Sajimon v. George Paulose & United India Insurance Co. Ltd.

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: Pius C. KuriaKose
A. V. Ramakrishna Pillai
Judgment Date: 2012-02-06
Court Decision / Holding: Appeal allowed to the extent of enhancing compensation as detailed: additional awards for pain and suffering, loss of earnings (nine months at higher income), transportation, future treatment, bystander’s charges, and loss of amenities, with a re-fixation of disability at 7% and a total additional payout of Rs 68,120 over the Tribunal’s award; interest on the entire amount increased to 7.5% per annum; no order as to costs.
Final Disposition: Appeal allowed in part; enhanced compensation and interest; no costs.

Parties to the Case

Appellants / Petitioners

Sajimon

Respondents

George Paulose
The United India Insurance Co. Ltd.

Legal Representation & Advocates

Counsels for Petitioners

• Sri.T.K.Koshy
• Sri.T.A.Rajan

Counsels for Respondents

• Sri.Vargheese K.Paul
• Sri.N.S.Mohammed Usman

Case Synopsis & Summary

This appeal arises from a Motor Accident Claims Tribunal award in a MACA against Sajimon, an agriculturist-cum-driver who sustained serious injuries in a road traffic accident. The MACT awarded Rs 1,41,240 against a claim of Rs 2,50,000, prompting the appellant to challenge undercompensation across several heads, especially disability and loss of earnings. Ext.A11, a Medical Board certificate, shows a permanent disability of 16% classified as a locomotor handicap deemed “mild.” The Tribunal, however, assessed disability at 7% for the purpose of compensation. The appellant relied on Supreme Court precedents Raj Kumar v. Ajay Kumar (2011) and Mohan Soni v. Ram Avtar Tomar (2012) to press for a realistic assessment reflecting reduced earning capacity. The High Court found the Tribunal’s 7% disability finding justified in light of Ext.A11 and evidence, declining to re-rate disability to 16%, while recognizing inadequacies in other heads of compensation. It granted substantial enhancements: extra pain and sufferings (Rs 5,000), higher loss of earnings by nine months at a raised monthly income (Rs 15,000), transportation (Rs 5,000), future treatment expenses (Rs 15,000), bystander’s charges (Rs 5,000), and loss of amenities (Rs 8,000). The Court re-fixed disability and awarded a further Rs 15,120, totaling Rs 68,120 in additional compensation. Interest on the full award is raised to 7.5% per annum. The appeal is allowed to that extent, with no costs awarded.

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellant urged a realistic reassessment of disability and loss of earnings, arguing that Ext.A11 reflects a 16% disability, and that the Tribunal’s 7% figure underestimates the loss of earning capacity. He relied on Raj Kumar v. Ajay Kumar (2011) and Mohan Soni v. Ram Avtar Tomar (2012) to support a higher compensation for permanent disability and earnings loss.

Contentions of Respondents

Respondents did not resist the submissions at bar; the appellant’s submissions were not opposed, and the Tribunal’s findings were not challenged beyond the arguments presented by counsel for the appellant.

Cited Precedents (2)

Case Name	Citation	Treatment	Explanation
Raj Kumar v. Ajay Kumar	2011(1) KLT 620	Mentioned Only	Cited as authority for a ‘realistic’ approach to disability assessment, but the High Court did not adopt that approach in this case.
Mohan Soni v. Ram Avtar Tomar	2012(1) KLT SN 60	Mentioned Only	Cited by counsel to advocate a realistic earning-capacity assessment; court did not apply this approach to increase disability beyond 7%.

