High Court of KeralaSingle Judge2021-06-29Enhanced compensation awarded; multiplier corre...

Sunilkumar S.M. v. Vijayan P.M. and Ashok Kumar and The Oriental Insurance Company Limited

Case / Petition Number:MACA No. 337 of 2014

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: C.S. Dias
Judgment Date: 2021-06-29
Court Decision / Holding: The High Court partly allows the appeal. While endorsing the Tribunal’s general approach, the Court corrects the multiplier to 9 for post-retirement years and increases the head of loss of amenities from Rs. 25,000 to Rs. 75,000. It further enhances the compensation by Rs. 64,400 for other heads, directing Rs. 64,400 additional compensation with interest at 7.5% from the date of petition until deposit. The 3rd respondent is to deposit the enhanced amount before the Tribunal within two months of receiving a certified copy of the judgment, with the Tribunal in charge of disbursement in accordance with law.
Final Disposition: Enhanced compensation awarded; multiplier corrected; loss of amenities increased; insured to deposit enhanced amount with interest within two months; Tribunal to disburse in due course.

Parties to the Case

Appellants / Petitioners

Sunilkumar S.M., aged 35 years, S/o Mohanan Nair

Respondents

Vijayan P.M., S/o Madhavan
Ashok Kumar, S/o Raman
The Oriental Insurance Company Limited, represented by its Manager

Legal Representation & Advocates

Counsels for Petitioners

• Sri.T.C.Suresh Menon
• Sri.A.R.Nimod

Counsels for Respondents

• Sri.VPK.Panicker (Advocate)

Case Synopsis & Summary

This appeal arises from a Motor Accident Claims petition (O.P.(MV) No. 644 of 2011) before the Motor Accident Claims Tribunal, Pala, Kerala, regarding injuries sustained by Sunilkumar S.M. on 18.03.2011 when his motorcycle KL-36/B 2675 was struck by a lorry driven by the 2nd respondent on the Thalayolaparambu-Peruva road. The 1st respondent (lorry owner) and 3rd respondent (insurer) were named as liable. The Tribunal partly allowed the petition, awarding Rs. 2,10,500 with 7.5% interest per annum from the date of filing and costs, finding negligence by the 2nd respondent. The applicant contends that the Tribunal erred in quantifying compensation, particularly in not reflecting the actual salary of Rs.15,040 per month and in the treatment of disability. The 3rd respondent contends, following Rajkumar v. Ajaykumar and National Insurance Co. v. Anoop Kumar, that for a salaried employee with disability who continues to work, compensation for loss of earning capacity is not warranted; instead, compensation for loss of amenities should be considered. The High Court discusses the Constitution Bench decision in National Insurance Co. Ltd. v. Pranay Sethi (2017) for just compensation, and applies it while correcting the Tribunal’s approach: it finds the multiplier for post-retirement years should be 9 (not 7), enhances the loss-of-amenities head from Rs.25,000 to Rs.75,000, and further awards Rs.64,400 as additional compensation with 7.5% interest, directing the insurer to deposit the enhanced amount within two months and the Tribunal to disburse in due course. The overall result is an enhanced award subject to the clarified heads of compensation, with liability continuing on the insurer and owner as before.

Provisions of Law Cited

Section 168 of the Motor Vehicles Act, 1988

Legal Doctrines & Maxims

Just compensation must be fair, reasonable and equitable; principle of non-violation of equitability as laid down in Pranay Sethi; the concept of ‘just compensation’ under MV Act to be viewed through fairness, reasonableness and equitability.

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellant contends that the Tribunal erred in its quantum, particularly by fixing his salary at Rs. 6,000 and by applying a method that did not reflect his actual earnings, despite Ext. A8 showing a monthly salary of Rs. 15,040. He submits that disability should be treated as reducing earning capacity, and seeks enhancement of compensation including a proper assessment of actual earnings and the disability impact. He challenges the Tribunal’s adoption of a 7-year post-retirement multiplier and argues for proper consideration of the head of loss of earnings in line with the evidence before the Tribunal, asserting that the award should reflect his pre-accident standard of living and the consequences of his injury.

Contentions of Respondents

The 3rd respondent insurer contends that the Court should follow the established line of Rajkumar v. Ajaykumar and Anoop Kumar, which hold that a salaried employee with ongoing service, despite disability, is not entitled to compensation for loss of earning capacity; instead compensation for loss of amenities should be considered after retirement. They rely on these decisions to justify the Tribunal’s approach and oppose any increase beyond the existing award, while acknowledging liability. They also dispute the application of a higher multiplier and dispute increased figures for amenities and other heads, arguing the Tribunal’s award was in consonance with law.

