High Court of KeralaDivision Bench2013-09-24Disposed of

Mohandas v. Jomy Cyriac & United India Insurance Co. Ltd

Case / Petition Number:MACA.No. 1840 of 2006

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: S. Siri Jagan
K. Ramakrishnan
Judgment Date: 2013-09-24
Court Decision / Holding: The High Court disposed of the appeal by modifying the Tribunal’s award. It awarded an additional ₹35,000 beyond the Tribunal’s total, with 9% interest from the date of the claim petition until payment, and directed the 2nd respondent-insurance company to deposit the amount within two months; this was accompanied by increased awards for pain and suffering (₹15,000) and loss of amenities in life (₹15,000) and an enhanced bystander/extra nourishment consideration (₹3,000).
Final Disposition: Disposed of

Parties to the Case

Appellants / Petitioners

Mohandas s/o Sankunny

Respondents

Jomy Cyriac
United India Insurance Co. Ltd

Legal Representation & Advocates

Counsels for Petitioners

• Sri T.K. Koshy

Counsels for Respondents

• Sri S. Arun Raj

Case Synopsis & Summary

This is a Motor Accidents Claims Appeal from the Kerala High Court challenging an award of the Motor Accidents Claims Tribunal, Kottayam, in O.P.(M.V).No.803/2003, dated 30-11-2005, for Mohandas, a police constable injured in a road accident caused by the negligent driving of the 1st respondent (Jomy Cyriac) and insured with the 2nd respondent (United India Insurance Co. Ltd). The Tribunal held negligence and awarded compensation across six heads: loss of leave ₹4,000; transportation expenses ₹1,000; extra nourishment and bystander’s expenses ₹1,000; medical expenses ₹2,250; pain and sufferings ₹8,000; loss of amenities ₹7,000; total ₹23,550. The appellant challenged the quantum, arguing that the injuries, seven days of hospitalization, and head injuries warranted higher compensation, including loss of earning power. He was a 47-year-old serving police constable with documented salary of ₹6,735 and, initially, 5% disability certified by a medical board, later revised to 25% without detailed reasoning. The High Court, while recognizing disability and the need to consider earning power, computed a notional post-retirement income of ₹3,000 and applied a multiplier of 5 (after deducting the remaining service period until retirement), finding loss of earning capacity ₹18,000. It also enhanced pain and sufferings to ₹15,000 and loss of amenities to ₹15,000, and increased bystander/nourishment to ₹3,000. The court then awarded an additional ₹35,000 with 9% interest, directing deposit within two months, thereby disposing of the appeal with modified relief.

Legal Doctrines & Maxims

Notional income and multiplier principle for loss of earning capacity
Doctrine of unjust enrichment is not permissible
Multiplier rules under Sarla Verma v. Delhi Transport Corporation
Deduction of remaining service period when calculating post-retirement loss of earning power

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellant contends that the Tribunal’s quantum is inadequately low in view of head injuries and the period of hospitalization. He argues that loss of leave, bystander’s expenses, and extra nourishment were under-compensated, and that no compensation for loss of earning power should be denied since he remained employed and the disability impacted earning capacity post-retirement. He relies on the multiplier principle (Sarla Verma) to quantify post-retirement losses, and argues for higher pain, suffering, and loss of amenities, as well as re-evaluation of medical costs and future earnings.

Contentions of Respondents

The respondents’ counsel argues for sustaining the Tribunal’s award and cautions against unwarranted enhancements. They submit that the claimant continued in service with a salary equal to or greater than pre-accident earnings, negating a loss of earning power. They point to inconsistent disability certificates and urge restraint from windfall damages beyond the Tribunal’s figures, emphasizing not to penalize insurers without solid evidence of persistent impairment. The insurer contends that the original award, being within the heads of compensation, should stand and that any modification should be conservative and evidence-based.

