High Court of KeralaSingle Judge2019-01-15Appeal allowed; enhanced compensation; no costs.

Babu Varghese and Others v. Jiby and Others and The National Insurance Co. Ltd.

Case / Petition Number:MACA. No.1276 of 2009

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: K. Vinod Chandran
Judgment Date: 2019-01-15
Court Decision / Holding: The appeal is allowed; the Tribunal’s award is enhanced in line with the Pranay Sethi guidelines. The total compensation is increased to ₹3,54,000, with detailed heads and amounts as tabulated in the judgment. The amounts, after deducting prior payments, shall be paid within two months from the receipt of a certified copy of this judgment, with interest from the date of application and costs, if any, as directed by the Tribunal. The appellants shall provide a cancelled cheque and Aadhaar copy for NEFT/RTGS payment to the Insurance Company. The Insurance Company shall credit the amount through NEFT/RTGS; if not, the appellants may approach the Tribunal. The appeal is allowed without any order on costs in the appeal.
Final Disposition: Appeal allowed; enhanced compensation; no costs.

Parties to the Case

Appellants / Petitioners

1 BABU VARGHESE S/O VARGHESE, AGED 36 YEARS, CHALIL HOUSE, PALLIKKAMURIKARA, KARIMANNOOR VILLAGE, THODUPUZHA. [DIED]
2 ADDL. A2. ELSY, AGED 56 YEARS W/O.BABU VARGHESE, CHALIL HOUSE (CHARAMEL), PALLIKKAMURI, KARIMANNOOR VILLAGE, THODUPUZHA TALUK
3 ADDL. A3. ANN MARY, AGED 29 YEARS D/O.BABU VARGHESE, CHALIL HOUSE (CHARAMEL), PALLIKKAMURI, KARIMANNOOR VILLAGE, THODUPUZHA TALUK
4 ADDL. A4. ROSMY JOSE, AGED 23 YEARS D/O.BABU VARGHESE, CHALIL HOUSE (CHARAMEL), PALLIKKAMURI, KARIMANNOOR VILLAGE, THODUPUZHA TALUK
5 ADD. A5. JOBIN JOSE, AGED 22 YEARS S/O.BABU VARGHESE, BABU VARGHESE, CHALIL HOUSE (CHARAMEL), PALLIKKAMURI, KARIMANNOOR VILLAGE, THODUPUZHA TALUK
6 ADDL. A6. MARYKUTTY, AGED 80 YEARS W/O.VARKEY, CHALIL HOUSE (CHEENIKUZHY, UDUMBANOOR VILLAGE, THODUPUZHA TALUK

Respondents

1 JIBY S/O.GEORGE, THOTTUMKAL HOUSE, UDUMBANNOOR P.O., THODUPUZHA
2 P.J.LEONS PARATHATTAL HOUSE PRIYADARSHINI HOUSING COLONY, THODUPUZHA EAST P.O.
3 THE NATIONAL INSURANCE CO. LTD. REP. BY ITS BRANCH MANAGER, THODUPUZHA

Legal Representation & Advocates

Counsels for Petitioners

• Sri.P.P.ThajuDeen
• Sri.MANSOOR.B.H

Counsels for Respondents

• Sri.MATHEWS JACOB (SR.)
• Sri.P.JACOB MATHEW, SC

Case Synopsis & Summary

This MACA appeal arises from a Motor Accidents Claims Tribunal award in OPMV No.944/2002 relating to a serious road accident in which the appellant, a headload worker travelling as a pillion passenger, suffered a crushed leg, open femur fracture and multiple surgeries, resulting in long hospitalisation and disability. The accident occurred on 18.09.2002; negligence was attributed to the bus driver. The Tribunal awarded compensation, but the appellants sought enhanced quantum arguing that the appellant’s actual earnings were higher and that the permanent disability for the early years warranted higher compensation. The Insurance Company admitted the policy; liability being established. The High Court re-examined the evidence and relied on Supreme Court precedents: Ramachandrappa for setting a realistic month income (citing 3,000 per month in the absence of evidence); Sarla Verma for the appropriate multiplier; and Pranay Sethi for heads of compensation including pain and suffering, medical expenses, and future treatment. The court calculated the enhancement under various heads, revising the monthly income to 3,000, applying a reduced multiplier of 12, and awarding compensation for permanent disability for two years to reflect extensive disability. In sum, the judgment increases the total compensation to ₹3,54,000 and directs payment within two months, with NEFT/RTGS and no costs awarded in the appeal.

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellants contended that the Tribunal erred in the quantum by underestimating the deceased-appellant’s earnings and inadequately compensating for permanent disability. They pressed Ramachandrappa to fix a realistic monthly income and Sarla Verma to apply the correct multiplier, arguing that the earning capacity during the disability period warranted a higher multiplier than adopted by the Tribunal. They urged the application of Pranay Sethi guidelines for heads of compensation, including loss of earning, medical expenses, transportation, nourishment, and future treatment, and sought 100% disability for the initial years given the long-term incapacity. They urged substantial enhancement of pain and suffering and permanent disability, with prompt and fair distribution of the award to the legal heirs, consistent with Supreme Court precedents and the evidence of ongoing treatment.