Cited Precedents (3)

Case Name	Citation	Treatment	Explanation
National Insurance Co. Ltd. v. Pranay Sethi	(2017) 16 SCC 680	Positive	Constitution Bench held that ‘just compensation’ under Section 168 MV Act must be fair, reasonable and equitable, guiding the present court’s approach to quantification.
Rajkumar v. Ajaykumar	2011(1) KLT 260(SC)	Positive	SC decision followed to hold that a salaried employee with ongoing service may not claim loss of earning capacity; impacts the tribunal’s approach to compensation and amenities.
National Insurance Co. Ltd. v. Anoop Kumar	2014(1) KLT 266	Positive	Court followed to apply the loss-of-amenities approach for salaried employees in the context of disability.

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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.S.DIAS TUESDAY, THE 29[TH] DAY OF JUNE 2021 / 8TH ASHADHA, 1943 ## MACA NO. 337 OF 2014 AGAINST THE JUDGMENT IN OPMV 644/2011 OF MOTOR ACCIDENT CLAIMS TRIBUNAL PALA, KOTTAYAM ## APPELLANT: SUNILKUMAR.S.M AGED 35 YEARS S/O. MOHANAN NAIR, RESIDING AT SUDHAMANDIRAM HOUSE, VELLOOR VILLAGE, ERUMBAYAM P.O., KOTTAYAM. BY ADVS. SRI.T.C.SURESH MENON SRI.A.R.NIMOD ## RESPONDENTS: - 1 VIJAYAN.P.M S/O. MADHAVAN, RESIDING AT MANOJ BHAVAN, VAIKKAPRAYAR P.O., VAIKOM, KOTTAYAM-686142. - 2 ASHOK KUMAR S/O. RAMAN, RESIDING AT PANAYILCHIRA HOUSE, VAIKKAPRAYAR P.O., VAIKOM, KOTTAYAM-686142. - 3 THE ORIENTAL INSURANCE COMPANY LIMITED REPRESENTED BY ITS MANAGER, CHEERANVELI BUILDINGS, K.K.ROAD, KANJIRAPPALLY, KOTTAYAM-686507. BY ADV SRI.VPK.PANICKER THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 29.06.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: MACA No. 337 of 2014 2 ## **C.S.DIAS,J** - - - - - - - - - - - - - - - - - - - - - - - - MACA No.337 of 2014 - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 29[th] day of June, 2021 ## **JUDGMENT** The appellant was the petitioner in O.P(MV)No.644 of 2011 on the file of Motor Accident Claims Tribunal, Pala. The respondents in the appeal were the respondents before the Tribunal. 2. The facts in brief in the claim petition, relevant for the determination of the appeal are: on 18.03.2011, while the appellant was travelling in a motor cycle bearing registration No. KL-36/B 2675 through the Thalayolaparambu-Peruva public road, when he reached Mulakulam, a lorry bearing registration No.KL-5/R-738 (offending vehicle) which was driven by the 2[nd] respondent came from the opposite direction and on the wrong side and hit the motor cycle of the appellant. The appellant fell down and sustained serious injury including three fractures. The offending vehicle was owned by the 1[st] respondent and insured with the 3[rd] respondent. The appellant was a pump operator in Kerala Water Authority at Vaikom and drawing a monthly salary of Rs.15,040/-. The appellant contended that respondents 1 to 3 were jointly and severally liable to pay compensation MACA No. 337 of 2014 3 to him, which he quantified at Rs.4,99,800/-, but limited to Rs.4,00,000/-. 3. The respondents 1 and 2 did not contest the proceedings and were set exparte. 4. The 3[rd] respondent filed written statement, admitting that the offending vehicle had a valid insurance policy. However, it was contended that the accident occurred due to the negligence on the part of the appellant and that the amounts claimed in the claim petition were on the higher side. 5. The appellant was examined as PW1 and Exts.A1 to A13 were marked in evidence. 6. The Tribunal, after considering the pleadings and materials on record, by the impugned award, allowed the claim petition in part, by permitting the appellant to realise an amount of Rs.2,10,500/-, with interest at the rate of 7.5 % per annum from the date of the petition till the date of realisation along with proportionate costs from the 3[rd] respondent. 7. Dissatisfied with the quantum of compensation awarded by the Tribunal, the appellant is in appeal. 8. Heard the learned counsel appearing for the appellant and learned counsel appearing for the 3[rd] respondent. MACA No. 337 of 2014 4 9. The question that emerges for consideration in this appeal is whether the compensation awarded by the Tribunal is reasonable and just. 10. A Constitution Bench of the Hon'ble Supreme Court in **National Insurance Company Ltd. v. Pranay Sethi** [(2017) 16 SCC 680], has held that Section 168 of the Motor Vehicles Act, 1988, deals with the concept of 'just compensation' and the same has to be determined on the foundation of fairness, reasonableness and equitability on acceptable legal standards. The conception of 'just compensation' has to be viewed through the prism of fairness, reasonableness and non-violation of the principle of equitability. 