P. V. Divakaran v. Ramesh K A, S. Shivakumar and Oriental Insurance Co. Ltd.

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: R. Basant
M. C. Hari Rani
Judgment Date: 2011-09-28
Court Decision / Holding: This appeal is allowed in part. The appellant is entitled to a further amount of Rs.3,500 in addition to the amount already awarded by the Tribunal. The entire amount of compensation shall carry interest at 7.5% per annum from the date of the claim to the date of payment/realisation. Proportionate cost shall be paid as per the decision in Jeena (Supra). All other directions of the Tribunal are upheld.
Final Disposition: Appeal partly allowed

Parties to the Case

Appellants / Petitioners

P. V. Divakaran

Respondents

Ramesh K A
S. Shivakumar
Oriental Insurance Co Ltd

Legal Representation & Advocates

Counsels for Petitioners

• S. M. Prasanth

Counsels for Respondents

• Mathews Jacob
• P. Jacob Mathew

Case Synopsis & Summary

P. V. Divakaran, the claimant in a motor accident claim appeal, seeks enhanced compensation for injuries sustained in a road accident on 18 May 1998. The Motor Accidents Claims Tribunal, Kalpetta, awarded a total of Rs 5,350 against a claim of Rs 1,56,400, spreading across heads such as loss of earnings, transport, nourishment, medical expenses, clothing, pain and suffering, and other components. The Kerala High Court, in a Division Bench, finds that the tribunal erred in not awarding any amount for loss of earnings and inadequately compensating pain and suffering. The court notes the claimant was not hospitalised but incurred injuries including dental fractures and loosening of teeth, which affected earning capacity and quality of life. It assumes a notional monthly income of Rs 3,000, and awards additional compensation: loss of earnings for 15 days (Rs 1,500) and pain and suffering (Rs 2,000), totaling Rs 3,500 more. The court also increases interest on total compensation to 7.5% per annum and directs recalculation of proportionate costs as per Jeena (Supra). The appeal is allowed in part, with the insurer ultimately liable for the enhanced amount, and all other tribunal directions upheld.

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellant contends that the Tribunal did not award any amount for loss of earnings; although not hospitalised, there was likely interruption in the claimant’s avocation, justifying a notional earning capacity of Rs 3,000 per month. He also argues that the award for pain and suffering is inadequate and that interest on the total compensation should be raised to 7.5% per annum, with proportionate costs recalculated as per Jeena (Supra). The appellant relies on the decision in Satheesh Babu.K (2011) to support liberal award of compensation in MAC appeals and to justify reassessment of earnings, interest, and costs to reflect true loss and time value of money.

Contentions of Respondents

The respondents submit that the challenge is limited to the quantum of compensation and that liability remains with the insurer and the other respondents in accordance with the Tribunal’s findings. They emphasize that the tribunal’s initial awards for various heads were within its discretion and that any enhancement should be grounded in evidence. They rely on Jeena (Supra) for guidance on costs and the appropriate basis for calculating interest, but caution against excessive enhancement that could unduly burden insurers while recognizing the claimant’s injuries and their impact.

Cited Precedents (2)

Case Name	Citation	Treatment	Explanation
Jeena (Supra)	Jeena (Supra)	Positive	Cited to justify recalculation of proportionate costs as per Jeena (Supra).
Satheesh Babu.K	2011(3) KLT 943	Mentioned Only	Cited as authority in the context of MAC appeal principles but not the primary basis for the decision.

