High Court of KeralaSingle Judge2018-10-03Appeals allowed; liability apportioned differen...

Jineesh S/o Babu v. Bhaskaran, Soman and Oriental Insurance Co. Ltd.

Case / Petition Number:MACA No.2522 of 2012

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: K. Vinod Chandran
Judgment Date: 2018-10-03
Court Decision / Holding: The above appeals are allowed; the Tribunal's apportionment of liability is set aside to the extent indicated, and enhanced compensation is awarded in each connected MACA; the amounts are to be paid within two months from the date of receipt of a certified copy of this judgment with interest as directed by the Tribunal.
Final Disposition: Appeals allowed; liability apportioned differently and compensation enhanced; payment within two months with interest.

Parties to the Case

Appellants / Petitioners

Jineesh S/o Babu

Respondents

Bhaskaran
Soman
The Manager, Oriental Insurance Co. Ltd.

Legal Representation & Advocates

Counsels for Petitioners

• Sri P. V. Baby

Counsels for Respondents

• Sri T. K. Vipindas
• Sri VPK Panicker
• Sri George Cherian, SC

Case Synopsis & Summary

On 3 October 2018, the Kerala High Court heard MACA 2522 of 2012 and connected matters arising from a single award in three MACT petitions. A lorry collided with a motorcycle carrying three occupants, killing one pillion rider and injuring others. The appellant, Jineesh S/o Babu, and legal heirs challenged the Tribunal's apportionment of liability between the insurer and the vehicle owner, arguing that the policy only covers two persons and that the three claimants are third parties. The Tribunal had directed the insurer to pay the two highest compensation amounts and to deposit those sums, with the balance to be recovered from the insured. The appellants contended that the decision in National Insurance Co. Ltd. v. Anjana Shyam is not applicable to this fact pattern: the accident involved a lorry, third‑party riders and no negligence on the motorbike; therefore the apportionment cannot be justified. The High Court held that the apportionment and the further liability cast on the owner cannot be sustained, and set aside that part of the Tribunal's order. Regarding enhancement, the court relied on Ramachandrappa to adopt a higher income for the construction worker, 40% future prospects, and a multiplier of 17, applying precedents to grant enhanced compensation across the three MACAs. The appeals are allowed, and the enhanced amounts are directed to be paid within two months with interest as directed by the Tribunal.

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellants challenge the Tribunal's apportionment of liability between insurer and owner, arguing that since there were three occupants but the policy covers only two, the insurer's liability should not be limited as the Tribunal held. They rely on the principle in National Insurance Co. Ltd. v. Anjana Shyam but submit the facts here are distinguishable: the offending vehicle is a lorry and the claimants are third parties; there is no negligence attributed to the bike; thus there can be no blanket liability of insurer for only two passengers. They urge recalibration of liability and indicate that enhancements should be guided by precedents such as Ramachandrappa, including raising the income of the deceased or injured, applying 40% future prospects and a multiplier of 17; they seek higher compensation across all heads per the connected MACAs. Finally, the appellants request timely payment and equitable distribution of amounts.

Contentions of Respondents

The detailed submissions of the respondents are not delineated in the provided text. The extract records the appellants' contentions and the court's analysis thereof.

Cited Precedents (2)

