High Court of KeralaDivision BenchAppeal partly allowed; enhanced loss of ameniti...

M. Nallasamy v. Jameskutty Kurian, Biju and The Oriental Insurance Co. Ltd.

Case / Petition Number:MACA No. 2830 of 2009

Case Details & Bench

Court
High Court of Kerala
Hon'ble Judges
  • S. Siri Jagan
  • K. Ramakrishnan
Judgment Date
2013-05-22
Court Decision / Holding
The appeal is disposed as above. The High Court upheld the Tribunal’s multiplier of 16 (per Sarala Varma) and rejected blindly following the WCA Schedule I for Section 166 claims, in light of Rajesh Kumar v. Yudhvir Singh. It increased the amount for loss of amenities in life from Rs 15,000 to Rs 25,000, and held the appellant entitled to an additional Rs 10,000 over and above the Tribunal’s award, with interest at 9% per annum on that amount until payment. The insurer is directed to deposit the enhanced amount within one month.
Final Disposition
Appeal partly allowed; enhanced loss of amenities; added Rs 10,000 as additional compensation; 9% interest on the additional amount; deposit within one month; overall award adjusted accordingly.

Parties to the Case

Appellants / Petitioners

  • M. Nallasamy

Respondents

  • Jameskutty Kurian
  • Biju
  • The Oriental Insurance Co. Ltd.

Legal Representation & Advocates

Counsels for Petitioners

  • • M.R. Venugopal
  • • Dhanya P. Ashokan

Counsels for Respondents

  • • Mathews Jacob (Sr.)
  • • P. Jacob Mathew

Case Synopsis & Summary

The appellant, M. Nallasamy, sustained serious injuries in a motor-vehicle collision caused by negligence of a vehicle owned by the first respondent, driven by the second respondent and insured with the third respondent. He approached MACT Thrissur with O.P.(M.V.) No.802 of 2003 seeking compensation for injuries and resulting disabilities. The Tribunal found negligence and awarded compensation across heads including loss of earning capacity, transportation, nourishment, clothing, medical expenses, bystander expenses, pain and suffering, loss of amenities of life and disability, totaling Rs 3,69,149 (rounded to Rs 3,69,150). Dissatisfied, the appellant challenged the quantum, arguing the Tribunal erred in applying a 55% loss of earning capacity derived from the Workmen’s Compensation Act Schedule I, which is not applicable to Section 166 claims; he also contended for a multiplier of 17 (and a higher loss of earning power) given his age of 33. The respondents argued that reference to Schedule I is improper for Section 166 claims and that the Tribunal’s percentage and other heads should be sustained. The High Court ultimately held that the multiplier (16) per Sarala Varma is appropriate and that reliance on Schedule I should not defeat the proper award; it increased the loss of amenities from Rs 15,000 to Rs 25,000 and granted an additional Rs 10,000 over the Tribunal’s award, with interest at 9% on that amount and directed deposit within a month.

Provisions of Law Cited

Motor Vehicles Act, Section 166Workmen's Compensation Act, Schedule ISection 163A(1)

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellant contends that the Tribunal erred in fixing the percentage of loss of earning capacity by applying Schedule I of the Workmen's Compensation Act, and selected 55% which is not in the Schedule. He argues that under Section 166, reference to Schedule I is not applicable per the Supreme Court in Rajesh Kumar v. Yudhvir Singh and that the doctor’s assessment of 40% disability does not justify 55% loss of earning capacity. Moreover, since the appellant was 33 at the time, the correct multiplier per Sarala Varma should be 16, which the Tribunal used. The appellant seeks enhancement in heads including pain and suffering and loss of amenities of life, and argues for a higher overall compensation based on actual disability and its impact on earning capacity.

Contentions of Respondents

The respondents’ counsel contends that reliance on the Workmen's Compensation Act schedule by incorporation is not permissible for a claim under Section 166, citing Rajesh Kumar v. Yudhvir Singh. They note the doctor assessed 40% permanent disability while the Tribunal fixed 55%, arguing that this is incorrect. They urge that the Tribunal’s approach remains valid for other heads and that the multiplier should be maintained as per Sarala Varma, and the compensation fixed for pain, suffering and loss of amenities need not be amplified beyond the Tribunal's award.

