Muhammed Ali v. Oriental Insurance Company Ltd.

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: R.BASANT
K.SURENDRA MOHAN
Judgment Date: 2011-11-04
Court Decision / Holding: This appeal is allowed in part. The claimant is entitled to a further Rs. 33,000 in addition to the amount already awarded by the Tribunal. The entire amount of compensation shall carry interest at the rate and for the period directed by the Tribunal, but no interest shall be payable on the enhanced amount for a period of delay of 961 days. Proportionate costs shall be paid as per Jeena ( supra ), and all other directions of the Tribunal are upheld.
Final Disposition: Partial allowed; enhanced compensation Rs. 33,000; interest as directed; proportionate costs as per Jeena; all other directions upheld

Parties to the Case

Appellants / Petitioners

Muhammed Ali

Respondents

Oriental Insurance Company Ltd.

Legal Representation & Advocates

Counsels for Petitioners

• Smt. Celine Joseph

Counsels for Respondents

• Sri. Mathews Jacob, Senior Advocate
• Sri. P. Jacob Mathew

Case Synopsis & Summary

Muhammed Ali, a minor aged 12 at the time of the accident on 7 December 1997, challenged the quantum of compensation awarded by the Motor Accidents Claims Tribunal, Kalpetta, under the Motor Vehicles Act. The claimant sustained serious injuries including skull fracture, left femur fracture, head injury and scalp lacerations, resulting in 18 days of hospitalization and ongoing treatment. The Tribunal awarded Rs 32,500 against a claim of Rs 3,00,000, allocating amounts for pain and suffering, transport, nourishment, medical bills, disability, loss of earning power, clothing, bystander expenses, loss of life expectancy, mental shock and loss of academic year; several heads were either undercompensated or neglected, most notably loss of earning capacity (10% disability) and loss of amenities. The appellant’s counsel argued for higher sums: Rs 10,000 for pain and suffering, Rs 5,000 for loss of academic progress, Rs 500 for clothing, and a recalculation of earning capacity based on Rs 1,250 monthly income, 15-year multiplier and 10% disability, leading to a revised figure for loss of earning power and a separate Rs 20,000 for loss of amenities. The High Court allowed the appeal in part, directing an additional Rs 33,000 in compensation and clarifying that interest on the enhanced amount would not be payable for a 961-day delay, with proportionate costs to be calculated as per Jeena. All other tribunal directions were upheld.

Provisions of Law Cited

Motor Vehicles Act, 1988 (Second Schedule)

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellant contends that the award of Rs. 32,500 made by the Tribunal is grossly inadequate in view of the injuries suffered by a 12-year-old claimant in the 1997 accident ( skull fracture, left femur fracture, head injuries) and the prolonged hospitalization (18 days) with continuing treatment. He asserts that compensation should cover pain and suffering ( Rs. 10,000 ), loss of academic year ( Rs. 5,000 ), clothing and articles ( Rs. 500 ), loss of earning capacity ( Rs. 22,500 ), and loss of amenities ( Rs. 20,000 ), and that this yields a total enhanced amount of Rs. 33,000 in addition to the Tribunal award. He relies on the Second Schedule to the MV Act and the decision in Jeena v. Satheesh Babu.K (2011) 3 KLJ 943 for guidance on costs.

Contentions of Respondents

The Insurance Company contends that liability is not in dispute but disputes only the quantum of compensation; The Tribunal's quantum should stand unless proven otherwise; The respondents contest the proposed enhancement and argue that the Tribunal's headwise awards are otherwise reasonable and properly supported by evidence; The counsel for the insurer did not present a detailed counter to each head beyond challenging the sufficiency of evidence for higher damages.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Jeena v. Satheesh Babu.K	2011(3) KLT 943	Positive	Cited to justify proportionate costs in the appeal per Jeena ( supra )