Contentions of Respondents

The respondents argued that liability was admitted and the Tribunal’s quantum was based on evidence before it; the monthly income evidence was not conclusive, and the award was reasonable under the circumstances. They contended that the policy coverage should govern liability and that substantial inflation of the quantum would be unwarranted, urging adherence to the tribunal’s findings unless clearly unsustainable in light of the material on record.

Cited Precedents (3)

Case Name	Citation	Treatment	Explanation
Ramachandrappa v. Royal Sundaram Alliance Insurance Company Limited	(2011) 13 SCC 236	Positive	Cited as authority for fixing a realistic monthly income in MA cases; used to justify higher income in calculation.
Sarla Verma v. Delhi Transport Corporation	(2010) 2 KLT 802 (SC)	Positive	Cited for multiplier principles; applied to adjust the multiplier in light of complete compensation of three years.
National Insurance Company Ltd. v. Pranay Sethi and Others	(2017) 5 KHC 350	Positive	Cited as the Supreme Court's framework for heads of compensation and amounts in MA cases; guided the tabulated enhancement.

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Extracted Judgment Text

Exact text extracted from official judgment records.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **TUESDAY, THE 15TH DAY OF JANUARY 2019 / 25TH POUSHA, 1940** **MACA. No.1276 of 2009** **AGAINST THE AWARD IN OPMV NO.944/2002 OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, THODUPUZHA DATED 06-12-2005** ## **APPELLANTS/PETITIONERS:** - **1 BABU VARGHESE S/O. VARGHESE, AGED 36 YEARS, CHALIL HOUSE, PALLIKKAMURIKARA, KARIMANNOOR VILLAGE,, THODUPUZHA.** **[DIED]** - **2 ADDL. A2. ELSY, AGED 56 YEARS W/O.BABU VARGHESE, CHALIL HOUSE (CHARAMEL), PALLIKKAMURI, KARIMANNOOR VILLAGE, THODUPUZHA TALUK.** - **3 ADDL. A3. ANN MARY, AGED 29 YEARS D/O.BABU VARGHESE, CHALIL HOUSE (CHARAMEL), PALLIKKAMURI, KARIMANNOOR VILLAGE, THODUPUZHA TALUK.** - **4 ADDL. A4. ROSMY JOSE, AGED 23 YEARS D/O.BABU VARGHESE, CHALIL HOUSE (CHARAMEL), PALLIKKAMURI, KARIMANNOOR VILLAGE, THODUPUZHA TALUK.** - **5 ADD. A5. JOBIN JOSE, AGED 22 YEARS S/O.BABU VARGHESE, BABU VARGHESE, CHALIL HOUSE (CHARAMEL), PALLIKKAMURI, KARIMANNOOR VILLAGE, THODUPUZHA TALUK.** - **6 ADDL. A6. MARYKUTTY, AGED 80 YEARS W/O.VARKEY, CHALIL HOUSE (CHEENIKUZHY, UDUMBANOOR VILLAGE, THODUPUZHA TALUK.** **(ADDITIONAL APPELLANTS 2 TO 6 ARE IMPLEADED AS THE LEGAL HEIRS OF THE DECEASED APPELLANT AS PER ORDER DATED 24/10/2018 IN IA NO.3/2018)** **BY ADVS. SRI.P.P.THAJUDEEN SRI.MANSOOR.B.H.** MACA. No.1276 of 2009 2 ## **RESPONDENTS/RESPONDENTS:** **1 JIBY, S/O.GEORGE, THOTTUMKAL HOUSE, UDUMBANNOOR P.O., THODUPUZHA. 2 P.J.LEONS PARATHATTAL HOUSE PRIYADARSHINI HOUSING COLONY, THODUPUZHA EAST P.O. 3 THE NATIONAL INSURANCE CO. LTD. REP. BY ITS BRANCH MANAGER, THODUPUZHA. BY ADVS. SRI.MATHEWS JACOB (SR.) SRI.P.JACOB MATHEW, SC** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 15.01.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA. No.1276 of 2009 3 ## **JUDGMENT** **The appellant is no more and the legal heirs, the wife and children, have been impleaded. The appellant was a headload worker, who met with an accident while traveling pillion. A bus hit the bike in which the appellant was traveling, causing very serious injuries, which incapacitated him for long and also resulted in a permanent disability, the percentage of which is not clearly established. Negligence was found on the bus driver and the appeal is filed for enhancement of compensation. The Insurance Company admits the policy of the bus, which is the offending vehicle.** **2. The appellant suffered the following** **injuries:** _**“1. Open fracture of right femur.**_ _**2. Crushed right leg with exposed pieces of bones of leg.**_ _**3. Pain and swelling on right forearm.”**_ ## **3. The X-ray taken disclosed fracture of** MACA. No.1276 of 2009 4 **femur, tibia and fibula and also right ulna. The appellant was hospitalised for a period of four months. Wound debridement, external fixation of femur, ORIF of tibia, ORIF of right ulna and skin grafting were done on the appellant. In addition, sequestrectomy of right tibia and skin grafting was done. Even after discharge, review was carried out on several days. Again, an admission was made for the purpose of removing external fixator, at which point infection was noted at the wound site. A further surgery was carried out for reason of the infection having resulted in the non-union of fracture. Again bone grafting was done and ring fixator was applied. There was a further hospitalisation on that count also and then a review.