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2007 DIGILAW 493 (KER)

Jayaprasad v. Rejimon Philip

2007-08-06

J.B.KOSHY, V.GIRI

body2007
Judgment :- Koshy, J. The appellant met with an accident on 30-8-1991 while he was riding a motorcycle. He suffered very serious injury. He approached the Motor Accidents Claims Tribunal contending that due to the negligent driving of the scooter which came in a rash and negligent manner hit him and the above scooter was insured by the 2nd respondent—Insurance Company. He claimed a compensation of Rs.4,93,700. The Tribunal awarded an amount of Rs.2,02,700. The accident occurred solely due to the negligence of the 1st respondent and his vehicle was at the time of accident duly insured by the 2nd respondent. Against the finding of negligence on the part of the 1st respondent as the cause of the accident and coverage of insurance, no appeal is filed by the respondents. The only question that is to be considered in this case is regarding the quantum of compensation. 2. It is contended by the appellant that his right leg below knee was amputated due to the accident. This is not disputed. The Tribunal also has seen the appellant. He was only 23 years of age at the time of the accident. The appellant has produced the driving licence to show that he was having a licence to drive stage carriages and heavy passenger vehicles. It is his contention that he was a bus driver by profession. The owner of the bus was also examined to show that he was employed as his bus driver. The owner stated that he was given a sum of Rs.1,820 as monthly salary apart from batta, etc. The notional income of Rs.1,500 was fixed by the Tribunal. It is contended that the future prospects, etc. ought to have been noticed by the Tribunal and there was no reason to deduct the income as stated by the employer as well as the claim in the petition. However, in the absence of clear data we are not changing the monthly income assessed by the Tribunal as Rs.1,500 per month. The Tribunal has taken 17 as the multiplier taking his age as 23 at the time of the accident. However, in the absence of clear data we are not changing the monthly income assessed by the Tribunal as Rs.1,500 per month. The Tribunal has taken 17 as the multiplier taking his age as 23 at the time of the accident. A Three Member Bench of the Supreme Court in Smt. Supe Dei & Others v. M/s. National Insurance Company Ltd. & Another J.T. 2002 (Suppl.1) S.C. 451 held that the second schedule of the Motor Vehicles Act is framed for the purpose of awarding compensation under Section 163 A, it can be used as a guideline for determination of compensation under Section 166 also. Taking guideline from second schedule 17 was taken by the tribunal as multiplier. It was held by the Apex Court in several cases that higher multiplier can be taken when the age group of the claimant is between 20 and 25 as held in Adikanda Sethi v. Palani Swami Saran Transports (1997) 5 S.C.C. 435. In New India Assurance Co. Ltd. v. Charle 2005 A.I.R. S.C.W. 1801 it was held that highest multiplier must he taken when the motor accident victim's age is between 20 and 25 and with reducation in interest rate a higher multiplier under second schedule can be awarded. Even though it is contended that considering the present life span of a person a higher multiplier should he taken, taking second schedule as guideline we are of the opinion that the multiplier 17 taken by the tribunal need not be changed. Then the question is what is the percentage of disability. Disability certificate shows that he had 40% disability. The Tribunal calculated compensation taking that 40% disability. The contention of the petitioner is that he is unable to drive heavy vehicles or even any vehicle because of his amputation of right leg and therefore he is entitled to 100% compensation. He also cited the Five Member Bench decision of the Hon'ble Supreme Court in Pr rap Narain Singh Deo v. Srinivas Sabata & Another 1976 (1) S.C.C. 289 wherein it was held that a carpenter who lost his hand is entitled to 100% compensation as he is unable to do the work of a carpenter. It is further contended that ex en for walking etc. he needed support and if artificial leg is used it has to be replaced periodically. It is further contended that ex en for walking etc. he needed support and if artificial leg is used it has to be replaced periodically. The Tribunal has not granted any compensation for purchasing artificial knee or its replacement. It is contended that for loss of permanent disability the Tribunal has calculated R.S.1,22,400 taking 40% as disability and Rs.50,000 was awarded for loss of earnings, for loss of amenities, for loss of marital prospects and for other side effects no amount was awarded, Since his right leg below knee was amputated getting an employment is also very difficult. Considering his profession and considering the fact that for future treatment and allied heads no amount was granted we are of the opinion that the compensation awarded was too low and we calculate compensation taking 17 as the multiplicant, Rs. 1500 as monthly income and 100% disability. If that be so, the compensation payable will be Rs.1500 x 12 x 17 = Rs.3,06,000. Out of that we have to deduct Rs.1,22,400 granted for disability and Rs.50,000 granted for loss of earnings etc. and the balance will be Rs.1,33,600. It is contended that compensation granted under other heads are very meagre. We are of the opinion that considering the total amount of compensation no further amount need be granted. The amount of Rs.1,33,600 should be deposited by the 2nd respondent-Insurance Company with 7% interest from the date of application till deposit. Since his leg was amputated we are of the opinion that 50% of the amount can be withdrawn by him and the balance 50% should be deposited in a nationalised bank for 5 years. He is entitled to withdraw periodical interest. The appeal is allowed to the above extent.