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High Court of KeralaSingle JudgeAppeal allowed; enhanced compensation; insurer ...

Balakrishnan v. Hassan P, Sajith K.C., The United India Insurance Co. Ltd.

Case / Petition Number:MACA NO. 217 OF 2014

Case Details & Bench

Court
High Court of Kerala
Hon'ble Judges
  • A. BADHARUDEEN
Judgment Date
2022-06-28
Court Decision / Holding
This appeal stands allowed. It is held that the appellant is entitled to Rs.2,13,752/- as compensation, with Rs.1,20,432/- already granted by the Tribunal and the balance Rs.93,320/- enhanced, at the same rate of interest as awarded by the Tribunal. The 3rd respondent Insurance Company is directed to deposit the enhanced amount in the appellant's name within two months from today, failing which the appellant may realize the balance.
Final Disposition
Appeal allowed; enhanced compensation; insurer to pay

Parties to the Case

Appellants / Petitioners

  • Balakrishnan

Respondents

  • Hassan P, S/o.Moidu, Puthur House, Puthur P.O., Vatkara, Kozhikode- 673 101
  • Sajith K.C., S/o.Kunhamu, Kizha kech ethil, Moorad (Talkies Road), Iringal P.O., Iringal AMSom, Kozhikode
  • The United India Insurance Co. Ltd., P.B.No.17, City Complex, Near Old Bus Stand, Main Road, Vatakara

Legal Representation & Advocates

Counsels for Petitioners

  • • AVM.SALAHUDEEN
  • • EMIL STANLEY

Counsels for Respondents

  • • A.A.MOHAMMED NAZIR

Case Synopsis & Summary

This Motor Accident Claims Appeal arises from an award made by the Motor Accidents Claims Tribunal, Vadakara in OP(MV) No.1314/2008. The appellant Balakrishnan, who was a pillion rider in a motor vehicle accident on 06.04.2008, sought compensation under the Motor Vehicles Act against the owner-driver of the lorry KL/11/A-8602 (second respondent) and the insurer (third respondent) with the claim initially totaling Rs. 4,00,000. The Tribunal ex parte against respondents 1 and 2 and, after evidence, awarded Rs. 1,20,432 with 7.5% interest. Balakrishnan contends several errors: (i) the Tribunal fixed monthly income at Rs. 4,000 though the claim was for Rs. 5,500, urging reliance on Ramachandrappa v. Manager (2011) 13 SCC 236 to recalibrate earnings; (ii) Ext.A6 indicates 36% permanent disability; the Tribunal recorded only 12% disability, and the appellant argues for 18% disability, affecting loss of earnings and loss of disability income calculations; (iii) consequential recalculations for loss of earnings (Rs. 22,000) and loss of disability income (Rs. 1,30,680) with 18% disability; (iv) additional Rs. 7,000 each for pain/suffering and loss of amenities. The Court partially allows the appeal, enhancing total compensation by Rs. 93,320 to Rs. 2,13,752, directing payment by the respondents and insurer within two months from today, with interest as awarded by the Tribunal continuing on the enhanced amount.

Legal Doctrines & Maxims

  • Ramachandrappa v. Manager (2011) 13 SCC 236 – principle that actual earnings should be used for computing loss of earnings and can justify higher income levels in certain cases; use of actual earnings (Rs. 5,500) for recalculating compensation
  • Whole body disability vs. limb disability doctrine – Ext.A6 indicates whole body disability must be considered in calculating compensation rather than limiting to limb disability

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellant contends that the Tribunal erred in fixing monthly income at Rs. 4,000 and seeks adoption of Rs. 5,500 as per Ramachandrappa to recompute loss of earnings and loss of disability income. Ext.A6 shows 36% permanent disability, but the Tribunal recorded only 12% disability; appellant argues for 18% disability, which would further affect compensation. He also argues for increased components: loss of earnings for four months at Rs. 5,500 (Rs. 22,000 instead of Rs. 10,000), loss of disability income recalculated at Rs. 1,30,680 (based on 5,500 x 12 x 11 x 18%), and an enhancement of Rs. 7,000 each for pain and suffering and for loss of amenities. Consequently, the total enhanced compensation claimed is Rs. 2,13,752. The appellant emphasizes that the 3rd respondent insurer is liable for the enhanced amount with interest as per the tribunal’s rate.