11. Ext.A5 final report filed by the police, after investigation proves the fact that the accident occurred solely on account of negligence on the part of 2[nd] respondent, who drove the offending vehicle in a negligent manner. Admittedly, 1[st] respondent was the owner and 3[rd] respondent was the insurer. Hence 3[rd] respondent is liable to indemnify the 2[nd] respondent for the liability caused due to the accident. 12. Exts.A6 and A7 discharge cards prove that the appellant was hospitalised and had undergone in-patient treatment for a period of 30 days. Ext.A4 wound certificate proves the injuries sustained by the MACA No. 337 of 2014 5 appellant. Although the appellant had produced Ext.A11 disability certificate, wherein his disability was certified at 15%, the Tribunal after personally assessing the disability of the appellant and for the reason that appellant had not examined the Doctor who issued Ext.A11 disability certificate, fixed the disability at 10%, which assessment I fully concur. 13. The principal area of dispute in the appeal is regarding the income fixed by the appellant. 14. It was the specific case of the appellant that he was drawing a monthly salary of Rs.15,040/-as on the date of accident, as evidenced by Ext.A8. The Tribunal, even though awarded compensation to the appellant for actual loss of earnings, as seen from Ext.A8 at Rs.47,626/-, fixed his salary at Rs.6,000/-,i.e the pension that he would have earned post retirement. 15. The learned counsel appearing for the appellant contended that the course adopted by the Tribunal is erroneous and hence the compensation awarded for loss of permanent disability has to be interfered by this court. 16. The aforesaid submission is vehemently opposed by the learned counsel appearing for the 3[rd] respondent, who contended that the course adopted by the Tribunal is absolutely in consonance with MACA No. 337 of 2014 6 law. He relied on the decision of the Hon'ble Supreme Court in **Rajkumar V. Ajaykumar** (2011(1) KLT 260(SC)), which has been followed by the Division Bench of this Court in **National Insurance Co.Ltd V Anoop Kumar** (2014(1) KLT 266), where in it has been held that the proper course to be followed in the case of a person who has a salaried job, notwithstanding the disability suffered and who does not suffer any reduction in salary, is not to award compensation for loss of earning capacity, but award compensation for loss of amenities in life. 17. In Anoop Kumar also, the claimant was a Government servant. This Court held that as the claimant had continued to work, there is no question of him being unaffected by the disability. Therefore, he would be dis-entitled for compensation during his period of service, but his loss of earning capacity for the period after his retirement on a reduced income for the balance of the years after his retirement can be taken into consideration. 18. In view of the categoric declaration of law in the aforesaid decisions, I find that the course adopted by the Tribunal in the case on hand is correct. Nevertheless, I find that the Tribunal has adopted the multiplier at '7' after the retirement for the post retirement period of the appellant, which is wrong. 19. The appellant would have retired at the age of 55 and relevant MACA No. 337 of 2014 7 multiplier is '9'. Therefore, the amount of compensation to be awarded for loss due to permanent disability ought to be Rs.64,800/- (Rs.6000 X 12 X 9 X 10/100) instead of Rs.50,400/- awarded by the Tribunal. 20. Taking note of the aforecited decisions and the fact that the appellant was certified to have 10% disability and he was only 32 years of age, I am of the firm opinion that the compensation awarded by the Tribunal under the head 'loss of amenities' at Rs.25,000/- is on the lower side. Following the ratio in the aforecited decisions and taking into consideration the peculiar facts and circumstances of the case, I enhance the compensation under the head 'loss of amenities' to Rs.75,000/-,i.e an enhancement by Rs.50,000/-. 21. With respect to other heads of compensation, I find that the Tribunal has awarded reasonable and just compensation. 22 **.** On a re-appreciation of the pleadings and materials on record, I am of the definite opinion that the appellant is entitled to enhancement of compensation by a further amount of **Rs.64,400/-** (Rupees Sixty four thousand four hundred only) with interest at the rate of 7.5% per annum on the enhanced compensation, from the date of petition till the date of date of deposit by the 3[rd] respondent. The 3[rd] respondent shall deposit the additional compensation awarded in this appeal before the Tribunal along with interest and proportionate costs MACA No. 337 of 2014 8 within a period of two months from the date of receipt of a certified copy of the judgment. The Tribunal shall disburse the enhanced compensation to the appellant in accordance with law. Sd/- ## **C.S.DIAS,JUDGE** **lgk/01.07.2021**