K. Vinod Kumar v. Saboo and The Oriental Insurance Co. Ltd.

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: A. Badharudeen
Judgment Date: 2022-08-17
Court Decision / Holding: Appeal allowed. Enhanced compensation of Rs. 2,29,481 is awarded, of which Rs. 80,081 had already been granted by the Tribunal; the balance Rs. 1,49,400 is awarded as enhanced compensation at the same rate of interest, payable by the Insurance Company from the petition date until deposit/realisation. The Insurance Company is directed to deposit Rs. 29,481 as additional court fee and the remainder in the appellant’s name within two months. The appellant may withdraw upon deposit.
Final Disposition: Appeal allowed; enhanced compensation awarded with deposition directions.

Parties to the Case

Appellants / Petitioners

K. Vinod Kumar

Respondents

Saboo
The Oriental Insurance Co. Ltd.

Legal Representation & Advocates

Counsels for Petitioners

• Adv SMT. Latha Prabhakaran

Counsels for Respondents

• Adv Sri VPK Panicker

Case Synopsis & Summary

This is a Motor Accident Claims Appeal (MACA No. 2192 of 2009) under Section 173 of the Motor Vehicles Act, heard by a Single Judge of the Kerala High Court (Hon. Justice A. Badharudeen) at Ernakulam, arising from an award of the Motor Accidents Claims Tribunal, Kozhikode dated 10.07.2008 in MACT–MV case no. 536/2004. The appellant, a passenger in bus KL-11/F-9828, sustained injuries in a 23.07.2003 accident and claimed Rs. 2,00,000 in compensation. The Tribunal held the first respondent negligent (the driver was ex parte) but awarded Rs. 80,081 with 7% interest, and rejected disability payments. The appellant challenged the quantum and, crucially, contended that Ext. C1 shows 25% occupational disability and that the Tribunal failed to award disability income. She also argued for a higher monthly income ( Rs. 4,000 ) following the principle laid down in Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Co. Ltd. (2011) 13 SCC 236, and for enhancement in other heads including loss of earnings. The court examined Ext. C1 and medical records (pelvic and tibial fractures, implant surgeries) and found, after careful consideration, 15% disability rather than 25%. It also re-evaluated earnings, adopting Rs. 4,000 per month, with a 17-year multiplier, resulting in a computed disability income of Rs. 1,22,400 and increased loss of earnings to Rs. 16,000. Additional awards for pain, loss of amenities, and loss of teeth were made, and the total enhanced compensation was fixed at Rs. 2,29,481, with court fee payable on the excess amount. The appeal was allowed, with directions to deposit the enhanced amount within two months.

Provisions of Law Cited

Section 173 of the Motor Vehicles Act, 1988

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellant contends that the Tribunal erred in not granting disability income despite Ext. C1 showing 25% occupational disability, that her monthly income as a coolie was around Rs. 6,000 and that the court should adopt Rs. 4,000 per month in line with Ramachandrappa (2011) 13 SCC 236). She seeks disability compensation, enhancement of earnings, and higher awards under pain, amenities, and loss of teeth, based on the medical record reflecting fractures and prolonged treatment.

Contentions of Respondents

The respondents contest the disability claim and contend that the Tribunal’s appraisal of evidence was correct; the disability certificate Ext. C1 is not supported by robust body disability data; the quantum fixed by the Tribunal should stand, and liability is governed by the policy terms; the evidence does not warrant the enhanced compensation sought.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Ltd.	(2011) 13 SCC 236	Positive	Used to justify fixation of monthly income at Rs. 4,000 in reliance on the Ramachandrappa principle; court expressly adopts the ratio.

Extracted Judgment Text

Exact text extracted from official judgment records.

