High Court of KeralaSingle JudgeAppeal allowed; enhanced compensation and direc...

SHAJI S/O NARAYANAN v. SUNNY GEORGE, MATHEW VARKEY & TEFCO-TOKIO GENERAL INSURANCE CO. LTD.

Case / Petition Number:MACA.No.1853/2014

Case Details & Bench

Court
High Court of Kerala
Hon'ble Judges
  • N. Nagareesh
Judgment Date
2020-06-10
Court Decision / Holding
The appeal is allowed in part. The appellant is found entitled to an enhanced total compensation of Rs. 32,140 over the Tribunal award, comprising additional disability (₹21,840), additional extra nourishment (₹5,300), and additional pain and suffering (₹5,000). The insurer is directed to deposit the enhanced amount along with interest at 8.5% per annum from the date of the OP(MV) within one month, and pay-and-recovery rights apply as per law.
Final Disposition
Appeal allowed; enhanced compensation and directions issued to insurer.

Parties to the Case

Appellants / Petitioners

  • SHAJI S/O NARAYANAN

Respondents

  • Sunny George
  • Mathew Varkey
  • TEFCO-TOKIO GENERAL INSURANCE CO. LTD.

Legal Representation & Advocates

Counsels for Petitioners

  • • Sri Mathew John (K)
  • • Sri Domson J. Vattukuzhy

Counsels for Respondents

  • • Sri P. Jacob Mathew
  • • Sri Mathews Jacob SR.

Case Synopsis & Summary

Shaji, the appellant in MACA 1853/2014, challenges a 2014 Motor Accidents Claims Tribunal award under Section 173 of the Motor Vehicles Act, 1988, arising from OP(MV) Nos. 663/2008 and 704/2008. The Tribunal, in a common award dated 25 April 2014, held that the accident occurred solely due to the rash and negligent driving of a lorry owned by the 2nd respondent, driven by the 1st respondent, with the insurer (3rd respondent) on policy. The Tribunal awarded Rs. 2,82,930 to the appellant under various heads, including bystander expenses, loss of earnings, transportation, extra nourishment, medical expenses, damage to clothing, pain and suffering, loss of amenities, and disability, with interest at 8.5% per annum from the date of the OP(MV). The appellant contends that the award is inadequate. He was 44 years old at the time, hospitalized for 39 days, and evidence shows a disablement of 32.75%, while the Tribunal adopted 26.75%. He invokes the controlling principle in Raj Kumar v. Ajay Kumar and another (2011) 1 SCC 343, arguing the Tribunal should determine whether the disability is permanent, its extent, and its effect on earning capacity, before finalising compensation. He asks for higher disability compensation, enhanced extra nourishment and pain-and-suffering amounts, and recalculation consistent with Raj Kumar. The High Court allows the appeal in part, increasing the total by Rs. 32,140 and directing payment with interest, while preserving pay-and-recovery rights for the insurer.

Provisions of Law Cited

Section 173 of the Motor Vehicles Act, 1988

Legal Doctrines & Maxims

  • Raj Kumar v. Ajay Kumar and another, (2011) 1 SCC 343 — guidelines for determining permanent disability and its effect on earning capacity
  • Pay and recovery rule (insurer)

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellant argued that the Tribunal erred in accepting a lower functional disability (26.75%) than the evidence suggested (30%), given his age (44) and inpatient period (39 days). He submitted that permanent disability and its impact on earning capacity must be determined per Raj Kumar v. Ajay Kumar (2011) 1 SCC 343, including whether the disability is permanent and how it affects earning capacity. He pointed out that the award undervalued heads such as extra nourishment and pain and suffering (₹25,000) and neglected the period of grievous injuries, disability, and loss of earning. He urged recalculation showing disability at 30% (₹2,01,600), higher nourishment (₹7,800), and pain and suffering (₹30,000). He prayed for enhancement beyond the Tribunal’s amount, including interest from the accident date.

Contentions of Respondents

Respondents contended that the Tribunal’s award was just and proper, given the claimant’s status as a coolie earning around ₹4,000 per month and the evidence supporting 26.75% disability. They argued Raj Kumar provides guidelines but the Tribunal’s evaluation was within evidence and statutory framework. No basis existed to substantially modify the award, and the insurer’s pay-and-recovery rights should remain available. The compensation awarded was in line with evidence and legal standards, and the appeal should be dismissed or limited in scope.

Cited Precedents (1)

Case NameCitationTreatmentExplanation
Raj Kumar v. Ajay Kumar and another(2011) 1 SCC 343PositiveThe court cites Raj Kumar for the framework to assess permanent disability and its impact on earning capacity and applies it to determine the appropriate increase in compensation.

