High Court of KeralaSingle Judge2021-11-10Appeal allowed in part; enhanced the compensati...

Marykutty Varghese v. Oriental Insurance Co. Ltd.

Case / Petition Number:MACA NO. 1484 OF 2010

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: C. S. Dias
Judgment Date: 2021-11-10
Court Decision / Holding: Appeal allowed in part; enhanced compensation by Rs. 39,450 with interest at 7.5% per annum from the date of petition till deposit (after deducting 41 days’ delay) and costs of Rs. 5,000. The respondent-insurer is ordered to deposit the enhanced amount with interest and costs before the Tribunal within 60 days from receipt of a certified copy of this judgment; upon such deposit, the Tribunal shall disburse the enhanced amount to the petitioner in accordance with law.
Final Disposition: Appeal allowed in part; enhanced the compensation and directed deposit of the enhanced amount with interest and costs; Tribunal to disburse the enhanced amount to the petitioner in accordance with law.

Parties to the Case

Appellants / Petitioners

Marykutty Varghese

Respondents

The Oriental Insurance Co. Ltd.

Legal Representation & Advocates

Counsels for Petitioners

• Sri. M.V. Amaresan

Counsels for Respondents

• Sri. George Cherian (Sr.)
• Sri. Alexy Augustine

Case Synopsis & Summary

Marykutty Varghese, the appellant, filed MACA under Section 166 of the Motor Vehicles Act, 1988, challenging the quantum of compensation awarded by the Motor Accidents Claims Tribunal, Thalassery, in OA/OP(MV) No.1868/2002 arising from a bus accident dated 04.08.2002. The bus, owned by the 1st respondent and insured with the 3rd respondent, was involved in an accident that caused the petitioner injuries including a fracture and dislocation of her right shoulder; she underwent treatment and wore a cast. The Tribunal, while accepting liability, awarded a total of Rs.27,800 in various heads. The petitioner argued for higher compensation, pointing to the accident’s impact on her livelihood as a tailor (noting income of Rs.3,000 per month) and the permanency of disability, supported by Exts. A2–A7 and Ext.X1 (disability). The insurer did not contest liability, while opposing the quantum. The High Court, after re-evaluating income and disability, refixed monthly income at Rs.3,000 (from Rs.2,500), held the disability as 5% (functional) and applied a multiplier of 11 as per Sarla Varma. It recomputed damages under heads including loss of earnings (Rs.9,000), loss of amenities (Rs.10,000) and loss due to disability (Rs.19,800), among others, resulting in a revised total of Rs.67,250. The court then allowed the appeal in part, enhancing the compensation by Rs.39,450 with interest at 7.5% p.a. from the petition date, plus costs of Rs.5,000, and directed deposit by the insurer for subsequent disbursement through the Tribunal.

Provisions of Law Cited

Section 166 of the Motor Vehicles Act, 1988

Legal Doctrines & Maxims

Functional disability of the injured-claimant (Raj Kumar v. Ajay Kumar)
Notional income yardstick (Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Co. Ltd.)
Multiplier rule as laid down in Sarla Varma v. Delhi Transport Corporation (the use of 11 as multiplier)

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellant argued that liability was admitted but the Tribunal erred in quantum; following Ramachandrappa, the notional income should be higher than Rs. 2,500 per month; the applicant was a tailor earning Rs. 3,000 per month and sustained a 5% functional disability; the loss of earnings for three months and the disability amount should be adequately compensated; heads like loss of amenities and pain and suffering should be enhanced, and the total compensation should reflect the actual impact on the applicant’s livelihood.

Contentions of Respondents

The insurer contended that the Tribunal correctly assessed compensation; liability was not in dispute, and the sums claimed by the petitioner were excessive; the notional income should remain at Rs. 2,500 per month; the court may rely on precedents but should not exceed policy limits; the insurer should deposit only the enhanced amount as determined by the court with due process.

Cited Precedents (3)

Case Name	Citation	Treatment	Explanation
Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Co. Ltd.	(2011) 13 SCC 236	Positive	The court follows this decision to fix notional income at Rs.3,000 per month, adopting the yardstick from Ramachandrappa.
Raj Kumar v. Ajay Kumar	[2011] 1 KLT 620	Positive	Used to support the finding of functional disability (5%) affecting compensation.
Sarla Varma v. Delhi Transport Corporation	(2010) 2 KLT 802	Positive	Applied the multiplier rule (11) for computing loss due to disability given the claimant’s age.

