High Court of KeralaDivision Bench2013-11-05Appeal allowed in part; enhanced compensation; ...

P.K. Jose v Geo P. Joy and others

Case / Petition Number:MACA.No.3089 of 2009

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: S. Siri Jagan, Judge
K. Ramakrishnan, Judge
Judgment Date: 2013-11-05
Court Decision / Holding: The High Court disposed of the appeal by modifying the tribunal’s award: monthly income fixed at ₹3,000; 13% disability accepted for calculation purposes; multiplier increased to 7 (per Sarla Verma) for a 61-year-old; loss of earning power recalculated to ₹32,760; loss of amenities increased to ₹25,000; additional compensation of ₹48,560 payable with 9% interest from the date of petition to payment; two months’ time granted for deposit; overall, the appeal was allowed in part and the award modified accordingly.
Final Disposition: Appeal allowed in part; enhanced compensation; modified award and payment with interest.

Parties to the Case

Appellants / Petitioners

P. K. Jose

Respondents

Geo P. Joy
Joy Pulikkottill
National Insurance Co. Ltd.

Legal Representation & Advocates

Counsels for Petitioners

• Sri. Sheji P. Abraham

Counsels for Respondents

• Sri. Dilip J. Akkara
• Sri. Rajan P. Kaliath

Case Synopsis & Summary

The appellant, P.K. Jose, filed MACA 3089 of 2009 challenging the Motor Accidents Claims Tribunal Ottapalam’s award of 89,100 for injuries sustained in a motor vehicle accident caused by the negligent driver. The tribunal held the accident to be due to the first respondent’s negligent driving and awarded compensation across heads such as disability, medical treatment, bystander expenses, transport, pain and suffering, loss of amenities and loss of income. On admission, the High Court considered both sides’ submissions. The appellant pressed for enhanced compensation, arguing that the applicant’s income as an agricultural labourer was understated (income should be ~₹3,000 per month instead of ₹1,500), that disability was 13% (not 8%), and that the tribunal erred in several heads, including loss of earning capacity, amenities, and related damages. The respondents contended that the FI statement showed no avocation and that the tribunal’s fixation at ₹1,500 monthly income was justified; with 8% disability, the compensation under loss of earning capacity and other heads was reasonable. The High Court re-evaluated several aspects: fixing monthly income at ₹3,000, applying the multiplier 7 (per Sarla Verma) for a 61-year-old, and increasing loss of amenities to ₹25,000. It then held that the appellant was entitled to an additional ₹48,560 beyond the tribunal’s award, with interest at 9% per annum, and directed deposit within two months; the appeal was disposed of by modification of the award accordingly.

Legal Doctrines & Maxims

Multiplier principle as laid down in Sarla Verma v. Delhi Transport Corporation (2010) 2 KLT 802 (SC)

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellant argued that the tribunal erred in fixing the income of an agricultural labourer at ₹1,500 per month despite evidence of higher earnings and that the disability of 13% should be applied for calculating loss of earning capacity rather than the 8% adopted by the tribunal. He contended that the head-amounts for disability, treatment, bystander expenses, transportation, and pain and suffering, as awarded, were understated. Given the accident occurred in 2007, the appellant argued for a realistic assessment of income (₹3,000/month) and a higher multiplier (7) based on the age at the time of accident, to compute loss of earning power. He also sought enhancement of functions affecting amenities of life, arguing that the 13% disability and leg/knee shortening would reduce his functional capacity. Overall, he sought enhancement of all heads and recalculation using the correct income, disability rate, and multiplier.

Contentions of Respondents

The respondents argued that the FI statement did not indicate any ongoing avocation and the appellant did not establish a working income, justifying ₹1,500 per month as assumed income. They maintained 8% disability and contended the tribunal reasonably calculated compensation on that basis. They submitted that there was no loss of earning capacity in view of no avocation and that the other heads were not to be enhanced. They supported the tribunal’s award as just and proper given the appellant’s age and lack of vocational engagement, and contended that no substantial interference was warranted.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Sarla Verma v. Delhi Transport Corporation	2010 (2) KLT 802 (SC)	Positive	The court applied the multiplier principle from Sarla Verma to determine the appropriate multiplier for a 61-year-old claimant, increasing the compensable loss of earning power from the tribunal’s figure to a higher amount.

