High Court of KeralaSingle Judge2022-10-17The appeal is allowed; enhanced compensation of...

Sajeesh Joseph v. Khalid, P. Syam & National Insurance Company Limited

Case / Petition Number:MACA NO. 2023 OF 2010

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: Basant Balaji, J.
Judgment Date: 2022-10-17
Court Decision / Holding: The appeal is allowed. The High Court adopts a monthly income of Rs. 5,000, applies the Sarla Verma multiplier of 18 (since the appellant was 21 at the time), and accepts 65% disability with 40% future prospects, resulting in a disability-based calculation of Rs. 9,82,800. Five heads of compensation are re-evaluated: disability Rs. 9,82,800; loss of earning power Rs. 50,000; bystander’s expenses Rs. 30,000; loss of amenities Rs. 50,000; pain and suffering Rs. 70,000. The total enhanced award is Rs. 11,82,800, with the net enhanced amount of Rs. 7,50,300. The Insurance Company is directed to pay interest on the Tribunal amount and the enhanced amount at the rate specified in the impugned award, and to transfer funds via NEFT/RTGS within one month of receiving a certified copy. If already paid, set-offs apply.
Final Disposition: The appeal is allowed; enhanced compensation of Rs. 7,50,300; insurer to pay interest on both original and enhanced amounts; funds to be transferred via NEFT/RTGS within one month; any prior payments to be set off.

Parties to the Case

Appellants / Petitioners

Sajeesh Joseph S/o Joseph

Respondents

Khalid, S/o Abdul Rehman
P. Syam
National Insurance Company Limited

Legal Representation & Advocates

Counsels for Petitioners

• Sri P. M. Joshi

Counsels for Respondents

• Smti. Deepta George
• Sri M. A. George

Case Synopsis & Summary

This Kerala High Court, in MACA No. 2023 of 2010, hears an appeal by Sajeesh Joseph challenging the Motor Accidents Claims Tribunal’s award in OP(MV) No. 899/2004 (Perumbavoor). The accident occurred on 14 March 2004 when the claimant, a pillion rider on a motorcycle, was injured after the auto-rickshaw driven rashly by the first respondent collided with the motorcycle near Cochin Bank Junction. The Tribunal awarded Rs. 5,73,520 with escalating interest over time. The appellant contends the Tribunal erred in fixing the monthly income at Rs. 2,500 instead of Ext. A5’s Rs. 5,000, failed to consider future prospects, and used an incorrect multiplier, while the disability assessment (65%) was argued to be potentially higher. The respondents, including the insurer, resisted, arguing the claim is exorbitant and that the accident was not solely due to the driver’s rashness. The High Court, applying Sarla Verma’s multiplier framework, holds that the correct multiplier for a 21-year-old at the time of the accident is 18 and that Ext. A5 justifies Rs. 5,000 monthly income. It accepts 65% disability and adds 40% future prospects to yield a higher monthly figure of Rs. 7,000, leading to enhanced compensation across several heads. The appeal is allowed with an enhanced total, directing NEFT/RTGS payment and set-off for any prior payments.

Legal Doctrines & Maxims

Sarla Verma v. Delhi Transport Corporation & Another — multiplier principle for calculating compensation (18 as per Sarla Verma)
McBride's scale (disability assessment basis)

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellant contends that the Tribunal erred by fixing the monthly income at Rs. 2,500 contrary to Ext. A5, which shows Rs. 5,000 per month. He submits that future prospects of 40% must be added to the income for the disability calculation, given the permanent nature of the impairment (65% per Ext. A7). He argues that the multiplier should be 18 (per Sarla Verma) since the claimant was 21 at the time of the accident, not 17. The disability-based computation should yield a higher award: disability Rs. 3,31,500 should rise to Rs. 9,82,800; loss of earning power, bystander’s expenses, loss of amenities, and pain and suffering should all be enhanced (to Rs. 50,000, Rs. 30,000, Rs. 50,000, and Rs. 70,000 respectively). Overall, the enhanced award is Rs. 7,50,300, with interest to be paid on both original and enhanced amounts and NEFT/RTGS transfer within one month of certified copy.

