Joy v. V.K. Hameed (and others) / M/s Kar Park Services (P) Ltd. & Oriental Insurance Co. Ltd.

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: R. Basant
M. C. Hari Rani
Judgment Date: 2011-08-31
Court Decision / Holding: Appeal allowed in part. Appellant entitled to a further Rs. 70,960 in addition to the Tribunal’s award. Entire amount shall carry interest as specified by the Tribunal. All other directions of the Tribunal are upheld.
Final Disposition: Appeal allowed in part; enhanced compensation awarded; interest payable as per Tribunal’s order; other Tribunal directions upheld.

Parties to the Case

Appellants / Petitioners

Joy

Respondents

V.K. Hameed
Vimal P. Pushpan
The Oriental Insurance Company Limited

Legal Representation & Advocates

Counsels for Petitioners

• V. Chittambresh
• T. C. Suresh Menon
• Sreekanth K. R
• Jibu P. Thomas
• Sunil J. Chakkalackal

Counsels for Respondents

• M. Jacob Murickan

Case Synopsis & Summary

Joy, the claimant, sought compensation for injuries sustained in a motor accident on 27 November 2000. The Motor Accident Claims Tribunal had awarded Rs 1,88,800 under heads including loss of earnings, transportation, nourishment, clothing, medical expenses, bystander expenses, pain and suffering, disability, and loss of amenities. The appellant contended that the Tribunal erred by fixing monthly income at Rs 2,000 for an auto electrician, and the accompanying disability assessment. Although Ext. A8 suggesting higher earnings was not accepted by the Tribunal, the High Court held that it was safe to infer a higher monthly income—Rs 3,000—using the presumption of prudence under Schedule II, Clause 6 of the Motor Vehicles Act, and supported by precedents Lata Wadhwa v. State of Bihar and Laxmi Devi v. Mohammad Tabbar. The Court found the extent of disability to be 18% for earning-capacity reduction, though PW2 certified 22% disability, and upheld the Tribunal’s multiplier of 17 from the Second Schedule, distinguishing Sarla Verma only to the extent that it dealt with deaths. The result was a partial allowance of the appeal, with an additional Rs 70,960 awarded, and interest to accrue as directed by the Tribunal; all other Tribunal directions were upheld."

Provisions of Law Cited

Motor Vehicles Act, 1988 - Schedule II, Clause 6Motor Vehicles Act, 1988 - Second Schedule, Clause 5Motor Vehicles Act, 1988 - Second Schedule, Clause 1

Legal Doctrines & Maxims

Presumption of prudence under Schedule II, Clause 6 of the MV Act
Use of multiplier for permanent disability as per Second Schedule Clause 5

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellant contends that the tribunal erred in fixing monthly income at Rs 2,000 for an auto electrician. He relies on Ext. A8 to justify higher earnings and Ext. A10 (PW2) to argue 22% disability, seeking enhanced compensation for loss of earnings, disability, and loss of amenities. He also urges that the tribunal should have accepted the disability certificate and adjusted the multiplier in light of permanent disability.

Contentions of Respondents

The Insurance Company challenges the quantum of compensation but not the liability; it submits that the Tribunal’s award was fair and based on available evidence, and that the income and disability figures should be kept as awarded unless proven otherwise.

Cited Precedents (3)

Case Name	Citation	Treatment	Explanation
Lata Wadhwa v. State of Bihar	AIR 2001 SC 3218	Positive	Cited as precedent supporting a higher inference of income in the absence of conclusive evidence.
Laxmi Devi and others v. Mohammad Tabbar and another	(2008 ACJ 1488)	Positive	Referenced as supportive precedent aligning with increased earning-capacity considerations.
Sarla Verma v. Delhi Transport Corporation	(2009) 6 SCC 1211	Positive	Used to justify higher multiplier for permanent disability under the Second Schedule, with noted distinction that Sarla Verma dealt with death cases.

