High Court of KeralaDivision Bench2016-11-22Partly allowed; appeal partly allowed; enhanced...

Shibin C K v. Damodaran T K, Lejeesh P and Cholamandalam MS General Insurance Co. Ltd.

Case / Petition Number:MACA No. 3569 of 2016

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: C. T. Ravikumar
K. P. JyothindrAnath
Judgment Date: 2016-11-22
Court Decision / Holding: Appeal partly allowed. The High Court directed that the appellant is entitled to an additional compensation of Rs 33,500 (Rs 13,500 for permanent disability under 5% of Rs 15,000 income with multiplier 18 and Rs 20,000 for disfigurement). The third respondent (insurer) was directed to deposit the said amount along with interest at 8% per annum from the date of petition till realisation, within one month from receipt of the judgment. No costs.
Final Disposition: Partly allowed; appeal partly allowed; enhanced compensation and payment directed; no costs.

Parties to the Case

Appellants / Petitioners

Shibin C K.

Respondents

Damodaran T K
Lejeesh P
The Manager, Cholamandalam MS General Insurance Co. Ltd.

Legal Representation & Advocates

Counsels for Petitioners

• V. Binoy Ram

Counsels for Respondents

• Mathews Jacob (Sr.)
• P. Jacob Mathew

Case Synopsis & Summary

The injured-petitioner, Shibin C K., challenged the Motor Accidents Claims Tribunal’s award in O.P.(MV) No.410/2010, Thalassery, which awarded Rs 1,72,400 with 9% interest. The accident occurred on 30 July 2009 when he was a passenger in an autorickshaw KL 58B 7307 that capsized, causing severe injuries and a 5% whole-body disability per Ext. X1, with cosmetic disfigurement due to a scar on the left hand. The petitioner, then 18 years old and a student, claimed compensation of Rs 3,50,000. The defense argued the tribunal had rightly assessed compensation and that there was no head for disfigurement or that the income should be taken nominally. The Kerala High Court, noting the tribunal’s failure to grant compensation for the cosmetic disfigurement, concluded that Ext. X1 certifies a 5% disability, and under the Second Schedule and the rider on income for a student, the claimant’s notional income can be taken as Rs 15,000 per annum; multiplier 18 yields Rs 13,500 for permanent disability (5% of Rs 15,000 x 18). The court additionally awarded Rs 20,000 for disfigurement, considering the adverse impact on marriage prospects. In total, Rs 33,500 more was awarded, with interest at 8% from the petition date, deposit within a month. The appeal was allowed to that extent, with the matter remitted for payment, and no costs awarded.

Provisions of Law Cited

Section 166 of the Motor Vehicles Act, 1988Second Schedule to the Motor Vehicles Act, 1988

Submissions & Arguments

Contentions of Appellants / Petitioners

The learned counsel for the appellant submitted that a glance at the schedule of compensation would reveal that the Tribunal granted only meagre amounts under various heads. At the time of the accident, the appellant was 18 years old and a student. Though the injuries resulted in permanent disability, cosmetic disfigurement due to a scar, the Tribunal had not granted any amount under that head. The appellant relied on Section 166 of the MV Act and the Second Schedule to contend that notional income for a student should be taken as Rs 15,000 per annum. Citing RK Malik and another v. Kiran Pal and others (2009) 14 SCC 1, the appellant argued that the multiplier applicable to his age should be 18, resulting in Rs 13,500 for permanent disability (5% of Rs 15,000 x 18). He asserted an additional Rs 20,000 for cosmetic disfigurement, arguing the disfigurement would affect marriage prospects and overall life. The total sought was Rs 3,50,000; the contention was that the Tribunal’s approach under- or miscalculated compensation and failed to account for the disfigurement and its social impact.

Contentions of Respondents

The respondents’ counsel contended that the impugned award already reflects adequate compensation under all heads and that there was no basis to interfere. The accident itself was undisputed and liability admitted; the medical board’s Ext.X1 certificate showing 5% disability was accepted. They argued the Second Schedule allows nominal income for a non-earning student and that the tribunal’s figures adequately balance medical expenses, pain and suffering, loss of amenities, and other heads. It was urged that the appeal should be dismissed since there was no error in applying the compensation structure and the notional income. Overall, the respondents asked for no interference with the award as passed."},

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
R.K. Malik and another v. Kiran Pal and others	(2009) 14 SCC 1	Positive	Cited to justify treating the notional income for a student at Rs 15,000 and applying the appropriate multiplier for computing compensation under Section 166 of the MV Act.

