Jayaram T.V. v. Oriental Insurance Co. Ltd.

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: R. Basant
M.C. Hari Rani
Judgment Date: 2011-10-24
Court Decision / Holding: a) This appeal is allowed in part. b) The appellant is entitled to a further amount of Rs. 20,800/- in addition to the Tribunal’s award. c) The entire amount of compensation shall carry interest at the rate and for the period as specified by the Tribunal. d) Proportionate cost before the Tribunal shall be paid as indicated in Jeena (supra). All other directions of the Tribunal are upheld.
Final Disposition: Appeal allowed in part.

Parties to the Case

Appellants / Petitioners

Jayaram T.V.

Respondents

The Oriental Insurance Co. Ltd.

Legal Representation & Advocates

Counsels for Petitioners

• M.V. Amaresan

Counsels for Respondents

• Titus Mani

Case Synopsis & Summary

Jayaram T.V., a three-year-old claimant, sustained injuries in a motor-vehicle accident on 21.09.2004 and was treated with a POP cast after fractures of the upper right humerus and right tibia. Represented by his guardian, he sought compensation from Oriental Insurance Co. Ltd. The Motor Accidents Claims Tribunal, Thalassery, awarded Rs. 43,400 with interest and Rs. 1,000 costs. The appellant challenged the quantum, arguing that the award should be split into separate heads—loss of earning capacity, loss of amenities, and pain and suffering—rather than a global figure, and that the amounts for pain, disability and amenities were inadequate in light of the child’s tender age. The insurer contended that liability rested with the insurer and that notice to owner/driver was unnecessary; the court found no dispute about liability. The High Court agreed that the Tribunal erred in not distinguishing heads and in under-compensating the several components, including pain and suffering and loss of amenities. It allowed the appeal in part, directing an additional Rs. 20,800 in compensation, calculated by redefining the heads and adjusting the earning-capacity calculation. The court also affirmed that the entire compensation would bear interest as directed by the Tribunal and that proportionate costs would be payable as per the Jeena decision.

Provisions of Law Cited

II Schedule to the Motor Vehicles Act, 1988

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellant contends that the Tribunal erred in treating the award as a global sum and that separate heads—pain and suffering, loss of earning capacity, and loss of amenities—should be awarded. He argues 2% disability is shown by the Medical Board Ext.X1 and calls for higher compensation for loss of amenities and suffering, rather than adopting a single composite figure. He disputes excessive flattening of costs, urging proportionate costs before the Tribunal as per Jeena (supra). The insured, while conceding liability, challenges the quantum and argues that liability is with the insurer; they sought notice to owner/driver but the court held liability to be with the insurer.

Contentions of Respondents

The Insurance Company submits that notice to owner/driver should be issued; however, the court found no dispute on liability, holding the insurer fully liable. The insurer’s submission on quantum is not supported by the authorities cited; the primary focus is that the Tribunal’s award should stand unless shown to require adjustment. They argue the existing award should be maintained except as necessary to reflect any statutory or precedential guidance.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Jeena v. Satheesh Babu.K.	2011(3) K.H.C.728	Positive	Court follows Jeena (3 K.H.C.728) to award proportionate costs before the Tribunal instead of flat Rs. 1,000; applied principle in the present case.