Cited Precedents (2)

Case NameCitationTreatmentExplanation
Rajesh Kumar v. Yudhvir Singh2008 (4) KLT 116 (SC)PositiveSC held that reference to the Workmen's Compensation Act's schedule by incorporation is applicable only for Section 163A(1) and not for Section 166, thus disallowing Schedule I to govern loss of earning capacity under MACT.
Sarala Varma v. Delhi Transport Corporation2010 (2) KLT 802 (SC)PositiveSC affirmed the appropriate multiplier for ages 31-35 as 16, which the Tribunal adopted in this case.

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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** **WEDNESDAY, THE 22ND DAY OF MAY 2013/1ST JYAISHTA 1935** **MACA.No. 2830 of 2009 ( ) --------------------------** **AGAINST THE ORDER/JUDGMENT IN OPMV 802/2003 of MOTOR ACCIDENT CLAIMS TRIBUNAL,THRISSUR DATED 04-07-2009** ## **APPELLANT/PETITIONER:** **---------------------** **M.NALLASAMY, S/O. MALAYAPPA GOUNDER, VALAVI SHETTY PATTY P.O., AVYALOOR VIA, VEDASANDOOR TALUK, DINDIKAL DIST, TAMIL NADU, PRESENTLY RESIDING AT KOLAZHIKARAN HOUSE, P.O. KANATTUKARA, THRISSUR DISTRICT.** **BY ADVS.SRI.M.R.VENUGOPAL SMT.DHANYA P.ASHOKAN** **RESPONDENT(S):** - **--------------** **1. JAMESKUTTY KURIAN,S/O.KURIAN, PADIKARA HOUSE, P.O.VETTIMIKAL, ETTUMANUR KOTTAYAM DISTRICT.** **2. BIJU, S/O.GOPALAKRISHNAN,** - **KUNNAMKOTTY VEEDU, RAJALAYAM NEAR NEW TELEPHONE EXCHANGE, LALAL VILLAGE KOTTAYAM DISTRICT.** **3. THE ORIENTAL INSURANCE CO.LTD., TR-10, CHAMBERS, KUNJIKUZHY, KOTTAYAM DISTRICT.** **R3 BY ADVS. SRI.MATHEWS JACOB (SR.) SRI.P.JACOB MATHEW** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 22-05-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **stk** ## **S.SIRI JAGAN & K.RAMAKRISHNAN, JJ.** ## **----------------------------M.A.C.A No. 2830 of 2009 ================= Dated this the 22[nd] day of May 2013** ## **JUDGMENT** **--------------** ## S.Siri jagan, J. The appellant suffered very serious injuries in a motor accident caused by the negligent driving of a vehicle owned by the first respondent, driven by the the second respondent and insured with the third respondent. He filed O.P.(M.V.) No.802 of 2003 before the Motor Accidents Claims Tribunal, Thrissur claiming compensation for the injuries and consequent disabilities suffered by him. The Tribunal, after finding negligence on the part of the driver, assessed compensation under various heads as follows: 1. Loss of earning : 10,000/2. Expense for transportation : 2,500/3. Expense for extra nourishment : 3,000/4. Damages to clothing : 500/5. Expense for treatment : 45,149/6. Expense for bystander : 4,000/7. Compensation for pain and suffering : 25,000/8. Compensation for discomforts, inconveniences and loss of amenities and enjoyment in life : 15,000/9. Compensation for disability (30000 x 16 x 55/10) : 2,64,000/------------3,69,149/======= (Rounded off to Rs.3,69,150/-) M.A.C.A No. 2830 of 2009 2 Dissatisfied with the quantum of compensation awarded, the appellant has filed this appeal claiming enhanced compensation. 2. The first contention is that, the Tribunal has erred in fixing the percentage of loss of earning capacity. On account of the injuries, the appellant's right leg was amputated above the knee. The Tribunal sought to follow Schedule I of the Workmen's Compensation Act to fix the percentage of loss of earning capacity. But, instead of adopting the percentage fixed in Schedule I of the Workmen's Compensation Act, the Tribunal wrongly adopted 55%, which is not included in the schedule at all, on the ground that in Ext.A3 a stump was mentioned to be left, the length of which was not mentioned. According to the appellant, when the Workmen's Compensation Act prescribes 60% as the percentage of loss of earning capacity for amputation below middle thigh to below knee, the Tribunal could not have fixed a different percentage for the same injury. The appellant has also got a contention that since the appellant was 33 years M.A.C.A No. 2830 of 2009 3 old at the time of accident, the Tribunal ought to have adopted 17 as the multiplier, instead only 16 was taken. The appellant also contends the compensation fixed for pain and suffering and loss of amenities in life are also on the lower side. Therefore, the appellant seeks enhanced compensation under these heads. 