High Court of KeralaSingle Judge2022-07-25Appeal allowed; enhanced compensation awarded; ...

Shaju George v. Velappan and United India Insurance Co. Ltd.

Case / Petition Number:MACA No. 2279 of 2010

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: A. Badharudeen
Judgment Date: 2022-07-25
Court Decision / Holding: This appeal is allowed. The appellant is entitled to Rs. 1,21,240/- as total compensation, the Tribunal’s Rs. 67,700/- remains, and an additional Rs. 53,540/- is awarded as enhanced compensation with the same rate of interest from the date of petition till realization. The Insurance Company is directed to deposit the enhanced amount within two months from today in the appellant’s name; upon deposit, the appellant is entitled to release.
Final Disposition: Appeal allowed; enhanced compensation awarded; insurer directed to deposit the enhanced amount within two months.

Parties to the Case

Appellants / Petitioners

SHAJU GEORGE, S/O.GEORGE, Manaparambil House, Thommana, Thrissur

Respondents

Velappan, S/O.Kunjitty, Kizhakudhan House, Aranattukara P.O., Thrissur – 680 618
United India Insurance Co. Ltd, Represented by Divisional Office, Thrissur – 680 001

Legal Representation & Advocates

Counsels for Petitioners

• Sri. Dilip J. Akkara
• Adv.

Counsels for Respondents

• Sri. P.K. Manojkumar

Case Synopsis & Summary

Shaju George, the appellant, challenges the Motor Accidents Claims Tribunal Thrissur’s award dated 23 February 2010 in O.P.(M.V) No.23/2004, arising from a July 8, 2003 accident in which an autorickshaw driven by the first respondent hit an electric post, causing serious injuries to the appellant. The Tribunal held the driver negligent and awarded Rs. 67,700 with interest at 8% for a period of 149 days. On appeal, the appellant argued two points: (i) the Tribunal’s fixation of monthly income at Rs. 4,000 was too low for the 2003 accident, and (ii) the disability assessment of 8% should be increased to 14% based on Ext. A9 (disability certificate) claiming malunion. The insurer opposed the enhancement, invoking the ratio in Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Co. Ltd., (2011) 13 SCC 236 to justify Rs. 4,000 as monthly income and contending that Ext. A9’s higher disability is not corroborated by medical records. The High Court re-evaluated the evidence, accepting the Rs. 4,000 monthly income via Ramachandrappa, but not increasing the disability beyond 8% due to lack of clinical validation. It, however, enhanced compensation on several heads—loss of earnings, pain and sufferings, and loss of amenities—leading to a total enhanced award of Rs. 1,21,240, of which Rs. 67,700 had already been granted. The insurer is to deposit the enhanced amount within two months with the same rate of interest. The appeal is allowed.

Provisions of Law Cited

Section 166 of the Motor Vehicles Act

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellant contends that the Tribunal’s fixation of monthly income at Rs. 4,000 is too low for the post-1990s compensation standards and that the disability percentage should be raised from 8% to 14% in view of Ext. A9 which shows malunion. It is argued that the medical records and proof (including Ext. A5–A9) establish greater impairment and loss, and that the Tribunal misread Ext. A9 by discounting malunion, thereby underestimating damages. The appellant urges re-calculation of compensation under loss of earnings and pain and suffering, and inclusion of loss of amenities, seeking a higher overall award consistent with the injuries and treatment described." ,

Contentions of Respondents

The insurer defends the Tribunal’s approach, relying on Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Co. Ltd., (2011) 13 SCC 236 to justify Rs. 4,000 as monthly income for a 2003 accident. It opposes an increased disability percentage, arguing that Ext. A9 alone is insufficient to prove malunion without corroboration from the treating doctor. The respondents contend there is no basis for elevating disability beyond 8% and question the appraisal of Ext. A9’s findings. They maintain that the Tribunal’s compensation is in line with the evidence and seek to retain the original award without unwarranted enhancement.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Ltd.	(2011) 13 SCC 236	Positive	The High Court relies on the Ramachandrappa decision to justify fixing monthly income at Rs. 4,000, applying the ratio to value the claim for a 2003 accident.