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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 N.NAGARESH** **WEDNESDAY,THE 10TH DAY OF JUNE 2020/20TH JYAISHTA, 1942** **MACA.No.1853 OF 2014** **AGAINST THE AWARD IN OP(MV) 663/2008 DATED 25-04-2014 OF** **MOTOR ACCIDENT CLAIMS TRIBUNAL,THODUPUZHA** ## **APPELLANT/PETITIONER:** **SHAJI,S/O.NARAYANAN,CHALIL HOUSE, 7TH KAMBI BHAGAM,CHELCHUVADU KARA, KANJIKUZHI VILLAGE.** **BY ADVS. SRI.MATHEW JOHN (K) SRI.DOMSON J.VATTAKUZHY** ## **RESPONDENTS/RESPONDENTS:** - **1 SUNNY GEORGE,S/O.VARGHESE, MANGALATHIL HOUSE, PAZHAYARIKANOM POST, KANJIKUZHY VILLAGE.** - **2 MATHEW VARKEY,ALACKAL HOUSE, PAZHAYARIKANDOM POST, KANJIKUZHY VILLAGE.** - **3 TEFCO-TOKIO GENERAL INSURANCE CO.LTD., REPRESENTED BY ITS BRANCH MANAGER, XL/1485, FIRST FLOOR, SATGAMAYA, M.G.ROAD, COCHIN - 682 011.** - **R3 BY ADV. SRI.P.JACOB MATHEW R3 BY ADV. SRI.MATHEWS JACOB SR.** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 05-06-2020, THE COURT ON 10-06-2020 DELIVERED THE FOLLOWING:** MACA No.1853/2014 : 2 : ## **J U D G M E N T** ~ ~ ~ ~ ~ ~ ~ ~ ~ ## _**Dated this the 10[th] day of June, 2020**_ Aggrieved by the Award of the Motor Accidents Claims Tribunal, Thodupuzha in OP(MV) No.663/2008, the appellant, who is the petitioner in the OP(MV), has preferred this appeal invoking Section 173 of the Motor Vehicles Act, 1988. 2. The appellant-petitioner filed OP(MV) No.663/2008 alleging that on 06.07.2008, when deceased Sasikumar and the petitioner were walking by the side of Chelachuvadu – Kanjikuzhi road, a lorry driven by the 1[st] respondent knocked down them and they sustained grievous injuries. They were immediately taken to District Hospital, Idukki, from where they were referred to Medical MACA No.1853/2014 : 3 : College Hospital, Kottayam. Sri. Sasikumar succumbed to injuries while undergoing treatment. The appellant stated that the accident occurred due to the rash and negligent driving of the lorry owned by the 2[nd] respondent. Therefore respondents 1 to 3, who are the driver, owner and insurer respectively were jointly and severally liable to pay compensation of 3.5 lakhs for the injuries suffered by the₹ appellant. 3. The Tribunal heard the OP(MV) No.663/2008 together with OP(MV) No.704/2008 which was filed by the legal heirs of the deceased Sasikumar. The Tribunal found that the accident occurred solely due to the rash and negligent driving of the lorry by the 1[st] respondent. By a common Award dated 25.04.2014, the Tribunal awarded ₹2,82,930/- to the appellant under the following heads:- |**Sl.**<br>**No.**|**Head of claim**|**Amount**<br>**Claimed**<br>**(in Rupees)**|**Amount**<br>**Awarded**<br>**(in Rupees)**|**Basis-vital details in**<br>**a nut shell**| |---|---|---|---|---| |1.|Bystander expense|10,000/-|7,800/-|Rs.200/- x 52 days x 1<br>person| |2.|Loss of earning|48,000/-|24,000/-|Rs.4,000/- per month| MACA No.1853/2014 : 4 : |**Sl.**<br>**No.**|**Head of claim**|**Amount**<br>**Claimed**<br>**(in Rupees)**|**Amount**<br>**Awarded**<br>**(in Rupees)**|**Basis-vital details in**<br>**a nut shell**| |---|---|---|---|---| |||||x 6 months| |3.|Transportation expense|5,000/-|5,000/-|bills produced| |4.|Extra nourishment|5,000/-|2,500/-|| |5.|Medical expenses|30,000/-|23,370/-,|bills produced| |6.|Damage to clothing|500/-|500/-|| |7.|Pain and suffering|35,000/-|25,000/-|injuries| |8.|Loss of amenities|15,000/-|15,000/-|| |9.|Disability|1,50,000/-|1,79,760/-|Rs.4000/- x 12 x 14 x<br>26.75/100| ||**Total**|Limited to<br>Rs.3.50<br>Lakhs|**Rs.2,82,930/- **|**Rs.2,82,930/-**along<br>with interest at the<br>rate of 8.5% per<br>annum from 28.11.08<br>till realisation.| The Tribunal also ordered interest at the rate of 8.5% per annum from the date of the OP(MV). 4. Challenging the Award for its inadequacy in compensation, learned counsel for the appellant pointed out that the appellant was aged 44 years and consequent to the injuries sustained from the accident, he had to be treated as an inpatient for 39 days. His physical disability was assessed at 32.75%. However, the Tribunal assessed functional disability to be 26.75%. The learned counsel for MACA No.1853/2014 : 5 : the appellant further argued that the amount of 25,000/-₹ awarded by the Tribunal as compensation towards pain and suffering is much on a lower side. Compensation under the head extra nourishment also requires upward revision, contended the learned counsel for the appellant. 5. The learned Standing Counsel for the 3[rd] respondent, on the other hand, submitted that the appellant was only a Coolie worker earning only 4,000/- per month,₹ the Tribunal assessed the functional disability of the appellant independently and came to the conclusion that the appellant has suffered disability of only 26.75%. The compensation awarded by the Tribunal to the appellant under various permissible heads is just and proper and does not require any revision, contended the Standing Counsel 6. I have heard the learned counsel for the appellant and learned Standing Counsel for the respondent. 