Allowed

P.S.Gireesh Kumar v. the Managing Director, K.S.R.T.C. Thiruvananthapuram

Kerala HC5 Dec 2023MACA/2212/2012

Case brief

AI extract

What is this about?

The High Court allowed the appellant's appeal seeking enhancement of compensation in a motor accident case. The Court modified the Tribunal's award by calculating future loss of earning capacity with a higher multiplier and revised monthly income, granting additional compensation for permanent disability, pain, and amenities.

What did the court decide?

Additional compensation of Rs.1,60,490/- awarded; existing award modified by the Motor Accidents Claims Tribunal.

P.S.Gireesh Kumar Vs the Managing Director, K.S.R.T.C… — Motor Accident Claims | Kerala HC (2023)

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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 ZIYAD RAHMAN A.A.

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TUESDAY, THE 5TH DAY OF DECEMBER 2023 / 14TH AGRAHAYANA, 1945

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MACA NO. 2212 OF 2012

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AGAINST THE AWARD DATED 29.07.2010 IN OP(MV) 72/2008 OF MOTOR
ACCIDENT CLAIMS TRIBUNAL, KALPETTA

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APPELLANT/PETITIONER:

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P.S.GIREESH KUMAR

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S/O. LATE P.P.SANKARAN ADIYODI, PUTHENPURAYIL HOUSE,
VAZHAVATTA POST, VYTHIRI TALUK, WAYANAD DISTRICT.

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BY ADV SMT.CELINE JOSEPH

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RESPONDENT/RESPONDENT NO.2:

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THE MANAGING DIRECTOR,
K.S.R.T.C., THIRUVANANTHAPURAM
PIN 695001

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BY ADVS.

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SRI.P.C.CHACKO, SC, KERALA STATE ROAD TRANSPORT CORPN.
SRI.ALEX ANTONY SEBASTIAN P.A.

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THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR
ADMISSION ON 05.12.2023, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:

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MACA NO. 2212 OF 2012

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JUDGMENT

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The appellant was the petitioner in O.P.(M.V.) No.72/2008 on the files of the Motor Accident Claims Tribunal, Kalpetta. The said claim petition was submitted by him seeking compensation for the injuries sustained in a motor accident that occurred on 23.10.2007.

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According to him, the accident occurred when the motorcycle ridden by him was hit by a K.S.R.T.C. bus. The 1^st respondent in the claim petition was the driver, the 2^nd respondent in the claim petition was the Managing Director of K.S.R.T.C. Consequent to the accident, he sustained serious injuries and physical disablement. He was working as a Teacher with a monthly income of Rs.9,658/- and was aged 34 years at the time of the accident. The claim petition was submitted in such circumstances.

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The respondents therein were ex parte before the Tribunal. The evidence in this case consists of oral testimony PW1 and Exts.A1 to A10 from the side of the appellant. The

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MACA NO. 2212 OF 2012

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report of the Medical Board was marked as Ext.C1. After the trial, the Tribunal came to the conclusion that the accident occurred due to the negligence on the part of the 1^st respondent therein and being the owner of the bus, the 2^nd respondent therein was held liable to pay the compensation. The quantum of compensation was fixed as Rs.1,67,990/and the said amount was directed to be deposited by the 2^nd respondent therein with interest @ 7.5% per annum from the date of filing of petition till the date of payment. This appeal is submitted by the appellant seeking enhancement of compensation.

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Heard Smt.Celine Joseph, learned counsel appearing for the appellant and Sri.Alex Antony Sebastian P.A., learned counsel appearing for the respondent herein/2^nd respondent in the claim petition.

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The only contest in this case relates to the quantum of compensation. The learned counsel for the appellant would point out that, the Tribunal ought to have

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MACA NO. 2212 OF 2012

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taken the entire multiplier for the purpose of computing the compensation for permanent disability instead of taking the multiplier for the period after retirement. The learned counsel also brought the attention of this Court to the decision rendered by this Court in M.A.C.A. No.688/2013, wherein it was held that split multiplier cannot be applied in a case of injuries. However, the crucial aspect to be noticed in this case is that the appellant was working as a Physical Education Teacher in a Government School. Even after the injuries sustained, he continued in the employment and drawn the entire salary. Therefore, there was no loss of earning capacity as far as the appellant is concerned. The aforesaid aspect is evident from the records. In M.A.C.A. No 688/2013, this Court referred to the decisions rendered by the Hon’ble Supreme Court with reference to the cases relating to the compensation of death of the victims and observed that the split multiplier could not be resorted to in such cases. It was also held by this Court that the multiplier

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MACA NO. 2212 OF 2012

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method was introduced for the purpose of standardization, and therefore, no deviation from the same is necessary.