Extracted Judgment Text

Exact text extracted from official judgment records.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN FRIDAY, THE 4TH NOVEMBER 2011 / 13TH KARTHIKA 1933 MACA.No. 480 of 2008() ---------------------OPMV.316/1998 of MOTOR ACCIDENT CLAIMS TRIBUNAL, KALPETTA .................... APPELLANT(S): APPELLANT/PETITIONER: ----------------------------------- MUHAMMED ALI, S/O. AVULLA, AGED 21 YEARS, KORANKUNNU HOUSE, VELLAMUNDA AMSOM, DESOM, MANANTHAVADY TALUK, WAYANAD. BY ADV. SMT.CELINE JOSEPH RESPONDENT(S): RESPONDENT NO.3: ------------------------------- ORIENTAL INSURANCE COMPANY LTD., BADAGARA. ADV. SRI.MATHEWS JACOB, SENIOR ADVOCATE SRI.P.JACOB MATHEW THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 04/11/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **R.BASANT & K.SURENDRA MOHAN, JJ.** ## *** * * * * * * * * * * * *** M.A.C.A.No.480 of 2008 ---------------------------------------- Dated this the 4[th] day of November 2011 ## **J U D G M E N T** ## **R.BASANT,J** Claimant is the appellant. Claimant, on the date of the accident, was a minor aged 12 years. He suffered injuries in a motor accident which occurred on 07/12/1997. He claimed a total amount of Rs.3,00,000/- as compensation. He was an inpatient for a period of 18 days. He had suffered fracture of the left femur, fracture of the skull, head injury and lacerated wound on the scalp. He was a student at the relevant time. He had suffered permanent physical disability to the tune of 10% as certified in Ext.A12 disability certificate which the tribunal accepted in full. Against a total claim of Rs.3,00,000/- the tribunal awarded only an amount of Rs.32,500/- as per the details which we extract below: |**_Sl.N_**|**_Head_**|**_Amount claimed_** **_(Rs.)_**|**_Amount_** **_awarded (Rs.)_**| |---|---|---|---| |1.|Pain and suffering|75,000/-|5,000/-| |2.|Transport to hospital|5,000/-|1,500/-| |3.|Extra nourishment|5,000/-|2,000/-| 2 M.A.C.A.No.480 of 2008 |**_Sl.N_**|**_Head_**|**_Amount claimed_** **_(Rs.)_**|**_Amount_** **_awarded (Rs.)_**| |---|---|---|---| |4.|Medical bills of treatment (No bills produced)|20,000/-|2,000/-| |5.|Disability|50,000/-}|20,000/-| |6.|Loss of earning power|75,000/-}|| |7.|Damage to clothing & articles|500/-|| |8.|Bystander's expenses|Nil|2,000/-| |9.|Loss of expectation of life|20,000/-|Nil| |10.|Mental shock|20,000/-|Nil| |11.|Loss of academic year|20,000/-|Nil| ||Total|**3,00,000/-**|**32,500/-**| 2. The insurance company has been made entirely liable under the impugned award. We have heard the learned counsel for the appellant and the learned counsel for the insurance company. The challenge is directed only against the quantum of compensation awarded. 3. Called upon to explain and be specific, the learned counsel for the appellant first of all submits that Rs.5,000/awarded under the head of pain and suffering is grossly inadequate. A young child had suffered injuries including fracture of the skull, fracture of the left femur and head injury. He was an in-patient for a period of 18 days. He had to continue treatment thereafter. Taking all the relevant circumstances into 3 M.A.C.A.No.480 of 2008 account, an amount of Rs.10,000/- can safely be fixed as the quantum of compensation payable under the head of pain and suffering. 4. The learned counsel for the appellant submits that the consequent injury and treatment had led to loss of an educational year for the child. Even though no clinching evidence to that effect is produced, it is reasonable to assume that during the period of treatment as an in-patient and thereafter, the child must have been rendered involuntarily unable to attend school. For such retardation in educational progress, the child is certainly entitled to be compensated. We are satisfied that an amount of Rs.5,000/- can be awarded as compensation under the said head. 5. The learned counsel for the appellant submits that no compensation has been awarded for damage to clothing and article. We agree that an amount of Rs.500/- can be awarded under that head. 6. The major thrust of the challenge is against the omission to award any amount of compensation under the head of loss of earning capacity as a consequence of the disability 4 M.A.C.A.No.480 of 2008 suffered. 10% disability has been suffered by the appellant and it is safe in the circumstances of the case to assume that the physical disability must have left behind reduction in earning capacity to identical extent. The accident, we must remind ourselves had taken place on 07/12/1997. Rs.1,250/- can safely be reckoned as monthly income, going by the second schedule to the M.V.Act. 15 is adopted as the multiplier. Compensation has been awarded under the head of disability and the amount awarded is only Rs.20,000/-. We are satisfied that the amount deserves to be re-worked. 6. No compensation is seen awarded under the head of loss of amenities. 10% physical disability suffered by such a child would certainly leave behind two fold reflections in his life. It would reduce his earning capacity. It would also impair and reduce the quality of enjoyment of life. For the latter dimension of loss, claimant is certainly entitled to be compensated. 7. The above discussions lead us to the conclusion that the claimant is entitled to a further amount of Rs.33,000/- as compensation as per the details given below. i) Pain and suffering Rs.5,000/(Rs.10,000/- minus Rs.5,000/-) 5 M.A.C.A.No.480 of 2008 - ii) Compensation for retardation in Rs.5,000/educational progress/loss of academic period (no amount awarded by the tribunal) - iii) Loss of clothing and articles Rs.500/(no amount awarded by the tribunal) - iv) Loss of earning capacity Rs.2,500/[Rs.22,500/- (Rs.1,250/- x 12 x 15 x 10/100) minus Rs.20,000/-] - v) Loss of amenities Rs.20,000/(no amount awarded separately by the tribunal) -----------------------Total **Rs.33,000/-** 8. We are not persuaded to interfere with the quantum of compensation awarded under any other head. 9. We further clarify that proportionate cost awarded by the tribunal shall be calculated as per the decision in J **eena v.** ## **Satheesh Babu.K [2011(3) KLT 943].** 10. In the result, - a) This appeal is allowed in part. b) Appellant is found entitled to a further amount of Rs.33,000/- (Rupees thirty three thousand only) in addition to the amount already awarded by the Tribunal. 6 M.A.C.A.No.480 of 2008 c) We make it clear that the entire amount of compensation shall carry interest at the rate and for the period as directed by the tribunal under the impugned award. d) We make it clear that no interest shall be payable on the enhanced amount of compensation for the period of 961 days, that is the period of delay in filing this appeal. e) Proportionate cost before the tribunal shall be paid on the entire amount of compensation hereby awarded as per the decision in **Jeena** (Supra). f) All other directions of the Tribunal are upheld. ## **(R.BASANT, JUDGE)** ## **(K.SURENDRA MOHAN, JUDGE)** jsr // True Copy// PA to Judge M.A.C.A.No.480 of 2008 7 8 M.A.C.A.No.480 of 2008 **K.M.JOSEPH & M.C.HARI RANI, JJ.** .No. of 200 ORDER/JUDGMENT 30/082010