3. On the other hand the learned counsel for the insurance company points out that the Tribunal could not have adopted the percentage of loss of earning capacity fixed in the schedule to the Workmen's Compensation Act at all, insofar as the Supreme Court has in the decision in _**Rajesh Kumar v.Yudhvir Singh [2008 (4) KLT 116 (SC)]**_ has categorically held that reference to Workmen's Compensation's Act by incorporation is only for the purpose of Section 163A(1) and does not apply to a case falling under Section 166. According to the counsel since this is a case under Section 166, the Tribunal could not have taken assistance from the schedule to the Workmen's Compensation Act at all. He points out that the percentage of M.A.C.A No. 2830 of 2009 4 disability fixed by the doctor is only 40%, despite which the Tribunal has adopted 55%, which itself is wrong. He also argues to sustain the quantum of compensation fixed under the other heads also. 5. We have considered the rival contentions in detail. 6. Even going by the age claimed by the appellant at the time of accident, we find that as per the decision in _**Sarala Varma v. Delhi Transport Corporation [2010 (2) KLT 802**_ _**(SC)]**_ the appropriate multiplier for the persons aged between 31 to 35 years is only 16 which has been adopted by the Tribunal. Therefore, the Tribunal has not erred in the matter of adopting the appropriate multiplier. As far as the percentage of disability is concerned, we are of opinion that the Tribunal cannot blindly adopt the percentage of loss earning power fixed in the schedule to the Workmen's Compensation Act at all, in view of the Supreme Court decision in **Rajesh Kumar's case (supra).** As rightly pointed out by the learned counsel for the insurance M.A.C.A No. 2830 of 2009 5 company, the doctor assessed only 40 % permanent whole body disability. Of course, there is nothing wrong in the Tribunal fixing higher percentage of loss of earning capacity, taking into account the actual disability of the appellant and its effect on the earning capacity. Here, the Tribunal has sought some assistance from the schedule to the Workmen's Compensation Act, but independently fixed the percentage of loss of earning capacity as 55 % considering the effect of the disability on the capacity of the appellant to earn his livelihood. We are not satisfied that the same is on the lower side. Therefore, we are not inclined to interfere with the compensation fixed by the Tribunal for loss of earning capacity. 7. As compensation for pain and suffering Rs.25,000/has been awarded. We are unable to persuade ourselves to hold that it is on the lower side. But, insofar as the petitioner's one leg has been amputated above the knee, we find that the compensation for loss of amenities and enjoyment in life is on the M.A.C.A No. 2830 of 2009 6 lower side. We increase it to Rs.25,000/- from Rs.15,000/-. We are not inclined to interfere with the compensation fixed under the other heads. Consequently, the appellant would be entitled to Rs. 10,000/- as additional compensation over and above what has been awarded by the Tribunal. This amount will carry interest @ 9% per annum from the date of claim petition till payment. The 3[rd] respondent insurance company is directed to deposit this amount also within one month. The appeal is disposed as above sd/ ## **S.SIRI JAGAN, JUDGE** sd/- ## **K.RAMAKRISHNAN, JUDGE** **jm/-** \\ TRUE COPY \\ PA TO JUDGE M.A.C.A No. 2830 of 2009 7