High Court of KeralaDivision BenchAppeal disposed of with modification; enhanced ...

James Joseph v. Oriental Insurance Co. Ltd.

Case / Petition Number:MACA No. 830 of 2009

Case Details & Bench

Court
High Court of Kerala
Hon'ble Judges
  • S. Siri Jagan
  • K. Ramakrishnan
Judgment Date
2013-11-08
Court Decision / Holding
With the above modification of the impugned award of the Tribunal, the appeal is disposed of. The appellant is entitled to an enhanced compensation of Rs. 42,540 over the amount awarded by the Tribunal, payable by the insurer with 9% interest. The insurer is given two months to deposit the enhanced amount.
Final Disposition
Appeal disposed of with modification; enhanced compensation awarded; deposit within two months; 9% interest on the enhanced amount.

Parties to the Case

Appellants / Petitioners

  • James Joseph

Respondents

  • Oriental Insurance Co. Ltd.

Legal Representation & Advocates

Counsels for Petitioners

  • • Sri. V.K. Gopalakrishnan Pillai
  • • Sri. Gopakumar G. (Aluva)

Counsels for Respondents

  • • Sri. George Cherian (Thiruvalla)

Case Synopsis & Summary

This is a Motor Accident Claims Appeal (MACA No. 830 of 2009) arising from an award by the Motor Accidents Claims Tribunal, Perumbavoor, under OP(MV) 1626/2004. The claimant, James Joseph, sustained injuries in a motor-vehicle accident caused by a driver insured with Oriental Insurance Co. Ltd. The Tribunal held the accident was caused by rash and negligent driving and awarded Rs. 1,33,000 under heads including loss of earnings, treatment, transport, clothing, nourishment, attendant’s charges, pain and sufferings, loss of amenities, future treatment, and disability. The appellant challenged the quantum, contending that his income as a welder was Rs. 8,500 per month (per Ext. A17) and that he was on leave for 11 months, with inpatient treatment spanning about 45 days; thus the Tribunal’s monthly income fixation of Rs. 2,500 and attendant’s charges of Rs. 2,000 were understated. The insurer argued that no disability certificate was produced, the Tribunal’s disability of 4% and the multiplier of 18 should stand, and the award was otherwise just. The High Court, after considering the evidence and applying the Sarla Varma doctrine on multiplier (17 instead of 18) and recognizing extended medical leave, recalculated compensation: monthly income fixed at Rs. 4,000, loss of earnings for 11 months (Rs. 44,000), attendant’s charges raised to Rs. 4,500, and disability-based adjustment. It awarded an additional Rs. 42,540 with 9% interest and two months for deposit, modifying the Tribunal’s award; overall effect is a partial enhancement in favour of the appellant. The appeal is disposed of accordingly.

Legal Doctrines & Maxims

  • Sarla Varma v. Delhi Transport Corporation (2010(2) KLT 802 (SC)) - doctrine on calculation of compensation, including multiplier and disability factors

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellant contends that the Tribunal erred in fixing the monthly income at Rs. 2,500 despite Ext. A17 showing Rs. 8,500 per month for a skilled welder, and in underestimating the duration and impact of his injuries. The record shows he was on leave for 11 months and underwent prolonged treatment for nearly a year, including 45 days as an inpatient. He argues that a realistic monthly income should be Rs. 4,000, and the period of loss of earnings should be extended to 11 months, not 6. Attendant’s charges were understated ( Tribunal Rs. 2,000; requested Rs. 4,500). He asserts that while disability was considered at 4%, the correct approach requires applying the appropriate multiplier, and that the overall enhanced compensation is warranted given the evidence of ongoing treatment and loss of earning capacity. The appellant further relies on the principle from Sarla Varma to adjust the multiplier to 17 for the claimant’s age (27).