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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 A. BADHARUDEEN** **MONDAY, THE 25[TH] DAY OF JULY 2022 / 3RD SRAVANA, 1944** **MACA NO. 2279 OF 2010** **AGAINST THE AWARD IN OPMV 23/2004 OF MOTOR ACCIDENT** **CLAIMS TRIBUNAL, THRISSUR** ## **APPELLANT/PETITIONER:** SHAJU GEORGE, S/O.GEORGE, MANAPARAMBIL HOUSE, THOMMANA, THRISSUR. BY ADV. SRI.DILIP J. AKKARA ## **RESPONDENTS/RESPONDENTS:** 1 VELAPPAN, S/O.KUNJITTY, KIZHAKKUDAN HOUSE, ARANATTUKARA P.O., THRISSUR – 680 618. 2 UNITED INDIA INSURANCE CO. LTD, REPRESENTED BY DIVISIONAL OFFICE, THRISSUR – 680 001. BY ADV. SRI.P.K.MANOJKUMAR THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING FINALLY HEARD ON 25.07.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **M.A.C.A No.2279 of 2010** 2 ## **JUDGMENT** The original petitioner in O.P.(M.V) No.23/2004 on the file of Motor Accidents Claims Tribunal, Thrissur is the appellant herein and he impugns award dated 23.02.2010 in the above case. The respondents in the Tribunal are the respondents herein also. 2. Heard both sides. 3. Brief facts of the case: **==> picture [380 x 13] intentionally omitted <==** 08.07.2003 at about 8:30 p.m., while the appellant was travelling in an Autorickshaw bearing registration No.KL-8K-9203 from Perumpbillissery to Oorakam, due to the rash and negligent driving of the same by the 1[st] respondent, who was the owner of the Autorickshaw, the Autorickshaw hit on an Electric Post and thereby the appellant sustained very serious injuries. He was treated ## **M.A.C.A No.2279 of 2010** 3 at Medical College Hospital, Thrissur. 2[nd] respondent is the insurer of the vehicle. On the above facts, an application under Section 166 of the Motor Vehicles act was preferred by the appellant before the M.A.C.T, Thrissur claiming compensation to the tune of Rs.1,50,000/- from respondents 1 and 2. 4. The 2[nd] respondent filed written statement disputing the negligence as well as quantum of compensation. 5. The Tribunal adjudicated the matter. Exts.A1 to A12 marked on the part of the appellant. No evidence let in by the respondents. 6. The Tribunal appraised the evidence and finally granted Rs.67,700/- as compensation along with 8% interest. 7. While assailing the award, the learned counsel for the appellant highlighted two points. First point that has been urged is that the monthly income fixed by the Tribunal is ## **M.A.C.A No.2279 of 2010** ## 4 insufficient. Secondly, it is argued that the Tribunal mis-read Ext.A9 disability certificate shown 14% disability, as 10% and consequently reduced the percentage of disability to 8%. According to the learned counsel for the appellant, since there is malunion as reported by Ext.A9, 14% disability is justified in the facts of this case. Therefore, the same is liable to be fixed. 8. The learned counsel for the insurer not disputed fixation of monthly income at Rs.4,000/- as claimed by the appellant, since the ratio in _**Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Ltd.**_ : **(2011) 13 SCC 236,** would justify Rs.4,000/- as the monthly income in this matter, involving accident of the year 2003. Therefore, monthly income is re-fixed at Rs.4,000/- per month. 9. Coming to disability, the learned counsel for the insurer zealously opposed ## **M.A.C.A No.2279 of 2010** 5 increase in percentage of disability in excess of 8% on the assertion that the treatment records do not justify malunion or shortening and Ext.A9 certificate alone showed the above infirmities for justifying 14% disability. 10. In this case, as borne out from Ext.A5, copy of wound certificate, it could be noticed that the appellant sustained compound fracture tibia left and he underwent procedure for treatment of the same. As per Ext.A6, he was treated at Medical College Hospital, Thrissur for a period of ten days from 09.07.2003 to 18.07.2003 and on removal of POP, he was discharged without observing any infirmities namely, shortening, malunion etc. However, in the disability certificate issued by Dr.C.P.Johny dated 13.10.2009 assessing 14% disability, there is malunion. Admittedly, the author of Ext.A9 not treated the appellant at any point of time. Therefore, as rightly argued by the learned counsel for the insurer without ## **M.A.C.A No.2279 of 2010** 6 examining the author to justify the disability assessed, the same as such cannot be accepted. In view of the matter, I am not inclined to increase the percentage of disability fixed by the Tribunal. 11. In this matter, the Tribunal granted 'loss of earnings' at Rs.2,500/- for a period of 3 months. The same is enhanced at the rate of Rs.4,000/- for a period of 4 months. Thus, **Rs.8,500/-** more is granted towards 'loss of earnings. 12. Multiplier '16' applied by the Tribunal is not in dispute. Therefore, disability income required to be re-calculated thus, **==> picture [272 x 13] intentionally omitted <==** Out of which, Rs.38,400/- was granted by the Tribunal. Thus, the appellant is entitled to the balance of **Rs.23,040/-** more under the head of 'loss of disability income'. 13. Apart from that the Tribunal granted ## **M.A.C.A No.2279 of 2010** 7 Rs.15,000/- under the head 'pain and sufferings'. Considering the injuries and treatment, I am inclined to grant **Rs.7,000/-** more under the head 'pain and sufferings'. Coming to 'loss of amenities' also, no amount granted by the Tribunal and, therefore, the learned counsel for the appellant pressed for granting compensation under the head 'loss of amenities' also. Considering the injuries and treatment, I am inclined to grant **Rs.15,000/-** under the head 'loss of amenities'. 14. In the result, this appeal is allowed. It is ordered that the appellant is entitled to get Rs.1,21,240/- as total compensation, out of which Rs.67,700/- was granted by the Tribunal and the balance amount of **Rs.53,540/-** (Rupees Fifty Three Thousand Five Hundred and Forty Only) is granted as enhanced compensation with the same rate of interest awarded by the Tribunal, payable by the Insurance Company from ## **M.A.C.A No.2279 of 2010** **==> picture [7 x 9] intentionally omitted <==** the date of petition till the date of deposit or realisation, excluding the period of 149 days in filing this appeal as stipulated in the order dated 04.07.2022 in C.M.Appication No.1/2010. The Insurance Company is directed to deposit the same in the name of the appellant within two months from today. On deposit, the appellant is entitled to release the same. Sd/- ## **A.BADHARUDEEN, JUDGE.** ww