High Court of KeralaDivision Bench2011-10-31Partly allowed

Chirayil Vasu v. P. Kaderkutty, C. Vijayan and United India Insurance Company Limited

Case / Petition Number:MACA.No.1588 of 2011

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: R. Basant
K. Surendra Mohan
Judgment Date: 2011-10-31
Court Decision / Holding: The appeal is allowed in part. The appellant is awarded an additional Rs 1,73,600 in compensation, calculated as: by-stander’s expenses adjustment; enhanced loss of earning capacity at 75% with a 16-multiplier; and increased loss of amenities. Proportionate costs on the entire amount of compensation awarded shall be paid to the claimant as per Jeena v. Satheesh Babu.K. All other directions of the Tribunal are upheld. The final interest rate and period will follow the Tribunal’s order.
Final Disposition: Partly allowed

Parties to the Case

Appellants / Petitioners

Chirayil Vasu

Respondents

P. Kaderkutty
C. Vijayan
United India Insurance Company Limited

Legal Representation & Advocates

Counsels for Petitioners

• K. M. Sathyanatha Menon
• V. S. Harikrishnan

Counsels for Respondents

• P. V. Jyothi Prasad

Case Synopsis & Summary

Chirayil Vasu, a 37-year-old manual worker, sustained severe injuries in a motor vehicle accident on 11 May 2007, resulting in a compression fracture of T12 with vertebral listhesis and paraplegia. He remained hospitalized for 24 days and became wheelchair-bound, dependent on Foley's catheter. The Medical Board assessed permanent physical disability at 60%. The claimant sought compensation under the Motor Vehicles Act and the Tribunal, Manjeri, awarded Rs. 5,62,906 after itemizing losses for medical expenses, by-stander’s expenses, pain and suffering, loss of amenities and convenience, and loss of earning power. The appellant challenged the quantum, contending that (i) the appellant’s actual monthly earnings were Rs. 6,000 rather than Rs. 3,500; (ii) by-stander’s expenses were under-compensated; (iii) the 60% disability should translate into a greater loss of earning capacity; (iv) the multiplier used for permanent partial disability should be 16 instead of 15; (v) loss of amenities also warranted higher compensation. The High Court allowed the appeal in part, holding that the multiplier for a 35–40-year-old with 60% disability should be 16 and that the earning-capacity reduction should be 75%, leading to an additional Rs. 1,73,600 as compensation in addition to the Tribunal’s award. It also directed proportionate costs per Jeena v. Satheesh Babu.K. and upheld other Tribunal directions.

Provisions of Law Cited

Motor Vehicles Act, Second Schedule, Clause (6)

Legal Doctrines & Maxims

Proportionate costs in tribunal proceedings (Jeena v. Satheesh Babu.K., 2011 (3) KLT 943)
Multiplier rule under the Second Schedule for permanent partial disability (age-based multiplier; 16 for 35–40 years)

Submissions & Arguments

Contentions of Appellants / Petitioners

Counsel for the appellant contended that the Tribunal erred in fixing the monthly income at Rs. 3,500; the evidence suggested earnings of Rs. 6,000 per month, and the Court should apply the Second Schedule of the MV Act and appropriate data. The 60% disability was said to disproportionately reduce earning capacity, especially for a manual labourer, warranting a higher multiplier (16) and a higher reduction in earning capacity (about 75%). By-stander’s expenses and loss of amenities were argued to be under-compensated. Proportional costs were urged per Jeena v. Satheesh Babu.K. The appellant relied on Lata Wadhwa and Laxmi Devi to challenge the Tribunal’s approach to income and disability.

Contentions of Respondents

Respondents argued that the Tribunal’s quantum was in line with the evidence and statutory provisions. They emphasized that the Insurance Company bore the liability for payment and that the account of medical and ancillary expenses should be accepted as determined by the Tribunal. The respondents highlighted that the limitations of data and the evolving treatment of disability should be considered, and maintained that the Tribunal properly evaluated loss of earning power, by-stander expenses, and loss of amenities within the framework of the Second Schedule and precedents cited. The respondents did not challenge the core findings but argued to maintain the Tribunal’s order where appropriate.

Cited Precedents (3)

Case Name	Citation	Treatment	Explanation
Lata Wadhwa v. State of Bihar	AIR 2001 SC 3218	Distinguished	The High Court noted the tribunal drew inspiration from this decision but did not accept its application in the present case.
Laxmi Devi v. Mohammad Tabbar	2008 ACJ 1488	Distinguished	The court referenced this decision but distinguished its relevance to the facts at hand.
Jeena v. Satheesh Babu.K.	2011 (3) KLT 943	Positive	Court followed this decision for the principle of proportionate costs on the entire compensation.

