1. This appeal is filed by the 3rd respondent insurance company in O.P.(MV) No.806 of 2013 on the file of the Motor Accidents Claims Tribunal, Pala, challenging the quantum of compensation awarded by the tribunal. The respondent herein was the claimant and the legal heirs of the original claimants. The Cross Objection No.10 of 2016 is filed by the claimant/legal heirs of the claimant seeking enhancement of compensation.

2. Brief facts of the case are as follows: On 06.10.2013, at about 8.00 a.m., while the claimant was attempting to cross the road, a stage carriage bus bearing registration No.KL-34/B- 9599 hit on the claimant and as a result, he sustained serious injuries. The claimant approached the tribunal claiming a total compensation of Rs.12,00,000/-.

3. The first, second, third and additional fourth respondents were the owner, driver, insurer and the possessor of the offending vehicle respectively. Though notice was served on the first, second and additional fourth respondents, they remained absent and were set ex parte before the tribunal. The third respondent-insurer filed a written statement admitting the insurance policy, disputing the liability and quantum of compensation claimed. Before the tribunal, PW1 was examined and Exts.A1 to A11, Ext.X1 and Exts.B1 & B2 were marked. The tribunal, after analysing the pleadings and materials on record, found that the accident occurred due to negligence on the part of the second respondent and awarded a sum of Rs.9,21,630/- as compensation under different heads with interest @ 9% per annum from the date of petition till realization with proportionate costs against the third respondent insurer and in default of payment as above, penal interest @ 11% per annum was also awarded. Challenging the quantum of compensation awarded, the 3rd respondent - insurance company and the claimants have approached this court with the above appeal and cross objection respectively.

4. Heard the learned standing counsel for the appellant/insurance company and the learned counsel for the claimants/cross objectors.

5. The learned standing counsel for the appellant/insurance company as well as the learned counsel for the cross objectors/claimants mainly disputed the quantum of compensation under the following heads:

                  I. Notional Income

The learned counsel for the claimants/cross objectors submitted that though an amount of Rs.10,000/- was claimed as the monthly income of the injured, who was running a tea shop, the tribunal had taken only Rs.8,000/-. However, no document has been produced to prove the income or avocation of the injured. The learned counsel further submitted that even going by the judgment in Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Co. Ltd. [2011 (13) SCC 236], the monthly income of an ordinary worker is taken at Rs.9,000/- for an accident in 2013 and sought enhancement of the income. Accordingly, following the judgment in Ramachandrappa (supra) and in order to award a just and reasonable compensation, I find it appropriate to re-fix the notional monthly income at Rs.9,000/-.

                  II. Loss of earnings

                  Since the notional monthly income is re-fixed as Rs.9,000/-, the total compensation payable under the said head would be re-calculated for a period of six months as Rs.54,000/- (9,000 x 6). The tribunal had already awarded an amount of Rs.48,000/- under the head loss of earnings. Thus there will be an additional amount of Rs.6,000/- under the said head.

                  III. Bystander expenses

                  The learned counsel for the cross objectors/claimants submitted that though an amount of Rs.30,000/- was claimed towards the head bystander expenses, only an amount of Rs.9,000/- was awarded by the tribunal. Hence, I am inclined to grant compensation under the afore head by taking an amount of Rs.350/- per day for thirty six days in-patient treatment totalling to Rs.12,600/- (350 x 36). Thus there will be an additional enhancement of Rs.3,600/- under the head bystander expenses.

                  IV. Extra nourishment

                  The learned counsel for the claimants/cross objectors submitted that though an amount of Rs.5,000/- was claimed towards the head extra nourishment, the tribunal had granted only Rs.3,000/- for thirty six days in-patient treatment. Considering the period of hospitalisation, I am inclined to grant a consolidated amount of Rs.10,000/- under the said head. Thus there will be an additional amount of Rs.7,000/- under the head extra nourishment.

                  V. Permanent disability The learned standing counsel appearing for the insurance company submitted that the tribunal committed an error in accepting 48% permanent disability based on Ext.X1 disability certificate. Ext.X1 disability certificate is dated 03.12.2014. However, the neuro disability assessment report annexed to it bears the date 24.12.2014. According to the Insurance Company, on 03.12.2014 — the date on which the Standing Disability Board allegedly issued its certificate, the neuro disability assessment report dated 24.12.2014 was not in existence. Therefore, the Board could not have relied upon that report while issuing Ext.X1. As per the Standing Disability Board certificate dated 03.12.2014, the claimant was assessed as having only 5% orthopaedic disability. However, as per the neuro disability assessment certificate, the total permanent whole body disability is assessed as 43%. Hence the assessment of 48% permanent disability by the tribunal was erroneous. The learned Standing Counsel for the appellant–insurer also relied on Ext.A9 certificate dated 07.06.2014, issued by the treating doctor, which assessed only the Orthopaedic disability. This certificate was produced before the tribunal in June 2014. Later, in December 2014, the Standing Disability Board issued another certificate. Since the two certificates show different disability assessments, they are contradictory to each other.

                  The learned counsel for the claimants/cross objectors submitted that although the Standing Disability Board certificate is dated 03.12.2014, the claimant later underwent a detailed neuro disability assessment on 24.12.2014. The findings in that report were incorporated into the Disability Board certificate, and the total permanent disability was accordingly assessed at 48%. Therefore, it was contended that the tribunal committed no error in accepting the permanent disability at 48%.

                  I have considered the rival contentions raised by both sides.

