Balachandran Nair @ Manu v. Jijesh Kumar, Divisional Manager, United Insurance Company Limited, and Sreejesh

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: R. Basant
V. Chitambaresh
Judgment Date: 2011-11-08
Court Decision / Holding: This appeal is allowed in part. The appellant is granted an additional Rs. 21,960 for loss of earning capacity (based on 3,000 x 12 x 13 x 7/100 minus 10,800) on top of the Tribunal’s award. The entire amount of compensation shall carry interest as directed by the Tribunal. Proportionate costs are payable on the entire amount of compensation calculated as per Jeena v. Satheesh Babu.K. All other Tribunal directions are upheld.
Final Disposition: This appeal is allowed in part.

Parties to the Case

Appellants / Petitioners

Balachandran Nair @ Manu

Respondents

Jijesh Kumar
Divisional Manager, United Insurance Company Limited
Sreejesh

Legal Representation & Advocates

Counsels for Petitioners

• Sri. M.V. Thamban

Counsels for Respondents

• Deepa George

Case Synopsis & Summary

This appeal arises from a Motor Accident Claims Tribunal (Kottayam) award granting compensation for injuries suffered by Balachandran Nair @ Manu in a motor collision on 15.12.2006. The claimant, a manual labourer, was hospitalized for seven days after sustaining fractures in the left leg and alleged permanent disability. The Tribunal awarded Rs. 50,615 under heads such as loss of earning, medical expenses, pain and suffering, etc., and directed the insurance company to pay. The appellant challenged the quantum on two grounds: (i) the Tribunal’s monthly income assessment of Rs. 3,000 for a manual labourer was too low and should be higher; (ii) the claimed disability of 7% (recorded in Ext.A9) should be maintained or improved. The insurer/court oral submissions argued that the II Schedule of the Motor Vehicles Act requires a multiplier of 13 (not 15) for the appellant’s age, and the Ext.A9 disability certificate was not satisfactorily proven. The High Court held that the Tribunal’s approach was reasonable, applied the presumption of prudence from Laxmi Devi, and, after considering the data, allowed an additional Rs. 21,960 for loss of earning capacity using a 13 multiplier. Proportionate costs were also awarded, and other Tribunal directions were upheld.

Provisions of Law Cited

II Schedule to the Motor Vehicles Act

Legal Doctrines & Maxims

Presumption of prudence permissible under the dictum in Laxmi Devi & Ors. v. Mohammad Tabbar & Anr. (2008 ACJ 1488)
Proportionate cost on the entire amount of compensation as held in Jeena v. Satheesh Babu.K. (2011 (3) KLT 943)

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellant argued that the Tribunal erred in fixing the monthly income at Rs.3,000 for a manual labourer and that a higher figure should be adopted in light of available evidence. He also contended that Ext.A9 shows a 7% disability, including 1 cm shortening, and that a higher reduction in earning capacity might follow. The appellant urged that the disability and earning-capacity loss be assessed more favorably and that the multiplier could be higher as per the II Schedule.

Contentions of Respondents

The insurer contended that the II Schedule requires a 13-multiplier for the claimant’s age (46), not 15, and that the disability certificate Ext.A9 was not conclusively proven; they urged no drastic departure from the Tribunal’s quantum except for applying the correct multiplier and addressing the evidence on disability.

Cited Precedents (2)

Case Name	Citation	Treatment	Explanation
Laxmi Devi & Ors. v. Mohammad Tabbar & Anr.	2008 ACJ 1488	Positive	The court relied on the dictum to accept the presumption of prudence in assessing earning-capacity loss.
Jeena v. Satheesh Babu.K.	2011 (3) KLT 943	Positive	The court followed the principle that proportionate cost should be awarded on the entire amount of compensation.