Cited Precedents (2)

Case Name	Citation	Treatment	Explanation
Sarla Verma v. Delhi Transport Corporation	2009 ACJ 1298 (SC)	Positive	Used to anchor multiplier-based assessment for loss of earning capacity and notional income; accepted as controlling authority for the age-based multiplier.
M.A.C.A.No.1627/2006	M.A.C.A.No.1627/2006	Distinguished	The court noted this Division Bench decision but did not adopt its proposition on loss of earning power when disability continued in service; it treated it as not binding law for the present 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** **TUESDAY, THE 24TH DAY OF SEPTEMBER 2013/2ND ASWINA, 1935** **MACA.No. 1840 of 2006 ( )** **-------------------------AGAINST THE AWARD IN OPMV 803/2003 of M.A.C.T.,KOTTAYAM DATED 30-11-2005** ## **APPELLANT/PETITIONER:** **-------------------------------------** **MOHANDAS,S/O.SANKUNNY, KUDILIPARAMBIL HOUSE, KALLARA KARA, KALLARA VILLAGE.** **BY ADV. SRI.T.K.KOSHY** ## **RESPONDENT(S)/RESPONDENTS 1 & 2.:** **-----------------------------------------------------------** **1. JOMY CYRIAC, S/O.CHACKO CYRIAC, KOZHYKOTTAYIL HOUSE, NEAR KOTTARAPPILLY HOSPITAL MUTHEDATH KAVUKARA, VAIKOM VILLAGE.** **2. UNITED INDIA INSURANCE CO.LTD, CHITTOOR ROAD, COCHIN-682 035.** **R2 BY ADV. SRI.S.ARUN RAJ** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 24-09-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** S.SIRI JAGAN & K.RAMAKRISHNAN, JJ. ================== ## M.A.C.A.No. 1840 of 2006 ================== Dated this the 24[th] day of September, 2013 J U D G M E N T ## S.Siri Jagan, J.: The appellant is the claimant in O.P.(M.V).No. 803/2003 before the Motor Accidents Claims Tribunal, Kottayam. He suffered injuries in an accident caused by the negligent driving of a vehicle owned and driven by the 1[st] respondent and insured with the 2[nd] respondent. He filed the O.P. claiming compensation for the injuries and consequent disability sustained by him in the accident. The Tribunal, after finding negligence on the part of the 1[st] respondent driver, awarded compensation under various heads as follows: ||Head of claim|Amount<br>awarded<br>`| |---|---|---| |1|Loss of leave|4,000.00| |2|Transportation expenses|1,000.00| |3|Extra nourishment & bystander's expenses|1,000.00| |4|Medical expenses|2,250.00| |5|Pain and sufferings|8,000.00| |6|Loss of amenities|7,000.00| ||Total (sic)|23,550.00| M.A.C.A.1840/06 - : 2 :- Dissatisfied with the quantum of compensation awarded by the Tribunal, the appellant has filed this appeal seeking enhanced compensation. 2. The first contention raised by the appellant is that the appellant had sustained head injuries and the compensation awarded is not commensurate with the injuries and consequent disability sustained by him. It is submitted that the appellant was on leave from 8.1.2003 to 30.1.2003, despite which, only an amount of ` 4,000/- was awarded for loss of leave. Although the appellant was hospitalized for seven days, for both bystander's expenses and extra nourishment, only an amount of ` 1,000/- has been awarded. The compensation for pain and sufferings of ` 8,000/- is palpably low considering the injuries sustained by him and the period of hospitalization. No amount has been awarded for loss of earning capacity. Only ` 7000/- has been awarded for loss of amenities in life. Therefore, on all heads, the compensation awarded is very low is the contention raised. 3. The learned Standing Counsel for the insurance company argues for sustaining the award. 4. We have considered the rival contentions in detail. 5. At the outset we note that the appellant was a serving M.A.C.A.1840/06 - : 3 :- police constable in the police force of the State of Kerala. He was 47 years old at the time of the accident on 8.1.2003. As per Ext.A8, his salary has been proved as ` 6,735/-. The appellant has no case that the appellant lost his employment or that his salary was reduced on account of the alleged disability suffered by him. As such, at least till the date of his retirement, the appellant will not be entitled to any compensation for loss of earning power insofar as he was receiving the same and more salary than what he was receiving prior to the accident. Of course, this Court referred the appellant for examination by a medical board. Originally, a medical board of the Medical College Hospital, Kottayam, forwarded a certificate showing that the appellant was a manual labourer and because of headache, dizziness, loss of memory and forgetfulness, 5% permanent disability was certified. At the request of the counsel for the appellant, the appellant was again referred to the medical board at Medical College Hospital, Alappuzha. The medical board has now certified 25% permanent disability without giving any details as to