                  I have perused Ext.X1 Disability certificate and Ext.A9 certificate. Ext.A9 certificate dated 07.06.2014 reads as follows:

                  TO WHOM SO EVER IT MAY CONCERN

                  This is to certify that Mr. Sasidharan aged 53 years with hospital No.1335636 was admitted under my care with alleged h/o RTA on 05.10.2013. He was evaluated with CT Scan Head and Neck, Emergency CT Thorax and Abdomen and diagnosed to have Traumatic Tentorial SAH, Cervical Soft Tissue Injury, Interhemispheric SAH, Left Surgical Emphysema, Left 2 - 7 Rib Fracture, Left Clavicle Fracture, Left Pneumothorax, Minimal Pleural Collection in Left side and Trauma related Liver Contusion. He was managed with medications and other supportive measures. His condition improved gradually and discharged once he became clinically stable on 12.11.2013. He is still continuing treatment as an outpatient in Neuro Surgery OPD. He is still having difficulty in moving left upper limb, secondary to left clavicle fracture. He is still continuing physiotherapy and requires further treatment.

                  In the said certificate, the doctor had noted that the claimant was undergoing treatment for neuro surgery, though the details of the treatment for neurosurgery are not stated in the said certificate. On a perusal of Ext.A9 certificate, it is clear that the respondent was undergoing treatment for neuro disability as well as the Orthopaedic issues. Hence, as per Ext.A9 certificate,the doctor has specifically mentioned that the injured is still continuing treatment as an outpatient in Neuro surgery Out Patient Department and that he is still having difficulty in moving left upper limp, secondary to left clavicle fracture.

                  On a perusal of the tribunal’s proceedings, it is seen that the Ext.X1 certificate was marked on 13.05.2015. Therefore, there is no dispute that the said certificate was produced before the tribunal only on 13.05.2015. On examining Ext.X1, it is evident that although the orthopaedic disability is shown as 5%, the said 5% is circled in red ink. Further, additional entries in red ink indicate: Ortho – 5%, Neuro Surgery – 43%, and Total Disability – 48%. It is also specifically noted in the certificate that the neuro surgery report is attached. Significantly, at the top of the Standing Disability Assessment Board certificate, there is a signature affixed on the seal bearing the date as 24.04.2015. Hence, the date of Ext.X1 has to be taken as 24.04.2015 and not 03.12.2014. Though the neuro disability certificate dated 24.12.2014 had been issued earlier, the details of the same were not originally entered in the standard Disability Assessment Board certificate by the Medical Board of Government Medical College Hospital, Kottayam.

                  After production of Ext.X1 certificate before the tribunal, the insurer failed to raise any objection in respect of the certificate produced by the injured from the Medical Board. The case was then adjourned for hearings on 16.05.2015 and 21.05.2015, reserved for judgment on 29.05.2015, and the judgment was pronounced on 30.05.2015. Although it is seen that there are some discrepancies in the dates mentioned in the certificate and the disability assessed, it is not possible for this court to order a re-examination since the injured died on 08.11.2023, during the pendency of the appeal.

                  On perusal of the neuro disability certificate annexed to the Standing Disability Assessment Board certificate, it is seen that the injured’s permanent whole body disability was assessed at 43%. The certificate also details the present disabilities, including the orthopaedic disability.

                  Although the  Standing Disability Assessment Board certificate reveals the total disability as 48%, in order to meet the ends of justice, I find it appropriate to fix the claimant’s disability at 43%.

                  Since the age of the injured was 53 years at the time of accident and he is 43% disabled, following the judgment in National Insurance Company Ltd. v. Pranay Sethi [2017 (4) KLT 662 (SC)], 10% of future prospects is to be added to the income now fixed, and it would be Rs.9,900/- (9,000 x 10% + 9,000) for awarding compensation under the head, permanent disability. Hence, following the apex court judgments in Pranay Sethi (supra) and Sarla Verma v. Delhi Transport Corporation [2010(2) KLT 802(SC)], the total compensation payable under the afore head is recalculated thus Rs.5,61,924/- (9,900 x 12 x 11 x 43/100). The tribunal had granted an amount of Rs.5,06,880/- under the said head. Thus, there will be an additional amount of Rs.55,044/- under the afore head.

6. Though the learned counsels on both sides challenged the compensation paid under other heads, on a perusal of the records available, I am not inclined to interfere with the compensation awarded by the tribunal under other heads since it appears to be just and reasonable. Since the appeal is of the year 2016, I find it reasonable to award interest @ 7% per annum for the enhanced amount.

7. On a perusal of the impugned award, it is seen that the tribunal awarded penal interest at the rate of 11%, which is not legally sustainable in view of the judgment of the apex court in National Insurance Co. Ltd. v. Keshav Bahadur [2004 (2) SCC 370]. Accordingly, the direction of the tribunal awarding penal interest @ 11% per annum is hereby set aside.

8. Thus, the impugned award of the tribunal is modified as follows:



                  Accordingly, the appeal and the cross objection are partly allowed and the cross objectors/claimants are awarded an additional compensation of Rs.71,644/- (Rupees Seventy One Thousand Six Hundred and Forty Four Only) over and above the compensation awarded by the tribunal with interest @ 7% per annum from the date of petition till realization and proportionate costs. The appellant - insurer shall deposit the said amount together with interest and costs within a period of two months from the date of receipt of a certified copy of this judgment. The direction of the tribunal awarding penal interest @ 11% per annum is hereby set aside. The claimants/cross objectors shall furnish copies of the PAN Card, AADHAAR Card and Bank details before the appellant insurer within a period of one month so as to enable the insurance company to make the deposit as ordered above. In case of failure to furnish details as above, it shall be open for the insurance company to deposit the said amount before the tribunal. Upon such deposit being made, the entire amount shall be disbursed to the cross objectors/ claimants at the earliest, in accordance with law.