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 6TH DAY OF FEBRUARY 2012/17TH MAGHA 1933 MACA.No. 1226 of 2007 (A) --------------------------------OP(MV).2444/2001 of ADDL.M.A.C.T., KOTTAYAM ------------------ APPELLANT(S)/PETITIONER: ------------------------------- SAJIMON, S/O.GOPALAKRISHNAN, PARASSERIL HOUSE, NEEZHOOR KARA, NEEZHOOR VILLAGE KOTTAYAM DISTRICT. BY ADVS.SRI.T.K.KOSHY SRI.T.A.RAJAN RESPONDENT(S)/RESPONDENTS 1 AND 3: ----------------------------------------------- 1. GEORGE PAULOSE, MANNAMCHERIL HOUSE, CHOTTANIKKARA KARA, CHOTTANIKKARA P.O. ERNAKULAM DISTRICT. 2. THE UNITED INDIA INSURANCE CO.LTD., DIVISIONAL OFFICE, KOTTAYAM. R1 BY SRI.VARGHESE K.PAUL R2 BY SRI.N.S.MOHAMMED USMAN THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 06-02-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PIUS C. KURIAKOSE & A. V. RAMAKRISHNA PILLAI, JJ. -----------------------------------------------M. A. C. A Nos.1226 of 2007 -----------------------------------------------Dated this the 6[th] day of February, 2012 ## **JUDGMENT** _Pius C. Kuriakose, J_ An agriculturist-cum-Driver who sustained very serious injuries in a road traffic accident, details of which are given in paragraph 9 of the award passed by the Tribunal is aggrieved by the compensation awarded to him by the MACT. It is seen from the impugned award that as against a claim of ` 2,50,000/-, the Tribunal has awarded to the appellant a total amount of ` 1,41,240/-. 2. In appeal it is urged that the compensation awarded on the various heads and particularly, under the head of disability is grossly inadequate. Sri.T.K.Koshy, the learned counsel for the appellant would draw our attention to the judgment of the Supreme Court in Raj Kumar v. Ajay Kumar (2011(1) KLT 620) and also to the recent judgment of the M. A. C. A Nos.1226 of 2007 -2- Supreme Court in Mohan Soni v. Ram Avtar Tomar (2012(1) KLT SN 60) and submit that when compensation for loss of earnings and disability compensation on account of permanent disability sustained in road traffic accident are considered, a realistic approach has to be taken by the Tribunal and what is to be kept in mind is the reduction in the earning capacity of the injured on account of the injuries sustained. In the instant case under Ext.A11 certificate issued by the Medical Board, it has been reported that 16% is the permanent disability sustained by the appellant. The learned Tribunal would take the percentage of disability at 7% only for the purpose of determining disability compensation and loss of earnings. Sri.Koshy submitted that compensation awarded under various other heads such as pain and sufferings, transportation, bystander's charges, loss of amenities etc. are all insufficient considering the actual loss sustained by the deceased. 3. The submission of Sri.Koshy were not resisted by anybody at the Bar. M. A. C. A Nos.1226 of 2007 -3- 4. We have given our anxious consideration to the submissions of the learned counsel for the appellant. We have carefully gone through the award of the Tribunal. Even though Sri.Koshy's submission that while determining the loss of earnings and disability compensation a realistic approach based on the actual reduction in the earning capacity of the injured, were appealing, we are of the view that in the teeth of Ext.A11 produced by the appellant the Tribunal was justified in taking the view that the whole body disability sustained by the appellant was 7% only. What is reported in Ext.A11 is that the appellant is a locomotor handicapped person and the percentage of disability is assessed to be 16% and comes under the category “mild”. We are unable to accept the argument that Ext.A11 should be construed in the light of the other evidence available in the case, as evidence for the claim that the appellant's earning capacity has been affected to a percentage higher than 7%. We are inclined to sustain the percentage of disability found by the Tribunal based on Ext.A11 at 7% M. A. C. A Nos.1226 of 2007 -4- itself. At the same time, we find force in the submission of the learned counsel for the appellant that the appellant has not been paid adequate compensation under various heads. 5. Having anxiously considered the submissions we feel that towards pain and sufferings, the appellant should be awarded ` 5,000/- more. We award to the appellant ` 5,000/more. For arriving at the disability compensation and loss of earnings the Tribunal has taken the monthly income of the appellant notionally at ` 2,000/- only. We are sure that the appellant was drawing at least ` 3,000/- and we also find force in the submission that the Tribunal should have taken a longer period for determining the loss of earnings. We adopt a period of nine months for determining the loss of earnings and this means that towards the head of loss of earnings the appellant becomes eligible for ` 15,000/- more. We award to the appellant ` 15,000/- towards the head loss of earnings. From the evidence we find that the appellant had to undergo transportation from Kottayam to Kozhikode more than once in connection with his treatment. We award M. A. C. A Nos.1226 of 2007 -5- to the appellant ` 5,000/- more towards transportation charges. 6. Having gone through the evidence we find that the action of the Tribunal in not having awarded anything towards future treatment expenses is not just. We award to the appellant ` 15,000/- towards future treatment expenses. We also feel that towards bystander's charges the appellant has not been paid adequate compensation. We award to the appellant ` 5,000/- as bystander's charges. So also we find that in this particular case where the appellant had to be bedridden under treatment for a pretty long time, the compensation awarded towards loss of amenities is inadequate. Considering the inadequacy we award to the appellant ` 8,000/- more towards loss of amenities. As the monthly income has been re-fixed the disability compensation also will have to be re-fixed. Re-fixing the disability compensation in that way it will be seen that the appellant becomes eligible for a sum of ` 45,360/- towards compensation for loss of disability. Thus, we award to the M. A. C. A Nos.1226 of 2007 -6- appellant an additional sum of ` 15,120/- on that count. Thus in total we award to the appellant a sum of ` 68,120/- over and above what is awarded by the Tribunal. We also find that the rate of interest awarded by the Tribunal on the compensation is inadequate. We order that on the entire compensation including the additional compensation awarded by us, the appellant will become eligible for interest at the rate of 7.5% per annum. The appeal is allowed to the above extent, however, without any order as to costs. Sd/PIUS C. KURIAKOSE JUDGE Sd/A. V. RAMAKRISHNA PILLAI JUDGE kns/- //TRUE COPY// P.A. TO JUDGE M. A. C. A Nos.1226 of 2007 -7-