Kerala High Court
Manoj M vs Manosh on 31 July, 2017
Bench: C.T.Ravikumar, Anil K.Narendran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR
&
THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
MONDAY, THE 31ST DAYOF JULY2017/9TH SRAVANA, 1939
MACA.No. 63 of 2011 ( )
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OPMV. NO.1359/2004 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, KOLLAM.
....
APPELLANT/PETITIONER IN THE OP(MV):
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MANOJ M., S/O. MURALIDHARAN NAIR,
RESIDING AT IKKARA VEEDU, MUDIYOOR MURI,
PANDALAM VILLAGE, PATHANAMTHITTA.
BY ADVS.SRI.B.MOHANLAL,
SRI.SAIJU S.
RESPONDENTS/RESPONDENTS IN THE OP(MV):
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1. MANOSH, S/O. MANIKUTTAN,
CHALUPARAMBIL, PANDARATHURUTH,
CHERIYAZHEKKAL P.O., KOLLAM, PIN- 690 573.
2. THE SENIOR DIVISIONAL MANAGER,
ORIENTAL INSURANCE COMPANY LIMITED,
DIVISIONAL OFFICE, LIC BUILDING,
CHINNAKKADA, KOLLAM, PIN -691 017.
R2 BY SRI.MATHEWS JACOB, SENIOR ADVOCATE.
ADV. SRI.P.JACOB MATHEW.
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY
HEARD ON 31-07-2017, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
rs.
C.T.RAVIKUMAR &
ANIL K.NARENDRAN, JJ.
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M.A.C.A.No.63 of 2011
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Dated this the 31st day of July, 2017
J U D G M E N T
Ravikumar, J.
This appeal seeking enhancement of quantum of compensation is filed by the injured-petitioner in O.P.(MV) No.1359/2004. It was filed under Section 166 of the Motor Vehicles Act, seeking a compensation of Rs.10 lakhs for the injuries sustained by him in a motor vehicle accident which resulted in amputation of his right leg. He was a serving soldier in the Indian Army and he met with such a fate at the age of 22 years. On that fateful day viz., 6.5.2004 at about 10.30 p.m. he was travelling along with two others in the autorickshaw bearing registration No.KL-2/N-362. When it reached South of Cheriyazheekkal temple near Jetty Junction, it turned turtle after hitting against a concrete electric post. It was raising necessary averments against the owner-cum-driver of the autorickshaw and taking up appropriate averments to make the 2nd respondent, who is its insurer, to indemnify the 1st respondent that the claim M.A.C.A.No.63 of 2011 :-2-:
petition was filed.
2. Before the Tribunal, the respondents did not adduce any evidence at all. On the side of the appellant, only documentary evidence was tendered and it consisted of Exts.A1 to A18. After analysing the evidence and appreciating the rival contentions, the Tribunal as per the impugned award granted an amount of Rs.3,03,100/- as compensation, with interest at the rate of 7.5% per annum from the date of petition till realisation. As noticed hereinbefore, the appellant/petitioner seeks for enhancement of the said quantum of compensation.
3. We have heard the learned counsel for the appellant and also the learned counsel appearing for the 2nd respondent, the insurer.
4. It is submitted before us that there is no dispute regarding the liability of the 2nd respondent to indemnify the 1st respondent. Since the cause of accident and the liability to indemnify the 1st respondent are not in dispute, we are only called upon to consider the question as to whether or not the appellant is entitled to get enhanced compensation.
5. The learned counsel for the appellant raised several grounds to mount challenge against the award passed by the M.A.C.A.No.63 of 2011 :-3-:
Tribunal. The nub of the contention is that the appellant was denied just compensation commensurate with the injuries sustained by him in the accident. The learned counsel for the appellant submitted that even after assessing the permanent disability as 40%, the Tribunal granted only an amount of Rs.1,72,800/- as compensation for permanent disability. It is submitted that the main reason for inadequateness of compensation under the said head is the erroneous fixation of the multiplicand by the Tribunal. Taking into account the fact that the appellant, who was terminated from the post of Signalman subsequent to the accident, was given a re-appointment on 4.12.2007 as Wireless Operator and on his re-joining in service as Wireless Operator, there occurred only a loss amount of Rs.2,248/- in his monthly income as can be seen from the pay fixation on his rejoining in service, the Tribunal fixed the monthly income to be taken for the purpose of calculating compensation as Rs.2,000/-. With reference to his age at the time of the accident, the multiplier was taken as 18. Even in the absence of a proven disability certificate, the Tribunal took the extent of permanent disability of the appellant as 40% and taking into account the other relevant factors, granted an amount of M.A.C.A.No.63 of 2011 :-4-:
Rs.1,72,800/- (2,000x12x18x40/100) as compensation for permanent disability. The Tribunal assessed the total compensation under different heads as hereunder:-
PART-I
(a) Loss of earning Nil
(b) Partial Loss of earning Nil
(c) Transport to the hospital Rs.2000/-
(d) Extra nourishment Rs.2000/-
(e) Damage to clothing and articles Rs.500/-
(f) Others - Bystanders expenses Rs.3000/-
(g) Medical expenses Rs.40,119/-
PART-II
(h) Compensation for pain and suffering Rs.25,000/-
Compensation for continuing for
permanent disability (Rs.2,000x12x18x
(i) 40/100) Rs.1,72,800/-
Compensation for the loss of amenities
(j) in life Rs.57,600/-
Total : Rs.3,03,019/- rounded as
Rs.3,03,100/- (Rupees Three
lakhs three thousand and one
hundred only)
