IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MRS. JUSTICE K.HEMA FRIDAY, THE 8TH FEBRUARY 2008 / 19TH MAGHA 1929 MFA.No. 390 of 2002(C) ---------------------- OPMV.3267/1993 of MOTOR ACCIDENT CLAIMS TRIBUNAL, MANJERI .................... APPELLANT/3RD RESPONDENT: ------------------------- THE NEW INDIA ASSURANCE COMPANY LTD.,NOW REPRESENTED BY ITS ASSISTANT ADMINISTRATIVE OFFICER,REGIONAL OFFICE,KOCHI-11 BY ADV. SRI.MATHEWS JACOB SRI.JACOB MATHEW RESPONDENT/PETITIONER: ----------------------- J.PHILIPPOSE S/O.C.P.JOSEPH,"THARANG" HOUSE,THENHIPPALAM P.O.,CALICUT UNIVERSITY, MALAPPURAM DISTRICT BY ADV. SRI.K.P.MUJEEB THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 08/02/2008 ALONGWITH MFA NO.467 OF 2002 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: MFA.390/2002 ORDER ON C.M.P.NO.2073/2002 IN MFA.390/02 DISMISSED. 8.2.2008 SD/- J.B.KOSHY, JUDGE SD/- K.HEMA, JUDGE /TRUE COPY/ J.B.KOSHY & K.HEMA, JJ. ------------------------------- M.F.A.NOS.390 & 467 OF 2002 (C) ----------------------------------- Dated this the 8th day of February, 2008 J U D G M E N T KOSHY,J. On 31.5.1993, while riding a motor cycle, claimant in O.P.(MV).No.3267/1993 on the file of Motor Accidents Claims Tribunal, Manjeri, met with an accident as the motor cycle he was riding was hit by the bus driven by the 1st respondent owned by the 2nd respondent and insured by the 3rd respondent, Insurance company. He claimed a compensation of Rs.40,00,000/-. Tribunal awarded a compensation of Rs.18,75,000/- and directed the 3rd respondent Insurance company to deposit the same finding that the accident occurred due to the sole negligence of the driver of the bus insured by the 3rd respondent Insurance company. Coverage of insurance is not disputed. 2. Insurance company filed M.F.A.No.390/2002 contending that the amount awarded was very high and arbitrary. Claimant filed M.F.A.No.467/2002 contending that M.F.A.NOS.390 & 467 OF 2002 © 2 amount awarded is inadequate. Question to be considered is what is the amount to be awarded in this case. He was 46 years old at the time of accident. Tribunal has fixed 13 as the multiplier taking guidelines from the 2nd schedule. We are of the opinion that no interference is required in the multiplier fixed by the tribunal. Claimant was employed earlier in the Shipping Corporation of India and his basic salary was Rs.11,690/-. Apart from that he was getting fixed over time allowance and various other allowances and total salary was Rs.48,367/- as can be seen from Ext.A27 certificate. He resigned from the service and joined as Chief Engineer in Merchant Navy and he was earning 3,600/- U.S.Dollars per month. Ext.A8 certificate shows that he obtained Engineering Degree in the first class from the Kerala University. Ext.A6 is the certificate of competency as First Class Engineer by the Director General of Shipping, Government of India. He left the service only for better salary. In Merchant Navy, usually employees are taken on contract basis. Ext.A7 is the agreement of employment wherein his monthly salary was shown as 3,600/- U.S.Dollars which is equivalent to M.F.A.NOS.390 & 467 OF 2002 © 3 Rs.1,80,000/- taking the exchange rate of value at that time. It is the contention of the claimants that above Rs.1,80,000 should have been taken as the monthly income. According to the Insurance company, contract was only for seven months but according to the claimants after the contract period, they will visit the family and contract is automatically renewed and that is the practise in Merchant Navy. They can apply for another job as availability of qualified Chief Engineers are very rare and they will get job at any time. In any event, he was a qualified Merchant Navy Engineer. Even if the amount he was getting as monthly income was more than Rs.48,000/- in the Shipping Corporation, tribunal has taken only Rs.25,000/- as the monthly income. Considering the various aspects of this case, we are of the opinion that a high monthly income ought have been taken for calculating compensation. He was sent to the Medical Board and Medical Board certified that there is 27% disability. The above medical board certificate was accepted and tribunal calculated compensation for 27% disability. According to the claimants, he was unable to do work as Chief Engineer. In any event, tribunal found that even if he comes for work after a long M.F.A.NOS.390 & 467 OF 2002 © 4 period of treatment, he will not get the same salary because of his difficulties. But tribunal have awarded compensation for loss of earning power and disability on multiplier method taking Rs.25,000/- as the monthly income and 27% as the disability as certified by the Medical Board, awarded another Rs.3,50,000/- for functional disability. It is also contended by the Insurance company that amount awarded for pain and sufferings is also very high. He was in the hospital for 85 days. He suffered fracture of clavicle, tibia and ribs. It is true that after granting compensation for loss of earning capacity due to disability again functional disability could not have been granted but since only a low income compared to his actual income was taken for calculating the loss of earning power and disability, we are of the opinion that no change is needed in the above and the total amount awarded is just and reasonable. Both appeals filed by the Insurance company and claimants are dismissed. J.B.KOSHY, JUDGE K.HEMA, JUDGE prp J.B.KOSHY & K.HEMA, JJ. -------------------------------------------------------- M.F.A.NOS.390 & 467 OF 2002 (C) --------------------------------------------------------- J U D G M E N T --------------------------------------------------------- 8th February, 2008