High Court of KeralaDivision Bench2013-07-18Appeal disposed of with modification of the Tri...

M. Chandran Pillai v. M. RADHAKRISHNA PILLAI (deleted) and Sunil Kumar and Director, Kerala State Insurance Department

Case / Petition Number:MACA.No. 1136 of 2007

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: S. Siri Jagan
K. Ramakrishnan
Judgment Date: 2013-07-18
Court Decision / Holding: The appeal is allowed in part. The Tribunal’s award is modified: (i) monthly income fixed at Rs.1,500; (ii) loss of earnings during treatment compensated (3 months); (iii) extra nourishment and bystander’s expenses enhanced; (iv) the entire 30% disability is taken into account for loss of earning capacity; (v) the multiplier is fixed at 17 (per Sarla Varma) instead of 18; (vi) Rs.20,000 awarded for loss of amenities in life. Overall, the appellant is entitled to an additional Rs.75,600, with interest at 9% per annum from the date of petition till payment. The Insurance Company is directed to deposit the enhanced amount within three months. The impugned award is modified accordingly, and the appeal disposed of.
Final Disposition: Appeal disposed of with modification of the Tribunal’s award; enhanced compensation and deposit directed; 9% interest.

Parties to the Case

Appellants / Petitioners

M. CHANDRAN PILLAI

Respondents

M. RADHAKRISHNA PILLAI (DELETED)
SUNIL KUMAR
DIRECTOR, KERALA STATE INSURANCE DEPARTMENT

Legal Representation & Advocates

Counsels for Petitioners

• Sri. Viju Thomas
• Smt. Meena John

Counsels for Respondents

• Smt. Razia

Case Synopsis & Summary

This MACA arises from a Motor Accidents Claims petition (OP(MV) No.303/2002) before the First Additional District Judge, Kollam, challenging an award of Rs.62,741 by the Tribunal under heads including pain and suffering, transportation, medical expenses, extra nourishment and bystander’s expenses, and disability. The appellant, a auto rickshaw driver, contends that the injury left him with 30% permanent disability and that the Tribunal erred in calculating compensation. He argues that his earnings in 2001 as an auto rickshaw driver were higher than the Tribunal’s fixed monthly income of Rs.1,000, and that the multiplier used (18) should be reduced to 17 in light of the Supreme Court’s Sarla Varma ruling. He asserts the Tribunal failed to award compensation for loss of earning during treatment, under-compensated for extra nourishment/bystander expenses, and did not adequately account for loss of amenities due to disability. The respondents’ counsel (Insurance Company) maintains the Tribunal’s findings are proper, asserting that there was no oral evidence to support a higher income or multiplier, and that the impugned award is just. The High Court partly allows the appeal, applying Sarla Varma to fix a 17 multiplier and reassessing earnings (Rs.1,500/month), finding entitlement to additional compensation under several heads and for permanent disability, while upholding other heads of the Tribunal’s award.

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellant argued that the 30% disability evidenced by Ext.A8 is a true measure of his impairment and should be fully reflected in the loss of earning capacity. He contended that the Tribunal’s monthly income of Rs.1,000 for a licensed auto rickshaw driver in 2001 underestimates the claimant’s actual earning potential and standard of living, and that the multiplier of 18 applied by the Tribunal is excessive; the finding of 30% disability should translate into a greater impact on earning capacity. He highlighted that he suffered a period of incapacity, during which loss of earnings should be compensated, and that the Tribunal failed to award compensation for loss of earnings during treatment and for loss of amenities in life. The appellant urged enhancement under all heads including earning capacity, treatment and care, and ancillary expenses, and requested that the award reflect the full disability and its lifelong impact.

Contentions of Respondents

The respondents, led by the Insurance Company’s standing counsel, urged that the Tribunal’s assessment was sound given the absence of material oral evidence for a higher income or altered multiplier and thus no interference was warranted. They argued the fixed monthly income of Rs.1,000 and the 18 multiplier were appropriate and justified the compensation awarded. They also contended that the head of loss of earnings during treatment did not require additional sums beyond those already awarded and that the Tribunal’s other heads were properly calculated, urging the High Court to refrain from disturbing the award except within narrow confines.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Sarla Varma v. Delhi Transport Corporation	2010(2) KLT 802 (SC)	Positive	Cited to justify applying a 17-year multiplier for a 29-year-old, reducing the multiplier from 18 to 17 as per the Supreme Court ruling.

