UNNIKRISHNAN v. HAREESH P.M

BY ADVS. SRI.M.SHAJU PURUSHOTHAMAN SRI.P.K.MANOJKUMAR,SC,UNITED INDIA INSU SRI.K.S.RAJESH THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 04.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: MACA.No.3367/2018 2 JUDGMENT The appellant herein was the petitioner in O.P(MV) No.1489 of 2015 on the files of the Motor Accidents Claims Tribunal, Irinjalakkuda.

2. The claim petition was filed by him seeking compensation for the injuries sustained in a motor accident on

16.08.2015. According to him, the accident occurred when the motorcycle he rode was hit by another motorcycle bearing registration No.KL-64-B-7818, ridden by the 2nd respondent in a rash and negligent manner. The said motorcycle was owned by the 1st respondent and was insured with the 3rd respondent. The appellant was aged 48 years and was working as a Senior Accountant in M/s.BRD Car World, Konnikara, a dealer of Maruti Suzuki cars, with a monthly income of Rs.28,000/-. Consequent to the injuries, the appellant sustained permanent disablement and compensation was sought in such circumstances.

3. The 3rd respondent/Insurance Company alone contested the matter by filing a written statement wherein they admitted the coverage of the insurance policy. However, they MACA.No.3367/2018 3 disputed the liability in various heads. They also disputed the negligence and quantum of compensation.

4. The evidence in this case consists of Exhibits A1 to A16 from the appellant's side. The Medical Board report pertaining to the disablement of the appellant was marked as Exhibit X1. Exhibit B1 was marked from the respondents' side.

5. After trial, the Tribunal came to a conclusion that the accident occurred due to the negligence on the part of the 2nd respondent in riding the motorcycle bearing Reg.No.KL-64-B-7818. Being the insurer of the said vehicle, the 3rd respondent was held liable to pay the compensation and the quantum of compensation was fixed as Rs.4,76,400/-. The said amount was directed to be deposited by the 3rd respondent with interest @8% per annum from the date of the petition till realization with proportionate costs. The Tribunal also found that there was violation of policy conditions, and therefore, the 3rd respondent was permitted to recover the compensation from the respondents 1 and 2, after satisfaction of the award. This appeal is filed by the appellant seeking enhancement of compensation. MACA.No.3367/2018 4

6. Heard learned counsel for the appellant, Sri.Binoy Ram.V. and Sri.P.K.Manoj Kumar, learned counsel for the 3 rd respondent Insurance Company.

7. The learned counsel for the appellant contends that the amounts awarded by the Tribunal in various heads were grossly inadequate and require reconsideration. The main contest was on the head of disability and the consequential loss of earning power. According to the learned counsel, the Tribunal took a meagre monthly income to assess the compensation.

8. On the other hand, the learned counsel appearing for the 3rd respondent/Insurance Company would point out that the materials would indicate that despite sustaining injuries and disablement, the appellant continued his employment, and therefore, there was no actual loss of earning capacity.

9. After perusing the records, even though I find some force in the contention put forward by the learned counsel for the Insurance Company. I am of the view that the method of assessment made by the Tribunal was not proper, and the amount awarded is not sufficient to address the grievances of the appellant. Of course, as rightly pointed out by the learned counsel for the Insurance Company, the appellant continued in his employment despite MACA.No.3367/2018 5 sustained disablement, and therefore, during the period he was in service, there cannot be any loss of earning power. This is mainly because there is no case for the appellant that there was any reduction in his monthly income owing to the disability suffered by him. However, it is a fact that the appellant has to live with that disability, and such disability may have an impact on the loss of earning power after he retires from his service. Even though there are no materials as to the retirement age of the appellant, the same can be fixed as 58 years, which is the normal age of superannuation in the private sector. At the time of the accident, the age of the appellant was 48 years, and thus, his retirement age was to take place ten years after the accident. Therefore, the compensation for loss of earning capacity has to be assessed for the period after his retirement.

10. For determining the compensation for disability and loss of earning power, one of the crucial elements is the monthly income. In the claim petition, they produced Exhibit A10 salary certificate showing the gross salary of the appellant as Rs.28,280/-. The Tribunal did not accept by observing that it was not properly proved by examining any of the persons. However, considering the educational qualifications of the petitioner as discernible from the MACA.No.3367/2018 6 records and the nature of employment, I am of the view that the monthly income mentioned in Exhibit A10 is a probable amount. However, here I am considering the loss of earning capacity pertaining to the period after the retirement of the appellant, and hence, the entire monthly income, as mentioned in the said certificate, cannot be considered. But considering the educational qualification, the nature of employment, the year at which he was supposed to retire (2025), etc., I am of the view that the monthly income to be considered for determining the compensation for the post-retirement period can be fixed at Rs.20,000/-. As regards the percentage of disability, the Tribunal has already accepted the extent thereof as certified in Exhibit X1, which was 10%. Since the age of superannuation was treated as 58, the multiplier to be applied should be the one relating to the age group of 55 to 60, which is 9 . Thus, while re-assessing the compensation for loss of earning capacity, the amount would come to Rs.2,16,000/- (20000x12x9x10/100). The amount already awarded by the Tribunal is Rs.1,26,000/-; thus, the appellant's additional compensation would come to Rs.90,000/-.

11. In addition to the above, the appellant is to be granted some additional compensation for the loss of amenities. This is MACA.No.3367/2018 7 mainly because the amount of Rs.30,000/- awarded by the Tribunal appears to be on the lower side. It is to be noted that compensation for loss of earning capacity has been granted for the period after he retires from service alone. However, the fact that he had to live with that disability during the entire period, including the period during which he was employed, is a matter which cannot be ignored. He has to endure the difficulties arising from the disability during the said period as well. The said disability may cause difficulties in his career as well. This has to be taken care of while assessing the compensation for amenities; therefore, some additional amount has to be granted under that head. In such circumstances, I deem it appropriate to grant a further sum of Rs.30,000/- under the said head.

12. Another head highlighted by the learned counsel for the appellant is for loss of earnings. The Tribunal awarded an amount of Rs.45,000/- under the said head by considering the fact that the appellant must have been bedridden for a period of 6 months by calculating the monthly income as Rs 7,500/-. However, there were no records before the Tribunal to indicate that the appellant was forced to take leave for the entire period. In such circumstances, I do not find any scope for further enhancement of MACA.No.3367/2018 8 the said head. The amounts awarded under the other heads are reasonable. In such circumstances, the additional compensation receivable by the appellant is determined as Rs.1,20,000/- (90000+30000). In the light of the aforesaid observations and findings, this appeal is allowed. The award dated 18.06.2018 in O.P. (MV).No.1489 of 2015 passed by the Motor Accidents Claims Tribunal, Irinjalakuda, is hereby modified by granting an additional compensation of Rs.1,20,000/- (Rupees one lakh and twenty thousand only). The said amount shall be deposited by the Insurance Company with interest at the rate as ordered by the Tribunal with proportionate costs within a period of three months from the date of receipt of a copy of this judgment. It is clarified that, as this Court did not interfere with the finding of the Tribunal, permitting the 3rd respondent to recover the compensation from respondents 1 and 2 after satisfying the award, the 3rd respondent shall be at liberty to recover the additional compensation from the said respondents. SMV/DG/5.1.24 Sd/- ZIYAD RAHMAN A.A. JUDGE