Kerala High Court
Deepu Gopinath vs Noushad on 28 January, 2025
M.A.C.A. No. 403/2019 :1:
2025:KER:6784
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE JOHNSON JOHN
TUESDAY, THE 28TH DAY OF JANUARY 2025 / 8TH MAGHA, 1946
MACA NO. 403 OF 2019
AWARD DATED 10.08.2018 IN OP(MV) NO.1512 OF 2014 OF ADDITIONAL
MOTOR ACCIDENT CLAIMS TRIBUNAL, MAVELIKKARA
APPELLANT/PETITIONER:
DEEPU GOPINATH,
S/O.GOPINATH, THATTASSERI VADAKKATHIL, WARD NO.X, EVOOR
NORTH, CHEPPAD.P.O., CHEPPAD.
BY ADVS.
GEORGE VARGHESE(PERUMPALLIKUTTIYIL)
SRI.A.R.DILEEP
SRI.P.J.JOE PAUL
SRI.KESHAVRAJ NAIR
RESPONDENTS/RESPONDENTS:
1 NOUSHAD, S/O.ABOOBACKER, VALAYATH VEEDU, ERUVA WEST,
PATHIYOOR-690 106.
2 AMEEN, S/O.USMANKUTTY, AZEEM MANZIL, MALAMEL BHAGOM,
KAREELAKULANGARA, KAYAMKULAM-690 502.
3 UNITED INDIA INSURANCE CO.LTD.,
REPRESENTED BY ITS DIVISIONAL MANAGER, DIVISIONAL OFFICE,
KOTTAYAM-686 001.
R3 BY ADV. SRI. P.A.REZIYA
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON
27.01.2025, THE COURT ON 28.01.2025 DELIVERED THE FOLLOWING:
M.A.C.A. No. 403/2019 :2:
2025:KER:6784
JOHNSON JOHN, J.
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M.A.C.A No. 403 of 2019
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Dated this the 28th day of January, 2025.
JUDGMENT
The petitioner in O.P.(MV) No. 1512 of 2014 on the file of the
Motor Accident Claims Tribunal, Maveilkkara, filed this appeal
challenging the quantum of compensation fixed by the Tribunal as
inadequate.
2. According to the petitioner, on 22.05.2014, while he was riding
his motorcycle, car driven by the 1st respondent in a rash and negligent
manner from the opposite side caused to hit his motorcycle and thereby,
he fell down and sustained serious injuries. The 2 nd respondent is the
owner of the vehicle and the 3rd respondent is the insurer.
3. Before the Tribunal, Exhibits A1 to A16 and Exhibit X1 were
marked from the side of the petitioner and no evidence adduced from
the side of the respondents. After trial and hearing both sides, the
Tribunal awarded a total compensation of Rs.3,93,225/- to the
petitioner.
4. Heard both sides and perused the records.
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5. The learned counsel for the appellant argued that for the
purpose of calculating the compensation for loss of earning power, the
Tribunal fixed only Rs.4,000/- as notional income and the same is on the
lower side. At the time of the occurrence, the appellant was working as
service executive and his monthly salary was Rs.24,000/-. Exhibits A11
to A16 shows that the appellant was having a gross annual income of
Rs.2,35,500/- and the same was accepted by the Tribunal But, the
Tribunal recorded a finding that the appellant is still continuing his job as
service executive and there is no material to show that there was any
reduction in his salary as a result of the injuries sustained in the
accident.
6. As per Exhibit X1 disability certificate issued to the appellant
from Government TD Medical College Hospital, Alappuzha, he is having a
permanent disability of 19%. In Exhibit X1, the following problems are
noted:
"1. Segmental comminuted fracture right tibia
2. Comminuted fracture humerus shaft right
3. Tibial spine fracture right knee.
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Treated with interlocking nailing for Tibia & Plate and screw
fixation right humerus."