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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 5TH DAY OF NOVEMBER 2013/14TH KARTHIKA, 1935** ## **MACA.No. 3089 of 2009** ## **--------------------------** **AGAINST THE AWARD IN OP(MV)NO. 754/2007 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, OTTAPPALAM DATED 04-08-2009** **....** ## **APPELLANT(S)/PETITIONER:** **----------------------------------------------** **P.K.JOSE, AGED 61 YEARS, S/O. KOCHAPPU,** **PERUMADAM HOUSE, VENGINISERY, PARALAM VILLAGE, THRISSUR DISTRICT.** **BY ADV. SRI.SHEJI P.ABRAHAM** ## **RESPONDENT(S)/RESPONDENTS:** **----------------------------------------------------** ## **1. GEO P.JOY, AGED 33 YEARS,** **S/O.JOY P.ANTONY, PULIKKOTTIL HOUSE, PALLIMOOLA, CHERUR, THRISSUR., (DRIVER OF KL-8/AL 8090 CAR).** **2. JOY PULIKKOTTIL, AGE NOT KNOWN, S/O. ANTONY, PULIKKOTTIL HOUSE, PALLIMOOLA, CHERUR, THRISSUR. (OWNER OF KL-8/AL 8090 CAR).** ## **3. NATIONAL INSURANCE CO. LTD.,** **AMBIKA ARCADE, M.G.ROAD, THRISSUR, (POLICY NO.570704/31/04/4100009552, VALID FROM 26-2-2007 TO 24-2-2008).** **R1 & R2 BY ADV. SRI.DILIP J. AKKARA R3 BY ADV. SRI.RAJAN P.KALIYATH** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 05-11-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Kss** S.SIRI JAGAN & K.RAMAKRISHNAN, JJ. ----------------------------------------------------------------M.A.C.A.No.3089 of 2009 -----------------------------------------------------------------Dated this the 5[th] day of November, 2013 ## J U D G M E N T ## K. Ramakrishnan, J The claimant in O.P.(M.V.). No.754/2007 on the file of the Motor Accidents Claims Tribunal, Ottapalam is the appellant herein. The appellant filed an application for compensation for the injuries and consequential disabilities suffered by him in a motor vehicle accident, caused on account of the rash and negligent driving of the vehicle by the first respondent, owned by the 2[nd] respondent and insured with the 3[rd] respondent. After considering the evidence on record, the tribunal found that the accident occurred due to the negligent driving of the vehicle by the first respondent and awarded a total compensation of 89,100/- on₹ various heads as follows: M.A.C.A.No.3089 of 2009 2 |**Sl.**<br>**No.**|**Head of claim**|**Amount**<br>**awarded₹**| |---|---|---| |1|For disability|7, 200| |2|Treatment expenses|48, 900| |3|Bystander expenses|3, 000| |4|Transportation, extra nourishment<br>and damage to clothings|4, 000| |5|Pain and suffering|12, 000| |6|Loss of amenities|8, 000| |7|Loss of income|6, 000| ||Total|89, 100| Dissatisfied with the quantum of compensation awarded, the appellant has filed this appeal before this court, claiming enhancement. 2. Notice issued to the respondents and all the respondents appeared in the delay condonation application as well as in the appeal. Since the insurance is submitted that we have decided to dispose of the appeal at the admission stage itself, after hearing both sides. 3. Counsel for the appellant submitted that the appellant was a farmer getting 6,000/- per month.₹ But, the tribunal has arbitrarily fixed his monthly income as 1,500/-, which is palpably low. Further, the disability₹ certificate issued by the doctor shows that he had 13% M.A.C.A.No.3089 of 2009 3 whole body disability, but the tribunal has reduced the same to 8% for the purpose of calculating compensation under the head loss of earning capacity, which is also on the lower side. The amount awarded under the head pain and suffering, loss of amenities in life and other heads are also very low. According to him, the appellant is entitled to enhancement on all heads. 