs.30,000/- was awarded and towards
extra nourishment Rs.4750/- was awarded. According to the learned counsel
for the petitioner, the compensation awarded on those heads are on the lower
side.
26. The petitioner sustained serious injuries in the accident and he
was treated as inpatient for 13 days. Considering the nature of injuries
sustained by the petitioner, including two fractures, the percentage of
disability suffered and the length of treatment undergone by the petitioner, I
hold that the compensation awarded by the Tribunal on the heads 'pain and
sufferings' , loss of amenities and extra nourishment are on the lower side and
hence they are enhanced to Rs.50000/-, Rs.40,000/- and Rs.7500/-
respectively.
27. No change is required, in the amounts awarded on other heads,
as the compensation awarded on those heads appears to be just and
reasonable.
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28. Therefore, the petitioner/1st respondent is entitled to get a total
compensation of Rs.4,04,845/-, as modified and recalculated above and given
in the table below, for easy reference.
Sl.
No Head of Claim Amount awarded by Amount Awarded
. Tribunal (in Rs.) in Appeal
(in Rs.)
1 Loss of earnings 115150 117500
2 Transport to hospital 4000 4000
3 Extra nourishment 4750 7500
4 Damage to clothing and 1000 1000
articles
5 Bystander expenses 10000 10000
6 Medical expenses 55700 55700
7 Pain and sufferings 30000 50000
8 Loss of amenities 30000 40000
9 Permanent disability 183300 119145
Total 433900 404845
Amount 29055
enhanced/reduced
29. In the result, this Appeal is allowed in part, and Respondent No.
2 is directed to deposit a total sum of Rs.404845/- (Rupees four lakh four
thousand eight hundred and forty five only), less the amount already
deposited, if any, along with interest as ordered by the Tribunal, from the date
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of the petition till deposit/realisation, within a period of two months from
today. (enhanced compensation will carry interest @8%).
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.PratheepKumar, Judge
Mrcs/11.2.25