Contentions of Respondents

The respondents contend the claim is exorbitant and not supported by the evidence; the accident was not caused solely by the rash driving of the vehicle driver but also by rider negligence. The insurer points to the policy and argues against excessive compensation. The defence maintains that the Tribunal’s order should be maintained or reduced, and questions the reliance on Ext. A5 and the proposed 40% future prospects.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Sarla Verma v. Delhi Transport Corporation & Another	2010 (2) KLT 802	Positive	Used as the controlling authority for the multiplier; the court explicitly states the correct multiplier to adopt (18) per Sarla Verma.

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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 BASANT BALAJI** **MONDAY, THE 17[TH] DAY OF OCTOBER 2022 / 25TH ASWINA, 1944** ## **MACA NO. 2023 OF 2010** ## **OPMV 899/2004 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,PERUMBAVOOR APPELLANT/S:** SAJEESH JOSEPH S/O.JOSEPH, AGED 26 YEARS,, PULICKAL HOUSE, GANDHI NAGAR,, ERUMATHALA P.O., ALUVA EAST VILLAGE,, ERNAKULAM DISTRICT. BY ADV SRI.P.M.JOSHI ## **RESPONDENT/S:** 1 KHALID, S/O.ABDUL REHMAN AGED NOT KNOWN, KIDANGETH HOUSE, KUNNATHERY P.O., ALUVA, ERNAKULAM DISTRICT. 2 P.SYAM, SO.NOT KNOWN KADATHY VALAKAM P.O., MUVATTUPUZHA,, PIN-686661, ERNAKULAM DISTRICT. .. DELETED FROM THE PARTY ARRAY AT THE RISK OF THE PETITIONER AS PER ORDER DATED 16.8.2017 IN IA 2921/17 IN MACA 2023/2010 3 NATIONAL INSURANCE COMPANY LIMITED MULLAPPILLY BUILDINGS, A.M.ROAD,, PERUNBAVOOR683542. BY ADVS. SMT.DEEPA GEORGE SRI.M.A.GEORGE THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 17.10.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **MACA NO. 2023 OF 2010** -2- ## **JUDGMENT** (Dated this the 17[th] day of October 2022) This appeal is preferred against the award in O.P. (M.V.) No.899 of 2004 on the files of the MACT, Perumbavoor. 2. The petitioner was a pillion rider on a motor cycle bearing registration No.KL-7/S-769 through AluvaMunnar road on 14.3.2004 and when the vehicle reached Cochin bank junction, an autorkshaw bearing registration No.KL-7/M-3759 driven by the first respondent, in a rash and negligent manner from the side road, hit the motor cycle and as a result of which the petitioner was thrown to the road and sustained serious injuries. The accident happened due to the rash and negligent driving of the first respondent. 3. R1 and R2 remained ex-parte and the third respondent filed a written statement contending that the ## **MACA NO. 2023 OF 2010** the accident happened not due to the rash and negligent driving of the driver of authoriskhaw but solely due to negligence of rider of motor cycle in which the petitioner was pillion rider. The insurance policy of the vehicle bearing registration No.KL-7/M-3759 was admitted by the company. The compensation claimed under various heads are highly exorbitant and cannot be allowed. Hence prayed for dismissal. 4. The Tribunal relying on the oral evidence of PW1 to PW3 and Ext.Nos.A1 to A10, awarded a total compensation of Rs.5,73,520/- with interest at the 7% per annum from the date of application till 30.6.2007 and 7.5% per annum till 30.9.2008 and thereafter 8% per annum till realisation. Aggrieved by the award of compensation on various heads this appeal is filed by the petitioners. 5. The counsel for the appellant submits that the appellant was an A/C mechanic in Blue Star Air Conditioning, Erumathala and was earning a monthly ## **MACA NO. 2023 OF 2010** -4- income of Rs.5000/-. Though Ext.A5 salary certificate was produced and PW2 was examined to prove the same the Tribunal took the monthly income as Rs.2500/- only. Moreover future prospects was not taken for consideration while calculating loss of disability, since there is a permanent disability of 65% as found by the medical board. The compensation awarded on the conventional heads are also on the lower side. 6. Ext.A5 salary certificate is issued by PW2, who was examined before the court to prove the same. When the author of a document is examined before the court, the Tribunal ought to have accepted the salary mentioned in Ext.A5, since nothing could be brought out to discredit his testimony. The Tribunal was wrong in not accepting Ext.A5 and fixing the monthly salary as Rs.2,500/-. Since the salary certificate is properly proved, I am inclined to take the monthly salary of the appellant as Rs.5,000/- for calculating the loss of disability