Contentions of Respondents

The insurer's counsel contends that no disability certificate was produced, so the Tribunal’s fixation of 4% disability and an 18-multiplier should stand, asserting that the award was just and proper. He urges that the appellant’s income and attachments be treated conservatively and that the court should refrain from excessive enhancement absent a disability certificate. The respondent emphasizes that the Tribunal weighed all relevant factors and that the overall compensation already reflects the injuries and recovery period. The decision to use the 18 multiplier and the lack of a disability certificate were considered reasonable in light of the evidence; the insurer argues that the award, as modified by Sarla Varma’s rationale, was not warranted to a greater extent. The respondent seeks to affirm the Tribunal’s approach and contends that the High Court should not substitute its judgment for the TRB’s assessment beyond reasonableness.

Cited Precedents (1)

Case NameCitationTreatmentExplanation
Sarla Varma v. Delhi Transport Corporation2010(2) KLT 802 (SC)PositiveCourt followed the Sarla Varma principle for determining the proper multiplier (17 for age 27) and disability considerations in calculating loss of earnings.

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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 S.SIRI JAGAN** **& THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** **FRIDAY, THE 8TH DAY OF NOVEMBER 2013/17TH KARTHIKA, 1935** ## **MACA.No. 830 of 2009 ( )** **----------------------------------AGAINST THE AWARD IN OP(MV )1626/2004 of MOTOR ACCIDENTS CLAIMS TRIBUNAL, PERUMBAVOOR.** **......** ## **APPELLANT(S): (PETITIONER IN OP(MV)1972/04.** **--------------------------------------------------------------------** **JAMES JOSEPH, S/O. OUSEPH, 27 YEARS, MOONJELY (H), MOOKANNOOR P.O. ANGAMALY (VIA).** **BY ADVS.SRI.V.K.GOPALAKRISHNA PILLAI SRI.GOPAKUMAR G. (ALUVA)** **RESPONDENT(S):(RESPONDENT NO.3 IN OP.(MV) 1972/04.)** **------------------------------------------------------------------------------------** **ORIENTAL INSURANCE CO. LTD., BR. OFFICE, IST FLOOR, KALLOOKKARAN SHOPPING COMPLEX, ANGAMALY P.O.** ## **BY ADV. SRI.GEORGE CHERIAN (THIRUVALLA)** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 08-11-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **tss** ## **S.SIRI JAGAN & K.RAMAKRISHNAN, JJ.** --------------------------------------------------------------M.A.C.A. No.830 of 2009 --------------------------------------------------------------Dated this, the 6[th] day of November 2013 ## Judgment ## Ramakrishnan, J. The claimant in OP(MV) No.1624/04 on the file of the Motor Accidents Claims Tribunal, Perumbavoor, is the appellant herein. The appellant filed the application for compensation for the injuries and consequential disabilities suffered by him in a motor vehicle accident, caused on account of the rash and negligent driving of the vehicle by its driver, insured with the respondent. After considering the evidence on record, the Tribunal found that the accident occurred due to the rash and negligent driving of the vehicle by its driver and awarded a total compensation of Rs.1,33,000/- under various heads as follows : MACA No.830/09 2 |**_Head_**|**_Amount ₹_**| |---|---| |**_Loss of earnings_**|**_15,000.00_**| |**_Treatment expenses_**|**_52,150.00_**| |**_Transportation expenses_**|**_1,000.00_**| |**_Damage to clothings_**|**_250.00_**| |**_Extra nourishment_**|**_1,000.00_**| |**_Attendant's charges_**|**_2,000.00_**| |**_Pain and sufferings_**|**_20,000.00_**| |**_Loss of amenities_**|**_15,000.00_**| |**_Future treatment expenses_**|**_5,000.00_**| |**_Disability_**|**_21,600.00_**| |**_Total_**|**133,000.00**| Dissatisfied with the quantum of compensation awarded by the Tribunal, the appellant has filed this appeal, seeking enhanced compensation. 2. We have heard the learned counsel for the appellant and the insurance company. 3. The learned counsel for the appellant submitted that the appellant was aged 27 years and was a welder by profession, working in Balanagar Technical Institute Association, Mookkannor, getting Rs.8,500/- per month as income and this was proved by Ex.A17 salary certificate, which will also go to show that he was on leave for 11 months on account of the fractures sustained by him in MACA No.830/09 3 the accident. But, the Tribunal has arbitrarily fixed Rs.2,500/- per month as his income, which is palpably low. Further, the appellant was treated as inpatient for 45 days on various occasions. But, the Tribunal has awarded only Rs.2,000/- towards attendant's charges, which is also on the lower side. The period taken was only 6 months for assessing compensation under the head loss of earnings, which is also very low, considering the fact that he was on leave for 11 months and the documents will go to show that he was under treatment for nearly one year. The amounts awarded under the head pain and sufferings, loss of amenities in life etc. are also on the lower side. The appellant, therefore, seeks enhancement of compensation on all heads. 