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** **WEDNESDAY, THE 31ST AUGUST 2011 / 9TH BHADRA 1933** **MACA.No. 251 of 2007()** **--------------------------------** ## **OPMV.14/2001 of MOTOR ACCIDENT CLAIMS TRIBUNAL, THRISSUR** **....................** ## **APPELLANT/PETITIONER:** **-----------------------------------** **JOY, S/O.THECHU, RESIDING AT ALAPPATT HOUSE, P.O.PUZHAKKAL, THRISSUR DISTRICT.** **BY ADVS. SRI.V.CHITAMBARESH, SENIOR ADVOCATE SRI.T.C.SURESH MENON SRI.SREEKANTH.K.R SRI.JIBU P THOMAS SRI.SUNIL J.CHAKKALACKAL** **RESPONDENTS:** **-----------------------** **1. V.K. HAMEED, MANAGING DIRECTOR, M/S.KAR PARK SERVICES (P) LIMITED, PERINGANNOOR, P.O.PERAMANGALAM, THRISSUR DISTRICT.** **2. VIMAL P. PUSHPAN, S/O.PUSHPANGADAN, RESIDING AT PALAKADA HOUSE, VARANDARAPPILLY, THRISSUR DISTRICT.** **3. THE ORIENTAL INSURANCE COMPANY LIMITED, DIVISIONAL OFFICE, THRISSUR.** **ADV. SRI.M.JACOB MURICKAN FOR R3** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 31/08/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **R. BASANT & M.C.HARI RANI, JJ.** **----------------------------------------------------------------M.A.C.A. No. 251 of 2007 ---------------------------------------------------Dated this the 31[st] day of August, 2011** ## **JUDGMENT** ## **R. BASANT,J.** The claimant is the appellant. He claimed compensation for personal injuries suffered by him in a motor accident, which took place on 27.11.2000. He had suffered multiple injuries including fracture of the right ulna. He was an inpatient for a period of 29 days in two spells. He allegedly suffered permanent disability as a result of the accident. PW2 doctor, who examined him certified the extent of disability to be 22% in Ext.A10. He was an Auto Electrician by profession. The disability certificate Ext.A10 gives the details of the alleged disability. He had limping of the right leg. He had limitations of movements of right ankle. There was painful limitations of right elbow. The Tribunal against a total claim of Rs.3.5 lakhs awarded an amount of Rs.1,88,800/- as per details which are given in paragraph 9 of the impugned award, which we extract below: **M.A.C.A. No. 251 of 2007 2** |**_Head_**|**_Rs._**| |---|---| |Amount awarded as loss of earnings(2000X12)|24,000/-| |Transportation expenses|5,000/-| |Extra nourishment|5,000/-| |Damages to clothing|500/-| |Medical expenses|63,100/-| |Bystander expenses|5,000/-| |Pain and suffering|15,000/-| |Disability(2000X12X17X25/100)|61,200/-| |Loss of amenities|10,000/-| |Total|1,88.800/-<br>= = = = = = = = = = =| 2. We have heard the learned counsel for the appellant/claimant and respondent-Insurance Company. The insurer has been made entirely liable under the impugned award. The challenge is directed only against the quantum of compensation awarded. 3. Called upon to explain and be specific, the learned counsel for the appellant assails the impugned award on various grounds. First of all, it is contended that the monthly income of the claimant reckoned by the Tribunal at Rs.2,000/- is painfully and unreasonably low. He was an Auto Electrician. Even in the **M.A.C.A. No. 251 of 2007 3** absence of better evidence reasonable inferences ought to have been drawn. Ext.A8 employment certificate was of course produced by the appellant. The Tribunal did not think it safe to accept and act upon that certificate. Even in the absence of better evidence we are satisfied that the Tribunals can draw reasonable and fair inferences about the quantum of monthly income of a person like the appellant aged about 34 years and employed as an Auto Electrician. We are of the opinion that it is absolutely safe to assume that the appellant on the date of the accident must have been earning an income of Rs.3,000/- per mensem. In coming to this conclusion, we take note of the presumption of prudence under clause 6 of schedule II of the M.V.Act. We also take note of the precedents in **Lata Wadhwa v. State of Bihar (AIR 2001 SC 3218)** and **Laxmi Devi and others v. Mohammad Tabbar and another(2008 ACJ 1488).** We are of the opinion that the Tribunal had erred in reckoning only Rs.2,000/- as the monthly income. Appropriately higher amount of compensation will hence be payable under the head of loss of earnings and reduction in earning capacity(disability). **M.A.C.A. No. 251 of 2007 4** 4. The learned counsel for the appellant next contends that the Tribunal erred in not accepting the extent of physical disability/reduction in earning capacity certified by PW2/doctor in Ext.A10. All the relevant details are given in Ext.A10. The appellant had presented himself before the court and tendered evidence as PW1. PW2 doctor, who issued Ext.A10 had tendered evidence in court. Indications suggest that the extent of physical disability was 22%. We are of the opinion, going by the details available in Ext.A10 disability certificate and the evidence tendered by PWs 1 and 2 that 18% can safely be assumed to be the reduction in earning capacity, consequent to the disability suffered. 5. Learned counsel for the appellant contends that the 34 year old appellant had suffered such physical disability and he has to endure such disability for the rest of his life. For loss of amenities only an amount of Rs.10,000/- has been awarded. Counsel prays that the amount may be enhanced. We are satisfied that the said request is reasonable. **M.A.C.A. No. 251 of 2007 5** 6. The above discussions lead us to the conclusion that the appellant is entitled for a further amount of Rs.70,960/- in addition to the amount already awarded by the Tribunal as compensation as per the details given below: Loss of earnings :Rs.12.000.00 (3000X12=36,000 minus 24,000) Reduction in earning capacity :Rs.48,960.00 (3000X12X17X18/100= 1,10,160 minus 61,200) Loss of amenities :Rs.10.000.00 (20,000-10,000) Total :Rs. 70, 960.00 = = = = = = = = 7. Even though the amounts awarded under other heads are also challenged we are not persuaded to agree that the said amounts awarded deserve interference/modification. 17 has been reckoned as the multiplier by the Tribunal for the appellant, a person aged 30-35 years: 16 is the multiplier given in **Sarla Verma v. delhi Transport Corporation[(2009) 6 SCC 1211].** But we note that their lordships in SARLA were dealing only ## **M.A.C.A. No. 251 of 2007 6** with a case of death. The acceptance of a higher multiplier for persons who have suffered permanent disablement is perfectly justified under the second vertical column of the chart/table under clause 1 in Second Schedule of the M.V. Act. 17 is the multiplier specified while calculating compensation payable for permanent disability under clause 5 of the Second Schedule. We hence choose not to interfere with the multiplier(17) adopted by the Tribunal. 8. In the result: - a. This appeal is allowed in part. - b. The appellant is found entitled to a further amount of Rs. 70,960/- (Seventy thousand nine hundred and sixty 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 and for the period specified by the Tribunal in the impugned award. **M.A.C.A. No. 251 of 2007 7** ## d. All other directions of the Tribunal are upheld. ## **R. BASANT, JUDGE** **M.C.HARI RANI, JUDGE** **ln**