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 MRS. JUSTICE M.C.HARI RANI WEDNESDAY, THE 28TH SEPTEMBER 2011 / 6TH ASWINA 1933 MACA.No. 1200 of 2008() ----------------------OPMV.632/1999 of MOTOR ACCIDENT CLAIMS TRIBUNAL, KALPETTA .................... ## APPELLANT(S): PETITIONER: ------------------------- P.V.DIVAKARAN, S/O.P.R.VASUDEVAN, AGED 27 YEARS, PUTHENNUR HOUSE, CHETHALAYAM POST, S.BATHERY TALUK, WAYANAD DISTRICT. BY ADV. SRI.S.M.PRASANTH ## RESPONDENT(S): RESPONDENT: -------------------------- 1. RAMESH.K.A., LORRY DRIVER, - C/O.S.SHIVAKUMAR, S/O.SJHIVANNA, 41 VTH CROSS, 1 STAGE GOKULAM, MYSORE. (DRIVER OF MINI LORRY NO.KA09/4753). 2. S.SHIVAKUMAR, S/O.SJHIVANNA,41 VTH CROSS - 1 STAGE GOKULAM, MYSORE. (OWNER OF MINI LORRY KA 09/4573) 3. ORIENTAL INSURANCE COMPANY LTD., 1216/1, KANTHARAJ URS ROAD, K.M.PURAM, MYSORE 670 MYSORE 670004. - ADV. SRI.MATHEWS JACOB, SENIOR ADVOCATE FOR R3 SRI.P.JACOB MATHEW FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 28/09/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **R.BASANT & M.C.HARI RANI, JJ. * * * * * * * * * * * * *** M.A.C.A.No.1200 of 2008 ---------------------------------------Dated this the 28[th] day of September 2011 ## **J U D G M E N T** ## **R.BASANT,J** Claimant is the appellant. He claimed compensation for the personal injuries suffered by him in a motor accident which took place on 18/5/1998. He was aged 27 years on the date of the accident. He claimed to be a teacher earning a monthly income of Rs.3,240/-. There is nothing to show that he was hospitalised. He had suffered fracture to a tooth on the upper jaw and crack to another tooth. There was loosening of one more tooth. Against a claim for Rs.1,56,400/-, the tribunal awarded an amount of Rs.5,350/- as per the details given below: |**_Sl.No._**|**_Head_**|**_Amount claimed_** **_(Rs.)_**|**_Amount_** **_awarded (Rs.)_**| |---|---|---|---| |1.|Loss of earning 18.05.1998 to 18.03.1999|32,400|----| |2.|Transport to hospital|2,000|800| |3.|Extra nourishment|1,500|500| |4.|Damage to clothing|500|250| |5.|Medical expenses|25,000|300| |6.|Loosening of tooth|----|500| 2 M.A.C.A.No.1200 of 2008 |**_Sl.No._**|**_Head_**|**_Amount claimed_** **_(Rs.)_**|**_Amount_** **_awarded (Rs.)_**| |---|---|---|---| |7.|Pain and suffering|15,000|3,000| |8.|Bystanders expenses|5,000|-----| |9.|Shortened expectation of life|25,000|------| |10.|Compensation for continuing or permanent disability|25,000|------| |11.|Compensation for loss of earning power|25,000|------| ||Total|**1,56,400**|**5,350**| The said amount was directed to be paid along with interest at the rate of 6% per annum. 2. We have heard the learned counsel for the appellant and the learned counsel for the insurance company. The insurance company/3[rd] respondent has been made entirely liable under the impugned award. The challenge is raised only on the plank of inadequacy of quantum of compensation. 3. Called upon to explain, the learned counsel for the appellant first of all contends that the tribunal did not award any amount for loss of earnings. He was not an in-patient. There is no specific evidence produced to show that he was involuntarily unemployed for any period of time. We assume that there must have been some interruption in his pursuit of normal avocations. We are satisfied, half a month's salary can be awarded as 3 M.A.C.A.No.1200 of 2008 compensation under that head. We assume Rs.3,000/- to be his monthly income. 4. The learned counsel for the appellant next contends that the amount of compensation awarded under the head of pain and suffering is too inadequate. An amount of Rs.3,000/has been awarded. We have already referred to the nature of injuries earlier. We agree that the appellant is entitled for an amount of Rs.5,000/- as compensation for pain and suffering. 5. We are not persuaded to agree that the amount of compensation awarded under any other head deserves or warrants interference. 6. The tribunal had awarded interest only at the rate of 6% per annum with proportionate cost. We agree with the learned counsel that interest awarded is inadequate and low. We are satisfied that interest can be awarded at the rate of 7.5% per annum. We further clarify that proportionate cost awarded by the tribunal shall be recalculated as per the decision in J **eena** ## **v. Satheesh Babu.K [2011(3) KLT 943].** **7.** The above discussions lead us to the conclusion that the appellant is entitled to a further amount of Rs.3,500/- in 4 M.A.C.A.No.1200 of 2008 addition to the amount awarded by the tribunal. i. Loss of earnings (15 days) Rs.1,500/ii. pain and suffering Rs.2,000/(Rs.5,000/- minus Rs.3,000/-) ---------------Total Rs.3,500/====== 8. In the result, - a) This appeal is allowed in part. b) The appellant is found entitled to a further amount of Rs.3,500/- (Rupees three thousand five hundred only) in addition to the amount already awarded by the Tribunal. c) We make it clear that the entire amount of compensation shall carry interest at the rate of 7.5% per annum from the date of the claim to the date of payment/realisation. d) Proportionate cost shall be paid as per the decision in **Jeena** (Supra). - e) All other directions of the Tribunal are upheld. ## **(R.BASANT, JUDGE)** ## **(M.C.HARI RANI, JUDGE)** jsr // True Copy// PA to Judge M.A.C.A.No.1200 of 2008 5 M.A.C.A.No.1200 of 2008 6 7 M.A.C.A.No.1200 of 2008 **K.M.JOSEPH & M.C.HARI RANI, JJ.** .No. of 200 ORDER/JUDGMENT 30/082010