High Court of KeralaDivision Bench2011-08-25Partly Allowed/Even though the tribunal’s direc...

Jayan v. Saji M., Pushpakumar and The National Insurance Co. Ltd.

Case / Petition Number:MACA.No.2159 of 2005

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: R. Basant
M. C. Hari Rani
Judgment Date: 2011-08-25
Court Decision / Holding: This appeal is allowed in part. Appellant is found entitled to a further amount of Rs.13,000 (Rupees thirteen thousand only) in addition to the amount already awarded by the Tribunal. Interest shall be payable on the entire amount of compensation at the rate and for the period as specified by the tribunal with the rider that no interest shall be payable for the period of 334 days - the period of delay in preferring this appeal. All other directions of the Tribunal are upheld.
Final Disposition: Partly Allowed/Even though the tribunal’s directions are upheld, the applicant is awarded an additional Rs. 13,000; the appeal is allowed in part.

Parties to the Case

Appellants / Petitioners

Jayan S/o Rajappan

Respondents

Saji M.
Pushpakumar
The National Insurance Co. Ltd.

Legal Representation & Advocates

Counsels for Petitioners

• Adv. Mathew John (K)

Counsels for Respondents

• Adv. Sri P. Jayasankar (for R3)

Case Synopsis & Summary

Jayan, an injured claimant, challenged the Motor Accidents Claims Tribunal’s award of Rs 15,500 for injuries sustained in a road accident on 04/05/2000. The tribunal awarded modest amounts across heads including loss of earning (Rs 5,000), hospital expenses (Rs 500), pain and suffering (Rs 7,000) and loss of amenities (Rs 3,000). On appeal, the appellant challenged only the quantum, arguing that his income should be Rs 3,000 per month (not Rs 2,500) and that the clavicle fracture caused temporary unemployment and substantial medical and miscellaneous expenses, including transport and assistance costs. He relied on authorities including Lata Wadhwa v. State of Bihar and Laxmi Devi Tabbar to support a higher income figure. The tribunal’s finding that disability of 7% did not necessarily reduce earning capacity was also contested. The High Court agreed that Rs 2,500 monthly was too low and accepted the appellant’s position that Rs 3,000 should be used for computation, noting that unemployment was likely short (not more than two months) and that medical/miscellaneous expenses warranted higher compensation given the injury and Ext. A9. The Court recalculated the heads, granting a further Rs 13,000 in addition to the tribunal’s award: Rs 1,000 for loss of earnings, Rs 2,500 for medical/miscellaneous, Rs 5,000 for pain and suffering, and Rs 4,500 for loss of amenities. The appeal is allowed in part and the Tribunal's directions otherwise upheld; interest on the total amount is ordered with a 334-day delay rider.

Provisions of Law Cited

Clause 6 of the Second Schedule Schedule

Submissions & Arguments

Contentions of Appellants / Petitioners

Appellant contends that the tribunal miscalculated quantum by fixing monthly income at Rs. 2,500, ignoring the evidence of higher earning capacity and the 7% disability certificate Ext.A9. He asserts that, taken with the clavicle fracture and partial unemployment, the claimant's actual earnings could be Rs. 3,000 per month, citing clause 6 of the Second Schedule and authorities including Lata Wadhwa v. State of Bihar and Laxmi Devi Tabbar to justify a higher figure. He submits that he incurred medical and miscellaneous expenses in connection with treatment even though not admitted as inpatient, including transport to hospital, clothing damage and assistance, which the tribunal inadequately compensated. The evidence of permanent disability (7%) was not shown to reduce earning capacity conclusively, but the overall impact of the injury warranted enhanced compensation for pain and suffering and loss of amenities. The appellant further submits that the tribunal erred in limiting damages under heads of loss of earnings, medical and miscellaneous, pain and suffering, and loss of amenities, and seeks a recalculation resulting in an additional Rs. 13,000, in addition to the Tribunal's award.

Contentions of Respondents

Not stated in document.

Cited Precedents (2)

