A. Muthu @ Muthukutty v. Velukutty and The Oriental Insurance Co. Ltd.

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: A. Badharudeen
Judgment Date: 2022-06-01
Court Decision / Holding: Appeal allowed; enhanced compensation of Rs.70,100 payable with 9% interest from the date of petition to deposit/realisation, excluding a 49-day period where interest was disallowed; insurer directed to deposit the enhanced amount within two months from today.
Final Disposition: Appeal Allowed; enhanced compensation awarded; insurer directed to deposit within two months.

Parties to the Case

Appellants / Petitioners

A. Muthu @ Muthukutty

Respondents

Velukutty
The Oriental Insurance Co. Ltd.

Legal Representation & Advocates

Counsels for Petitioners

• Sri. Jacob Sebastian

Counsels for Respondents

• George Cherian (Sr.)
• Alexy Augustine George
• A. Cherian
• Smt. K.S. Santhi (Standing Counsel)

Case Synopsis & Summary

The appellant, A. Muthu, challenged the Motor Accidents Claims Tribunal, Palakkad award in OP(MV)51/2011, contending inadequacy of compensation for injuries suffered in a motor vehicle accident on 15.03.2009. The Tribunal awarded Rs. 2,39,150 along with 9% interest after examining PW1 and a disability certificate, covering disability, loss of earnings, pain and suffering, and loss of amenities. The appellant argued that his true monthly income as a lorry driver was Rs. 5,000, not the Rs. 3,500 fixed by the Tribunal, and pressed for recalculation of loss of earnings and disability income as well as enhanced compensation for pain and suffering and loss of amenities. The insurer contended that under the ratio of Ramachandrappa v. Royal Sundaram, the monthly income could be adjusted toward Rs. 7,000 and that the Tribunal’s award under the head loss of earning capacity should be reduced or offset. The High Court allowed the appeal in part, holding that Rs. 5,000 could be treated as monthly income; the loss of earnings could extend to four months; disability income should be recalculated using 20% disability; compensation for pain and suffering and loss of amenities should be increased by specified amounts; the head of loss of earning capacity was not to be double counted. The result is a total enhanced award of Rs. 70,100, plus 9% interest, with deposit to be made within two months.

Provisions of Law Cited

Section 166 of the Motor Vehicles Act, 1988

Legal Doctrines & Maxims

Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Ltd., (2011) 13 SCC 236 – cited for the ratio on fixation of monthly income; Multiplier principle for computing compensation in motor vehicle cases (loss of earnings, disability, etc.)

Submissions & Arguments

Contentions of Appellants / Petitioners

Appellant argued that the Tribunal erred in fixing monthly income at Rs.3,500; his actual income as a lorry driver is Rs.5,000 per month; sought re-fixation of monthly income to Rs.5,000 and recalculation of loss of earnings, disability income, and additional compensation under pain and suffering and loss of amenities; contended for extension of loss of earnings to four months; argued that disability percentage should be reconsidered in light of the evidence and that loss of earning capacity should not be counted separately where disability income is already granted.

Contentions of Respondents

Respondent insurer argued that, following the ratio in Ramachandrappa, the monthly income could be increased toward Rs.7,000 and that the head of loss of earning capacity should be reduced or offset; urged that certain heads should not be double counted and that the Tribunal’s figures needed adjustment.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Ltd.	(2011) 13 SCC 236	Mentioned Only	Cited by counsel regarding the ratio for fixation of monthly income, but the court did not adopt the full Ramachandrappa ratio; instead it approves a Rs.5,000 monthly income after independent consideration.

Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN** **WEDNESDAY, THE 1[ST] DAY OF JUNE 2022 / 11TH JYAISHTA, 1944 MACA NO. 3115 OF 2014** **AGAINST THE AWARD DATED 31.3.2014 IN OP(MV) 51/2011 OF II ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL, PALAKKAD** ## **APPELLANT/PETITIONER :** **A.MUTHU @ MUTHUKUTTY, AGED 32 YEARS, S/O.ASSANAR, CHAKRAI, THIRUVAZHIYOD, NENMARA, PALAKKAD.** ## **BY ADV SRI.JACOB SEBASTIAN** ## **RESPONDENTS/RESPONDENTS :** **1 VELUKUTTY, AGED 33 YEARS, S/O.RAMAN THANDAN, CHAKRAI VEEDU, THIRUVAZHIYODE VILLAGE, AYILUR PANCHAYATH, CHITTUR TALUK, PIN - 678 508, PALAKKAD DISTRICT.** **2 THE ORIENTAL INSURANCE CO.LTD., SHORNUR ROAD, TRICHUR, PIN - 680 001.** **BY ADVS. GEORGE CHERIAN (SR.) ALEXY AUGUSTINE GEORGE A.CHERIAN BY SMT.K.S.SANTHI, STANDING COUNSEL** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 01.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA No.3115 of 2014 ..2.. ## **A.BADHARUDEEN, J.** **-----------------------------------------------------------MACA No.3115 of 2014** **------------------------------------------------------------** **Dated this the 1[st] day of June, 2022** ## **J U D G M E N T** The appellant, who is the petitioner in O.P. (MV)No.51 of 2011 on the file of the Motor Accidents Claims Tribunal, Palakkad, assails award dated 31.03.2014 in the above case on the ground of inadequacy. Respondents herein are the respondents before the Tribunal. 2. Heard Adv.Sri.Jacob Sebastian appeared for the appellant/petitioner and Adv.Smt.K.S.Santhi, the learned Standing Counsel for the Oriental Insurance Company, the second respondent. 3. Brief facts of the case are as follows:- The appellant, who met with an accident on 15.03.2009 at about 15.30 hours, while travelling in his MACA No.3115 of 2014 **==> picture [28 x 8] intentionally omitted <==** bike, had preferred claim under Section 166 of the Motor Vehicles Act to the tune of Rs.5,00,000/- against the respondents alleging negligence on the part of the first respondent who alleged to have driven the autorickshaw bearing registration No.KL-49-9519 in a rash and negligent manner at the time of accident. 4. The insurance company resisted the claim and disputed the accident, negligence as well as quantum of compensation claimed while admitting valid policy to the Autorickshaw. 5. The Tribunal adjudicated the matter, after examining PW1, the doctor who issued the disability certificate and marking Exts.A1 to A12, on the part of the appellant. Accordingly, Rs.2,39,150/- was granted along with 9% interest. 6. While canvassing enhancement, it is MACA No.3115 of 2014 ..4.. submitted by the learned counsel for the appellant that the Tribunal fixed the monthly income of the appellant who claimed to be a lorry driver at Rs.3,500/- as against claim of Rs.5,000/-. 7. Therefore, he pressed for re-fixing the monthly income as claimed and also re-calculation of the loss of earnings and disability income apart from granting reasonable compensation under the head pain and sufferings and loss of amenities. 8. Per contra, the learned counsel for the insurance company would submit that Rs.5,000/- claimed as monthly income can be fixed at Rs.7,000/- as per the ratio in [(2011) 13 SCC 236], **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Ltd.** The counsel would submit further that Rs.10,000/- under the head 'loss of earning capacity' also MACA No.3115 of 2014 **==> picture [28 x 8] intentionally omitted <==** was granted by the Tribunal, after granting disability income and therefore, the same shall be reduced. 9. The appellant raised a contention before the Tribunal that he was getting Rs.5,000/- per month being a lorry driver. Although the Tribunal fixed the same at Rs.3,500/-, I am of the view that Rs.5,000/- as claimed can be fixed as his monthly income. The age and multiplier applied by the Tribunal are not in dispute. The Tribunal granted loss of earnings for a period of three months at the rate of Rs.3,500/-. In this matter, the appellant sustained fracture lateral condyle femur, fracture 1/3[rd] tibia and fibula and fracture patella right and also he underwent inpatient treatment for 16 days. Considering the multiple fractures and treatment thereof, I am inclined to grant loss of earnings for a period of four months at the rate of Rs.5,000/-. The same is re-calculated as under; MACA No.3115 of 2014 **==> picture [28 x 8] intentionally omitted <==** 5,000x4 = 20,000/- Out of which, Rs.10,500/- was granted by the Tribunal and the balance **Rs.9,500/-** more is granted under the head loss of amenities. 10. Though the learned counsel for the appellant pressed for 24% disability assessed by the doctor, it appears that the Tribunal, after evaluating the evidence of PW1, fixed the same at 20%. I am not inclined to re-visit the percentage of disability. Therefore, the disability income requires re-calculation based on the increased monthly income at the rate of Rs.5,000/-. The same is re-calculated as under; 5,000x20/100x12x16=Rs.1,92,000/- Out of which, Rs.1,34,400/- was granted by the Tribunal and the balance **Rs.57,600/-** more is granted under the head loss of disability income. MACA No.3115 of 2014 **==> picture [28 x 8] intentionally omitted <==** 11. Towards pain and suffering, the Tribunal granted Rs.15,000/-. I am inclined to increase the same by **Rs.6,000/-** more. Towards loss of amenities, the Tribunal granted Rs.8,000/-. The same also is increased by **Rs.7,000/-** more. As far as compensation granted under the head “loss of earning capacity”, the same is impermissible in view of the fact that the disability income already granted. Thus, Rs.10,000/- granted by the Tribunal under the said head stands reduced. In the result, this appeal is allowed. It is ordered that the appellant is entitled to get enhanced compensation to the tune of **Rs.70,100/-** (Rupees Seventy Thousand One Hundred only) at the rate of 9% interest granted by the Tribunal from the date of petition till the date of deposit or realisation excluding the period of 49 days wherein, grant of interest was specifically MACA No.3115 of 2014 **==> picture [28 x 8] intentionally omitted <==** disallowed by the order in C.M.Application No.1 of 2014 dated 05.01.2022. The insurance company is directed to deposit the same in the name of the appellant within two months from today. On deposit, the appellant can release the same. Sd/- **A.BADHARUDEEN, JUDGE** rkj