High Court of KeralaSingle Judge2022-08-12MACA allowed; enhanced compensation awarded wit...

C. Draphy v. Aymukutty and Hameed K.I. and United India Insurance Company Limited

Case / Petition Number:MACA 962 of 2012

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: C. Jayachandran
Judgment Date: 2022-08-12
Court Decision / Holding: The MACA is allowed. The claimant’s compensation is enhanced as detailed in the court’s order: notional monthly income increased to Rs. 4,500; loss of earning capacity increased from three to ten months; pain and suffering increased to Rs. 50,000; loss of amenities Rs. 25,000; disability fixed at 11% (from Ext. A10’s 15.44%); multiplier corrected to 16. The aggregated enhanced amount is Rs. 226,713, with Rs. 160,940 as the enhanced portion. The Insurance Company is directed to pay the enhanced amount with interest at 5% from the date of petition and to transfer funds via NEFT/RTGS within one month after providing bank details; set-off provisions apply for any amounts already paid. If bank details are not furnished, no interest shall accrue on the enhanced amount after the stipulated period; failure to deposit results in interest running at the Tribunal rate from the petition date.
Final Disposition: MACA allowed; enhanced compensation awarded with detailed heads and interest/payment directions.

Parties to the Case

Appellants / Petitioners

C. Draphy

Respondents

Aymukutty
Hameed K.I.
United India Insurance Company Limited

Legal Representation & Advocates

Counsels for Petitioners

• Sri M.B. Prajith
• Sri Suraj S.

Counsels for Respondents

• Adv. Agi Joseph

Case Synopsis & Summary

This is a Motor Accidents Claims Appeal (MACA No. 962 of 2012) arising from an award of the Motor Accidents Claims Tribunal, Thrissur dated 28 February 2011 in OP(MV) No. 3249/2004. The appellant, C. Draphy, seeks enhancement of compensation for injuries sustained in a motor-vehicle accident. The High Court evaluates multiple heads of compensation: income, loss of earning capacity, pain and suffering, loss of amenities, and disability. The Tribunal had fixed the claimant’s monthly income at Rs. 2,500, while the appellant relies on the notional monthly income of Rs. 4,500, citing Ramachandrappa. The court agrees to reckon Rs. 4,500 as the notional income, given the driving occupation and the supporting driving license. The Tribunal’s three-month period for loss of earning capacity is extended to ten months in light of the treatment period (over about eight months with intermittent hospital admission). For pain and suffering, the Tribunal’s Rs. 16,000 is increased to Rs. 50,000 in view of prolonged treatment and residual disability, including a 1 cm shortening of the left leg. Loss of amenities is awarded Rs. 25,000. Ext. A10 suggests 15.44% disability, but the court fixes it at 11% in light of the lack of examination of the doctor, noting the permanent nature of disability. The multiplier is corrected from 17 to 16. The resulting enhanced total is Rs. 226,713, with an enhanced amount of Rs. 160,940. The insurer is directed to pay with interest and NEFT/RTGS within one month, subject to set-offs and other conditions.

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellant contends for higher compensation by (i) reckoning a notional income of Rs. 4,500 per month for the claimant, as supported by Ramachandrappa (2011) 13 SCC 236, instead of the Tribunal’s Rs. 2,500; (ii) extending the loss of earning capacity to ten months in view of the extended treatment from 08.03.2004 to 18.05.2005; (iii) increasing pain and suffering to Rs. 50,000 in light of eight months of treatment and a 1 cm leg shortening; (iv) awarding Rs. 25,000 for loss of amenities; (v) determining disability at 11% rather than 6% based on the Ext. A10 certificate and the overall disability incurred, and (vi) applying a multiplier of 16 as corrected by the court. Respondents: The Insurance Company contends that the Tribunal’s assessment should stand, and emphasizes the lack of examination of the Ext. A10 doctor and argues against large escalations in compensation; the respondent’s counsel maintains the trial court’s methodology was appropriate and that any reliance on Ext. A10 should be constrained by missing evidence.

