National Insurance Company Limited v. Roy P.C.

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: Pius C. KuriaKose
A. V. Ramakrishna Pillai
Judgment Date: 2012-07-16
Court Decision / Holding: The appeals are allowed. The impugned award shall stand modified as follows: (i) disability compensation recalculated using notional monthly income of Rs. 5,000 and 10% disability, resulting in Rs. 1,02,000 (replacing Rs. 1,63,200); (ii) add Rs. 20,000 for loss of amenities and Rs. 1,800 for bystander expenses; (iii) offset the excess against the recomputed disability amount; final payable to claimant is Rs. 1,79,600; (iv) interest on the enhanced amount at 7% per annum from the date of the claim petition till realisation.
Final Disposition: Appeals allowed; award modified accordingly.

Parties to the Case

Appellants / Petitioners

National Insurance Company Limited

Respondents

Roy P.C.

Legal Representation & Advocates

Counsels for Petitioners

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

Counsels for Respondents

• Sri Abraham Mathew (Vettoor)

Case Synopsis & Summary

These MACA appeals arise from a Motor Accidents Claims Tribunal award at Kalpetta in O.P.(MV) No.180/2000, awarding compensation to Roy P.C. for injuries suffered in a road-traffic accident on 06/02/2000. National Insurance Company Limited, the insurer of the offending vehicle, challenges the quantum of compensation and in particular the award for permanent disability. The Tribunal held the claimant entitled to Rs 2,19,000 in compensation, plus 6% interest, but the insurer contends that the multiplier used for disability was too high and the earnings evidence did not prove that the disability reduced earnings capacity. The claimant contends for higher compensation benefits, while the insurer relies on Ext. A7 (disability certificate) and Ext. A9 (salary certificate) to argue that disability would not necessarily reduce earning capacity; The Tribunal disallowed some heads and awarded Rs 20,000 for loss of amenities and Rs 1,800 bystander expenses; On appeal, the High Court examines whether the Tribunal should adopt a notional monthly income (Rs 5,000) and whether the disability percentage should be 8% or 10%. It notes that while the disability was 10%, the evidence did not show earning capacity was affected; Ultimately, the court reduces the permanent disability compensation and increases the bystander and amenities heads, adjusts interest, and allows the appeals, ordering a total of Rs 1,79,600 payable with 7% interest on the excess.

Submissions & Arguments

Contentions of Appellants / Petitioners

The insurer contends that the Tribunal adopted an inordinately high multiplier for permanent disability and used earnings evidence that did not show earning capacity was affected; Ext. A7 does not show disability affecting earning capacity; the court should adopt notional income; the insurer cites Rajkumar v. Ajay Kumar (2011(1) KLT 620 SC) in support of adopting notional income and a lower multiplier.

Contentions of Respondents

The claimant argues for preservation of the higher compensation, arguing the Tribunal properly considered the evidence, including Ext. A9 salary certificate, and Ext. A7 showing 10% disability; The respondent argues that the actual earnings or notional income should be 5,000 and a 10% disability should yield higher compensation; The claimant also contends for compensation for loss of amenities and bystander expenses.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Rajkumar v. Ajay Kumar	2011(1) KLT 620 SC	Mentioned Only	Cited by counsel; court discussed it but did not adopt its exact ratio; used to support notional income argument.