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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 C.T.RAVIKUMAR & THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH TUESDAY, THE 22ND DAY OF NOVEMBER 2016/1ST AGRAHAYANA, 1938 ## MACA.No. 3569 of 2016 () ------------------------AGAINST THE AWARD IN OPMV 410/2010 of ADDL. M.A.C.T (ADDITIONAL DISTRICT JUDGE - III), THALASSERY DATED 02-05-2016 APPELLANT(S):PETITIONER ------------------------------ SHIBIN C K., AGED 24 YEARS, S/O.VINODBABU, 'SARANG NIVAS', KONGATTA, POOKOD P.O., KOOTHUPARAMBA, KANNUR DISTRICT. ## BY ADV. SRI.V.BINOY RAM RESPONDENT(S):RESPONDENTS ------------------------------------ 1. DAMODARAN T K., S/O.KUTTIRAMAN, NEELAMCHALIL HOUSE, POOKODE P.O., PATHAYAKKUNNU, KANNUR DISTRICT, PIN-670691. 2. LEJEESH P., S/O.BHASKARAN, POOVADAN HOUSE, POOKODE P.O., KUTHUPARAMBA, KANNUR DISTRICT, PIN-670691. 3. THE MANAGER, CHOLAMANDALAM MS GENERAL INSURANCE CO. LTD., BRANCH OFFICE, KANNUR, PIN-670001. R3 BY ADV. SRI.MATHEWS JACOB (SR.) R3 BY ADV. SRI.P.JACOB MATHEW THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 22-11-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **C.T. RAVIKUMAR & K.P.JYOTHINDRANATH, JJ. ========================== M.A.C.A. No.3569 OF 2016 ==========================** Dated this the 22[nd] day of November, 2016 ## **JUDGMENT** _Ravikumar, J._ The injured-petitioner preferred this appeal on being dissatisfied with the quantum of compensation awarded by Additional Motor Accidents Claims Tribunal (Additional District Judge -III), Thalassery in O.P.(MV).No.410 of 2010. He filed the said claim petition under section 166 of the Motor Vehicles Act seeking compensation for the injuries sustained by him in a motor vehicle accident that occurred on 30.7.2009. On that day, he was travelling in an autorickshaw bearing Reg.No.KL 58B 7307. The vehicle capsized and thereby, the appellant sustained severe injuries. He was immediately taken to Cooperative Hospital, Thalasserry and he remained there as an inpatient **M.A.C.A.3569/2016** 2 for a period of 38 days. The injuries sustained resulted in permanent disability, rather, a cosmetic disfigurement due to scar. It was assessed as 5% as per Ext.X1. The appellant claimed an amount of `3,50,000/- as compensation and the Tribunal granted a total compensation of `1,72,400/- with interest at 9% per annum from the date of the petition till realisation, as per the impugned award. It is seeking enhancement of the said compensation that the captioned appeal has been preferred. 2.We have heard the learned counsel for the appellant and Sri.Mathews Jacob, the learned counsel appearing for the insurance company. 3.From the arguments advanced before us, it is evident that there is no dispute with respect to the accident, the cause of the accident as negligence from the part of the second respondent and also the liability indemnify the insured-owner of the offending vehicle. In **M.A.C.A.3569/2016** 3 such circumstances, we do not think it necessary to issue notice to respondents 1 and 2 and consequently, issuance of notice to respondents 1 and 2 is dispensed with and we are inclined to proceed with the consideration of the appeal on merits, at the admission stage itself. 4.The learned counsel for the appellant submitted that a glance at the schedule of compensation given in the impugned award would reveal that the Tribunal granted only meagre amounts under various heads. It is submitted that at the time of the accident, the appellant was aged only 18 years and he was a student. Though the injuries sustained by him resulted in permanent disability, rather, cosmetic disfigurement due to scar, the Tribunal has not granted any amount under that head. 5.Per contra, the learned counsel for the third respondent submitted that a perusal of the schedule of compensation would reveal **M.A.C.A.3569/2016** 4 that the appellant was granted adequate compensation under all heads. It is further submitted that the Tribunal awarded just compensation commensurating with the injuries sustained and therefore, no appellate interference is called for. 6.Having heard the learned counsel on both sides and perusing the impugned award, we are of the view that there is substance in the contention of the learned counsel for the appellant that the disinclination shown by the Tribunal to grant compensation taking into account the disfigurement certified under Ext.X1 as 5% is liable to be interfered with. Ext.X1 is the certificate issued by the medical board. Going by the same, the appellant suffered 5% whole body disability owing to cosmetic disfigurement due to scar. He suffered the said disfigurement on his left hand. The very fact that the disfigurement was assessed as 5% by the medical board itself would reveal that it is a vicious disfigurement owing to a scar. When that be the extent of disfgurement suffered by the appellant, certainly, he is **M.A.C.A.3569/2016** 5 entitled to get compensation. The learned counsel for the third respondent submitted that evidently, the appellant was a non-earning person as he was then only a student. But then, even in the case of a non-earning person, going by the second schedule to the M.V Act, the annual income can be notionally taken as `15,000/-. In fact, in the case of a student who is yet to start earning, the Hon'ble Apex Court in **R.K.Malik and another v. Kiran Pal and others [(2009) 14 SCC 1],** held that the annual income can be taken as `15,000/- for the purpose of computing compensation notionally. In such circumstances, we are inclined to fix the annual income of the appellant as `1,5000/-, for calculation purpose. With reference to his age, the multiplier applicable is '18'. Since there is no serious challenge against Ext.X1 certificate issued by the medical board, we are inclined to take the entire percentage of disability certified thereunder. Taking into account the said factors, the appellant would be entitled to get `13,500/- (15000x18x5/100) under the head permanent disability. Certainly, such an ugly scar which is vicious would adversely affect **M.A.C.A.3569/2016** 6 his marriage prospects to certain extent. In such circumstances, reckoning such adverse impact, we are inclined to grant `20,000/- to the appellant. In the light of the discussions as above, the appellant is entitled to get an additional compensation of `33,500/-. It is granted. The third respondent is directed to deposit the said amount along with interest at 8% from the date of the petition till realisation, within one month from the date of receipt of copy of this judgment. There will be no order as to costs. **Sd/C.T. RAVIKUMAR (JUDGE) Sd/-** **K.P.JYOTHINDRANATH (JUDGE)** **spc/** //true copy// P.A.to Judge **M.A.C.A.3569/2016** 7 **C.T. RAVIKUMAR, J.** **M.A.C.A.3569/2016** 8 **JUDGMENT September, 2010**