High Court of KeralaDivision BenchAppeal partly allowed; modified quantum and dir...
Hamsa v. Shanto, Kiran and United India Insurance Co. Ltd.
Case / Petition Number:MACA.No.1188 of 2016
Case Details & Bench
- Court
- High Court of Kerala
- Hon'ble Judges
- P.N. Ravindran
- K. Ramakrishnan
- Judgment Date
- 2016-06-14
- Court Decision / Holding
- Appeal allowed in part. The High Court affirmed negligence but modified quantum: income deemed Rs.5,000/month, with disability fixed at 5%, and future earning prospects not granted per Rajesh v. Rajbir Singh. Pain and suffering increased from Rs.20,000 to Rs.25,000; loss of amenities increased from Rs.20,000 to Rs.30,000; an additional Rs.15,000 was awarded beyond the Tribunal award, with 9% interest from the petition date until payment. Two months were granted to deposit the enhanced amount by the insurer; upon deposit, the claimant is to receive the amount. The parties are to bear their costs. Bench: Division Bench.
- Final Disposition
- Appeal partly allowed; modified quantum and directed deposit of enhanced amount within two months.
Parties to the Case
Appellants / Petitioners
- Hamsa
Respondents
- Shanto
- Kiran
- The United India Insurance Co. Ltd.
Legal Representation & Advocates
Counsels for Petitioners
- • V. Binoy Ram
Counsels for Respondents
- • John Joseph Vettikad
Case Synopsis & Summary
The claimant, Hamsa, filed O.P.(MV) No.508/2012 before the Motor Accidents Claims Tribunal, Irinjalakuda, seeking compensation for injuries from a scooter accident on 2.4.2012 around 5:30 PM. The Tribunal held that the second respondent’s motorcycle collided with the scooter, causing serious injuries and disability, and attributed negligence to the rider (second respondent) with joint and several liability on the insurer and other respondents, awarding Rs.92,774 across heads like medical expenses, loss of earnings, pain and suffering, permanent disability, and loss of amenities, with interest from 01-06-2012. The claimant, then 57 (age at accident) and a coolie by occupation, challenged the quantum, contending higher income (Rs.12,000/month vs Tribunal’s Rs.5,000), higher disability (8.5% vs 5%), and higher compensation on other heads. Respondents 1 and 2 were ex parte; the insurer disputed negligence, claiming the accident resulted from the claimant’s own driving. The High Court, while affirming negligence, reassessed quantum. It relied on the claimant’s age (62 per Ext.A8) to justify not allowing future earning prospects, citing Rajesh v. Rajbir Singh. It increased the pain and suffering head from Rs.20,000 to Rs.25,000 and loss of amenities from Rs.20,000 to Rs.30,000, and granted Rs.15,000 as additional compensation beyond the Tribunal award, with 9% interest from filing till payment. The insurer was directed to deposit the enhanced amount within two months; the claimant was to receive upon deposit. The appeal is allowed in part.
Legal Doctrines & Maxims
- Multiplier principle for calculating compensation
- No future prospects for earning capacity for claimants over 60 years (per Rajesh v. Rajbir Singh)
Submissions & Arguments
Contentions of Appellants / Petitioners
The appellant contends that the Tribunal erred in computing consequential heads of compensation. Though negligence was found against the second respondent, the applicant argues the monthly income was underestimated (Rs.5,000 vs Rs.12,000 claimed) and the disability assessed at 5% rather than 8.5%, with a higher claim on pain and suffering, medical expenses and loss of earning capacity. He asserts his age and occupation should reflect greater earning potential, and seeks enhanced compensation on all heads, including future prospects, given the facts of the injury.
Contentions of Respondents
The respondents argue that the Tribunal considered all relevant factors and that the liability to indemnify the insured was not disputed. They contend that the income and disability findings were reasonable, and the heads claimed were exaggerated. The insurer posits that the accident resulted from the claimant’s own negligence and that the Tribunal’s award reflected a prudent assessment of medical and incidental expenses, with no merit in raising the quantum beyond the statutory framework.