Contentions of Respondents

The respondents contest the enhancement, maintaining that the Tribunal’s findings on income and disability should be preserved. The Insurance Company opposes increasing the disability percentage, arguing Ext.A6 reflects limb disability rather than whole body disability. While conceding the legal position in Ramachandrappa, they urge that the Tribunal’s vacancy with respect to disability endorsement remains valid, and oppose higher earnings and disability., They rely on the Tribunal’s calculation and demand maintenance of the existing award unless legally revised by a higher court.

Cited Precedents (1)

Case NameCitationTreatmentExplanation
Ramachandrappa v. Manager(2011) 13 SCC 236PositiveThe court relies on Ramachandrappa to justify fixing a higher monthly income (Rs.5,500) for calculation of loss of earnings and loss of disability.

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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 A. BADHARUDEEN`** ``` TUESDAY, THE 28[TH] DAY OF JUNE 2022 / 7TH ASHADHA, 1944 ``` ## **`MACA NO. 217 OF 2014`** ## **`AGAINST THE AWARD IN OPMV 1314/2008 OF MOTOR ACCIDENT CLAIMS`** ## **`TRIBUNAL, VADAKARA`** ## **`APPELLANT/PETITIONER:`** ``` BALAKRISHNAN AGED 52 YEARS S/O.KORAPPAN, RESIDING AT PARAMMAL HOUSE, KARUMALA P.O., BALUSSERY (VIA), KOZHIKODE. BY ADVS. AVM.SALAHUDEEN EMIL STANLEY ``` ## **`RESPONDENTS/RESPONDENTS:`** |**`1`**|**`HASSAN P`**| |---|---| ||**`S/O.MOIDU, RESIDING AT PUTHUR HOUSE,`**| ||**`PUTHUR P.O., VATAKARA, KOZHIKODE- 673 101`**| |**`2`**|**`SAJITH K.C.`**| ||**`AGED 21 YEARS`**| ||**`S/O.KUNHAMU,`**| ||**`RESIDING AT KIZHAKECHETHIL,`**| ||**`MOORAD (TALKIES ROAD), IRINGAL P.O.,`**| ||**`IRINGAL AMSOM, KOZHIKODE.`**| |**`3`**|**`THE UNITED INDIA INSURANCE CO.LTD.`**| ||**`P.B.NO.17, CITY COMPLEX,`**| ||**`NEAR OLD BUS STAND, MAIN ROAD, VATAKARA.`**| ||**`BY ADV A.A.MOHAMMED NAZIR`**| ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 28.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA NO. 217 OF 2014 ``` ``` 2 ``` ## **JUDGMENT** Dated this the 28[th] day of June, 2022 This appeal arises out of award in O.P.(MV). No.1314 of 2008 on the files of the Motor Accidents Claims Tribunal, Vadakara. The respondents herein are the respondents before the Tribunal. 2. Heard the learned counsel for the appellant as well as the learned Standing Counsel for the Insurance Company. 3. The brief facts as follows: The appellant lodged claim before the Tribunal, on the allegation that he sustained serious injuries pursuant to an accident occurred on 06.04.2008 at about 5 p.m, while he was travelling as a pillion rider on a motor cycle, due to the rashness and negligence on the part of the second respondent, driver of the lorry bearing registration No.KL/11/A-8602. The appellant claimed Rs.4,00,000/- as compensation from respondents 1 to 3. ``` MACA NO. 217 OF 2014 ``` ``` 3 ``` 4. The respondent Nos.1 and 2 were declared ex parte by the Tribunal. 5. The third respondent Insurance Company filed written statement and disputed the negligence alleged against the second respondent. The quantum of compensation is also disputed while admitting the policy to lorry bearing registration No.KL/11/A-8602. 6. Thereafter, the Tribunal recorded the evidence and marked Exts.A1 to A8 on the side of the appellant and Ext.B1, insurance policy on the side of the respondents. 7. After evaluating evidence, as against claim of Rs.4,00,000/-, Rs.1,20,432/- was granted by the Tribunal along with 7.5% interest per annum. 8. According to the learned counsel for the appellant, the Tribunal went wrong in fixing monthly income at Rs.4,000/- as against claim of Rs.5,500/-. According to the learned counsel for the appellant, following the ratio in **Ramachandrappa v. Manager,** ``` MACA NO. 217 OF 2014 ``` ``` 4 ``` ## **Royal Sundaram Alliance Insurance Company Ltd.