T. Nidhishraj v. Shymesh T.V. and The New India Assurance Co. Ltd.

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: R. Basant
M. C. Hari Rani
Judgment Date: 2011-10-14
Court Decision / Holding: Appeal allowed in part. Appellant is entitled to a further Rs.83,050 in addition to the Tribunal’s amount. The entire compensation shall bear interest at the rate and for the period specified by the Tribunal. Proportionate costs before the Tribunal shall be paid as per Jeena (Supra). All other directions of the Tribunal are upheld.
Final Disposition: Appeal allowed in part; enhanced compensation by Rs.83,050; interest and costs as directed; tribunal directions upheld.

Parties to the Case

Appellants / Petitioners

T. Nidhishraj

Respondents

Shymesh T.V.
The New India Assurance Co. Ltd.

Legal Representation & Advocates

Counsels for Petitioners

• Adv. Sri. Jacob Abraham

Counsels for Respondents

• Adv. Smt. P.K. Santhamma for R2; Sri Ziad Rehman

Case Synopsis & Summary

This High Court of Kerala judgment concerns a motor accident claim appeal arising from a Tribunal award in a personal injury matter. The appellant, T. Nidhishraj, sustained blunt abdominal injury in a motor accident on 15/4/2007, requiring splenectomy and resulting in a rib fracture and a 12-day hospital stay with permanent disability assessed at 10% (Ext. C1). The Motor Accidents Claims Tribunal, Kozhikode, had awarded Rs. 55,857 on a claim of Rs. 10,00,000. The appellant challenged the quantum, arguing that the Tribunal erred in assessing income, earning capacity, and heads of compensation, including loss of amenities. The appellant’s counsel urged that the monthly income be fixed at Rs. 3,000 (instead of Rs. 2,500) given the driver’s role (though documentary proof of qualification was lacking), and that three months of involuntary unemployment should be assumed. He contended that the Tribunal neglected to apply the multiplier-multiplicand method to determine loss of earning capacity in light of 10% disability, and that the award for loss of amenities was too low in view of the splenectomy. The High Court allowed the appeal in part, increasing the compensation by Rs. 83,050, recalculating earnings, applying the second schedule multiplier, and directing that proportionate costs follow Jeena v. Satheesh Babu.K. The Tribunal’s other directions were upheld, and interest on the total amount was maintained as awarded by the Tribunal.

Provisions of Law Cited

Motor Vehicles Act, Second Schedule (multipliers for earning capacity)

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellant argued that the Tribunal erred in fixing monthly income at Rs.2,500 and did not apply the multiplier-multiplicand method for reduction in earning capacity given 10% disability, nor adequately compensate for loss of amenities. He contended that a higher earning capacity and a longer unemployment period should be considered, resulting in greater compensation.

Contentions of Respondents

The respondents’ counsel argued against increasing compensation and defended the Tribunal’s computation as just and proper, opposing the appellant’s claims for higher income, earning-capacity reduction, and loss of amenities.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Jeena v. Satheesh Babu.K	2011(3) KLT 943	Positive	Court applies Jeena (Supra) to determine proportionate costs in line with the cited decision.