Contentions of Respondents

Respondents contend that the Tribunal’s assessment is correct within the evidentiary record, particularly on disability and multiplier, and rely on the fact that the Ext. A10 report was not corroborated by examination of the doctor, arguing against a higher disability percentage and higher compensation. They also emphasize that loss of earning capacity and pain and suffering must be kept within reasonable limits and consistent with the evidence. The Insurance Company further argues that any enhancement must be anchored to reliable medical evidence and consistent with statutory guidelines; otherwise, it would set an imprudent precedent for future MACT claims.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Ramachandrappa v. The Manager, Royal Sundaram Alliance Insurance Company Ltd.	[(2011) 13 SCC 236]	Positive	Cited as the authority for notional income (Rs. 4,500/month) in MACT claims; used to justify the appellant's claimed notional income.

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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 C. JAYACHANDRAN ``` ``` FRIDAY, THE 12[TH] DAY OF AUGUST 2022 / 21ST SRAVANA, 1944 ``` ## **`MACA NO. 962 OF 2012`** ``` AGAINST THE AWARD DATED 28.02.2011 IN OP(MV)NO.3249/2004 OF MOTOR ACCIDENT CLAIMS TRIBUNAL,THRISSUR ``` ## **`APPELLANT/PETITIONER:`** ``` C.D.RAPHY AGED 32 YEARS, S/O DEVASSY, CHIRAYATH HOUSE, P.O. KODANNUR, THANIKYAMANAYAM VIA., THRISUUR-680574 ``` ``` BY ADVS. SRI.M.B.PRAJITH SRI.SURAJ S. ``` ## **`RESPONDENTS/RESPONDENTS:`** ``` 1AYMUKUTTY S/O KUNJU,KAYAMKULAM HOUSE,P.O., MANNUTHY, THRISSUR DISTRICT-688006 2HAMEED K.I. S/O AYMUKUTTY, KAYAMKULAM HOUSE, P.O.,MANNUTHY, THRISSUR DISTRICT-688006 3UNITED INDIA INSURANCE COMPANY LIMITED BR. OFFICE, SIMIS COMPLEX, ROUND SOUTH, THRISSUR DISTRICT-688001 BY ADV. AGI JOSEPH ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN ``` ``` FINALLY HEARD ON 12.08.2022,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` M.A.C.A. No.962 of 2012 2 ## **C. JAYACHANDRAN, J.** **= = = = = = = = = = = = = = = = = = M.A.C.A. No.962 of 2012 = = = = = = = = = = = = = = = = = = Dated this the 12[th] day of August, 2022** ## **J U D G M E N T** The petitioner in OP (MV) No.3249/2004 of the Motor Accidents Claims Tribunal, Thrissur is the appellant herein. Under challenge in this appeal is the award dated 28.02.2011 in the said Original Petition. Essentially, the appellant seeks enhancement of compensation granted by the Tribunal under various heads. 2. Heard, Sri.Suraj S., learned Counsel for the appellant and Sri.Agi Joseph, learned Counsel for the 3[rd] respondent Insurance Company. Perused the records. 3. The first point canvassed by the learned counsel for the appellant is with respect to the monthly income reckoned by the Tribunal. The appellant/claimant claimed a sum of Rs.4,500/towards monthly income, whereas the Tribunal reckoned only Rs.2,500/-. The notional income indicated in **Ramachandrappa** **v. The Manager, Royal Sundaram Alliance Insurance** M.A.C.A. No.962 of 2012 3 **Company Ltd. [(2011) 13 SCC 236]** pertaining to the year 2004 is Rs.4500/ `-. The p` etitioner is a driver by profession, in proof of which he had produced his driving licence. In the circumstances, this Court is of the opinion that Rs.4,500/claimed can be reckoned as the notional monthly income of the appellant/claimant. 4. The next point canvassed by the learned counsel for the appellant is regarding the loss of earning capacity. The Tribunal reckoned a period of three months as the period over which the claimant was deprived of his earning capacity because of the injuries sustained. This, according to the appellant/claimant, is grossly on the lower side. Learned counsel pointed out that going by the records produced, it could be seen that the claimant was treated from 08.03.2004 to 18.05.2005 during which period, the claimant was admitted in the hospital intermittently. In as much as the treatment had extended for a period of 8 months as decipherable from the dates indicated above, this Court is of the opinion that a period of ten months can be reckoned for the purpose of loss of earning. It is so done. M.A.C.A. No.962 of 2012 4 5. The 3[rd] count canvassed by the learned counsel for the appellant is with respect to ‘pain and suffering’, where the Tribunal had granted only Rs.16,000/-. The details of the treatment given to the claimant is narrated in paragraph Nos.9 and 10 of the Award impugned. As already indicated above, he had to undergo treatment for a period of 8 months, which includes intermittent admission as well. His left leg was shortened by 1 cm. In the circumstances, this Court is of the opinion that it would be reasonable to reckon a sum of Rs.50,000/- towards pain and suffering. Ordered accordingly. 