6. While the learned counsel for the appellant contended that the compensation granted by the Tribunal is too inadequate, the learned counsel appearing for the 2nd respondent submitted that it is just compensation. For considering the question whether the appellant was given just and reasonable compensation, the first question to be considered is whether the Tribunal was justified in M.A.C.A.No.63 of 2011 :-5-:
fixing the monthly income only as Rs.2,000/- for calculating compensation for permanent disability. The Tribunal arrived at the said figure by taking into account the difference between the salary which was being drawn by the appellant prior to the accident and being paid subsequent to his re-appointment as Wireless Operator. The Tribunal found that the difference is Rs.2,248/- and then, fixed the monthly income as Rs.2,000/- for the purpose of computing compensation for permanent disability. In this context, it is to be noted that no material whatsoever was produced before the Tribunal as also before us, to establish the age of retirement. We have already taken note of the fact that the appellant had sustained injuries at a time when he was serving the Indian Army as a Signal Man. Evidently he lost the said job and was subsequently re-appointed as Wireless Operator on 4.12.2007. But at the same time, no evidence was let in either before the Tribunal or before this Court as to the date of his termination from the post of Signalman based on the nature of injuries sustained in the motor vehicle accident. Even in the absence of the aforesaid two relevant particulars, when it is evident that the appellant was re-appointed in service it is beyond any doubt that he could continue in service only till the age of M.A.C.A.No.63 of 2011 :-6-:
retirement. Therefore, we deem it fit and proper to adopt 'split multiplier' for the purpose of calculating just compensation payable for permanent disability. As noticed hereinbefore, at the time of accident, the appellant was aged 22 years. In such circumstances, for the pre-retiral period, the multiplier has to be taken as '9' and the same multiplier has to be taken for calculating compensation for the post-retiral period. The monthly income for the said purpose of calculating compensation for pre- retiral period for permanent disability has to be taken as the difference in salary viz., Rs.2,248/-. It is to be noted that though the Tribunal entered into a specific finding taking into account the difference in salary being drawn by the appellant prior to the accident and after his re-appointment as Rs.2,248/-, the said fact was not at all disputed by filing an appeal or a cross objection. Therefore, we fix the said amount as the income for the purpose of calculating compensation for disability for the pre-retiral period. Based on such calculation, the amount payable for permanent disability during the pre-retiral period will be Rs.97,114/- (2,248x12x9x40/100). The fact is that the appellant was earlier working as a Signal man and that he was subsequently re-appointed as a Wireless Operator in the Indian M.A.C.A.No.63 of 2011 :-7-:
Army. Hence, considering his technical expertness, we are of the view that it will only be proper to fix the monthly income notionally as Rs.5,000/- for calculating compensation during the post-retiral period. In such circumstances, the compensation payable for permanent disability during the post-retiral period will be Rs.2,16,000/- (5,000x12x9x40/100). Thus, the total amount for permanent disability would be Rs.3,13,114/-. The appellant was already granted an amount of Rs.1,72,800/- towards compensation for permanent disability. After deducting the said amount, the appellant will be entitled to get an amount of Rs.1,40,314/- additionally under that head.
7. Towards 'loss of earnings', no amount was granted by the Tribunal. We have already noted that the date of termination from service, pursuant to the sustainment of the injuries which resulted in amputation, was not established by producing any document. At the same time, it is to be noted that the date of re-
appointment was established as 4.12.2007. If there was no termination there would not have been any necessity to give re- appointment to the petitioner. It is to be noted that what was given, was not a category change. In such circumstances, we are inclined to take a period of 6 months for calculating loss of M.A.C.A.No.63 of 2011 :-8-:
earning. Ext.A13 salary certificate would reveal that he was drawing a salary of Rs.7,000/- per month. At the rate of Rs.7,000/- per month for the aforesaid period, he will be entitled to get an amount of Rs.42,000/- towards loss of earning. As noticed hereinbefore, the injury sustained by the appellant in the accident resulted in amputation of his right leg. He was then aged only 22 years. In such circumstances, we are inclined to grant an amount of Rs.50,000/- towards loss of marriage prospects. The appellant was adequately compensated under other heads as per the impugned award and therefore, they require no interference.
In such circumstances, the appellant is entitled to get a total additional compensation of Rs.2,32,314/- (1,40,314+42,000+ 50,000) which is rounded off to Rs.2,32,400/-. The said additional compensation will carry interest at the rate of 8% per annum from the date of petition till realisation. Taking into consideration the fact that the claim petition was dismissed by the Tribunal on 13.10.2008 and it was subsequently restored only on 17.5.2010, he will not be entitled to get interest during the said period. The 2nd respondent is directed to deposit the additional compensation along with interest thereon, at the M.A.C.A.No.63 of 2011 :-9-:
aforesaid rate, within a period of 2 months from the date of receipt of a copy of this judgment. There will be no order as to costs.
Sd/-
C.T.RAVIKUMAR JUDGE Sd/-
ANIL K.NARENDRAN JUDGE ami/10.8.17 //True copy// P.A.to Judge