Extracted Judgment Text

Exact text extracted from official judgment records.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MR. JUSTICE V.CHITAMBARESH TUESDAY, THE 8TH NOVEMBER 2011 / 17TH KARTHIKA 1933 MACA.No. 1448 of 2011() ----------------------OPMV.216/2007 of ADDL.MOTOR ACCIDENT CLAIMS TRIBUNAL,KOTTAYAM .................... APPELLANT(S): PETITIONER ------------------------ BALACHANDRAN NAIR @ MANU, S/O.SANKARAN NAIR, KOCHUVADAKKEKARA HOUSE, 19TH MILE, VELOOR (PO), PAMPADY VILLAGE, KOTTAYAM. BY ADV. SRI.M.V.THAMBAN RESPONDENT(S): RESPONDENTS -------------------------- ## 1. JIJESH KUMAR, PATHEPARAMBIL, PAMBADY (PO), KOTTAYAM DISTRICT.686 502. ## 2. THE DIVISIONAL MANAGER, UNITED INSURANCE COMPANY LIMITED, GEETHA COMLEX, NAGAMPADOM, KOTTAYAM.686 001. 3. SREEJESH, PATHEEPARAMBIL, PAMPADY (PO), KOTTAYAM DISTRICT. 686 502. BY ADV. SMT.DEEPA GEORGE FOR R2 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 08/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **R.BASANT & V.CHITAMBARESH, JJ.** ------------------------------- ## **M.A.C.A.No.1448 of 2011** ------------------------------- ## **Dated this the 8[th] day of November, 2011** ## **J U D G M E N T** Claimant is the appellant. He claimed compensation for personal injuries suffered by him in a motor accident which took place on 15.12.2006. He suffered fracture of both bones of left leg. He was an inpatient for a period of 7 days. He has allegedly suffered permanent disability. The same was assessed by a medical practitioner to be 7% as per Ext.A9. The Tribunal by the impugned award directed payment of the total amount of Rs.50,615/- as compensation as per the details given in paragraph 11 of the impugned award, which we extract below: |Sl.No.|Head of claim|Amount awarded| |---|---|---| |-------------------------------------------------------------------------||| |1.|By-stander's expenses|Rs. 1,400.00| |2.|Loss of earning|Rs.12,000.00| |3.|Transportation expenses|Rs. 1,500.00| |4.|Extra nourishment|Rs. 1,000.00| |5.|Damages to clothing|Rs. 500.00| |6.|Pain and suffering|Rs.15,000.00| |7.|Medical and miscellaneous exp.|<br>Rs. 3,415.00| |8.|Loss of amenities|Rs. 5,000.00| |9.|Compensation for|| MACA No.1448 of 2011 2 permanent disability Rs. 10,800.00 (3000 x 12 x 15 x 2/100) -----------------------------------------------------------------TOTAL Rs.50,615.00 ===================================== The insurance company was made entirely liable to satisfy the award. 2. We have heard the learned counsel for the appellant and the learned counsel for the insurance company. Challenge is raised only against the quantum of compensation awarded. 3. Called upon to explain and be specific, the learned counsel for the appellant assails the impugned award on two specific grounds. First of all, it is contended that the monthly income of the appellant, a manual labourer, reckoned by the Tribunal at Rs.3,000/- is not correct and a higher amount ought to have been taken as the monthly income. In the absence of any better evidence, we are unable to agree that the Tribunal has committed any error warranting appellate interference. The 3 MACA No.1448 of 2011 Tribunal evidently had drawn the presumption of prudence permissible under the dictum in **Laxmi Devi & Ors. v. Mohammad Tabbar & Anr.** (2008 ACJ 1488). We find no reason to interfere with the amount awarded under the said head. 4. The learned counsel for the appellant further contended that the Tribunal erred in slashing down the physical disability from 7% certified in Ext.A9 to 2%. Reliance was placed on Ext.A9 disability certificate. It furnishes details including the crucial information that there was shortening of 1 cm. in the left leg. Radiolgically there was malunion of left tibia & fibula. It is true that Ext.A9 disability certificate has not been proved satisfactorily. However, we are of the opinion that even in the absence of better proof of Ext.A9, it would be absolutely reasonable to assume that the appellant had suffered reduction in earning capacity to the extent of 7%. In coming to the said conclusion, we take note of specific data available about the MACA No.1448 of 2011 4 disability in Ext.A9. We also take note of the employment of the appellant as a manual worker. 5. The learned counsel for the insurance company points out that going by the II schedule to the Motor Vehicles Act, for the appellant who is aged 46 years, 13 (and not 15) should have been reckoned as the multiplier. We find force in the said submission. 6. The above discussions lead us to the conclusion that the appellant is entitled to a further amount of Rs.21,960/as compensation in addition to the amount awarded by the Tribunal as per the details given below:- Compensation for reduction in earning capacity (3000 x 12 x 13 x 7/100 = 32,760 - 10,800) Rs.21,960/- We are not persuaded to interfere with the quantum of compensation awarded under any other heads. 7. The learned counsel for the appellant submits that MACA No.1448 of 2011 5 proportionate cost has not been awarded as held in **Jeena v. Satheesh Babu.K.** (2011 (3) KLT 943) and only an amount of Rs.1000/- has been awarded as cost. We are satisfied that proportionate cost deserves to be awarded on the entire amount of compensation as held in **Jeena v. Satheesh Babu.K.** - 8. In the result: a) This appeal is allowed in part; b) The appellant is found entitled to a further amount of Rs.21,960/- (Rupees Twentyone thousand Nine hundred and sixty only) in addition to the amount already awarded by the Tribunal under the impugned award; c) We make it clear that the entire amount of compensation shall carry interest at the rate and for the period as directed by the Tribunal. d) The proportionate cost for the proceedings before the Tribunal shall be payable on the entire of amount of compensation calculated as per the dictum in **Jeena v.** MACA No.1448 of 2011 6 ## **Satheesh Babu.K.** (2011 (3) KLT 943). e) All other directions of the Tribunal are upheld. **R.BASANT, Judge** . **V.CHITAMBARESH, Judge.** **nj.** ## **R.BASANT & V.CHITAMBARESH, JJ.** ------------------------------- **C.M.Appln.No.2215 of 2011 in M.A.C.A.No.1448 of 2011** ------------------------------- **Dated this the 8[th] day of November, 2011** ## **O R D E R** This petition is to condone the delay of 36 days in filing the appeal. Heard. We take a lenient view. Petition allowed. Delay condoned. **R.BASANT, Judge** . **V.CHITAMBARESH, Judge.** ## **nj.**