Joseph Philip @ Philip v. Justin George, Vinod Scaria and The Oriental Insurance Co. Ltd. (MACA No. 280 of 2006)

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: R. Basant
V. Chitambaresh
Judgment Date: 2011-11-10
Court Decision / Holding: In the result: (a) This appeal is allowed in part. (b) The appellant is entitled to a further amount of Rs 11,100 in addition to the Tribunal’s award. (c) Interest shall be at 7.5% per annum on the entire amount from the date of the claim to payment. (d) Proportionate costs in the Tribunal proceedings on the entire amount of compensation as held in Jeena v. Satheesh Babu.K. (2011 (3) KLT 943). (e) All other directions of the Tribunal are upheld. The delay in MA C.A. 414/2006 is condoned.
Final Disposition: Appeal partly allowed; enhanced compensation and costs; higher interest rate; delay condoned.

Parties to the Case

Appellants / Petitioners

Joseph Philip @ Philip, S/o.Joseph, Malparambil House, Nattassery Kara, Perumbaikadu Village, Kottayam Taluk

Respondents

Justin George
Vinod Scaria
The Oriental Insurance Co. Ltd.

Legal Representation & Advocates

Counsels for Petitioners

• Adv. Mathew John (K)
• Adv. Sujesh Menon V.B.

Counsels for Respondents

• Adv. M. Jacob Murickan

Case Synopsis & Summary

The claimant, Joseph Philip @ Philip, aged 65, sustained multiple fractures including a dislocated right elbow and fracture of the lower end of the left radius in a motor accident on 23 June 2011. He sought compensation under the Motor Vehicles Act before the MACT, Kottayam, claiming Rs 2,50,000 for medical expenses, pain and suffering, loss of earning, and disability. The Tribunal awarded Rs 34,877, comprised of treatment, nourishment, transport, loss of earnings, pain and suffering, disability, and loss of amenities. On appeal, the appellant challenged the quantum, contending that the Tribunal erred in its assessment of income and loss due to injury and age. He claimed a monthly income of Rs 3,600, but the Tribunal accepted unemployment for four months. The Court, while accepting some disability, re-evaluated the income and awarded a higher compensation. Considering the claimant’s age and injuries, the court held that the monthly income should be Rs 1,500, not Rs 1,000. Pain and suffering was enhanced from Rs 6,500 to Rs 10,000; loss of amenities from Rs 5,000 to Rs 10,000. The court held that the claimant is entitled to an additional Rs 11,100, and more, including an interest rate of 7.5% p.a. and proportionate costs as held in Jeena v. Satheesh Babu.K. The appeal was allowed in part, with directions to pay the enhanced amount and costs.

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellant contends that the Tribunal erred in its assessment of income and the quantum of compensation. He asserts that, as a 65-year-old non-earning person, the monthly income should be higher than the Tribunal’s Rs 1,000, and that permanent disability and loss of amenities deserve greater compensation. He argues for a higher award in pain and suffering, enhanced disability compensation, and interest at a higher rate, along with proportionate costs, citing the need for a more realistic assessment of earning capacity and losses.

Contentions of Respondents

The document records the appellant’s arguments in detail; it provides little on the respondents’ specific arguments, other than contesting the quantum and defending the Tribunal’s conclusions. The respondents’ position is not elaborated in the judgment provided.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Jeena v. Satheesh Babu.K.	2011 (3) KLT 943	Positive	Cited to justify awarding proportionate costs on the entire amount of compensation.

