High Court of KeralaDivision BenchAppellate decision partially allowed; disabilit...

Rajendran Pillai v. Divisional Manager, New India Assurance Co. Ltd., Kollam

Case / Petition Number:MACA.No.436 of 2014

Case Details & Bench

Court
High Court of Kerala
Hon'ble Judges
  • P. R. Ramachandra Menon
  • K. Harilal
Judgment Date
2015-10-05
Court Decision / Holding
The appeal is partly allowed. The High Court re‑assessed disability as 70% (instead of 50%), citing the First Schedule as a guideline and finding the earlier calculation inappropriate. Reworking the compensation on this basis yielded Rs 6,30,000 for disability and loss of earning power. After crediting Rs 4,50,000 already awarded, the additional amount payable by the Insurance Company is Rs 1,80,000, with interest at 9% per annum, to be paid within one month from receipt of a copy of the judgment.
Final Disposition
Appellate decision partially allowed; disability fixed at 70%; compensation recomputed; award of additional Rs 1,80,000 with 9% interest payable by Insurance Company within one month.

Parties to the Case

Appellants / Petitioners

  • Rajendran Pillai

Respondents

  • The Divisional Manager, New India Assurance Co. Ltd., Kollam

Legal Representation & Advocates

Counsels for Petitioners

  • • Sri Pratheesh P.

Counsels for Respondents

  • • Sri Rajan P. Kaliath
  • • Sri A. A. Ziyad Rahman

Case Synopsis & Summary

Rajendran Pillai challenged the Motor Accidents Claims Tribunal Kollam's award in O.P.(MV) No.562/2010 for injuries sustained in the accident dated 22 September 2008, which led to amputation of the right leg above the knee. The Tribunal held the driver of the tipper lorry insured by the Insurance Company solely negligent, fixed the claimant’s monthly income at Rs 5,000, and awarded about Rs 5,69,600 (rounded to Rs 5,70,000) as total compensation, applying 50% permanent disability under the First Schedule of the Workmen’s Compensation Act (now Employees’ Compensation Act) and a 15‑year multiplier for loss of earning power. The Insurance Company contested on grounds that the claimant was driving the mini lorry illegally transporting river sand, and argued issues regarding the validity of the driver’s badge and policy conditions. The appellant argued for a higher disability, asserting that an above‑knee amputation renders him incapable of driving, and thus disability should be treated as 100% for loss of earning power under the First Schedule. The High Court observed that the First Schedule should guide disability assessment but concluded that the Tribunal’s 50% figure was not appropriate in this case, adopting 70% disability and recomputing compensation. The court directed that the Insurance Company pay the balance of Rs 1,80,000 (after credit of Rs 4,50,000) with interest at 9% per annum within one month.

Provisions of Law Cited

First Schedule, Workmen’s Compensation Act (presently the Employees’ Compensation Act)

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellant contends that the Tribunal erred in fixing disability at 50% and relying on Oriental Insurance Co. Ltd. v. Jayarajan to suggest the claimant could perform other work, thereby denying a higher loss of earning capacity. He asserts that as a driver with an above‑knee amputation, he cannot perform driving or other work, and hence disability should be treated as 100% for loss of earning power under the First Schedule of the Workmen’s Compensation Act. Exts. A9 (driving license) and A10 (disability certificate) and P.W.1 evidence were cited to support earnings, while the Tribunal’s finding on income was not fully accepted. The appellant seeks enhancement of compensation accordingly.

Contentions of Respondents

The respondents argue that the accident involved illegal sand transportation by the claimant’s mini lorry and that the driver’s badge and policy conditions were not satisfied, limiting liability. They submit the claimant could engage in other work and that the Tribunal’s reliance on the 50% disability under the First Schedule was appropriate, urging the Court to sustain the Tribunal’s findings or adjust quantum proportionately. They rely on evidence and policy terms to deny or limit liability and challenge the basis of disability assessment.

Cited Precedents (1)

Case NameCitationTreatmentExplanation
Oriental Insurance Co. Ltd. v. Jayarajan2013 ACJ 458Mentioned OnlyCited to note the Tribunal’s reliance on a principle that the claimant could perform other work, thereby not treating disability as 100%; the High Court distinguished this rationale and opted for a higher disability under the First Schedule-based framework.