7. Even though the Tribunal arrived at a finding that the disability
has not affected his present job and there is no reduction in his salary,
the Tribunal considered the possibility of the disability affecting his
earning capacity from other sources. Even in the absence of any
evidence to prove the income of the appellant from other sources, the
Tribunal fixed a notional income of Rs.4,000/- for the purpose of
calculating the loss of earning capacity from other sources.
8. The learned counsel for the respondent insurance company
pointed out that apart from his salary of Rs.24,000/- as a service
executive in the company--Blastline India Pvt. Ltd., Ernakulam, the
petitioner has no case in the claim petition that he is having any other
source of income.
9. In Raj Kumar v. Ajay Kumar, (2011) 1 SCC 343], the
Honourable Supreme Court summarised the principles for ascertainment
of loss of earning capacity due to permanent disability as follows:
(i) All injuries (or permanent disabilities arising from injuries), do
not result in loss of earning capacity.
(ii) The percentage of permanent disability with reference to the
whole body of a person, cannot be assumed to be the percentage of
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loss of earning capacity. To put it differently, the percentage of loss
of earning capacity is not the same as the percentage of permanent
disability (except in a few cases, where the Tribunal on the basis of
evidence, concludes that the percentage of loss of earning capacity is
the same as the percentage of permanent disability).
(iii) The doctor who treated an injured claimant or who examined
him subsequently to assess the extent of his permanent disability
can give evidence only in regard to the extent of permanent
disability. The loss of earning capacity is something that will have
to be assessed by the Tribunal with reference to the evidence in
entirety.
(iv) The same permanent disability may result in different
percentages of loss of earning capacity in different persons,
depending upon the nature of profession, occupation or job, age,
education and other factors.
10. In this case, even in the absence of any evidence, the Tribunal
accepted a monthly notional income of Rs.4,000/- from other sources for
the purpose of calculating the compensation for loss of earning capacity
after recording a finding that the disability has not affected his
occupation as service executive and there was no reduction in his salary.
In the absence of any pleading and evidence to prove the earning
capacity of the petitioner from sources other than his employment as
service executive, it cannot be held that 10% functional disability and
the notional income from other sources fixed by the Tribunal as
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Rs.4,000/- is on the lower side and therefore, I find that no interference
is required in this regard.
11. The appellant was aged 35 years at the time of the accident.
As per the decision of the Honourable Supreme Court in Sarla Varma
v. Delhi Transport Corporation [2010 (2) KLT 802 (SC)], the
multiplier to be applied for the persons aged between 31 to 35 years is
16; instead of that, the Tribunal applied the multiplier of 15. When the
compensation for loss of earning capacity is calculated by applying the
multiplier 16, the appellant is entitled for Rs.76,800/- [4000 x 12 x 16 x
10/100]. The Tribunal has already granted Rs.72,000/- under this head.
Therefore, the appellant is granted an additional compensation of
Rs.4,800/- under this head.
12. The learned counsel for the appellant pointed out that the
Tribunal granted only Rs.30,000/- towards pain and sufferings, and
towards loss of amenities, the Tribunal granted only Rs.25,000/- and the
same is on the lower side. Considering the nature of injuries, period of
treatment and disability, an additional compensation of Rs.10,000/- each
is granted to the appellant under the heads--'pain and sufferings' and
'loss of amenities'.
13. Accordingly, the appellant is entitled to the enhanced
compensation as given below:
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Additional
amount
Compensation
granted by
Particulars awarded by the
this Court
Tribunal (Rs.)
(Rs.)
Compensation for
loss of earning
72,000/- 4,800/-
capacity
Pain and sufferings
30,000/- 10,000/-
Loss of amenities 25,000/- 10,000/-
Total enhanced compensation
24,800/-
14. Thus, a total amount of Rs.24,800/- (Rupees Twenty Four
Thousand Eight Hundred only) is awarded as enhanced compensation.
The said amount shall carry interest at the rate of 7.5% per annum from
the date of the application till realization. The appellant would also be
entitled to proportionate costs in the case. The claimants shall furnish
the details of the bank account to the insurance company for transfer of
the amount.
The appeal is allowed as above.
sd/-
JOHNSON JOHN,
JUDGE.
Rv
