Johny P.C. v. V.K. Asharaf and The National Insurance Company Ltd.
Case Details & Bench
- Court
- High Court of Kerala
- Hon'ble Judges
- J. B. Koshy
- K. P. Balachandran
- Judgment Date
- 2008-08-08
- Court Decision / Holding
- Appeal partly allowed; multiplier for calculation revised to 17 (in line with the Supreme Court guidance cited), with 17% disability and revised income assumptions leading to a total compensation of Rs. 2,36,200, including medical reimbursement. The insurer (second respondent) is directed to deposit Rs. 2,36,200 with 7.5% interest from the date of application until deposit; upon deposit, the appellant may withdraw the amount. The prior direction to pay the hospital amount only after the appellant’s payment is set aside. The cheque case under Section 138 remains separate.
- Final Disposition
- Appeal partly allowed; compensation enhanced to Rs. 2,36,200; insurer to deposit with interest; hospital payment direction to insurer set aside; appellant eligible to withdraw on deposit.
Parties to the Case
Appellants / Petitioners
- Johny P.C., son of Chackochan, Kunahil House, P.O. Erumathala, Choondu, Aluva
Respondents
- V.K. Asharaf
- The National Insurance Company Ltd.
Legal Representation & Advocates
Counsels for Petitioners
- • Sri K. Janardhanan
- • Sri Manuraj. K.J
Counsels for Respondents
- • Sri Rajan P. Kaliath
Case Synopsis & Summary
On 12 July 1997, the appellant, Johny P.C., a motorcycle rider, sustained serious injuries when his vehicle was struck from behind by a mini lorry KL-04/B7153. The Motor Accidents Claims Tribunal, Ernakulam, held the driver negligent and the insurer liable, but awarded only Rs. 1,75,400 out of a claimed Rs. 3,56,000, with medical expenses around Rs. 80,000. The Tribunal directed that Rs. 21,000 due to Ernakulam Medical Centre Hospital be paid by the appellant only after payment by him to the hospital; the appellant argued he was penniless due to the accident, having already issued a cheque (not encashed due to funds) under Section 138 of the NI Act, which is pending, and asserted that the compensation was inadequate. The appellant aged 30 contended the appropriate multiplier under the Second Schedule should be 18 (the Tribunal used 15; the claimant argued for 18), while the respondent insurers supported the Tribunal’s approach. The court agreed with the applicant that, in the absence of exceptional circumstances, the multiplier should be aligned with Second Schedule norms, citing Supreme Court authorities A.P.S.R.T.C v. M. Pentaiah Chary and Smt. Supe Devi. The court ultimately determined that the permanent disability (17%), projected earnings, and loss of earning capacity warranted adjustment, increasing the total compensation to Rs. 2,36,200, and directed the insurer to deposit this amount with 7.5% interest, enabling the appellant to withdraw on deposit. The hospital payment directive against the insurer was set aside.
Provisions of Law Cited
Submissions & Arguments
Contentions of Appellants / Petitioners
The appellant argued that the Second Schedule multiplier for a 30-year-old victim should be 18, not 17, and that the absence of exceptional circumstances requires applying the higher multiplier as held in A.P.S.R.T.C v. M. Pentaiah Chary (2007) AIR SCW 5689) and Smt. Supe Devi v. M/s National Insurance Co. Ltd. (JT 2002 (Suppl.1) SC 451). He submitted that the disability assessment of 17% should translate into greater compensation for loss of earning capacity, and that the hospital expenses should be reimbursed entirely, given the claimant’s financial hardship; he also emphasized the pending Section 138 cheque case and argued the insurer’s liability should be clear without a condition that payment to the hospital await other recoveries. The appellant further contended that the Tribunal’s directions to pay the Ernakulam Medical Centre amount only after the appellant’s payment was improper, and that the award failed to reflect future medical expenses and attendant costs. The overall relief sought was an enhanced, promptly payable compensation with direct liability on the insurer to deposit the revised amount.
Contentions of Respondents
The respondents argued that the Tribunal’s finding of negligence and the overall compensation were appropriate and should be upheld. They supported the Tribunal’s use of the multiplier for the Second Schedule in the absence of exceptional circumstances, and maintained that the insurance company is liable for the compensation as determined by the Tribunal, subject to the tribunal’s fashioning of appropriate heads of damages. They opposed any mandatory payment to the hospital independent of settlement with the claimant, contending that the claimant cannot press for hospital payments out of turn, and that the hospital’s recovery should be handled through the claimant’s satisfaction of outstanding bills and existing recoveries. They also emphasized the pending cheque case under Section 138 and argued the court should not prematurely alter the financial heads without clear material improvements in evidence of loss or earning capacity.
Cited Precedents (2)
| Case Name | Citation | Treatment | Explanation |
|---|---|---|---|
| A.P.S.R.T.C v. M. Pentaiah Chary | AIR SCW 5689 | Positive | Cited to support adopting the multiplier within the Second Schedule for compensation, in absence of exceptional circumstances. |
| Smt. Supe Devi and others v. M/s National Insurance Company Ltd. and another | JT 2002 (Suppl.1) SC 451 | Positive | Cited as authority for multiplier approach under Second Schedule. |
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