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Extracted Judgment Text

Exact text extracted from official judgment records.

MACA NO. 1484 OF 2010 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **WEDNESDAY, THE 10[TH] DAY OF NOVEMBER 2021 / 19TH KARTHIKA, 1943 MACA NO. 1484 OF 2010** **AGAINST THE ORDER/JUDGMENT IN OPMV 1868/2002 OF MOTOR ACCIDENT CLAIMS TRIBUNAL , THALASSERY, KANNUR** ## **APPELLANT/S:** MARYKUTTY VARGHESE AGED 59 YEARS W/O. VARGHESE, KALLARAKKAL HOUSE, P.O.PRAPOYIL,, CHERUPUZHA (VIA), KANNUR DISTRICT. BY ADV SRI.M.V.AMARESAN ## **RESPONDENT/S:** THE ORIENTRAL INSURECE CO-LTD, TALIPARAMBA, KANNUR - 670 003. BY ADVS. SRI.GEORGE CHERIAN (SR.) SRI.ALEXY AUGUSTINE THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 10.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: MACA NO. 1484 OF 2010 2 ## **JUDGMENT** The appellant was the petitioner in OP(MV) No.1868/2002 on the file of the Motor Accidents Claims Tribunal, Thalassery. The respondent in the appeal was the 3[rd] respondent before the Tribunal. As the respondent has admitted the insurance policy, the appellant has not impleaded the respondents 1, 2 and 4 before the Tribunal as parties in the appeal. Therefore, the parties are, for the sake of convenience, referred to as per the status before the Tribunal. 2. The petitioner had filed the claim petition under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of the injuries that she sustained in an accident on 04.08.2002. It was her case that, on the above said date, while she was traveling in a bus bearing registration No.KL-10G-2673 (bus) from Prapoyil to Cherupuzha, due to the rash and negligent driving of the bus by the 2[nd] respondent, the bus hit a textile shop room. The petitioner sustained serious injuries, including a fracture and dislocation of her right shoulder. She was treated at the St. Sebastian 3 MACA NO. 1484 OF 2010 Hospital, Cherupuzha, for a period of five days. She had to wear a cast which was only removed on 21.09.2002. The petitioner was an expert tailor and earning a monthly income of Rs.3,000/-. The bus was owned by the 1[st] respondent, insured with the 3[rd] respondent and the insurance policy stood in the name of the supplemental 4[th] respondent. Hence, the petitioner claimed a compensation of Rs.1,66,000/- from the respondents, which was limited to Rs.1,50,000/-. 3. The respondents 1, 2 and 4 did not contest the proceedings. 4. The 3[rd] respondent had filed a written statement refuting the allegations in the claim petition. It was contended that the compensation claimed was excessive. 5. The petitioner examined herself as PW1 and marked Exts.A1 to A7 in evidence. The disability certificate issued by the Kerala State Co-operative Hospital Complex, Pariyaram was marked as Ext.X1. 6. The Tribunal, after analysing the pleadings and materials on record, allowed the claim petition in part, by permitting the petitioner to recover from the 3[rd] respondent an MACA NO. 1484 OF 2010 4 amount of Rs.27,800/- with interest and cost. 7. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioner is in appeal. 8. Heard; Sri. M.V. Amaresan, the learned counsel appearing for the appellant/petitioner and Sri. George A. Cherian, the learned counsel appearing for the respondent/insurer of the offending bus. 9. The question that arises for consideration in the appeal is whether the quantum of compensation awarded by the Tribunal is reasonable and just ? ## **Negligence and Liability** 10. Ext.A1 FIR registered by the Peringome Police in Crime No.290/2002 proves that the accident occurred due to the negligence of the 2[nd] respondent. Admittedly, the 1[st] respondent was the owner and the 3[rd] respondent was the insurer of the bus. The 3[rd] respondent has not proved that the respondents 1 and 4 had violated the insurance policy conditions. Therefore, the 3[rd] respondent is to indemnify the liability of the 1[st] respondent arising out of the accident. MACA NO. 1484 OF 2010 5 ## **Income** 11. The petitioner had claimed that she was a tailor by profession and earning a monthly income of Rs.3,000/-. However, the Tribunal fixed the notional monthly income of the petitioner at Rs.2,500/-. 12. In **Ramachandrappa vs. Manager, Royal Sundaram Alliance Insruance Company Ltd.