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 MR. JUSTICE V.CHITAMBARESH THURSDAY, THE 10TH NOVEMBER 2011 / 19TH KARTHIKA 1933 MACA.No. 280 of 2006() ---------------------O.P.(MV) NO.1988 OF 2001 ON THE FILE OF THE MACT, KOTTAYAM. APPELLANT(S): APPELLANT-PETITIONER ---------------------------------- JOSEPH PHILIP @ PHILIP, S/O.JOSEPH, MALAPARAMBIL HOUSE, NATTASSERY KARA, PERUMBAIKADU VILLAGE, KOTTAYAM TALUK. BY ADV. SRI.MATHEW JOHN (K) SRI.SUJESH MENON V.B. RESPONDENT(S): - --------------- 1. JUSTIN GEORGE, S/O.K.M.GEORGE, KOTTUMMEL HOUSE, PERUNNA.P.O, CHANGANACHERRY. 2. VINOD SCARIA, KOTTUMMEL HOUSE, PERUNNA WEST.P.O, CHANGANACHERRY. 3. THE ORIENTAL INSURANCE CO. LTD., KOTTAYAM. ADV. SRI.M.JACOB MURICKAN FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 10/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **R. BASANT & V. CHITAMBARESH, JJ.** **------------------------------------------------M.A.C.A. No. 280 of 2006 ------------------------------------------------Dated this the 10[th] day of November, 2011 JUDGMENT** ## **Basant,J.** The claimant is the appellant. He, a 65 year old person, claimed compensation for the personal injuries suffered by him in a motor accident which took place on 23/6/2011. Against a total claim of `2,50,000/-, the Tribunal awarded an amount of `34,877/as per the details given below: |1.|Treatment expenses|-|`5,377/-| |---|---|---|---| |2.|Bystander and extra||| ||nourishment|-|`1,000/-| |3.|Transport to hospital|-|`1,000/-| |4.|Loss of earning|-|`4,000/-| |5.|Pain and suffering|-|`6,500/-| |6.|Compensation for||| ||disability|-|`12,000/- (global)| |7.|Loss of amenities|-|`5,000/-| ||||--------------| ||Total|-|34,877/-| ||||======| 2. We have heard the learned counsel for the appellant and ## **M.A.C.A. No. 280 of 2006** -: 2 :- the learned counsel for the respondent/insurance company. Challenge is raised only against the quantum of compensation awarded. 3. We note that the claimant was a 65 year old person. He claimed to be employed as a Security Guard. He claimed that his monthly income was `3,600/-. He had suffered multiple fractures including fracture with dislocation of the right elbow and fracture lower end of left radius. He was an inpatient for a period of 5 days. He was treated by plate and 'K' wire fixation. Fracture of left radius was treated by application of plaster cast. He allegedly suffered permanent disability to the tune of 14%. The disability certificate was produced as Ext.A8. The Doctor who issued the certificate was not examined. 4. Called upon to explain and be specific, the learned counsel for the appellant, first of all, contends that the Tribunal erred in assuming that the monthly income of the appellant/claimant is only `1,000/-. Enforced unemployment for a period of 4 months was accepted. The Tribunal did accept that some disability has resulted. The Tribunal had the opportunity to see the claimant who was examined as P.W.1. The learned counsel for the appellant submits that even in respect of nonearning person, even in 1994, law permits drawal of a ## **M.A.C.A. No. 280 of 2006** -: 3 :- presumption that the monthly income can be assumed to be `1,250/-. The accident in this case had taken place in 2001. We take all the relevant inputs into account and assume that the monthly income of the claimant can be assumed to be `1,500/-. 5. For pain and suffering, only an amount of `6,500/- has been awarded. Considering the nature of injuries and the age of the claimant, we are satisfied that the amount of compensation under the head of pain and suffering can be enhanced to `10,000/-. 6. The disability certificate has been produced and that shows that the appellant has suffered disability to the tune of 14%. Even though we accept the certificate as indicating reduction in earning capacity, the appellant will be entitled only for marginal enhancement. For loss of amenities, considering the nature of the disability and the age of the appellant, we are satisfied that the amount of compensation awarded (`5,000/-) can be enhanced to `10,000/-. 7. The above discussions lead us to the conclusion that the appellant is entitled to a further amount of `11,100/- (Rupees eleven thousand and one hundred only) as compensation in addition to the amount already awarded by the Tribunal: 1. Pain and suffering - (`10,000/- minus `6,500/-) `3,500/- ## **M.A.C.A. No. 280 of 2006** -: 4 :- |2.|Loss of earnings||| |---|---|---|---| ||(4 x `1,500/- minus||| ||`4,000/-)|-|`2,000/-| |3.|Compensation for||| ||permanent disability (`1,500/- x||| ||12 x 5 x 14/100 - `12,600/-||| ||minus `12,000/-)|-|`600/-| |4.|Loss of amenities||| ||(`10,000/- minus `5,000/-)|-|`5,000/-| ||||------------| ||Total|-|`11,100/-| ||||======| 8. The learned counsel for the appellant points out that interest has been awarded only at the 6% per annum. We are satisfied that interest deserves to be awarded at the rate of 7.5% per annum. Proportionate cost on the entire amount of compensation in the proceedings before the Tribunal as held in **Jeena v. Satheesh Babu.K.** (2011 (3) KLT 943) is also liable to be awarded. ## 9. **In the result:** - (a) This appeal is allowed in part. (b) The appellant is found entitled to a further amount of `11,100/- (Rupees eleven thousand and one hundred only) in addition to the amount already awarded by the Tribunal. (c) We make it clear that the entire amount of compensation shall carry interest at the rate of 7.5% per annum from the date of the claim to the date of payment/realisation. ## **M.A.C.A. No. 280 of 2006** -: 5 :- (d) We make it clear that the appellant shall be entitled to proportionate cost in the proceedings before the Tribunal on the entire amount of compensation as held in **Jeena v. Satheesh Babu.K.** (2011 (3) KLT 943). - (e) All other directions of the Tribunal are upheld. Sd/- **R. BASANT (Judge)** **Sd/-** **V. CHITAMBARESH (Judge)** ## **Nan/** **//true copy// P.S. to Judge** ## **M.A.C.A. No. 280 of 2006** -: 6 :- # **R. BASANT & V. CHITAMBARESH, JJ.** **------------------------------------------------C.M. Appl. NO.414 of 2006 in M.A.C.A. No. 280 of 2006** **------------------------------------------------Dated this the 10[th] day of November, 2011** ## **ORDER** This petition is to condone the delay of 183 days in filing the M.A.C.A. Heard. We take a lenient view. Petition allowed. Delay condoned. **R. BASANT (Judge)** **V. CHITAMBARESH (Judge)** **Nan/** # **M.A.C.A. No. 280 of 2006** -: 7 :-