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However, the crucial aspect to be noticed in this

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regard is that in Hem Raj v. Oriental Insurance Co. Ltd. & Ors. [(2018) 15 SCC 654] the Honourable Supreme Court held that, the method of computation in the standardized form contemplated in Sarla Verma & Ors. v. Delhi Transport Corporation [(2009) 6 SCC 121] and National Insurance Company Ltd. v. Pranay Sethi [(2017) 16 SCC 680], are to be followed when there is no evidence available. However, when there are materials on record that would justify the adoption of a different procedure, nothing would preclude the Court from accepting the said evidence and taking a different method of computation. The said observations were made by the honourable Supreme Court in respect of the addition to be made towards future prospects. However, I do not find any legal impediment in applying the said observations to all other situations where

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MACA NO. 2212 OF 2012

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6

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the evidence available on record clearly indicates the necessity for adopting a different method than contemplated in Pranay Sethi’s and Sarla Verma’s cases.

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As mentioned above, in this case, evidently, the appellant continued in his employment despite his injuries; therefore, there was no actual loss of earnings, which is a relevant circumstance to be taken note of for the purpose of assessing the compensation for the period after his retirement. The Tribunal rightly followed the said method and calculated the compensation for the post-retirement period.

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However, even while accepting the finding of the Tribunal in assessing the compensation for loss of earning capacity for the post-retirement period, I find that there is one infirmity in the assessment made. It is to be noted that the Tribunal applied the multiplier of 5. As per the service records, the age of superannuation of a Government Teacher is 56 and therefore, he would have come under the age group of 56 to 61 to which the proper multiplier applicable is

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MACA NO. 2212 OF 2012

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Therefore, instead of 5, the proper multiplier to be applied is 9.

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The next aspect relates to the monthly income.

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The Tribunal accepted the monthly income as Rs.7,990/- for the purpose of assessing the compensation for the postretirement period. It is a fact that the appellant was aged 34 years at the time of the accident and he had 22 years of remaining service. The accident occurred in the year 2007 and the retirement is to take place only in the year 2029. Therefore, while computing the compensation, we cannot completely ignore the standards that is likely to prevail in the year 2029, as we are attempting to assess the loss of earning capacity of the appellant after his retirement. In such circumstances, a slightly higher monthly income can be taken. In the facts and circumstances of the case, I deem it appropriate to fix it as Rs.12,000/-. While re-assessing the compensation with the monthly income, applying the multiplier of 9 and the percentage of disability as 15%,

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MACA NO. 2212 OF 2012

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compensation for loss of earning power due to permanent disability would come to Rs.1,94,400/- [12000x12x9x15/100]. The amount already awarded by the Tribunal is Rs.71,910/-; thus, the additional amount would come to Rs.1,22,490/- .

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When moving on to the other heads, it is seen that the Tribunal has awarded only Rs.12,000/- under the head of pain and suffering. Considering the nature of injuries and the physical disability arising therefrom, I am of the view that a further sum of Rs.13,000/- is to be awarded under the said head. As regards the compensation for loss of amenities, no amount is awarded by the Tribunal. It is to be noted that this is a case in which no compensation for disability was granted to the petitioner pertaining to the period during which he was in service. Even though there was no actual loss of earning capacity, the fact remains that he had to live with that disability, during the period of service as well. The inconvenience and difficulties that may arise while carrying out his duties attached to his employment, due to the

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MACA NO. 2212 OF 2012

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disability, cannot be lost sight of. Therefore, while deciding the question of loss of amenities, said aspect is to be taken into consideration. In such circumstances, I deem it appropriate to grant an amount of Rs.25,000/- under the said head. Thus, the total additional compensation would come to Rs.1,60,490/- [122490+13000+25000].

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In the light of the aforesaid observations and findings, this appeal is allowed. The award dated 29.07.2010 passed by the Motor Accidents Claims Tribunal, Kalpetta in O.P. (MV).No.72 of 2008 is hereby modified by granting an additional amount of Rs.1,60,490/- (Rupees one lakh sixty thousand four hundred and ninety only) and the said amount shall be deposited by the respondent herein/2^nd respondent in the claim petition, along 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. However, it is clarified that as this appeal is filed with a delay of 713 days, the appellant shall not be entitled to

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MACA NO. 2212 OF 2012

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claim interest for the additional amount pertaining to the

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period of delay.

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 Sd/-
ZIYAD RAHMAN A.A.
JUDGE

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scs

P.S.Gireesh Kumar v. the Managing Director, K.S.R.T.C. Thiruvananthapuram

Case brief

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P.S.Gireesh Kumar v. the Managing Director, K.S.R.T.C. Thiruvananthapuram

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