Case Name	Citation	Treatment	Explanation
National Insurance Co. Ltd. v. Anjana Shyam	LAWS (SC) 2007 8 51	Distinguished	The court distinguished Anjana Shyam on facts; held the case not applicable to the present lorry-accident scenario with third-party claimants and no motorcycle negligence.
Ramachandrappa v. Royal Sundaram Alliance Insurance Company Limited	(2011) 13 SCC 236	Positive	The court relied on Ramachandrappa to justify adopting a higher monthly income for a construction worker, and applying 40% future prospects with multiplier 17 in calculating enhanced 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 K.VINOD CHANDRAN** **WEDNESDAY, THE 03RD DAY OF OCTOBER 2018 / 11TH ASWINA, 1940** **MACA. No.2522 of 2012** **AGAINST THE JUDGMENT IN OPMV NO.611/2007 OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, IRINJALAKUDA DATED 28.07.2012** ## **APPELLANT:** **JINEESH S/O.BABU, CHANASSERY HOUSE, KANNAMBATHOOR DESOM, THORAVU VILLAGE, CHENGALLOOR P.O., MUKUNDAPURAM TALUK, THRISSUR DISTRICT.** **BY ADV. SRI.P.V.BABY** ## **RESPONDENTS/RESPONDENTS:** |**1**|**BHASKARAN**| |---|---| ||**S/O.KOCHUMMINI, SNEHALAYAM HOUSE,**| ||**PUTHIYAVILA P.O., KAYAMKULAM,**| ||**ALAPPUZHA DISTRICT - 690531.**| |**2**|**SOMAN**| ||**S/O.GOPALAN, KARUKKASSERY HOUSE,**| ||**KANNAMPILLY DESOM, KAYAMKULAM VILLAGE,**| ||**KARTHIKAPPILLY TALUK, ALAPPUZHA DISTRICT - 690502.**| |**3**|**THE MANAGER**| ||**ORIENTAL INSURANCE CO.LTD., OPP. MSM COLLEGE,**| ||**KAYAMKULAM - 690502.**| ||**BY ADVS.**| ||**SRI.T.K.VIPINDAS**| ||**SRI.VPK.PANICKER**| ||**SRI.GEORGE CHERIAN, SC**| **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 03.10.2018, ALONG WITH MACA NOS.2537 & 2674 OF 2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA. No.2522 of 2012 & connected cases 2 ## **JUDGMENT** **These appeals arise from the award passed in three claim petitions by a common award. The three appellants were travelling in a motor bike, when a lorry collided with the bike causing the death of one of the pillion riders and injuries to the driver and the other. The appeals are by the injured and the legal heirs of the deceased.** **2. The first contention raised by the appellants is as to the apportionment amount of liability made on the insured and the owner of the vehicle. The Tribunal found that since there were three persons travelling in the vehicle and only two could have been covered by the policy, the insurer was liable only to the extent of the compensation for the two, who have been awarded the highest compensation; which amounts have to be apportioned between the three claimants and the balance made the liability of the insured. The direction by the Tribunal was that the compensation** MACA. No.2522 of 2012 & connected cases 3 **to the two, who are awarded the highest amounts, would be deposited by the Insurance Company, which would be apportioned among the three claimants. The balance, ie; those amounts awarded in favour of the other injured would be the liability of the insured/owner; which again will be permitted to be recovered proportionately by the three claimants.** **3. The learned Counsel appearing for the appellants contended that the said finding of the Tribunal obviously was by the reason of the decision in** _**National Insurance Co. Ltd. v. Anjana Shyam [LAWS (SC) 2007 8 51]**_ **, which is not applicable. The facts in** _**Anjana Shyam [**_ **supra] indicates that a bus was involved in an accident, which carried around 92 passengers, while the policy covered carriage of only 42 passengers. The bus being covered by a valid policy; the Hon'ble Supreme Court found that the highest 42 claim amounts would be paid by the Insurance Company and the balance would be mulcted on the insured. The** MACA. No.2522 of 2012 & connected cases 4 **facts are quite distinct in the present case. Therein a bus was involved in an accident and the claimants were passengers travelling in the bus and the claim was for indemnification of the compensation by the insurer of the offending vehicle; the bus itself in which the injured were travelling. Here the offending vehicle is a lorry and there was no negligence found on the motor bike. In such circumstances, it cannot be said that there was a coverage only for the injury of two persons. The claimants are third parties and hence there can be no parallel drawn.** **4. In such circumstances, this Court finds that the apportionment of amounts and the further liability cast on the owner of the lorry cannot be sustained. The order of the Tribunal to that extent is set aside.** **5. The further contention of the appellants is on enhancement of the compensation, which will be considered individually.