** **[(2011) 13 SCC 236]** also, the income ought to have been fixed as such. 9. This submission appears to be convincing in view of the ratio in **Ramachandrappa’** case (supra). The learned Standing Counsel for the Insurance Company also conceded the legal position. Therefore, Rs.5,500/- claimed by the appellant is fixed as the monthly income for re-calculating ‘loss earnings’ and ‘loss of disability income’. 10. The next challenge in this appeal is the percentage of disability accepted by the Tribunal. 36% disability was assessed as per Ext.A6 disability certificate issued by Medical Board, Medical College Hospital, Kozhikode. In this matter, as borne out from Ext.A4 case records, the appellant sustained soft tissue injury on right elbow, fracture medial epicondyle and fracture trochlea. The appellant was treated for a period of 54 days. ``` MACA NO. 217 OF 2014 ``` ``` 5 ``` 11. As per Ext.A6 disability certificate issued by the Medical Board, after considering the injuries, it was certified that the percentage of permanent disability due to the injury is 36%. As per Ext.A6, it could be noticed further that the appellant himself was physically handicapped even before the accident and in consideration of the same, 36% permanent disability was assessed. 12. The learned Standing Counsel for the Insurance Company opposed increase in the percentage of disability on the submission that the disability assessed as per Ext.A6 is limb disability and not whole body disability. He get support to this argument from the narration of the award made by the Tribunal in that regard. 13. On perusing Ext.A6, it is doubtlessly clear that 36% whole body disability was assessed inclusive of physically handicapped position of the appellant before the accident. It is to be noted that 12% disability fixed by ``` MACA NO. 217 OF 2014 ``` ``` 6 ``` the Tribunal considering the injuries and treatment. I am inclined to accept 18% disability in this matter as against 12% fixed by the Tribunal. Thus, the ‘loss earnings’ and ‘loss disability income’ require re-calculation. 14. The Tribunal granted Rs.10,000/- under the head ‘loss of earnings’, considering the injuries and treatment. I am inclined to grant ‘loss of earnings’ for a period of 4 months at the rate of Rs.5,500/-. Thus, the appellant is entitled to get Rs.22,000/-. Accordingly, **Rs.12,000/-** (22,000-10,000) more is granted under the head 'loss of earnings'. 15. Apart from that, compensation under the head ‘loss of disability’ also requires re-calculation. There is no dispute as regards the multiplier applied by the Tribunal in this regard. Therefore, taking monthly income at the rate of Rs.5,500/-, the disability income is re-calculated as under: ``` MACA NO. 217 OF 2014 ``` ``` 7 ``` 5,500 x 12 x 11 x 18% = 1,30,680/- Out of which, Rs.63,360/- was granted by the Tribunal. Thus, **Rs.67,320/-** more is granted under the head 'loss of disability income'. 16. Under the heads 'pain and sufferings' and ‘loss of amenities and enjoyment of life’, the Tribunal granted Rs.13,000/- and Rs.10,000/- respectively. In view of the injuries and treatment, I am inclined to increase the same by **Rs.7,000/-** more each. In the result, this appeal stands allowed. It is held that the appellant is entitled to get Rs.2,13,752/- as compensation, out of which Rs.1,20,432/- was granted by the Tribunal and the balance of **Rs.93,320** (Rupees ninety three thousand three hundred and twenty only) is granted as enhanced compensation with the same rate of interest awarded by the Tribunal, payable by respondents 1 to 3 and the 3[rd] respondent Insurance Company is liable to pay the same, from the date of petition till the date of deposit ``` 8 ``` ## **`MACA NO. 217 OF 2014`** or realisation, excluding interest for a period of 283 days specifically excluded by this Court while allowing the delay petition–C.M.Appl.No.1 of 2014 as per order dated 07.01.2022, while condoning the delay of filing this appeal. Hence, the 3[rd] respondent 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** nkr