Diagnostic Tool

Beta

Does this judgment govern your specific facts?

Don't risk relying on a distinguishable precedent. Enter your facts or proposition below. We will test it against Chirayil Vasu v. P. Kaderkutty, C. Vijayan and United India Insurance Company Limited and instantly map out authorities that support, challenge, or govern your position.

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 K.SURENDRA MOHAN MONDAY, THE 31ST OCTOBER 2011 / 9TH KARTHIKA 1933 MACA.No. 1588 of 2011() ----------------------OPMV.1009/2007 of MOTOR ACCIDENT CLAIMS TRIBUNAL, MANJERI .................... APPELLANT(S): PETITIONER ------------------------ CHIRAYIL VASU, S/O.CHOZHIKUTTY, CHIRAYIL HOUSE, PARAPPUR, IRINGALLOOR AMSOM DESOM, MALAPPURAM DISTRICT. BY ADV. SRI.K.M.SATHYANATHA MENON SRI.V.S.HARIKRISHANAN(VAZHUTHACAUD) RESPONDENT(S): RESPONDENTS -------------------------- 1. P.KADERKUTTY, S/O.MOIDEEN, PARAMBIL HOUSE, P.O.VENGARA, MALAPPURAM DISTRICT, PIN-676304. 2. C.VIJAYAN, S/O.CHOYIKUTTY, CHERAYIL HOUSE, IRINGALLOOR, P.O.VENGARAM MALAPPURAM DISTRICT, PIN-676304. 3. UNITED INDIA INSURANCE COMPANY LIMITED, DIVISIONAL OFFICE, COURT ROAD, - P.O.MANJERI, MALAPPURAM-676121. ADV. SRI.P.V.JYOTHI PRASAD FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 31/10/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **R. BASANT & K. SURENDRA MOHAN, JJ.** **------------------------------------------------M.A.C.A. No.1588 of 2011 ------------------------------------------------Dated this the 31[st] day of October, 2011** ## **JUDGMENT** ## **Basant,J.** The claimant is the appellant. He, a 37 year old manual worker, claimed compensation for personal injuries suffered by him in a motor accident which took place on 11/5/2007. According to him, he was earning a monthly income of `6,000/-. He had suffered major injuries including compression fracture of T12 vertebra with vetro-listhesis. He was an inpatient for a period of 24 days. He had allegedly suffered permanent partial disability. He was sent to the Medical Board by the court and as per Ext.X1, his permanent physical disability was assessed to be 60%. He suffered paraplegia as a result of the accident. He was confined to his wheel chair and was dependent on Foley's Catheter. The Tribunal against a total claim of `10,00,000/-, awarded an amount of `5,62,906/- as compensation as per the details given in the summary of compensation which we extract below: ## **M.A.C.A. No.1588 of 2011** -: 2 :- |Sl. No.|Head under which compensation is claimed|Amount awarded|Basis on which allowed/disallowed with reasons in a nut shell| |---|---|---|---| |1|Loss of earnings|42,000/-|1 year| |2|Partial loss of earning|..|..| |3|Future treatment|..|..| |4|Medical expenses|90,256/-|Ext.A5 series| |5|Bystander's expenses|2,400/|24 days| |6|Damage to clothing|250/-|Nominal amount| |7|Transportation|10,000/-|particularly relaying on Ext.A6 series| |8|Extra nourishment|..|..| |9|Pain and suffering|25,000/-|spinal injuries with paraplegia| |10|Loss of love and affection|..|..| |11|Loss of consortium|..|..| |12|Loss of estate|..|..| |13|Loss of dependency/ economic benefits|..|..| |14|Loss of amenity and convenience|15,000/-|Bladder incontinence, wheel chair ambulant| |15|Loss of earning power|3,78,000/-|60% permanent partial disability| |16|Any other heads (Disability)|..|..| |Total 5,62,906/-|||9% p.a. interest on award amount from date of petition| ## 2. We have heard the learned counsel for the appellant and the learned counsel for the insurance company. The insurance company has been made entirely liable under the impugned award to satisfy the award. ## **M.A.C.A. No.1588 of 2011** -: 3 :- 3. Challenge is raised only on the ground that the quantum of compensation awarded is insufficient. Called upon to explain and be specific, the learned counsel for the appellant, first of all, contends that the monthly income of the appellant reckoned by the Tribunal at `3,500/- is not reasonable and just. He was actually earning an income of `6,000/- per mensem, it is contended. No data has been made available before Court to come to the conclusion that he was drawing any higher income. The Tribunal evidently, even in the absence of any specific evidence, drew inspiration from Clause (6) of the Second Schedule to the Motor Vehicles Act as also from the decisions in Lata Wadhwa v. State of Bihar (AIR 2001 SC 3218) and Laxmi Devi v. Mohammad Tabbar (2008 ACJ 1488). We are unable to agree that, on the materials available, the Tribunal could have safely come to any better conclusion in favour of the appellant on the monthly income of the appellant. The challenge on that ground cannot succeed. 