** **4. The Medical Board of the Taluk Headquarters Hospital, Thodupuzha, assessed 70% as temporary disability. The injured is said to** MACA. No.1276 of 2009 5 **have been continuing treatment even after the** **date of issuance of the Disability Certificate. PW1 was the Doctor, who was the Orthopedic Surgeon, who treated the appellant. The Doctor had submitted that the injured had an infected non-union of right tibia and that the injured was regularly attending the Hospital for dressing. At the time of examination of the Doctor, he deposed that the injured was completely incapacitated from carrying on any work but he was also of the opinion that the injured would be cured completely in six months, if the treatment is continued. He could then resume his normal vocation was the submission. It is seen that the Doctor was examined on 11.08.2005 and the accident occurred on** **18.09.2002. So there was a total incapacitation atleast for three years, which has to be taken as a total disability reducing the multiplier to** MACA. No.1276 of 2009 6 **that extent to apply the percentage of disability the injured suffered permanently for reason of the accident.** **5. The Tribunal found that there was absolutely no evidence led as to the monthly income of the appellant, though it was established that he was a headload worker. The Tribunal fixed the monthly income at Rs.2,000/-. The Hon'ble Supreme Court in** _**Ramachandrappa v. Royal Sundaram Alliance Insurance Company Limited [(2011) 13 SCC 236]**_ **fixed the monthly income of a coolie in the year 2004 at Rs.4,500/-. In such circumstances, reasonably a monthly income of Rs.3,000/- can be fixed for the injured/appellant. On the permanent disability, the Tribunal adopted only 10% as against the temporary disability of 70%. This Court does not find any reason to differ from that, especially since the appellant/injured had** MACA. No.1276 of 2009 7 **not produced any further Medical Certificate or** **atleast sought for an examination of a Medical Board in the appeal after the six months, as deposed by the Doctor had expired. However, as noticed above, the permanent disability for the first three years can be fixed at 100% itself and for the first year the Tribunal had granted it as loss of earning. The multiplier as per** _**Sarla Verma V. Delhi Transport Corporation [2010 (2) KLT 802 (SC)**_ **is said to be 15, while the Tribunal had adopted 16. Since loss of earning has been granted for one year and this Court is also awarding compensation for permanent disability at 100% for two years, the multiplier will have to be reduced to that extent. Hence in applying the percentage of compensation, the multiplier applied would be 12 as against 15; the three years having been fully compensated.** MACA. No.1276 of 2009 8 ## **6. The following enhancement shall be made** **under the various heads as has been declared by the Hon'ble Supreme Court in** _**National Insurance Company Ltd. v. Pranay Sethi and Others [2017**_ ## _**(5) KHC 350]**_ **as tabulated below:** |**Sl.** **No.**|**Head of Claim**|**Amount** **awarded by** **the** **Tribunal** `|**Total amount** **after** **enhancement in** **appeal** `| |---|---|---|---| |**1**|**Loss of earning**|**24000**|**36000** **[3000*12]**| |**2**|**Transportation** **expenses**|**4000**|**5000**| |**3**|**Bystander's expenses**|**4000**|**12000** **[100*120]**| |**4**|**Extra nourishment** **expenses**|**3000**|**10000**| |**5**|**Treatment expenses**|**90800**|**90800**| |**6**|**Pain and suffering**|**30000**|**50000**| |**7**|**100 % disability for** **2 years**|**25593**|**72000** **[3000*12*2]**| |**8**|**Compensation for** **permanent disability**|**20000**|**43200** **[3000*12*12*** **10%]**| |**9**|**Future treatment** **expenses**|**----**|**20000**| |**10**|**Loss of amenities**|**-----**|**15000**| ||**Total**|**201393**|**354000**| MACA. No.1276 of 2009 9 **7. The amounts awarded as above, after deducting what has already been paid, shall be paid within two months from the date of receipt of a certified copy of this judgment with interest from the date of application and cost, if any, as directed by the Tribunal. The appellants shall produce a copy of a canceled cheque of the Bank account in their name with copy of AADHAAR before the Tribunal within one month, with copy to the Insurance Company. The Insurance Company shall credit the amount through NEFT/RTGS mode to the said account, failing which, the applicants can approach the Tribunal.** **The above appeal is allowed without any order on costs in the appeal.** Sd/- **K.VINOD CHANDRAN JUDGE** **//True Copy// P.A. To Judge** **sp/16/01/19**