Cited Precedents (1)
| Case Name | Citation | Treatment | Explanation |
|---|---|---|---|
| Rajesh v. Rajbir Singh | 2013 (3) KLT 89 (SC) | Positive | The High Court applied the dictum from Rajesh v. Rajbir Singh to hold that no future earning prospects should be considered for the claimant aged over 60, thus justifying not adding future earning capacity for compensation. |
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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 P.N.RAVINDRAN & THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN**
**TUESDAY, THE 14TH DAY OF JUNE 2016/24TH JYAISHTA, 1938**
## **MACA.No. 1188 of 2016 ()**
**------------------------OPMV. NO.508/2012 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, IRINJALAKUDA. .......**
**APPELLANT/PETITIONER: ---------------------------------------**
**HAMSA, AGED 61 YEARS, S/O. MUHAMMED, NARIKUZHIPARAMBIL HOUSE, EDATHIRINJI VILLAGE, CHENTRAPPINNI DESOM, P.O., KODUNGALLUR TALUK, THRISSUR DISTRICT.**
**BY ADV. SRI.V.BINOY RAM.**
**RESPONDENTS/RESPONDENTS: -----------------------------------------------**
**1. SHANTO, S/O.RAPHAEL, CHULLIKADAN HOUSE, ERAVAKKAD, NENMANIKKARA, THRISSUR DISTRICT, PIN: 680 301.**
**2. KIRAN, S/O.SADHASIVAN, POOVANPARAMBIL HOUSE, P.O. CHITTISSERY, NENMANIKKARA VILLAGE, THRISSUR DISTRICT, PIN: 680 301.**
**3. THE UNITED INDIA INSURANCE CO. LTD., ROUND NORTH, THRISSUR, PIN: 680 020, REPRESENTED BY ITS MANAGER.**
**R3 BY ADV. SRI.JOHN JOSEPH VETTIKAD.**
**THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 14-06-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:**
rs.
## **P.N.RAVINDRAN & K.RAMAKRISHNAN, JJ. ---------------------------------------------M.A.C.A. No.1188 of 2016 -------------------------Dated this the 14[th] day of June, 2016**
**J U D G M E N T ------------------**
## _**K.Ramakrishnan, J.**_
The claimant in O.P.(MV) No.508 of 2012 on the files of the Motor Accidents Claims Tribunal, Irinjalakuda, is the appellant herein. The claim petition was filed by the claimant seeking compensation for the injuries and disabilities sustained by him in the accident that occurred on 2.4.2012 at about 5.30 PM. According to the claimant he was riding his scooter bearing registration No.KL-8/X-5684 through Kodungallur-Chettuva NH17 from north to south. When it reached Kaipamangalam Koprakalam centre, he turned his scooter, after giving proper signal, to the western side to enter Panjampilly road and when the scooter reached the western side of the National highway, a motorcycle bearing registration No.KL-45/A-6787 driven by the second respondent, owned by the first respondent and insured by the third respondent, came from north to south at a terrific speed
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and dashed against the scooter driven by the claimant. Due to that, he fell down and sustained serious injuries which resulted in disability. According to him, the accident occurred due to the negligent driving of the Motorcycle by the second respondent and thereby respondents 1 to 3 are jointly and severally liable to pay the compensation. He was aged 57 years at the time of accident and was a coolie by profession earning Rs,12,000/- per
month. He claimed total compensation of Rs.3,41,000/- on various heads but restricts his claim to Rs.2,00,000/-.
2. Respondents 1 and 2 remained ex-parte.
3. The third respondent entered appearance and filed written statement admitting the policy of the motorcycle involved in the accident, but denied the negligence on the part of the second respondent. According to the insurance company, the accident occurred due to the negligence of the appellant himself, as he negligently drove the scooter and turned to right side suddenly without giving any signal, which resulted in the accident. So there was no negligence on the part of the second respondent and petitioner himself is responsible for the accident. According to them, the amount claimed by the claimant under
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various heads are high and exorbitant. They challenged the age, income, occupation, nature of injury sustained and disability claimed in the petition. They prayed for dismissal of the application.
4. The Doctor was examined as PW1 and Ext.A7 was marked through him. The other documents Exts.A1 to A6 and A8 to A11 were marked on consent. Ext.B1 was marked on the side of the respondents. After considering the evidence on record, the Tribunal found that the accident occurred due to the negligent driving of the motorcycle by the second respondent and awarded a total compensation of Rs.92,774/- on various heads.
|**Sl.**<br>**No**|**Head of Claim**|**_Amount Claimed_**<br>**_(Rs.)_**|**_Amount Awarded_**<br>**_(Rs.)_**|**_Basis Vital details in a_**<br>**_nut shell_**|
|---|---|---|---|---|
|1|Loss of earnings|72000|15000|Rs.5000x3 months|
|2|Transportation expenses|6000|1000||
|3|Extra nourishment|6000|1000||
|4|Damage to clothings|10000|500||
|5|Bystander's expenses|27000|1000||
|6|Medical expenses|50000|13274||
|7|Pain and suffering|60000|20000||
|8|Permanent disability|80000|21000|(60,000x7x5%)|
|9|Loss of earning power||||
|10|Loss of amenities|30000|20000||
||Total|3,41,000/- (Limited<br>to Rs.2,00,000)|92,774/-|Rs.92,774/- along with<br>interest @ 8% p.a.<br>From 01-6-2012 till<br>realisation.|
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5. The Tribunal also found that respondents 1 to 3 are jointly and severally liable to pay compensation and directed the third respondent insurance company to deposit the amount as insurer to the vehicle. Dissatisfied with the quantum of compensation awarded, the present appeal has been preferred by the appellant/claimant before the court below.