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 MONDAY, THE 24TH OCTOBER 2011 / 2ND KARTHIKA 1933 MACA.No. 1505 of 2011 ----------------------OPMV.633/2005 of MOTOR ACCIDENT CLAIMS TRIBUNAL, THALASSERY .................... APPELLANT/: PETITIONER: ------------------------- JAYARAM.T.V., AGED 11 YEARS, REPRESENTED BY HIS FATHER V.V.RAMACHANDRAN S/O.KUNHAPPAN, NANDHINI, VILAYAMCODE P.O., MANDOOR (VIA), KANNUR DISTRICT. BY ADV. SRI.M.V.AMARESAN RESPONDENT: --------------- THE ORIENTAL INSURANCE CO.LTD., MARINA SHOPPING COMPLEX, NATIONAL HIGHWAY, TALIPARAMBA, KANNUR DISTRICT, PIN-670 141. ADV. SRI.TITUS MANI THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 24/10/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **R. BASANT & M.C. HARI RANI,JJ ==============================** ## **M.A.C.A. NO. 1505 OF 2011 ============================** ## **Dated this the 24[th] day of October 2011** ## **JUDGMENT** ## **R.Basant, J.** The claimant is the appellant. Claimant is a three year old child represented by his guardian. The claimant claimed compensation for personal injuries suffered by him in a motor accident which took place on 21.09.2004. The minor child had suffered injuries including fractures. Fracture upper 3[rd] right humerus, and compound un-displaced incomplete fracture right tibia middle 3[rd] are the injuries suffered. He was treated with POP cast. He was an inpatient for a period of five days. He continued treatment as an out patient. 2. Against a total claim of Rs.1,50,000/-, the Tribunal awarded an amount of Rs.43,400/- as per the details shown in paragraph 15 of the impugned award which we extract below: |**_Sl.No,._**|**_Head_**|**_Amount_** **_awarded_** **_Rs._**|**_Basis vital details in a nut_** **_shell_**| |---|---|---|---| |1|Loss of earning(total)|NA|| MACA 1505/2011 2 |**_Sl.No,._**|**_Head_**|**_Amount_** **_awarded_** **_Rs._**|**_Basis vital details in a nut_** **_shell_**| |---|---|---|---| |2|Loss of earning(partial)|NA|| |3|Medical and miscellaneous expenses|2,900/-|Covered by Ext.A5 series| |4|Future treatment|NA|| |5|Bystander expenses|500/-|Rs.100/- per day for five days| |6|Transportation expenses|500/-|Moderate rate| |7|Extra nourishment|2,500/-|Considering treatment| |8|Damage to clothing etc|NA|| |9|Pain and suffering|20,000/-|Considering the fracture| |10|Disability income|NA|| |11|Los of consortium|NA|| |12|Loss of love and affection|NA|| |13|Loss of state|NA|| |14|Loss of amenities and disability|15000|global| |15|Compensation for the loss of school classes|NA|| |16|any other head(review treatment)|2,000/-|In view of Ext.A4 series| ||Total|43,400/-|Rs.43,400/- along with interest at the rate of 7.5%per annum from the date of petition to the date of realisation with cost Rs.1,000/-| 3. Called upon to explain and be specific, the learned counsel for the appellant submits that the challenge is directed MACA 1505/2011 3 only against the quantum of compensation awarded by the Tribunal. The learned counsel for the Insurance Company submits that notice ought to be issued to owner/driver also. We are unable to agree. There is no dispute regarding the liability. The respondent-insurer has been made entirely liable. We do not in these circumstances think it necessary to wait for issue and return of notice to the respondents – owner and driver. 4. Learned counsel for the appellant contends that the quantum of compensation awarded under the head of loss of amenities and disability is not adequate. Multiplier multiplicand method has not been pressed into service. 2% disability of the infant child is proved by the report, Ext.X1, submitted by the Medical Board to which the victim was referred to. In addition to the compensation for reduction in earning capacity, compensation must have been awarded for loss of amenities. Learned counsel then submits that the quantum of compensation awarded under the head of pain and suffering (Rs.20,000) is too inadequate considering the tender age of the child and the manifold sufferings which the child must have undergone because of the injury and the consequent treatment. MACA 1505/2011 4 5. We find merit in the contention that separate amounts ought to have been awarded under the head of loss of earning capacity and loss of amenities. The Tribunal has awarded only a global amount under the composite head. We agree that the amount of compensation under the head of pain and suffering also deserves to be enhanced. 6. The above discussions lead us to the conclusion that the claimant-child is entitled for a further amount of Rs.25,000/- as per the details shown below: |**_Sl.No._**|**_head_**|**_Amount awarded_**|**_details_**| |---|---|---|---| |1|Pain and suffering|Rs.5,000/-|Rs.25000 minus 20000| |2|Loss of Reduction in earning capacity|Rs.10,800 (3000x12x15x2/100) (prospective income is reckoned at Rs.3000/-, multiplier is reckoned at 15 as stipulated in the II Schedule and reduction in earning capacity is accepted at 2% as certified by the Medical Board.|Rs.4,200/- excess (Rs.15,000 minus 10800)| MACA 1505/2011 5 |**_Sl.No._**|**_head_**|**_Amount awarded_**|**_details_**| |---|---|---|---| |3|Loss of amenities|Rs.20,000|(taking into account the tender age of the child and the long period during which it will have to endure the effects of the disability of 2%)| ||Total|Rs. 20,800/-|25000 minus 4200| 7 **.** We are not persuaded to agree that the amount awarded under any other head deserves to be enhanced/modified. 8. Learned counsel for the appellant contends that cost has been awarded on a flat rate of Rs.1,000/- only. We agree with the learned counsel that proportionate cost before the Tribunal for the entire amount awarded as compensation deserves to be granted as held in **Jeena v. Satheesh Babu.K.[2011(3) K.H.C.728].** ## 9. In the result, a)this appeal is allowed in part. b)The appellant is found entitled to a further amount of Rs. 20,800/- (rupees twenty thousand eight hundred only) in addition to the amount awarded by MACA 1505/2011 6 the Tribunal. c)We make it clear that the entire amount of compensation shall carry interest at the rate and for the period as specified by the Tribunal. d)We further direct that proportionate cost before the Tribunal be paid as indicated in **Jeena(supra)** . d)All other directions of the Tribunal are upheld. Sd/- **R.BASANT, JUDGE** **Sd/M.C. HARI RANI,JUDGE** ks. true copy P.S.to Judge MACA 1505/2011 7