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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 S.SIRI JAGAN & THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** **THURSDAY, THE 18TH DAY OF JULY 2013/27TH ASHADHA, 1935** **MACA.No. 1136 of 2007 ( ) -----------------------------------** **AGAINST THE AWARD IN O.P.(M.V) NO. 303/2002 OF FIRST ADDITIONAL DISTRICT COURT, KOLLAM DATED 22-07-2006** ## **APPELLANT/PETITIONER:** ## **--------------------------------------** **M. CHANDRAN PILLAI, PANAMKUTTY, VAYALIL MELATHIL VEEDU, PUNUKANNOOR, KUNDARA P.O., KOLLAM.** **BY ADVS.SRI.VIJU THOMAS SMT.M.MEENA JOHN** ## **RESPONDENTS/RESPONDENTS:** **----------------------------------------------** ## **1. M. RADHAKRISHNA PILLAI, (* DELETED) PERUMPALLY VADAKKATHIL, MEENATHU CHERRY, KAVANADU P.O. KOLLAM.** - **R1 IS DELETED FROM THE PARTY ARRAY AT THE RISK OF THE APPELLANT VIDE ORDER DATED 11/06/13 IN I.A.1476/13 IN MACA 1136/2007** **2. SUNIL KUMAR, S/O.SUNDARESAN PILLAI, SUNITHA BHAVAN, KUZHIYAM NORTH, CHEMMAKKADU P.O. PERINADU, KOLLAM.** ## **3. DIRECTOR,** - **KERALA STATE INSURANCE DEPARTMENT, THIRUVANANTHAPURAM.** ## **R3 BY GOVERNMENT PLEADER SMT.RAZIA** **THIS MOTOR ACCIDENTS CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 18-07-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MJL** ## **S.SIRI JAGAN & K.RAMAKRISHNAN, JJ.** --------------------------------------------------------------M.A.C.A. No.1136 of 2007 --------------------------------------------------------------Dated this, the 18[th] day of July 2013 ## Judgment ## Ramakrishnan, J. The petitioner in OP(MV) No.303/2002 on the file of the First Additional District Judge, Kollam, is the appellant herein. The appellant preferred the claim petition before the Tribunal, claiming compensation for the injuries and consequential disabilities sustained by him in a motor vehicle accident, caused on account of the rash and negligent driving of a vehicle by the second respondent, owned by the first respondent and insured with the third respondent. After considering the evidence on record, the Tribunal found that the accident occurred due to the negligent driving of the bus by the second respondent and awarded a total compensation of Rs.62,741/- under various heads as follows : MACA No.1136/07 2 |_Head_|**_Amount Rs._**| |---|---| |_Pain and suffering_|**_12,000.00_**| |_Transportation charges_|**_1,000.00_**| |_Expenses for treatment_|**_5,041.00_**| |_Extra Nourishment &_<br>_Bystander's expenses_|**_1,500.00_**| |_Disability_|**_43,200.00_**| |Total|**_62,741.00_**| 2. Dissatisfied with the quantum of compensation awarded, the appellant has come to this Court with the above appeal. Since the insurance is admitted, the liability of the Insurance Company is not disputed and they entered appearance, we felt that the appeal can be disposed of at the admission stage itself, after hearing the standing counsel for the Insurance Company as well. 3. The learned counsel for the appellant submitted that the appellant had lost 30% eyesight of one eye on account of the injury sustained by him and the Medical Board had assessed his disability as 30%. Being an auto rickshaw driver, it is not possible for him to drive the vehicle. So, the Tribunal was not justified in reducing the percentage of disability for the purpose of assessing loss of earning capacity. MACA No.1136/07 3 The income taken by the Tribunal is also very law as it is an admitted that the accident occurred at the time when he was driving the auto rickshaw and being an auto rickshaw driver, he might be getting more income during 2001 than the amount assessed by the Tribunal. No amount was awarded under the head loss of earning during the period of treatment and the amount awarded under the head extra nourishment and bystander's expenses, is also on the lower side. No amount was awarded under the head loss of amenities in spite of the fact that the Tribunal had taken into consideration the fact that he had sustained permanent disability. So, the counsel for the appellant submitted that the appellant is entitled to get enhancement of compensation under all heads. 