4. On the other hand, the learned counsel for the insurance company submitted that the appellant had not produced any disability certificate. In spite of that, the Tribunal has taken 4% disability and has adopted 18 as the multiplier, which should have been only 17, as per the decision of the Supreme Court in **Sarla Varma v. Delhi Transport Corporation** (2010(2) KLT 802 (SC) and awarded an amount of Rs.21,600/- under the head loss of MACA No.830/09 4 earning capacity. The Tribunal has taken into consideration all aspects and the total compensation awarded is just and proper and no interference is called for at the hands of this Court. 5. We have considered the rival contentions of both parties in detail. 6. The appellant was aged 27 years and was working as a welder in a private concern by name Balanagar Technical Institute Association and he has produced Ext.A17 certificate issued by the Director of that concern, showing that he was working in the institution and getting Rs.8,500/- per month and he was granted leave for 11 months as he was laid up due to the fractures sustained by him in the accident. But, the Tribunal has taken only Rs.2,500/- as his monthly income on the ground that it was a private concern and the person, who issued the certificate was not examined. But the fact that he was a welder by profession, though working in a private concern, could have been taken into consideration by the Tribunal for fixing his monthly income. So, considering the fact that he is a skilled labourer and was aged only 27 years at the time of accident, and the accident was in the year MACA No.830/09 5 2004, a person of that calibre will be getting substantial amount as monthly income and he may have good future prospects as well, we feel that an amount of Rs.4,000/- can be fixed as his monthly income. 7. The Tribunal has taken 4% disability for assessing compensation under the head loss of earning capacity without any disability certificate, probably on the basis of the nature of injuries sustained and the treatment undergone by him. We do not find any infirmity in taking 4% disability for assessing compensation under the head loss of earning power, considering the nature of injuries suffered and the nature of his employment etc. The Tribunal was perfectly justified in fixing the disability as 4%. There is some force in the submission made by the counsel for the insurance company regarding multiplier as per the decision in **Sarla Varma** 's case (supra), the proper multiplier for the age group of 27 years as the appellant was, is 17 and not 18. If a recalculation is made on the basis of the above parameters, the appellant would be entitled to get Rs.32,640/- (4000 x 12 x 17 x 4%), instead of Rs.21,600/awarded by the Tribunal under the head loss of earning capacity MACA No.830/09 6 and we award the said amount under th at head. 8. It is seen from the various discharge summaries produced by the appellant that he was treated as inpatient for 45 days. But, the Tribunal has awarded only Rs.2,000/- under the head Attendant's charges, which, we enhance to Rs.4,500/-. The documents produced by the appellant will go to show that he was under continuous treatment for nearly more than 10 months. So, we take the period for loss of earnings as 11 months, instead of 6 months, taken by the Tribunal. So, the appellant will be entitled to get Rs.44,000/- instead of Rs.15,000/- awarded by the Tribunal, under the head loss of earnings during the period of treatment. We are not inclined to enhance the compensation awarded under any other heads as the same appear to be just and proper. In all, the appellant will be entitled to get an additional compensation of Rs.42,540/-, over and above what has been awarded by the Tribunal, which, the respondent-insurance company is liable to pay with 9% interest. Two months' time is granted to the insurance company to deposit this amount as well. MACA No.830/09 7 With the above modification of the impugned award of the Tribunal, the appeal is disposed of. **S.SIRI JAGAN, JUDGE** **K.RAMAKRISHNAN,JUDGE** sta MACA No.830/09 8 MACA No.830/09 9