Partly allowed

Biju Kumar v. United India Insurance Co. Ltd.

Kerala HC15 Dec 2021MACA/3175/2015

Case brief

AI extract

What is this about?

The High Court partly allowed the Motor Accident Claims Appeal, awarding additional compensation for permanent disability based on recalculated austerity principles, and remanded the case to the Tribunal to decide on additional claims for medical expenses and loss of earnings by admitting fresh evidence.

What did the court decide?

Additional compensation of Rs.1,24,620 with interest awarded; case remanded to Tribunal for fresh award on medical expenses and loss of earnings after adducing additional evidence by 24.01.2022.

Biju Kumar Vs United India Insurance Co. Ltd. — Motor Accident Claims | Kerala HC (2021)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE T.R.RAVI

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WEDNESDAY, THE 15^TH DAY OF DECEMBER 2021/24TH AGRAHAYANA, 1943

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MACA NO. 3175 OF 2015

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AGAINST THE AWARD IN OPMV 1659/2012 OF PRL. MOTOR ACCIDENT CLAIMS TRIBUNAL, KOZHIKODE

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APPELLANT/PETITIONER:

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BIJU KUMAR AGED 40 YEARS S/O MAYYON (LATE), RESIDING AT PENNAKAVIL HOUSE, (VIA) NARIKUNI P.O., MADAVOOR, KOZHIKODE.

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BY ADVS. SRI.AVM.SALAHUDIN SMT.EMIL STANLEY

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RESPONDENT/3RD RESPONDENT:

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UNITED INDIA INSURANCE CO. LTD. K.M.O. TOWER, MAIN ROAD, THAMARASSERY, KOZHIKODE-673001.

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BY ADVS. SRI.GEORGE CHERIAN (SR.) SMT.LATHA SUSAN CHERIAN SMT.K.S.SANTHI

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THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 30.9.2021 THE COURT ON ON 15.12.2021, DELIVERED THE FOLLOWING:

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M.A.C.A. No.3175 of 2015

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T.R. RAVI, J.

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M.A.C.A. No.3175 of 2015

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Dated this the 15^th day of December, 2021

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JUDGMENT

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On 21.5.2011, when the appellant was riding his motorcycle, he was hit by a jeep driven in a crash and negligent manner. He suffered serious injuries. He was taken to Baby Memorial Hospital, Kozhikode. He sustained crush injury on the left foot, fracture and dislocation of right ankle, open type III C fracture to fibula distal 3^rd , pelvic fracture by lateral open type III and pubic symphysis diastasis. He was treated as inpatient from 22.5.2011 to 22.6.2011. He was again hospitalised on 3.9.2011 and discharged on 7.9.2011. The Medical Board assessed 45% permanent stability to the appellant. The appellant was 37 years at the time of accident. He was working as a Linesman in KSEB with a monthly income of Rs.15,100/-. In the claim petition filed by the appellant, the Tribunal granted a sum of Rs.1,72,400/- as compensation. The appeal is filed claiming enhanced compensation.

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Heard the counsel for the appellant and the respondents.

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The Tribunal found that the appellant did not lose his employment and as such there was no loss of earnings. It is also found that there is no evidence to show that the disability had any

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M.A.C.A. No.3175 of 2015 3

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impact on his job, affecting his future prospects in any manner. The Tribunal hence held that future earnings have not been affected, but still the appellant is entitled for compensation for the disability suffered for which an amount of Rs.1,20,000/- was fixed as compensation. The Tribunal has scaled down the disability from 45% to 15%. However, the manner in which Rs.1,20,000/- was arrived at is not clear from the award. It is contended by the counsel for the appellant that even if there is no loss of earnings, the Tribunal should have granted compensation for the post retirement period on the basis of a notional income.