7. For granting compensation for functional disability, the Tribunal or a Court is expected to follow the MACA No.1853/2014 : 6 : guidelines laid down by the Apex Court in the judgment in _**Raj Kumar v. Ajay Kumar and another** [(2011) 1 SCC 343]_ . In the said judgment, the Apex Court held that the Tribunal or Court has to first decide whether with reference to the evidence, the disablement is permanent or temporary. If the disablement is permanent, whether it is permanent total disablement or permanent partial disablement. If the disablement percentage is expressed with respect to any specific limp, then the effect of such disablement of the limp on the functioning of the entire body. If the Tribunal concludes that there is permanent disability, then it has to ascertain its extent. After the Tribunal ascertains the actual extent of permanent of disability of the claimant based on the medical evidence, it has to determine whether such permanent disability has affected or will affect his earning capacity, and if so, to what extent. 8. In the appellant's case, the Tribunal noted that the appellant sustained blunt, chest trauma with fracture MACA No.1853/2014 : 7 : right third, fourth, fifth, sixth, seventh and eighth ribs with hemothorax, moderate head injury with intra cerebral haemorrhage with right DVT and right exposure keratitis right LMN facial palsy, tenderness right scapula clavicle, fracture neck of scapula. The petitioner was treated as inpatient for 39 days. The Tribunal though accepted whole body disability assessed by the Board 16.75%, counted only 10% of the 16% neurological disability to arrive at the figure of 26.75% functional disability. 9. Going through the evidence on record, I find that the appellant has pain on his right side body. He cannot lift his right hand. He has neurological disability for bilateral amosmeia and for dizziness, headache, forgetfulness and emotional outbursts with tendency to attack. Taking note of all these facts, and also taking note of the fact that the appellant is a coolie worker, this Court is of the firm opinion that the functional disability assessed by the Tribunal is on a lower side. This Court is inclined to accept functional MACA No.1853/2014 : 8 : disability of the appellant as 30%. Consequently, the appellant will be entitled to 2,01,600/- (₹ ₹4,000/- x 12 x 14 x 30/100) as total compensation towards disability. The Tribunal has already granted 1,79,760/- under this head.₹ The appellant therefore will be entitled to an additional compensation of 21,840/-. ₹ 10. The Tribunal awarded compensation towards extra nourishment amounting to 2,500/- only. It is seen₹ from the Award that the appellant was granted bystander expenses for 52 days. Extra nourishment also has to be granted for the same period. Going by the standardised rates, the appellant should be eligible for 7,800/- (150 x 52)₹ towards extra nourishment. The Tribunal has awarded only ₹2,500/-. Consequently, the appellant is entitled to enhancement by 5,300/- as compensation towards extra₹ nourishment. 11. Taking note of the grievous injuries suffered by the appellant, his consequential treatment and disability MACA No.1853/2014 : 9 : suffered by him, this Court is of the opinion that the appellant should be made eligible for an additional sum of ₹5,000/- towards compensation for pain and suffering, thereby enhancing the amount of 25,000/- awarded by the₹ Tribunal to 30,000/-.₹ 12. In the circumstances, the appeal is allowed. It is held that the appellant will be entitled to additional compensation of 32,140/- under the following heads:-₹ |1|Additional compensation towards extra|5,300<br>₹| |---|---|---| ||nourishment ( 150/- x 52 minus 2,500/-<br>₹<br>₹|| ||already granted by the Tribunal)|| |2|Additional compensation towards disability|21,840<br>₹| ||( 4,000/- x 12 x 14 x 30/100 minus<br>₹|| ||1,79,760/- already granted by the<br>₹|| ||Tribunal)|| |3|Additional compensation towards pain and|5,000<br>₹| ||suffering ( 30,000/- minus <br>25,000/-<br>₹<br>₹|| ||already awarded by the Tribunal)|| ||Total|32,140<br>₹| MACA No.1853/2014 : 10 : The 3[rd] respondent-insurer is directed to deposit the additional compensation amount of 32,140/- along with₹ 8.5% interest per annum, from the date of the OPMV), within a period of one month. The 3[rd] respondent-insurer will be entitled to invoke pay and recovery rule, in accordance with law. Sd/- **N. NAGARESH, JUDGE** aks/08/06/2020