4. On the other hand, counsel for the insurance company submitted that, in the claim petition, he was described as a pensioner and no avocation was mentioned. In the FI statement also, there is no case for the appellant that he is dong any work. So the tribunal was perfectly justified in notionally fixing his income as ₹1,500/- per month. Further since, he is not having any avocation, there is no question of any loss of earning capacity arises. The tribunal has taken 8% disability and awarded 7,200/- under that head and further awarded₹ ₹8,000/- under the head loss of amenities in life as well. So, the total compensation awarded, considering his age M.A.C.A.No.3089 of 2009 4 and nature of injuries sustained is just and proper and no interference is called for at the hands of this court. Counsel for the respondents 1 and 2 adopted the contention of the counsel from the insurance company. 5. We have considered the rival contentions of both parties in detail. 6. The case of the appellant was that, he is a farmer and a coolie getting 6,000/- per month and when₹ he was examined before the court by PW1, he claimed that he was getting 4,000/- per month. So he has no₹ consistent case regarding his income. But, considering the fact that the accident occurred in the year 2007, we feel that an agricultural labourer will getting at least ₹ 3,000/- per month and we fix this amount as his monthly income, instead of 1,500/- adopted by the tribunal. If₹ his monthly income is taken as 3,000/- per month, he₹ will be entitled to get 12,000/- under the head loss of₹ earning instead of 6,000/- awarded by the tribunal. ₹ 7. Ext.A8 disability certificate shows that he M.A.C.A.No.3089 of 2009 5 ## is having the following disabilities: 1. Pain in (R) leg on walking some distance, 2. Stiffness of (R) ankle and knee, 3. Occasional headache. On examination: (Clinically and radiologically) 1. United fracture of Tibia (R ) non-union of fibula 2. He has 2 c.m shortening, 3. He has stiffness of (R) ankle, Range Normal Dorsiflexion 15 25 Planterflexion 20 35 5. He has stiffness of (R) knee joint. Range 0 - 90 Normal 0 - 140 degree 6. He is well conscious oriented in place and time. There is no neurological deficit. He has subjective symptom of headache. The doctor has assessed 13% as the whole body disability. Being a person aged 61 years, working as agricultural labourer will be having some difficulty in doing his work with this disability. The tribunal was not justified in reducing the percentage of disability to 8% for the purpose of assessing compensation under the head occupational disability. Stiffness of knee and shortening of leg will have some impact on his work as a labourer and it will affect his efficiency of work as well. So, we are inclined to take 13% disability assessed by the doctor for M.A.C.A.No.3089 of 2009 6 this purpose. As per the decision of the Supreme Court in **Sarla Verma v. Delhi Transport Corporation 2010** **(2) KLT 802 (SC)** , the proper multiplier applicable to the age group of 61 years as the appellant was at the time of accident is 7 and not 5, as taken by the tribunal. If a recalculation is made on this basis, the appellant will be entitled to get an amount of 32,760/- under the head of₹ loss of earning power instead of 7,200/- awarded by the₹ tribunal and we award this amount under that head. 8. Considering the fact that he was aged 61 years and suffered 13% disability with stiffness of ankle and knee and shortening of right leg, he will have some difficulty in his personal life as well and this may affect his amenities and inconvenience in life as well. So, considering this aspects, we are inclined to enhance the amount awarded under the head loss of amenities in life to 25,000/- from 8,000/- awarded by the tribunal. We₹ ₹ are not inclined to enhance any amount under other heads. So, the appellant will be entitled to get an M.A.C.A.No.3089 of 2009 7 additional compensation of 48,560/-, over and above₹ what has been awarded by the tribunal, which the 3[rd] respondent insurance company is liable to pay with 9% interest per annum from the date of the claim petition, till date of payment. Two months time is granted to the insurance company to deposit this amount as well. With the above modification of the impugned award of the tribunal, the appeal is disposed of. Sd/- S. Siri Jagan, Judge Sd/- K. Ramakrishnan, Judge // True Copy // P.A. to Judge ss