Extracted Judgment Text

Exact text extracted from official judgment records.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI FRIDAY, THE 14TH OCTOBER 2011 / 22ND ASWINA 1933 MACA.No. 1326 of 2011() ----------------------OPMV.1483/2007 of MOTOR ACCIDENT CLAIMS TRIBUNAL, KOZHIKODE .................... APPELLANT/ PETITIONER ------------------------ T.NIDHISHRAJ, AGED 26 YEARS, SON OF RAJAN, KAINARAMKANDY HOUSE, P.O.EDAKKADU, KOZHIKODE-673005. BY ADV. SRI.JACOB ABRAHAM ## RESPONDENTS/RESPONDENTS --------------- 1. SHYMESH T.V., SON OF T.V.PADMANABHAN, 8/1556, SREEKRISHNA, P.O.EDAKKADU, KOZHIKODE-673005. 2. THE NEW INDIA ASSURANCE CO. LTD., BRANCH OFFICE, TRIPURI BUIDLING, EAST NADAKKAVU, KOZHIKODE-673011. ADV. SMT.P.K.SANTHAMMA FOR R2 - SRI.ZIAD REHMAN THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 14/10/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **R.BASANT & M.C.HARI RANI, JJ. * * * * * * * * * * * * *** M.A.C.A.No.1326 of 2011 ---------------------------------------Dated this the 14[th] day of October 2011 ## **J U D G M E N T** ## **R.BASANT,J** Claimant is the appellant. He claimed compensation for the personal injuries suffered by him in a motor accident which took place on 15/4/2007. He had suffered blunt injury to the abdomen. Splenectomy had to be performed. There was fracture of the 5[th] left rib. He was an in-patient for a period of 12 days. He had suffered permanent disability. Medical Board assessed disability to be 10% under Ext.C1. The tribunal accepted the same. Against a total claim of Rs.10,00,000/-, the tribunal awarded only an amount of Rs.55,857/- as per the details given in paragraph 10 of the impugned award which we extract below: |**_Sl.No_**|**_Head of claim_**|**_Amount_** **_claimed (Rs.)_**|**_Amount_** **_awarded (Rs.)_**|**_Details_**| |---|---|---|---|---| |1|Transport to hospital|1000|250|--| |2|Extra nourishment|3000|300|--| |3|Loss of earnings|12000|3750|2500x 1 ½ months| |4|Bystander expenses|Nil|1200|12x100| |5|Treatment expenses|50000|38357|40907-2550| 2 M.A.C.A.No.1326 of 2011 |**_Sl.No_**|**_Head of claim_**|**_Amount_** **_claimed (Rs.)_**|**_Amount_** **_awarded (Rs.)_**|**_Details_**| |---|---|---|---|---| |6|Pain and sufferings|100000|10000|--| |7|Loss of amenities|100000|2000|---| |8|Total||**55857**|7% interest from 7.7.07| 2. We have heard the learned counsel for the appellant and the learned counsel for the insurance company. The learned counsel for the appellant assails the impugned award on the ground that the quantum of compensation awarded is not adequate. 3. Called upon to explain and be specific, the learned counsel for the appellant first of all contends that the monthly income of the appellant was reckoned by the tribunal only at Rs.2,500/-. The accident took place in 2007 and the appellant was driving the vehicle at the relevant time. Even though the appellant claimed to be driver of the autorickshaw nothing is produced to show his qualification as a driver. The tribunal accepted only Rs.2,500/- to be the monthly earnings. In the total absence of any better evidence, we are satisfied that the tribunal should have reckoned Rs.3,000/- as the monthly income of the appellant, a person aged 26 years in 2007. He was an in-patient 3 M.A.C.A.No.1326 of 2011 for a period of 12 days. We are satisfied that it would be absolutely reasonable to assume that he must have been involuntarily unemployed for three months. 4. The learned counsel for the appellant contends that though the tribunal accepted Ext.C1 and the contents thereof that the appellant had suffered physical disability to the tune of 10%, the tribunal did not proceed to consider the compensation payable for reduction in earning capacity employing the multiplier-multiplicand method. The appellant was aged between 25 and 30 years and as per the second schedule to the M.V.Act 18 ought to be adopted as the multiplier. Physical disability of 10% can, in the circumstances of the case, be held to result in reduction in earning capacity to identical extent. The learned counsel for the appellant points out and we accept that it was an omission on the part of the tribunal to compute the compensation payable under the head of reduction in earning capacity. 5. The 26 year old appellant had suffered Splenectomy. For loss of amenities only an amount of Rs.2,000/- has been awarded. The learned counsel contends that the amount is not 4 M.A.C.A.No.1326 of 2011 reasonable. We agree with this contention. We are satisfied that a higher amount of compensation deserves to be awarded under the head of loss of amenities. 6. We are not persuaded to agree that the amount awarded under any other head deserves or warrants interference. The above discussions lead us to the conclusion that the appellant is entitled to a further amount of Rs.83,050/as compensation in addition to the amount awarded by the tribunal. |i)|Loss of earnings|Rs.5,250/-| |---|---|---| ||(Rs.3,000/- x 3 minus Rs.3,750/-)|| |ii)|Reduction in earning capacity|Rs.64,800/-| ||(Rs.3,000/- x 12 x 18 x 10/100)|| |iii)|Loss of amenities|Rs.13,000/-| ||(Rs.15,000/- minus Rs.2,000/-)|| |||----------------| ||Total|**Rs.83,050**| |||======| 7. We further clarify that proportionate cost for the total amount awarded for proceedings before the tribunal shall be calculated as per the decision in J **eena v. Satheesh Babu.K [2011(3) KLT 943].** M.A.C.A.No.1326 of 2011 5 8. In the result, a) This appeal is allowed in part. b) Appellant is found entitled to a further amount of **Rs.83,050/-** (Rupees eighty three thousand and fifty only) in addition to the amount already awarded by the Tribunal. c) We make it clear that the entire amount of compensation shall carry interest at the rate and for the period as specified by the tribunal. d) Proportionate cost before the tribunal shall be paid as per the decision in **Jeena** (Supra). e) All other directions of the Tribunal are upheld. ## **(R.BASANT, JUDGE)** ## **(M.C.HARI RANI, JUDGE)** jsr // True Copy// PA to Judge M.A.C.A.No.1326 of 2011 6 7 M.A.C.A.No.1326 of 2011 ## **K.M.JOSEPH & M.C.HARI RANI, JJ.** .No. of 200 ORDER/JUDGMENT 30/082010