Extracted Judgment Text

Exact text extracted from official judgment records.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE PIUS C.KURIAKOSE & THE HON'BLE MR. JUSTICE A.V.RAMAKRISHNA PILLAI MONDAY, THE 16TH DAY OF JULY 2012/25TH ASHADHA 1934 MACA.No. 218 of 2006 (D) ------------------------------OPMV.180/2000 of MACT, KALPETTA, WAYANAD ------- APPELLANT/4TH RESPONDENT: ----------------------------------- NATIONAL INSURANCE COMPANY LIMITED, PUNER, NOW REPRESENTED BY ITS DEPUTY MANAGER, KOCHI REGIONAL OFFICE, AJAY VIHAR, KOCHI-16. BY ADVS.SRI.MATHEWS JACOB (SR.) SRI.P.JACOB MATHEW RESPONDENT/PETITIONER: ------------------------------- ROY P.C., S/O.CHACKO, PAREEKAL HOUSE, P.O.MANANTHAVADY, KANIYARAM MANANTHAVADY TALUK. BY ADV. SRI.ABRAHAM MATHEW (VETTOOR) THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 16-07-2012, ALONG WITH MACA. 1802/2005, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PIUS C. KURIAKOSE & A. V. RAMAKRISHNA PILLAI, JJ. -----------------------------------------------M. A. C. A No.218 of 2006 & M. A. C. A No.1802 of 2005 -----------------------------------------------Dated this the 16[th] day of July, 2012 ## **JUDGMENT** ## _Ramakrishna Pillai, J_ These appeals are directed against the award passed by the Motor Accidents Claims Tribunal, Kalpetta in O.P.(MV) No.180/2000. 2. The appellant in M.A.C.A No.1802/05 hereinafter referred to as the claimant preferred a claim of ` 4 lakhs before the Tribunal towards compensation for the injuries sustained by him in a road traffic accident occurred on 06/02/2000. Allegedly while the claimant was riding his motorcycle he was hit down by a lorry which was coming from the opposite direction. The driver of the lorry was found negligent and the insurer of the said lorry who is the appellant in M.A.C.A.218/06 hereinafter referred to as the insurer was fastened with the liability of paying the M. A. C. A No.218 of 2006 & M. A. C. A No.1802 of 2005 -2- compensation. The learned Tribunal found that the claimant is entitled to get a sum of ` 2,19,000/- as compensation together with interest at the rate of 6% per annum from the date of the claim petition till realisation. 3. In M.A.C.A No.1802/05 the claimant is challenging the adequacy of the compensation. In M.A.C.A No.218/06 the insurer would contend that the compensation awarded to the claimant for permanent disability is exorbitant as the learned Tribunal has adopted a higher multiplicand even though the injuries and the consequential disability has not reduced the earning capacity of the claimant. 4. We have heard the learned senior counsel appearing for the insurer and the learned counsel appearing for the claimant. The impugned award was also perused. 5. Medical records reveal that the claimant after the accident was admitted to Fathima Matha Hospital where the following injuries were noted:- M. A. C. A No.218 of 2006 & M. A. C. A No.1802 of 2005 -3- ## 1.Disorientation - 2.Abrasion ® side face - 3.Contused abrasion over anterior aspect of right shoulder and upper part of ® side chest 5 x 4 cm. - 4.Subcutaneous emphysema ® infra clavicular area - 5.Lacerated wound dorsum of ® hand 4 x 1 cm with multiple abrasion. - 6.Lacerated wound 7 x 4 cm ® knee. - 7.Compound comminuted fracture of ® tibia with a lacerated wound 15 x 10 cm on the leg. - 8.Abrasion 5 x 1 cm(L) thigh – inner side. (Abrasion 1 x 1 cm over back of ® elbow - 9.Fracture of 3[rd] rib (R) 6. The claimant was hospitalised for 20 days under two different spells as he was referred to Medical College Hospital, Calicut for follow up action. Going through the award we notice that fair and reasonable compensation has been awarded by the Tribunal towards pain and suffering. Undoubtedly the claimant might have been bedridden for a good number of days and certainly he is entitled to get a just compensation for loss of amenities in life during the period of treatment and convalescence. As no amount is seen awarded by the Tribunal under that head we award a sum of M. A. C. A No.218 of 2006 & M. A. C. A No.1802 of 2005 -4- ## ` 20,000/- under that head. 7. As the accident was in the year 2000 the claimant is entitled to get bystander's expenses at the rate of ` 200/per day. As he was hospitalised for 20 days he is entitled to get a sum of ` 4,000/- towards bystander's expenses. As the amount awarded by the Tribunal is only ` 2,200/- he is entitled to get an additional sum of ` 1,800/- on that head. 8. The main grievance voiced against the award by the insurer is that the learned Tribunal has adopted a higher multiplicand for awarding compensation for permanent disability. In the claim petition, the claimant has stated that he was earning a monthly income of ` 10,000/-, he being a college lecturer. He was 33 years old at the time of the accident. At the trial, he has produced Ext.A9 Salary Certificate which states that he was earning a monthly income of ` 13,028/-. Ext.A7 is a disability certificate which states that he is having a residual disability of 10%. M. A. C. A No.218 of 2006 & M. A. C. A No.1802 of 2005 -5- However, the learned Tribunal has adopted a lower percentage (i.e 8%) to arrive at the compensation for residual disability. Considering the nature and gravity of the injuries sustained by the claimant, we are of the view that the learned Tribunal could have adopted the percentage made mention of in Ext.A7. However, the learned Tribunal erred in adopting a higher multiplier. Accepting the statement made by the claimant in the claim petition that he was earning a monthly income of ` 10,000/-, the learned Tribunal has awarded a sum of ` 1,63,200/- as compensation for permanent disability adopting ` 10,000/- as the monthly income of the claimant. This according to the learned senior counsel for the insurer is unjustifiable. The learned senior counsel has invited our attention to the decision of the Apex Court in Rajkumar v. Ajay Kumar (2011(1) KLT 620 SC) in support of his argument. The argument advanced by the learned Senior Counsel is that Ext.A7 does not state that the M. A. C. A No.218 of 2006 & M. A. C. A No.1802 of 2005 -6- disability has affected the earning capacity of the claimant. According to the learned senior counsel, the learned Tribunal ought to have adopted a notional income for arriving at the compensation for physical disability which the claimant was suffering from. We see considerable force in the argument advanced by the learned senior counsel for the insurer. 9. The learned counsel for the claimant per contra would justify the action of the learned Tribunal. As already stated we feel justified in adopting the percentage of disability of the claimant as 10%. Considering the educational qualification of the claimant and the year in which the accident had occurred, we are of the view that there is justification in fixing the notional monthly income of the claimant for arriving at the compensation for permanent disability at ` 5,000/-. When the disability compensation is re-worked adopting the notional monthly income of ` 5,000/as well as the percentage of disability made mention of in M. A. C. A No.218 of 2006 & M. A. C. A No.1802 of 2005 -7- Ext.A7, the disability compensation shall stand reduced to ` 1,02,000/-. As the learned Tribunal has awarded a sum of ` 1,63,200/- the compensation for permanent disability shall stand reduced by ` 61,200/-. 10. We have already awarded a sum of ` 20,000/towards loss of amenities in life and a sum of ` 1,800/towards bystander's expenses. While offsetting the aforesaid amount of ` 21,800/- against the excess amount of ` 61,200/- awarded towards permanent disability, the compensation paid to the claimant shall stand reduced by ` 39,400/-. That means the appellant will get only ` 1,79,600/- as compensation. 11. We notice that the interest awarded by the learned Tribunal is only at the rate of 6%. We feel justified in awarding the claimant interest at the rate of 7% per annum from the date of claim petition till realisation, for the additional amount awarded. M. A. C. A No.218 of 2006 & M. A. C. A No.1802 of 2005 -8- ## 12. The appeals are allowed. The impugned award shall stand modified as above. Sd/PIUS C. KURIAKOSE JUDGE Sd/A. V. RAMAKRISHNA PILLAI JUDGE kns/- //TRUE COPY// P.A. TO JUDGE