** MACA. No.2522 of 2012 & connected cases 5 ## _**M.A.C.A. No.2674 of 2012 [OP(MV) No.457 of 2007]:**_ **6. The injured was a 35 year old, who claimed to be a construction worker getting Rs.6,000/- as monthly income. The injuries suffered by him are the following: “** _**(i) Compound supra condylar inter condylar fracture right femur with vascular injury (ii) Compartment syndrome right leg (iii) Type I compound fracture tibia and fibula right leg (iv) Multiple lacerated wounds on different parts of the body (v) Femur fracture treated by external fixation and skin grafting (vi) Long leg cast with window”**_ **. The main contention raised is on the income adopted, which is said to be very low. This Court finds that in the year 2004, a manual labourer was found to have income of Rs.4,000/- per month in** _**Ramachandrappa v. Royal Sundaram Alliance Insurance Company Limited [(2011) 13 SCC 236]**_ **. Hence the adoption of Rs.3,000 as monthly income for a construction worker is too low, especially considering the fact that the accident occurred in** MACA. No.2522 of 2012 & connected cases 6 **the year 2007. By any conservative estimate, it can be safely assumed that the appellant had claimed the actual income he was getting as a construction** **worker. Hence the income would be adopted as Rs.6,000/-. The further contention is with respect to the hospitalisation, which was continued for about 219 days, ie. around seven months, which was not fully granted by the Tribunal. There is no dispute on the multiplier. There is a permanent disability assessed of 27% and there is no dispute on the multiplicand applied. Hence the following** **enhancement shall be granted:** |**Sl.** **No.**|**Head of Claim**|**Amount** **awarded by** **the Tribunal** `|**Total amount** **after** **enhancement in** **appeal** `| |---|---|---|---| |**1**|**Loss of earning**|**18000** **[3000x6]**|**42000** **[6000x7]**| |**2**|**Medical Expenses**|**49988**|**49988**| |**3**|**Transportation** **Expenses**|**3000**|**3000**| |**4**|**Pain and suffering**|**20000**|**20000**| MACA. No.2522 of 2012 & connected cases 7 |**5**|**Permanent disability**|**145800** **[3000x12x15x** **27%]**|**291600** **[6000x12x15x** **27%]**| |---|---|---|---| |**6**|**Extra nourishment**|**10000**|**10000**| |**7**|**Bystander's expenses**|**18000**|**43800** **[200x219]**| |**8**|**Loss of amenities**|**-----**|**20000**| ||**Total**|**246788**|**438388**| ## _**M.A.C.A. No.2522 of 2012 [OP(MV) No.611 of 2007]:**_ **7. The contentions are almost similar in this case also. Here, the appellant claimed to be a painting and polishing employee, getting a monthly income of Rs.6,000/-. On the very same reasoning as above the income can be accepted. The injuries suffered are the following: “(i)** _**Fracture shaft of the left femur (ii) Compound comminuted fracture shaft of left (iii) Lacerated wound left elbow and left knee (badly contaminated) (iv) Lacerated wound left leg below knee**_ **”.** **8. The total compensation hence shall be as** **follows:** MACA. No.2522 of 2012 & connected cases 8 |**Sl.** **No.**|**Head of Claim**|**Amount** **awarded by** **the** **Tribunal** `|**Total amount** **after** **enhancement** **in appeal** `| |---|---|---|---| |**1**|**Loss of earning**|**18000** **[3000x6]**|**36000** **[6000x6]**| |**2**|**Medical Expenses**|**84885**|**84885**| |**3**|**Transportation** **Expenses**|**5000**|**5000**| |**4**|**Pain and suffering**|**20000**|**20000**| |**5**|**Permanent disability**|**155520** **[3000x12x18x** **24%]**|**311040** **[6000x12x18x** **24%]**| |**6**|**Extra nourishment**|**2200**|**2200**| |**7**|**Bystander's expenses**|**2200** **[100x22]**|**4400** **[200x22]**| |**8**|**Loss of amenities**|**---**|**20000**| ||**Total**|**287805**|**483525**| ## _**M.A.C.A. No.2537 of 2012 [OP(MV) No.679 of 2007]:**_ **9. The appeal is filed by the legal heirs of the deceased, who also claim to be a construction** MACA. No.2522 of 2012 & connected cases 9 **worker earning Rs.4,000/- as monthly income. Since the contention was that he was getting only Rs.4,000/-, this Court is of the opinion that the same can be adopted on the reasoning in the above cases. However, in calculating the loss of dependency, the future prospect has to be taken as 40%. In addition to future prospects, it is also stated that the multiplier to be applied as 17, and not 13, which is also proper. There shall also be granted enhancement on the basis of binding precedents. The compensation awarded hence shall be as follows:** |**Sl.** **No.**|**Head of Claim**|**Amount** **awarded by** **the** **Tribunal** `|**Total amount** **enhanced in** **appeal** `| |---|---|---|---| |**1**|**Funeral expenses**|**3000**|**15000**| |**2**|**Medical Expenses**|**82104**|**82104**| |**3**|**Transportation** **Expenses**|**1000**|**1000**| |**4**|**Pain and suffering**|**20000**|**20000**| MACA. No.2522 of 2012 & connected cases 10 |**5**|**Loss of dependency**|**234000** **[3000x12x13x** **1/2]**|**571200** **[5600x12x17x** **1/2]**| |---|---|---|---| |**6**|**Extra nourishment**|**600**|**600**| ||**Total**|**340704**|**689904**| **The amounts awarded as above after deducting what has already been paid, shall be paid within two months from the date of receipt of a certified copy of this judgment with interest as directed by the Tribunal.** **The above appeals are allowed.** **Sd/-** sp/06/10/18 **K.VINOD CHANDRAN JUDGE //True Copy// P.A. To Judge**