** : (2011) 13 SCC 236, the Honourable Supreme Court has fixed the notional income of a coolie worker in the year 2004 at Rs.4,500/- per month. 13. Following the yardstick in the afore-cited decision and considering the fact that the accident occurred in the year 2002, I refix the monthly notional income of the petitioner at Rs.3,000/- per month as claimed in the claim petition. ## **Loss of earnings** 14. As evidenced by Ext.A2 wound certificate, Ext.A3 discharge summary and Ext.X1 disability certificate, the petitioner had sustained a fracture and dislocation of her right shoulder. Being a tailor by profession, necessarily she would MACA NO. 1484 OF 2010 6 have been indisposed for a period of three months to carry on with her avocation. 15. In view of the refixation of the notional monthly income of the petitioner at Rs.3,000/-, I refix her 'loss of earnings' at Rs.9,000/-. ## **Disability** 16. As per Ext.X1 disability certificate, a five member Medical Board has certified that the petitioner has a permanent disability of 2% due to the mal united fracture of her right shoulder. 17. In **Raj Kumar vs. Ajay Kumar** [2011 (1) KLT 620], the Honourable Supreme Court has categorically held that what means to be looked into a case of injury is the functional disability of the injured-claimant. 18. In the present case, as the petitioner was a tailor by profession and she has a mal united fracture of her right shoulder, I fix the functional disability of the petitioner at 5%. ## **Multiplier** 19. It is on record that the petitioner was aged 52 years at the time of the accident. In view of the law laid down in MACA NO. 1484 OF 2010 7 **Sarla Varma vs. Delhi Transport Corporation** [2010 (2) KLT 802] , the relevant multiplier to be adopted is '11'. ## **Loss due to disability** 20. Taking into account the above mentioned factors, namely, monthly income of the petitioner at Rs.3,000/-, her functional disability at 5% and the multiplier at 11, I award the petitioner compensation for 'loss due to disability' at Rs.19,800/-. ## **Loss of amenities** 21. The Tribunal has not awarded any amount under the head 'loss of amenities'. 22. On a consideration that the petitioner was treated as an inpatient for a period of 5 days, she was indisposed for a period of three months and that she has suffered a functional disability at 5%, I hold that the petitioner is entitled to an amount of Rs.10,000/- as 'loss of amenities'. 23. With respect to the other heads of compensation, I find that the Tribunal has awarded reasonable and just compensation. 24. On a comprehensive re-appreciation of the pleadings MACA NO. 1484 OF 2010 8 and materials on record and the law referred to in the aforecited precedents, I hold that the appellant/petitioner is entitled for enhancement of compensation as modified and recalculated above and given in the table below for easy reference. **==> picture [448 x 436] intentionally omitted <==** **----- Start of picture text -----** Sl. Head of claim Amount Amount No. awarded by awarded by the Tribunal this Court (in Rs.) (in Rs.) 1. Loss of earnings 0 9,000 2. Transportation expenses 500 500 3. Clothing 1,000 1,000 4. Bystander expenses 600 1,250 5. Extra nourishment 3,000 3,000 6. Medical expenses 6,700 6,700 7. Pain and sufferings 16,000 16,000 8. Loss of amenities 0 10,000 9. Loss due to disability 0 19,800 Total 27,800 67,250 **----- End of picture text -----** In the result, the appeal is allowed in part by enhancing MACA NO. 1484 OF 2010 9 the compensation by a further amount of Rs.39,450/- with interest @ 7.5% per annum from the date of petition till the date of deposit, after deducting interest for a period of 41 days i.e., the period of delay in filing the appeal and as ordered by this Court on 15.09.2021 in C.M.Appln. No.1/2010 and cost of Rs.5,000/-. The respondent/3[rd] respondent-insurer is ordered to deposit the enhanced compensation with interest and cost before the Tribunal within a period of 60 days from the date of receipt of a certified copy of this judgment. Immediately on the compensation amount being deposited, the Tribunal shall disburse the enhanced compensation amount to the petitioner in accordance with law. Sd/- **C.S.DIAS, JUDGE** rkc