Case Name	Citation	Treatment	Explanation
Lata Wadhwa and Others v. State of Bihar and Others	2001 SC 3218	Positive	Court agrees with principle from the cited case and uses it to support increasing the monthly income used for computation.
Laxmi Devi v. Mohammad Tabbar	2008 ACJ 1488	Positive	Cited alongside Lata Wadhwa to justify income adjustment in calculation of 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 R.BASANT & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI THURSDAY, THE 25TH AUGUST 2011 / 3RD BHADRA 1933 MACA.No. 2159 of 2005() ----------------------OPMV.1664/2000 of MOTOR ACCIDENT CLAIMS TRIBUNAL, KOTTAYAM .................... APPELLANT/PETITIONER: ----------------------------------- JAYAN, S/O. RAJAPPAN, USHA SADANAM, NEAR PALLIPURAM CHURCH, NATTASSERY KARA, PERUMBAIKKADU VILLAGE & P.O., KOTTAYAM. BY ADV. SRI.MATHEW JOHN (K) RESPONDENTS: --------------- 1. SAJI. M., S/O. MADHAVAN, UMBUKATTU HOUSE, NEAR PALLIPPURAM CHURCH NATTASSERY KARA, PERUMBAIKKADU S.H. MOUNT P.O., KOTTAYAM. 2. PUSHPAKUMAR, S/O. MADHAVAN PILLAI, SOMAVILASAM HOUSE, KUMARANALLUR S.H. MOUNT P.O., KOTTAYAM. 3. THE NATIONAL INSURANCE CO.LTD., THRIPPUNITHURA P.O. ADV. SRI.P.JAYASANKAR FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 25/08/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **R.BASANT & M.C.HARI RANI, JJ. * * * * * * * * * * * * *** M.A.C.A.No.2159 of 2005 ---------------------------------------Dated this the 25[th] day of August 2011 ## **J U D G M E N T** ## **R.BASANT,J** Claimant is the appellant. He claimed compensation for personal injuries suffered by him in a motor accident which took place on 04/05/2000. He claimed a total amount of Rs.2,00,000/as compensation. The tribunal, as per the impugned award, directed payment of an amount of Rs.15,500/- as per details given below: |**_Sl.No_**<br>**_._**|**_Head of the claim_**|**_Amount awarded (Rs.)_**| |---|---|---| |1|Loss of earning|5,000 (2500 x 2)| |2|Transport to hospital|Nil| |3|Damage to clothing and articles|Nil| |4|Bystander expenses|Nil| |5|Extra nourishment|Nil| |6|Hospital expenses|500| |7|pain and suffering|7,000| |8|Compensation for disability|Nil| |9|Loss of earning power|Nil| |10|Loss of amenities of life|3,000| ||**Total**|**15,500**| 2. We have heard the learned counsel for the appellant and the learned counsel for the insurance company. The 2 M.A.C.A.No.2159 of 2005 challenge is directed only against the quantum of compensation awarded. Called upon to explain and be specific, the learned counsel for the appellant assails the impugned award on various grounds: 3. The appellant had suffered injuries including fracture of the left clavicle. He was not an in-patient. He underwent treatment as an out patient. He was involuntarily unemployed for some period of time consequent to the accident. He had allegedly suffered permanent disability on account of the clavicle fracture. The doctor who examined him had issued a certificate Ext.A9 which suggested that the physical disability is assessed to be 7%. The author of that certificate was examined in court to prove the same. The tribunal did not evidently accept that the disability has any impact on the earning capacity of the appellant, who said to be an artist (hoardings painter). 4. The learned counsel for the appellant first of all contends that the tribunal had erred grossly in reckoning the monthly income at Rs.2,500/- only. The learned counsel argues relying on clause 6 of the second schedule schedule and the dicta in **Lata Wadhwa and Others v. State of Bihar and Others [2001 SC 3218]** and **Laxmi Devi v. Mohammad** 3 M.A.C.A.No.2159 of 2005 **Tabbar [2008 ACJ 1488]** that in any view of the matter Rs.3,000/- must have been reckoned as the monthly income. We agree with the learned counsel. We are unable to agree that the fracture of the clavicle would have caused involuntary unemployment for any period exceeding two months. 5. We find merit in the contention of the learned counsel for the appellant that though the appellant may not have been admitted as an in-patient, he must have incurred medical and miscellaneous expenditure in connection with his treatment. For transport to hospital, damage to clothing, for help and assistance of another, extra nourishment etc. he must have incurred expenditure. The tribunal only awarded an amount of Rs.500/as hospital expenses. We are satisfied that for medical and miscellaneous expenses, a higher amount of compensation is liable to be awarded. For pain and suffering, the tribunal had awarded only Rs.7,000/-. The learned counsel for the appellant submits that the amount awarded is unrealistic. The tribunal has not taken note of the fracture of the clavicle that is suffered by the appellant. Finally, it is contended that for loss of amenities only an amount of Rs.3,000/- has been awarded. No amount has been awarded under the head of loss of earning power. Though 4 M.A.C.A.No.2159 of 2005 Ext.A9 certificate suggests that 7% disability has resulted, we are unable to accept in the absence of better proof that the same must have resulted in any reduction in earning capacity. We are satisfied that a higher amount of compensation should have been awarded under the head of loss of amenities considering the nature of the injury, the treatment undergone, the details of which are available from Ext.A9 certificate and the indications of physical disability available from the evidence placed before Court. 6. The above discussions lead us to the conclusion that the appellant is entitled to a further amount of Rs.13,000/- as shown below in addition to the amount awarded by the tribunal. |i)|Loss of earnings|Rs.1,000/-| |---|---|---| ||(Rs.3,000/- x 2 months|| ||minus Rs.5,000/-)|| |ii)|Medical and miscellaneous|Rs.2,500/-| ||(Rs.3,000/- minus Rs.500/-)|| |iii)|pain and suffering|Rs.5,000/-| ||(Rs.12,000/- minus Rs.7,000/-)|| |iv)|Loss of amenities|Rs.4,500/-| ||(Rs.7,500/- minus Rs.3,000/-)|| |||------------------| ||**Total**<br>|**Rs.13,000/-**| |||**========**| 5 M.A.C.A.No.2159 of 2005 7. We are satisfied that the impugned award does not warrant appellate interference on any other ground. 8. In the result, - a) This appeal is allowed in part. b) Appellant is found entitled to a further amount of Rs.13,000/- (Rupees thirteen thousand only) in addition to the amount already awarded by the Tribunal. c) We direct that interest shall be payable on the entire amount of compensation at the rate and for the period as specified by the tribunal with the rider that no interest shall be payable for the period of 334 days - the period of delay in preferring this appeal. d) All other directions of the Tribunal are upheld. ## **(R.BASANT, JUDGE)** ## **(M.C.HARI RANI, JUDGE)** jsr // True Copy// PA to Judge M.A.C.A.No.2159 of 2005 6 7 M.A.C.A.No.2159 of 2005 ## **K.M.JOSEPH & M.C.HARI RANI, JJ.** .No. of 200 ORDER/JUDGMENT 30/082010