6. Heard Sri.V.Binoy Ram, learned counsel appearing for the appellant and Sri.George Joseph Vettikad, learned counsel appearing for the third respondent. Notice to respondents 1 and 2 dispensed with.
7. The learned counsel for the appellant submitted that he was aged 57 years at the time of accident and he was a coolie by profession, earning a monthly income of Rs.12,000/- per month. But the Tribunal erred in fixing his monthly income as Rs.5,000/per month. Though the Doctor had assessed the disability at 8.5%, the court below had taken only 5% as disability, which is not correct. The amount awarded as compensation on the other heads are also on the lower side. According to the claimant, he is entitled to an enhanced compensation on all heads.
8. On the other hand, the learned counsel for the insurance
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company contended that the Tribunal had considered all aspects in the right perspective and awarded a just and proper compensation.
9. Since the finding regarding negligence and the liability to indemnify the insured are not disputed, we are not going to that aspect.
10. According to the claimant, he was aged 57 years at the time of accident and a coolie by profession and earning a monthly income of Rs.12,000/- per month. But as per Ext.A8 driving licence, he was aged 62 years at the time of accident. So the court below was perfectly justified in taking his age as 62 years. He has not adduced any evidence to prove his income or occupation. Considering his age and also considering the fact that the accident occurred in 2012, the Tribunal was perfectly justified in taking the monthly income as Rs.5,000/- per month, which cannot be said to be too low, as claimed by the learned counsel for the appellant.
11. He sustained 3 part displaced fracture of proximal humerus and it was managed by closed manipulative reduction and K wire fixation. He was admitted in the hospital on 2.4.2012
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and discharged on 5.4.2012. So, considering the nature of injury sustained and the treatment undergone by him, the amount of Rs.20,000/- awarded under the head pain and suffering appears to be on the lower side. We are inclined to enhance it to Rs.25,000/- from Rs.20,000/-, thereby the claimant is entitled to get Rs.5,000/- more under that head.
12. The doctor, who was examined as PW1, who issued Ext.A7 disability certificate had deposed that he is having 8.5% whole body disability. It is mentioned in the disability certificate that there is a limitation of abduction shoulder from 90 degree rotations from 50 degree and flexion of 75 degree due to soft tissue fibrosis and adhesions and resultant partial ankylosis of right shoulder. He is having weakness of abduction and adduction and rotations of right shoulder of 25% each due to muscuotendinous injuries at fracture site with wasting. He is also having difficulty to lift or carry heavy weight, to hold above head, to pull, push, support or throw, rotate hammer with right hand. But the court below has rightly not accepted the evidence given by PW1 on the basis of Ext.A7 disability certificate and rightly fixed the occupational disability as 5%. Since he was aged more
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than 60 years, the court below was just in not taking any future prospectus for the purpose of awarding compensation under the head loss of earning capacity in view of the dictum laid down in **Rajesh v. Rajbir Sing** [2013 (3) KLT 89 (SC)]. The court below has rightly taken 7 as the multiplier and awarded the sum of Rs.21,000/- under the head permanent disability.
13. The court below awarded only Rs.20,000/- as compensation towards loss of amenities in life. Considering the fact that he was aged 62 years at the time of accident, and he was having some difficulty in raising his hand and he will have to be with his difficulty for the remaining period of his life, which will have great impact on old people than younger people, we are inclined to enhance the compensation towards loss of amenities in life. So, considering these facts, an amount of Rs.20,000/awarded by the Tribunal as loss of amenities in life appears to be on the lower side and we enhance the same to Rs.30,000/-, thereby the appellant will be entitled to Rs.10,000/- more under that head. We are not inclined to grant any amount under other heads, as the Tribunal has awarded just and proper compensation towards other heads. So the appellant/claimant is
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entitled to get an amount of Rs.15,000/- as additional compensation over and above the compensation awarded by the Tribunal, which the third respondent insurance company is liable to pay with 9% interest from the date of petition till payment. Two months time is granted to the insurance company to deposit the amount. If the amount is deposited, the petitioner is directed to receive the same.
With the above modification of the impugned award, the appeal is allowed in part and disposed of accordingly. Considering the circumstances, the parties are directed to bear their respective costs.
## **P.N.RAVINDRAN, (JUDGE)**
**K.RAMAKRISHNAN, (JUDGE)**
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