4. The learned Standing Counsel for the Insurance Company submitted that in the absence of any oral evidence adduced on the side of the appellant, the Tribunal was perfectly justified in fixing the monthly income of the appellant as Rs.1,000/-. Further, considering the age of the appellant, MACA No.1136/07 4 the multiplier taken is also on the higher side. The Tribunal ought to have taken only 17 as the multiplier, instead of 18. According to the learned Standing Counsel for the Insurance Company, the amount awarded is just an proper and no interference is called for. 5. We have considered the rival contentions of both parties. 6. It is seen from the records produced that the accident occurred at the time when the appellant was driving his auto rickshaw. So, the fact that he is an auto rickshaw driver, is not in dispute. Considering the standard of living and the cost of living during 2001, the monthly income of Rs.1,000/- fixed by the Tribunal for an auto rickshaw driver, appears to be on the lower side. We re-fix the same as Rs.1,500/- per month. Though the appellant sustained fracture of clavicle bone with other injuries, no amount is seen awarded under the head loss of earning during the period of treatment. Considering the injuries sustained by the appellant, we feel 5 MACA No.1136/07 that he could not have worked for at least 3 months. So, he is entitled to get an amount of Rs.4,500/- (Rs.1,500 x 3) under that head. Considering these aspects, the consolidated amount awarded under the head extra nourishment and bystander's expenses, is also less. We enhance the same to Rs.4,000/- instead of Rs.1,500/- fixed by the Tribunal. It is true that Ext.A8 disability certificate issued by the Medical Board shows that the appellant had 30% disability of his eyesight. That alone is not sufficient to come to the conclusion that he may not be able to do any work as such, with this disability. He may be able to do some work and and earn for his livelihood. Considering the said fact, the percentage of disability of 20% for occupational disability taken by the Tribunal is on the lower side as it may not be possible for him to continue his avocation as driver and this may affect his earning capacity considerably and we feel that the entire 30% disability can be taken for the purpose of assessing the compensation under the head loss of earning capacity. In view MACA No.1136/07 6 of the decision of the Supreme Court in **Sarla Varma v. Delhi Transport Corporation** (2010(2) KLT 802 (SC), the multiplier to be applied for a person aged 29 years will be only 17. But, the Tribunal has taken it as 18. Taking the monthly income of the appellant as Rs.1,500/- and taking the disability as 30% and the multiplier as 17, the appellant will be entitled to get an amount of Rs.91,800/- (1500 x 12 x 17 x 30/100) under the head loss of earning capacity, instead of Rs.43,200/- awarded by the Tribunal. 7. Considering the fact that the appellant was aged 29 years at the time of accident and has suffered 30% disability to his eyesight, this will affect his personal life also for the remaining period of his life. This aspect has not been considered by the Tribunal and no amount has been awarded under the head loss of amenities in life. So, we award an amount of Rs.20,000/- under that head. Under all other heads, the amounts awarded by the Tribunal appear to be just and proper and no interference is called for with the same. MACA No.1136/07 7 8. In all, the appellant will be entitled to get an additional compensation of Rs.75,600/-, over and above the amount awarded by the Tribunal, which, the third respondent is liable to pay with 9% interest per annum from the date of the claim petition till the date of payment. Three months' time is granted to the Insurance Company to deposit this amount as well. With the above modification of the impugned award of the Tribunal, the appeal is disposed of. **S.SIRI JAGAN, JUDGE** **K.RAMAKRISHNAN,JUDGE** sta MACA No.1136/07 8 MACA No.1136/07 9