6. The compensation on account of loss of amenities was not reckoned by the Tribunal. The petitioner was assessed with disability of 15.44% as per Ext.A10 disability certificate, about which detailed discussion will be made in the succeeding paragraph. For the same set of reasons as taken stock of for compensation under the head ‘pain and suffering’, including the fact that petitioner’s left leg was shortened by 1 cm, this Court is of the opinion that the petitioner can be awarded a sum of Rs.25,000/- towards loss of amenities. M.A.C.A. No.962 of 2012 5 7. The last but the main issue canvassed by the learned counsel for the appellant is with respect to Ext.A10 disability certificate, which has been issued by a private doctor certifying that the claimant had suffered a whole body disability of 15.44%. However, the doctor was not examined. Even the claimant did not mount the box. Therefore, the Tribunal only took the disability at 6%. It is true that the doctor ought to have been examined or atleast the claimant should have presented himself before the Tribunal, so as to enable the Tribunal to understand his practical difficulties. Both having not been done, Ext.A10 as such cannot be taken stock of. However, the details of the treatment undergone by the petitioner would indicate that, he had suffered disability of a permanent nature. It has been taken note of the Tribunal that his left leg was shortened by 1 cm. In such circumstances, reckoning the disability at 6% is on the lower side. This Court also take into account the fact that, Ext.A10 certificate is an exhaustive one, narrating the reasons and the methodology as per which the disability has been arrived at. It also refers to the fact that the doctor who issued Ext.A10 has 28 M.A.C.A. No.962 of 2012 6 years of experience in Orthopedic specialty. Solely, for the reason that he was not examined, the disability assessed cannot be reduced substantially. This Court is therefore of the opinion that, disability can be reckoned at 11%, instead of 15.44% indicated in Ext.A10. 8. The learned Counsel for the 3[rd] respondent Insurance Company pointed out that the multiplier 17 taken by the Tribunal is wrong and that the correct multiplier is 16. This aspect is not opposed/challenged by the learned counsel for the appellant, wherefore, this Court directs to reckon the multiplier as 16. In the result, this MACA is allowed and the compensation amount payable to the claimant/appellant is enhanced as indicated in the table shown herein below. |Sl. No.|Head of claim|Amount awarded by the Tribunal (Rs)|Total amount after enhancement in appeal (Rs.)| |---|---|---|---| |1|Loss of earning (Total)|7500|45000 (4500X10)| |2|Loss of earning(Partial)|-|-| |3|Medical and Miscellaneous expenses|5173|5173| M.A.C.A. No.962 of 2012 7 |4|Future treatment|-|-| |---|---|---|---| |5|Bystander expenses|3000|3000| |6|Transportation expenses|1000|1000| |7|Extra nourishment|2000|2000| |8|Damages to clothing, etc|500|500| |9|Pain and sufering|16000|50000| |10|Disability, etc|30600|*****95040| |11|Loss of amenities|-|25000| ||Total|65773|226713| ||Amount enhanced =**Rs.160940/-**(226713 – 65773)||| ***** (4500x12x16x11/100) The Insurance Company shall pay interest for the amounts awarded by the Tribunal at the rate directed in the impugned award; and for the enhanced amounts at the rate of 5% from the date of petition. If any amount has already been paid, the same shall be granted set off. Since there was a delay of 306 days in filing the appeal, the interest for the enhanced quantum shall not run for the said period as directed in order dated 10.03.2021 in C.M.Appl.No.1186/2012. The claimants shall produce the details of the Bank account before the Insurance Company/Tribunal within one month from the date of receipt of a certified copy of this judgment and amount shall be transferred to the Bank M.A.C.A. No.962 of 2012 8 account directly through NEFT/RTGS mode, within a period of one month thereafter. If the Bank account is not furnished within the time stipulated, it is made clear that no interest shall run on the enhanced amount after the period stipulated by this Court. However, if the Insurance Company fails to deposit the amount as directed, interest on enhanced amount shall also run at the rate ordered by the Tribunal from the date of petition. **`Sd/-` C.JAYACHANDRAN JUDGE** nk