compensation. The Tribunal took the multiplier as 17. The petitioner at the **MACA NO. 2023 OF 2010** time of accident was aged 21 years. Going by the tabular column in **Sarla Verma v. Delhi Transport Corporation & Another [2010 (2) KLT 802],** the correct multiplier to be adopted is 18. Ext.A7 disability certificate issued by the medical board, General hospital, Ernakulam, shows that the board has assessed the permanent disability as 65% as Mc Bride's scale. It is stated that he has inability to walk independently and difficulty in holding urine. The counsel for the appellant argues that though the medical board assessed at 65%, the appellant is not able to do any work in future and so the disability has to be taken as 100%. The Tribunal accepted the assessment made by the medical board as the tribunal had an occasion to see the petitioner in person and it was seen that he could walk with the help of others and therefore, entered into a finding that the disability is not 100% and 65% as stated by medical board. 100% disability can be taken only in cases where the person is disabled from doing any work and earn a living. In this case the medical board has assessed the disability as 65% and there is no evidence to show that he is fully ## **MACA NO. 2023 OF 2010** -6- incapable of doing any job and earn any income. Hence I concur with the percentage of disability accepted by the Tribunal as 65%. Towards future prospects 40% of the income has to be added, accordingly the monthly income will come to Rs.7,000/- (5000+40%). Accordingly disability compensation can be calculated as Rs.7000 x 12 x 18 x 65/100 = 9,82,800/-. The Tribunal awarded Rs.3,31,500/- under the head. 7. For the loss of earning, the Tribunal found that at least for 10 months the appellant would have taken complete bed rest. Accepting the said fact the loss of earning will be 10 x 5000 = 50,000/- less the amount awarded under the head. 8. Under Pain and suffering, the Tribunal awarded Rs.40,000/- Taking into consideration the disability certificate as well as Ext.A3 wound certificate, I am of the opinion pain and suffering is enhanced by another Rs. 30,000/-. **MACA NO. 2023 OF 2010** -7- 9. Towards loss of amenities, an amount of Rs.30,000/- was awarded. It is seen that the appellant was aged 21 years unmarried at the time of accident. The doctor who issued Ext.A7 and was examined as PW3, had given evidence to the effect that continuous medication will not improve the condition of the appellant and chance is remote. The disability certificate shows that he is incapable of walking independently and he has difficulty in holding urine. In such a situation, I am of the view that the compensation can be enhanced and re-fixed at 50,000/-. 10. As far as attendants' charges/bystander expenses, Tribunal awarded Rs.6,000/-. From the award it is seen that the appellant would have been in complete bed rest for at least 10 months. So towards attendants' charges at the rate of Rs.100/- per day, he would be entitled to Rs.30,000/- less the amount awarded by the Tribunal. Accordingly, the following enhancements are made to the award passed by the Tribunal: ## **MACA NO. 2023 OF 2010** -8- |Sl. No.|Head of Claim|Amt. Awarded by Tribunal (Rs.)|Amt. Enhanced in appeal (Rs.)| |---|---|---|---| |1|Compensation for disability|3,31,500|9,82,800| |2|Loss of earning power|25,000|50,000| |3.|Bystander’s expenses|6,000|30,000| |4|Loss of amenities|30,000|50,000| |5|Pain and sufferings|40,000|70,000| ||Total|4,32,500|11,82,800| ||Amount enhanced – 11,82,800-4,32,500 =**Rs.7,50,300/-**||| In the result, the appeal is allowed and the appellant is entitled for the enhanced compensation of Rs.7,50,300/- (Rupees seven lakh fifty thousand and three hundred only). The Insurance Company shall pay interest for the amounts awarded by the Tribunal and for the enhanced amounts at the rate directed in the impugned award. If any amounts have already been paid, the same shall be granted set off. The claimants shall produce the details of the Bank account before the Insurance Company/Tribunal within **MACA NO. 2023 OF 2010** -9- one month from the date of receipt of a certified copy of this judgment and amount shall be transferred to the Bank account directly through NEFT/RTGS mode, within a period of one month thereafter. If the Bank account is not furnished within the time stipulated, it is made clear that no interest shall run on the enhanced amount after the period stipulated by this Court. sd **BASANT BALAJI, JUDGE** _dl/downloads_