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The next contention raised by the counsel for the appellant is that the appellant had to avail of 382 days leave without allowance on account of the accident. Annexure A2 has been produced in the appeal which is the proceedings of the Chief Engineer evidencing the above fact. However, the above materials were not available before the Tribunal at the time of passing the award. Nor were the respondents put on notice at the time of tendering evidence. So also, the appellant has produced medical bills of the value of about Rs.3,99,600/-, claiming that the same were incurred on account of the injury suffered at the accident, which are also not available before the Tribunal. I am hence of the opinion that as far as the above two claims are concerned, the matter has to be remitted back to the Tribunal for

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M.A.C.A. No.3175 of 2015

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fresh decision after permitting the parties to give additional evidence. It is settled law that compensation for permanent disability is not the same as loss of future earning capacity, but something more. In a case where the injured is not in a permanent job, the multiplier method along with the notional monthly income and the percentage of disability can be helpful to arrive at the compensation for permanent disability to some extent. However, in cases where the injured is having a job and is not suffering the loss of earning as such, except in such cases where his promotional chances are affected by the injury, there is a necessity to compensate the other losses that are caused due to the permanent disability apart from the earning aspect. No Thumb Rule can be adopted for arriving at such a compensation. There is always an element of approximation. Regarding the compensation for permanent disability sans the loss of earning capacity, taking the age of retirement as 56 years, I am of the opinion that it would be just and fair to adopt the multiplier of 9 applicable to the case of person of age 56 to 60 and the monthly income that was being earned at the time of the accident without any increase, for arriving at the just compensation for the period including post retirement. Ext.C1 disability certificate shows 45% disability. However, it is not stated to be the occupational disability. The certificate says that the detailed calculation is annexed. However, there is no

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M.A.C.A. No.3175 of 2015

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annexure produced. There is also no oral evidence regarding the manner in which the disability is affecting the appellant. The appellant

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was present before the Tribunal and the Tribunal has held that considering the nature of the injuries sustained, 15% can be taken as the whole body disability. In the absence of any material, this Court is of the view that the finding of the Tribunal, which had the occasion to see the appellant, should be taken as the disability. The appellant will hence be entitled to a sum of Rs.2,44,620/- (15100x12x9x15%). After deducting the sum of Rs.1,20,000/- awarded by the Tribunal, the appellant will be entitled to a sum of Rs.1,24,620/- as additional compensation under the head permanent disability.

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5 . In the result, the appeal is partly allowed. The appellant is awarded an additional compensation of Rs.1,24,620/(Rupees One Lakh Twenty Four Thousand Six Hundred and Twenty only)

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with interest with interest at the rate of 9% per annum from the date of filing of the claim petition (22.11.2012) till the date of realisation, with proportionate costs. The appeal was filed with a delay of 135 days. By order dated 26.08.2016, this Court condoned the delay in filing the appeal on condition that the appellants will not be entitled to interest on the enhanced compensation which may be awarded by this Court for the period of 135 days. The interest payable on the enhanced compensation shall be hence excluding the period of 135

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M.A.C.A. No.3175 of 2015

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days. The respondent insurer shall deposit the additional compensation granted in this appeal along with the interest and proportionate costs, before the Tribunal within two months from the date of receipt of a certified copy of this judgment, after deducting any amount to which the appellant is liable towards balance court fee and legal benefit fund. The disbursement of the compensation to the appellant shall be in accordance with law. .

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The case is remanded to the Tribunal to consider the claims of the appellant for additional compensation towards medical expenses and loss of earnings for the period of leave without allowance. The Tribunal shall allow the appellant and the respondents to adduce additional evidence if required and decide the above issues and pass a fresh award regarding the compensation on the above two aspects. The parties shall appear before the Tribunal on 24.01.2022 . The Tribunal shall endeavour to pass fresh award within 6 months from 24.01.2022.

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Sd/-- T.R. RAVI JUDGE

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dsn

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M.A.C.A. No.3175 of 2015

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APPENDIX

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APPELLANT'S ANNEXURES:

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ANNEXURE A1: MEDICAL BILLS ISSUED FROM BABY MEMORIAL HOSPITAL, CALICUT

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ANNEXURE A2: TRUE PHOTOCOPY OF ORDER DT.19.4.2013 PASSED BY THE CHIEF ENGINEER, KERALA STATE ELECTRICITY BOARD WITH RESPECT FO THE SANCTIONING OF MEDICAL LEAVE

Biju Kumar v. United India Insurance Co. Ltd.

Case brief

What is this about?

What did the court decide?

Biju Kumar v. United India Insurance Co. Ltd.

Case brief

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