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE A. BADHARUDEEN ``` ``` WEDNESDAY, THE 17[TH] DAY OF AUGUST 2022/26TH SRAVANA, 1944 ``` ## **`MACA NO. 2192 OF 2009`** ``` AGAINST THE AWARD IN PMV 536/2004 OF MOTOR ACCIDENT CLAIMS ``` ``` TRIBUNAL, KOZHIKODE ``` ## **`APPELLANT/PETITIONER:`** ``` K.VINOD KUMAR S/O.SAMI, AGED 33 YEARS, RESIDING AT KAKKOLLI HOUSE, P.O.ARAKKINAR,, KOZHIKODE. BY ADV SMT.LATHA PRABHAKARAN ``` ## **`RESPONDENTS/RESPONDENTS:`** ``` 1SABOO S/O.DAMODHARAN, AGE NOT KNOWN RESIDING AT PRATHEEKSHA HOUSE, P.O.NELLIKODE,, KOZHIKODE. 2THE ORIENTAL INSURANCE CO. LTD. KINGS WAY BUILDING, MOVAOOR ROAD, KOZHIKODE. BY ADV SRI.VPK.PANICKER ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 17.08.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA NO. 2192 OF 2009 ``` ``` 2 ``` ## **JUDGMENT** The petitioner in O.P.(MV).No.536/2004 on the files of the Motor Accidents Claims Tribunal, Kozhikode, who is aggrieved by award dated 10.07.2008, has preferred this appeal under Section 173 of the Motor Vehicles Act. The respondents herein are the respondents before the Tribunal. 2. Heard the learned counsel for the appellant and the learned counsel for the Insurance Company. 3. The short facts of the case are as follows: The appellant, who was a passenger in a bus bearing registration No.KL-11/F-9828 which was driven by the 1[st] respondent in a rash and negligent manner, sustained injuries, pursuant to an accident occurred on 23.07.2003 at about 4.45 p.m., had approached the Tribunal and canvassed compensation to the tune of ``` MACA NO. 2192 OF 2009 ``` ``` 3 ``` Rs.2,00,000/- from respondents 1 and 2, alleging negligence on the part of the first respondent. 4. The first respondent was declared ex parte by the Tribunal. 5. The second respondent Insurance Company filed written statement and disputed the negligence alleged against the first respondent. The quantum of compensation is also disputed while admitting the policy to bus bearing registration No.KL-11/F-9828. 6. The Tribunal examined PW1 and marked Exts. A1 to A11 on the side of the appellant and Ext.C1 was also marked. No evidence let in by the respondents. 7. The Tribunal adjudicated the matter and finally granted Rs.80,081/- as compensation along with 7% interest per annum as against the claim of Rs.2,00,000/-. ``` MACA NO. 2192 OF 2009 ``` ``` 4 ``` 8. While impeaching the correctness of the award, the learned counsel for the appellant would submit that the Tribunal not granted any amount under the head ‘disability income’ though as per Ext.C1, 25% occupational disability was assessed. He also submitted that monthly income fixed by the Tribunal also is on lower side since the appellant claimed his income at Rs.6,000/- per month, being a coolie worker, aged 27 years. 9. Therefore, he pressed for compensation under the head 'disability’ and increase under other heads inclusive of 'loss of earnings'. Fixation of monthly income following the ratio in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Ltd. [(2011) 13 SCC 236]** is not opposed. Therefore, Rs.4,000/- is fixed as monthly income. ``` MACA NO. 2192 OF 2009 ``` ``` 5 ``` 10. In this matter, Ext.C1 is the disability certificate produced by the appellant before the Tribunal, claiming that the same was issued by the Medical Board, Medical College Hospital, Calicut. On a bare perusal of the certificate would go to show that only two Doctors examined the appellant and issued the certificate showing 25% occupational disability due to the alleged injury. In fact, the Tribunal negatived the claim of disability as per Ext.C1 on the ground that whole body disability is not stated in Ext.C1. 11. In order to alleviate dispute with regard to the disability of the appellant in this matter, perusal of treatment records are necessary. Ext.A2 is the copy of wound certificate issued from Medical College Hospital, Calicut. The same shows fracture pelvis and fracture tibia (L) along with loss of two incisors and lacerated injuries. Ext.A6 series are the reference card pertaining ``` MACA NO. 2192 OF 2009 ``` ``` 6 ``` to the appellant showing treatment for a period between 23.07.2003 and 04.09.2003 and a surgery on 24.07.2007 on diagnosing comminuted fracture both bones left leg with pelvic disorder. Ext.A8 shows treatment of the appellant from 25.12.2006 to 02.01.2007 for removal of implant. 12. On perusal of the medical records, there is nothing to show that there was malunion or infirmities to have disability. However, as per Ext.C1, 25% occupational disability assessed. Having considered both bone fracture and prolonged treatment, inclusive of implant fixation and removal, I am inclined to accept 15% disability in this case. 13. It is noticed that the Tribunal granted Rs.6,000/- under the head ‘loss of earnings’. Having considered the injuries and treatment, I am inclined to increase the same for a period of 4 months at the rate ``` MACA NO. 2192 OF 2009 ``` ``` 7 ``` of Rs.4000 per month. Thus, the appellant is entitled to get Rs.16,000/-. Accordingly, **Rs.10,000/-** (16,000 – 6,000) more is granted under the head ‘loss of earnings’. 14. Similarly, the disability income also requires re-calculation. There is no dispute as regards the multiplier. Therefore, taking monthly income at the rate of Rs.4,000/-, the disability income is re-calculated as under: 4,000 x 12 x 17 x 15% = **1,22,400/-** Thus, **Rs.1,22,400/-** is granted under the head ‘loss of disability income’. 15. Having considered the treatment, I am inclined to grant **Rs.7,000/-** under the head ‘pain and sufferings’ and **Rs.5,000/-** more each, under the heads ‘loss of amenities’ and ‘loss of teeth’. ``` MACA NO. 2192 OF 2009 ``` ``` 8 ``` 16. Since the appellant claimed only Rs.2,00,000/-, the appellant is liable to pay court fee for the compensation granted in excess of Rs.2,00,000/-. Hence, the grant of enhanced compensation is subject to payment of court fee for additional sum of Rs.29,481/-. In the result, this appeal stands allowed. It is ordered that the appellant is entitled to get Rs.2,29,481/- as compensation, out of which Rs.80,081/- was granted by the Tribunal and the balance is **1,49,400/-** (Rupees one lakh forty nine thousand and four hundred only) is granted as enhanced compensation with the same rate of interest awarded by the Tribunal, payable by the Insurance Company, from the date of petition till the date of deposit or realisation. ``` MACA NO. 2192 OF 2009 ``` ``` 9 ``` The second respondent, Insurance Company is directed to deposit Rs.295/- in the name of the Motor Accidents Claims Tribunal, Kozhikode being the additional court fee and the remaining amount in the name of the appellant within two months from today. On deposit, the appellant can withdraw the same. **Sd/-** **A. BADHARUDEEN JUDGE** nkr