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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 P.R.RAMACHANDRA MENON & THE HONOURABLE MR.JUSTICE K.HARILAL** **MONDAY, THE 5TH DAY OF OCTOBER 2015/13TH ASWINA, 1937** **MACA.No. 436 of 2014** **---------------------** **AGAINST THE AWARD IN OPMV 562/2010 of M.A.C.T.,KOLLAM DATED 21-02-2013** **APPELLANT(S)/PETITIONWER:** **-------------------------** **RAJENDRAN PILLAI, AGED 43 YEARS, S/O. GPALAPILLAI, RUGMINI SADANAM, MYLAKKADU P.O., KOTTIYAM, KOLLAM.** **BY ADV. SRI.PRATHEESH.P** **RESPONDENT(S)/3RD RESPONDENT:** **-----------------------------** **THE DIVISIONAL MANAGER, NEW INDIA ASSURANCE CO. LTD., KOLLAM- 691 001.** **BY ADV. SRI.RAJAN P.KALIYATH SRI.A.A.ZIYAD RAHMAN** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 05-10-2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **P.R. RAMACHANDRA MENON & K. HARILAL, JJ.** ## **--------------------------------------------------------M.A.C.A. No.436 of 2014** **---------------------------------------------------------Dated this the 5[th] day of October, 2015** ## **JUDGMENT** ## **Ramachandra Menon, J.** The award passed by the Motor Accidents Claims Tribunal, Kollam, in O.P.(MV) No.562/2010 in respect of serious injuries sustained by the appellant involving amputation above the right knee compensated to an extent of `5,70,000/- is sought to be enhanced by filing this appeal. 2. On 22/9/2008 i.e., the date of accident, the appellant was stated as travelling in a mini lorry bearing Registration No.KL-2/AB-8714 along the Kollam - Thiruvananthapuram National Highway from west to east. When the appellant reached the place ## **M.A.C.A. No.436 of 2014** -: 2 :- of occurrence, a tipper lorry bearing Registration No.KL-17/C-7130 owned by the 1[st] respondent before the Tribunal and driven by the 2[nd] respondent which, in fact, was insured by the respondent/3[rd] respondent, came and hit against the mini lorry causing serious injuries. The gravity of the injury was of such extent, that the right leg of the appellant came to be amputated above knee. This made the appellant to prefer the claim petition for a total compensation of `7,00,000/- from the respondents before the Tribunal. 3. The 1[st] and 2[nd] respondents before the Tribunal did not choose to contest the matter and they were set ex parte. The claim was sought to be resisted by the Insurance Company on general grounds, however, raising a contention that the appellant/claimant was actually driving the mini lorry and was engaged in illegal transportation of river sand. By virtue of the nature of transportation, the mini lorry was stated as being driven in a tremendous speed which led to the **M.A.C.A. No.436 of 2014** -: 3 :- accident and not because of the negligence on the part of the driver of the tipper lorry insured by the Insurance Company. The extent of disability was also sought to be disputed alleging that the driver of the tipper had no valid badge to drive the tipper lorry and therefore violation of statutory/policy conditions was involved. 4. During the course of trial, the claimant was examined as P.W.1 and various documents were marked as Exts.A1 to A13. The driver of the tipper lorry produced Ext.B1 which was his driving licence authorsing to drive the type of vehicle involved in the accident. No evidence was adduced on the part of the Insurance Company. After analysing the facts and figures, the negligence was fixed solely on the driver of the tipper lorry insured by the respondent/Insurance Company. The extent of disability certified as per Ext.A10 disability certificate was of 50%. It was contended by the appellant/ claimant that since there ## **M.A.C.A. No.436 of 2014** -: 4 :- was amputation of right leg above knee, he sustained the disability of 70%, even as per the schedule to the Workmen's Compensation Act and since he was a driver, he had suffered 100% disability in pursuing the job of driver, which hence was sought to be compensated. The Tribunal, however, placing reliance on the verdict passed by this Court in Oriental Insurance Co. Ltd. v. Jayarajan [2013 ACJ 458] held that the claimant was in a position to do other works as well and hence the disability could not be reckoned as 100% under any circumstance. Even though a reference was made to the First schedule of the Workmen's Compensation Act, as to the extent of disability to be reckoned, the Tribunal fixed the same only as '50%'. Reckoning the engagement, as a driver, a sum of `5,000/- was taken as the monthly income and adopting the multiplier '15', a sum of `4,50,000/was awarded for the permanent disability and loss of earning power. Granting such other amounts under **M.A.C.A. No.436 of 2014** -: 5 :- different heads, the total compensation fixed as `5,69,600/- was directed to be satisfied by the Insurance Company with interest at the rate of 9% per annum. This is sought to be enhanced by filing this appeal as mentioned already. 5. Heard the learned counsel for the appellant and also the learned counsel appearing for the respondent/Insurance Company. 6. The fact remains that no positive evidence was adduced by the claimant to substantiate his income; but for his version rendered as P.W.1. However, considering the fact that the claimant was doing the job of the driver, by virtue of his driving licence produced as Ext.A9 and available materials on record and considering the further fact that the accident occurred was in the year 2008, the Tribunal reckoned `5,000/- as the monthly income. We do not find anything arbitrary or illegal in this regard. But coming to the extent of disability reckoned by the Tribunal, **M.A.C.A. No.436 of 2014** -: 6 :- there is no dispute to the fact that the right leg of the appellant was amputated above knee. Going by the First Schedule of the Workmen's Compensation Act (presently the Employees' Compensation Act) which could be taken as guideline, the extent of disability shown is '70%'. Though it can be said that the appellant can pursue other jobs, there cannot be any dispute to the fact that he cannot function as a driver any more. Despite the reference made to the First Schedule of the Workmen's Compensation Act, the Tribunal has chosen to reckon only 50% as the disability for which absolutely no reason is forthcoming from the discussions made by the Tribunal. We do not find any reason to have the extent of disability reduced and we find it appropriate to reckon 70% as the permanent disability, taking the First Schedule of the Workmen's Compensation Act as a guideline. On re-working the compensation as above, this Court finds that the loss towards permanent disability and **M.A.C.A. No.436 of 2014** -: 7 :- loss of earning power has to be re-fixed as 5000 x 12 x 70/100 x 15 = `6,30,000/-, after giving credit to a sum of `4,50,000/-, the balance comes to `1,80,000/-. The same is awarded as the additional compensation. It shall be satisfied by the Insurance Company with interest at the rate of 9% per annum within a period of one month from the date of receipt of a copy of this judgment. This appeal is disposed of accordingly. Sd/- - **(P.R. RAMACHANDRA MENON, JUDGE)** Sd/- ## **(K. HARILAL, JUDGE)** ## **Nan/** //true copy// P.S. to Judge