what is the actual disability suffered by the appellant and without giving any reason for such assessment. As such, there is considerable doubt regarding the acceptability of the percentage M.A.C.A.1840/06 - : 4 :- of disability certified by the medical board. It is a fact that despite the alleged disability, the appellant continued in service and retired from service in 2011. He also received promotion as well. If that be so, it is clear that the alleged disability has not much effected his earning capacity, because if it had in any way affected his duties as a police man, he would have certainly been removed from service on medical grounds. Still, we are of opinion that the appellant should be given some compensation for loss of earning power after his retirement. For that purpose, we fix the notional monthly income of the appellant after his retirement as ` 3000/-. We are inclined to accept 10% disability for the purpose of calculating loss of earning capacity. The appellant was 47 years old at the time of the accident. The multiplier applicable to a 47 year old person is 13 as per the decision of the Supreme Court in **Sarla Verma v. Delhi Transport Corporation** , 2009 ACJ 1298 (SC). The appellant relies on the decision of a Division Bench of this Court in M.A.C.A.No.1627/2006 for the proposition that despite the fact that the insured person, who suffered the disability continued in service, he is entitled to compensation for loss of earning power taking into account the multiplier based on his age at the time of M.A.C.A.1840/06 - : 5 :- the accident itself without reference to whether the disability has affected his income. We do not find any law laid down by this Court in that decision as suggested by the learned counsel for the appellant. When a person who is stated to have suffered disability continues in service earning the same or more income, he cannot be given compensation for loss of earning capacity at least till he ceases to be in employment. Otherwise that will be giving him a bonanza and he will be getting the income he was receiving prior to the accident or more and he will also be getting compensation for loss of earning power as well, which amounts to unjust enrichment and is not permissible under law. We are of opinion that for this purpose, from the multiplier applicable for a person of 47 years age, the period during which he would be in service has to be deducted and for the period after is retirement, the compensation for loss of earning capacity should be awarded for the balance of the multiplier. In this case, from 13, 8 has to be deducted because the appellant had retired at the age of 55. The balance multiplier would be only 5. The appellant is entitled to compensation for loss of earning capacity after retirement for the monthly income of ` 3,000/- taking the multiplier as 5. Calculated thus, the appellant would be entitled M.A.C.A.1840/06 - : 6 :- to compensation of ` 18,000/-. We award that amount in this appeal since no amount has been awarded by the Tribunal for loss of earning capacity for the period even after retirement. We are of opinion that in view of the medical records produced by the appellant, the appellant is entitled to get some more amounts towards pain and sufferings, since it is certified in the document that he had suffered some head injury. So we enhance the compensation for pain and sufferings to ` 15,000 from ` 8,000/-. Likewise, we are inclined to enhance the compensation for loss of amenities in life from ` 7000/- to ` 15,000/- considering his permanent disability, which will effect his personal life as well. We are of opinion that the compensation for extra nourishment and bystander's expenses together of ` 1000/- is on the lower side. The appellant was in hospital for seven days. So he is entitled to compensation for bystander's expenses for seven days at the rate of ` 100/- per day. So we enhance the compensation for bystander's expenses and extra nourishment by ` 2,000/- over and above the ` 1000/- awarded by the Tribunal, making the total ` 3000/-. We are not inclined to enhance compensation under other heads, since, according to us, just and proper compensation has been awarded under other heads. M.A.C.A.1840/06 - : 7 :- Consequently, over and above what has been awarded by the Tribunal, the appellant would be entitled to get additional compensation of ` 35,000/-, which amount would carry interest at the rate of 9% per annum from the date of the claim petition till date of payment. The 2[nd] respondent insurance company is directed to deposit this amount also within two months. With the above modification of the impugned judgment of the Tribunal, this appeal is disposed of. Sd/- S.SIRI JAGAN, JUDGE Sd/K.RAMAKRISHNAN, JUDGE ///True copy/// P.A. To Judge.