4. The learned counsel for the appellant next contends that only an amount of `2,400/- has been awarded under the head of by-stander's expenses. During the entire period of treatment and thereafter, the appellant, who, the Medical Board certifies, is now confined to his wheel chair, had to and will have ## **M.A.C.A. No.1588 of 2011** -: 4 :- to depend on the service of a by-stander. In this view of the matter, the amount of compensation under the head of bystander's expenses is not sufficient, contends counsel. We find force in the contention. 5. The learned counsel for the appellant next contends that under the head of loss of earning power only an amount of `3,78,000/- (3500 x 12 x 60 x 15) has been awarded as compensation. The learned counsel contends that going by the Second Schedule to the M.V. Act, for a person like the appellant who belongs to the age group of 35 to 40 years, '16' and not '15' should have been accepted as the multiplier. We agree with the learned counsel for the appellant. We note that under the Second Schedule which specifically deals with multiplier to be accepted in the case of permanent partial disability, 16 is the multiplier applicable to the persons of the age group of 35 to 40 years. 6. The learned counsel then argues that the Tribunal was unrealistic in assuming that 60% of physical disability could have reduced the earning capacity also only by identical accident. Such mechanical conclusion is not justified, contends counsel. The appellant was a manual labourer and reduction of 60% in physical ability would reduce the earning capacity not merely by 60%; but more. The learned counsel for the appellant submits ## **M.A.C.A. No.1588 of 2011** -: 5 :- that virtually the appellant has suffered total reduction in earning capacity because of the disability considering his nature of employment. We find force in the submission. In the facts and circumstances of this case, we are satisfied that even assuming, in the absence of better evidence, that the appellant must be able to resort to some income earning activity, the extent of reduction in earning capacity can safely be reckoned as 75%. 7. Finally, the learned counsel contends that under the head of loss of amenities and convenience for the 37 year old appellant, only an amount of `15,000/- has been awarded. This is grossly insufficient. The appellant will have to live and endure the disability for the entire rest of his life. The quality of life which the appellant can aspire to enjoy is considerably reduced and impaired. An amount of `15,000/- awarded under the head of loss of amenities and convenience is not fair and reasonable compensation, contends counsel. We find force in the said submission also. 8. The learned counsel for the appellant points out that proportionate costs on the entire amount of compensation is liable to be awarded. The same has not been awarded. In the light of **Jeena v. Satheesh Babu.K.** (2011 (3) KLT 943), proportionate costs in the proceedings before the Tribunal on ## **M.A.C.A. No.1588 of 2011** -: 6 :- the entire amount of compensation is liable to be awarded, contends counsel. We agree. 9. On the basis of the above discussions we come to the conclusion that the appellant is entitled to a further amount of `1,73,600/- (Rupees one lakh seventy three thousand and six hundred only) as compensation, as shown below, in addition to the amount already awarded by the Tribunl: 1. By-stander's expenses - (`25,000/- minus `2,400/-) `22,600/- 2. Reduction in earning capacity (3500 x 12 x 16 x 75/100 = `5,04,000/- minus `3,78,000/-) `1,26,000/- 3. Loss of amenities and convenience (`40,000/- minus `15,000/-) - `25,000/--------------- - Total `1,73,600/======= ## 10. In the result: (a) This appeal is allowed in part. (b) The appellant is entitled to a further amount of `1,73,600/- (Rupees one lakh seventy three thousand and six hundred only) in addition to the amount already awarded by the Tribunal. - (c) We make it clear that the entire amount of - compensation shall carry interest at the rate and for the period as ## **M.A.C.A. No.1588 of 2011** -: 7 :- specified by the Tribunal in the impugned award. (d) We further direct that proportionate costs in the proceedings before the Tribunal on the entire amount of compensation awarded shall be paid to the claimant/appellant as held in **Jeena v. Satheesh Babu.K.** (2011 (3) KLT 943). (e) All other directions of the Tribunal are upheld. Sd/- **R. BASANT (Judge)** **Sd/-** **K. SURENDRA MOHAN (Judge)** ## **Nan/** **//true copy// P.S. to Judge** **M.A.C.A. No.1588 of 2011** -: 8 :-