The Oriental Insurance Co. Ltd. v Vijayakumari, Mohanan P.P. and V. Surendran

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: P. R. Ramachandra Menon
K. Harilal
Judgment Date: 2015-09-25
Court Decision / Holding: The appeal is disposed of; the award of the Tribunal is set aside and the matter is remitted to the MACT for fresh consideration on all issues except negligence, with directions to finalize within four months, allowing the parties to adduce new evidence including the updated disability rating.
Final Disposition: Appeal disposed of; the Tribunal’s award is set aside and the case is remitted to the Tribunal for fresh determination on all issues except negligence, with a four-month deadline for finalisation and credit for statutory deposit.

Parties to the Case

Appellants / Petitioners

The Oriental Insurance Co. Ltd.

Respondents

Vijayakumari
Mohanan P.P
V. Surendran

Legal Representation & Advocates

Counsels for Petitioners

• Sri VPK Panicker

Counsels for Respondents

• Sri A.T. Anilkumar
• Smt. V. Shyaja

Case Synopsis & Summary

This MACA concerns the quantum of compensation awarded by the Additional Motor Accidents Claims Tribunal, Alappuzha, to the third respondent for injuries suffered in a road traffic accident on 26 February 2005. The insurer challenged the Tribunal’s award, which held the road roller driver negligent and fixed liability on the insurer, resulting in a total compensation of ₹1,71,336 with 6% interest. The Tribunal used a monthly income of ₹8,000, accepted 5% disability (Ext X1) and applied a multiplier (reported as 13, though the appellant later contended it was 15). The insurer argued that the income figure and the multiplier were incorrect and urged application of the Sarla Verma multiplier principle (second schedule) to determine compensation. The claimant sought a higher disability rating and, via I.A. 2098/15, obtained a fresh medical board’s report dated 20/08/2015 showing actual permanent partial disability of 25%. The High Court allowed both sides to adduce further evidence and remitted the matter to the Tribunal for fresh determination on all issues except negligence, directing expeditious finalisation within four months and allowing credit for the statutory deposit. The appeal is disposed of accordingly."

Provisions of Law Cited

Second Schedule (Motor Vehicles Act, 1988)

Legal Doctrines & Maxims

MacBride’s scale (disability assessment)
Multiplier principle as per Sarla Verma v. Delhi Transport Corporation (SC)

Submissions & Arguments

Contentions of Appellants / Petitioners

The insurer contends that the tribunal erred in (i) fixing the claimant’s monthly income at ₹8,000 and (ii) applying a multiplier that is inconsistent with the Second Schedule and the Supreme Court’s decision in Sarla Verma v. Delhi Transport Corporation. The appellant argues for recomputation using the correct income and a lower multiplier (13) per Sarla Verma, and notes the 5% disability certificate should be revisited in light of later medical board findings. It seeks remand for fresh calculation of compensation with proper proofs and adherence to established guidelines.

Contentions of Respondents

The respondent (claimant) contends the disability assessment should reflect the later medical board’s findings (25% permanent partial disability) and that earnings should be recalculated for an accurate dependency loss. They urge applying the correct multiplier and incorporating updated disability to ensure fair compensation. The owners note the delay and seek a just adjudication by re-examining medical evidence, income, and degree of negligence; overall, they request a proper, timely computation of compensation based on current evidence.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Sarla Verma v. Delhi Transport Corporation	2010 (2) KLT 802 (SC)	Positive	Court relies on the multiplier principle laid down in Sarla Verma to recalibrate the correct multiplier (13) for computing the compensation.

Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON & THE HONOURABLE MR.JUSTICE K.HARILAL** **FRIDAY, THE 25TH DAY OF SEPTEMBER 2015/3RD ASWINA, 1937** **MACA.No. 1676 of 2011** **----------------------** **AGAINST THE AWARD IN OPMV 1416/2005 of ADDITIONAL MOTOR ACCIDENTS CLAIMS TRIBUNAL, ALAPPUZHA. DATED 18-02-2011.** ## **APPELLANT/3RD RESPONDENT:** **------------------------** **THE ORIENTAL INSURANCE CO. LTD., METRO PALACE, GROUND FLOOR, OPP.NORTH RAILWAY STATION, ERNAKULAM, REPRESENTED BY ITS DULY AUTHORIZED OFFICER.** **BY ADV. SRI.VPK.PANICKER** ## **RESPONDENTS/RESPONDENTS 1 & 2 & PETITIONER:** **-------------------------------------------** **1. VIJAYAKUMARI, W/O.CHANDRAN, KIZHAKKE MADOM, THANEERMUKKOM PO, CHERTHALA TALUK 688 527.** **2. MOHANAN P.P, S/O.PARAMESWARA KURUP, THULASANAMKATTUVELI, MARARIKULAM NORTH PO, CHERTHALA 688 549.** **3. V.SURENDRAN, S/O.VASU, KUNNEL HOUSE, MAYITHARA PO, CHERTHALA TALUK 688 539.** **R3 BY ADV. SRI.A.T.ANILKUMAR BY ADV. SMT.V.SHYLAJA** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 25-09-2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **P.R. RAMACHANDRA MENON & K. HARILAL, JJ.** **--------------------------------------------------------M.A.C.A. No.1676 of 2011-F ---------------------------------------------------------Dated this the 25[th] day of September, 2015** ## **JUDGMENT** ## **Ramachandra Menon, J.** The insurer of the vehicle bearing Registration No.KL-17/B-62097 is before this Court challenging the quantum of compensation awarded by the Tribunal in respect of the injuries sustained by the 3[rd] respondent herein in a road traffic accident occurred on 26/2/2005. 2. The 3[rd] respondent was a general worker who was engaged in connection with the tarring of the road and was doing some work in watering the wheel of a road roller bearing Registration No. KL-17/B-62097 as part of his engagement. By about 2.30 p.m., he was crushed against a compound wall by the aforesaid ## **M.A.C.A. No.1676 of 2011** -: 2 :- vehicle, as a result of which serious injuries were caused to him, which was sought to be compensated by filing the claim petition before the Tribunal. 3. The 1[st] respondent, who was the owner of the vehicle, was set ex parte. The road roller was being driven by the 2[nd] respondent and the same was validly covered by a policy issued by the appellant. 4. The evidence adduced before the Tribunal consists of Exts.A1 to A15 and Ext.X1 (disability certificate). The claimant was examined as P.W.1. No evidence, either oral or documentary, was produced from the part of the respondents. After hearing both the sides, the Tribunal arrived at a finding that the accident was only because of the rash and negligent driving of the road roller by the 2[nd] respondent and fixed the liability accordingly. 5. After considering the claim of the 3[rd] respondent herein, who was the claimant, the Tribunal awarded compensation under various heads reckoning **M.A.C.A. No.1676 of 2011** -: 3 :- the monthly income of the 3[rd] respondent/claimant as `8,000/-. The disability of 5% certified as per Ext.X1 disability certificate issued by the Medical Board was accepted and a multiplier of '13' was adopted. The amounts awarded by the Tribunal, granting a total compensation of `1,71,336/- with interest at the rate of 6% per annum, mulcting the liability upon the Insurance Company is sought to be challenged by filing this appeal. 6. The main ground of challenge raised by the Insurance Company is that the Tribunal went wrong in adopting `8,000/- per month as the income of the claimant. Similarly, the multiplier adopted by the Tribunal as '15' is not at all correct and the same ought to have been only '13' as per the 2[nd] Schedule and as per the law declared by the Apex Court in the decision reported in Sarla Verma v. Delhi Transport Corporation [2010 (2) KLT 802 (SC)]. 7. When the matter came up for consideration **M.A.C.A. No.1676 of 2011** -: 4 :- before this Court earlier, a submission was made from the part of the claimant that the claimant was actually suffering from much higher extent of disability and accordingly, I.A. No.2098/15 was filed to cause the State Medical Board to examine the claimant and to issue a disability certificate accordingly. After hearing both the sides, the said I.A. was allowed as per order dated 23/6/2015; whereby the Superintendent of the Medical College Hospital, Alappuzha, was directed to constitute a proper Medical Board also consisting of a Neuro Surgeon and an Orthopaedic Surgeon, apart from such other specialists as the Superintendent might deem fit to nominate. A report was called for accordingly. Pursuant to the said order, it is seen that the claimant was subjected to a detailed examination by the Medical Board constituted by the Superintendent of the Medical College Hospital, Alappuzha, as aforesaid, and a report dated 20/8/2015 has been submitted before this Court certifying the ## **M.A.C.A. No.1676 of 2011** -: 5 :- actual permanent partial disability as '25%'. The injuries noted by the Tribunal and extracted by this Court as per the interim order dated 23/6/2015 are as given below: - “1. Type 1 compound fracture humerus shaft bone left - upper arm. 2. Fracture clavicle left. 3. Contusion with abrasions left arm. 4. Contusion chest. 5. Crushed injury left upper arm.” 8. The learned counsel for the appellant submits that even the certified disability, as assessed by the Medical Board earlier vide Ext.X1, was as per the 'Mac Brides' scale'; which, however, is seen not followed by the said Medical Board, as evident from their report dated 20/8/2015. It is seen from the said certificate that they have assessed the disability under some new assessment table, particulars of which are not discernible. The leaned counsel submits that the actual facts and figures can be brought to light only by ## **M.A.C.A. No.1676 of 2011** -: 6 :- eliciting necessary details from the concerned Doctor, who was member of the Medical Board. 9. After hearing both the sides, this Court finds that an opportunity is to be given to both the sides to adduce evidence and to bring out the relevant facts and evidence on record. The parties are also set at liberty to substantiate the actual monthly income of the claimant and the appropriate multiplier. Accordingly, the award passed by the Additional Motor Accidents Claims Tribunal, Alappuzha, is set aside. The matter is remitted back to the Tribunal for fresh consideration, except on the question of negligence. The parties are free to adduce evidence as to the facts and figures in this regard. They shall appear before the Tribunal on '19/10/2015'. Since the accident was of the year 2005, the Tribunal shall finalise the proceedings at the earliest, at any rate, within four months. The statutory deposit effected by the appellant/Insurance Company for filing this appeal **M.A.C.A. No.1676 of 2011** -: 7 :- shall be given credit to when the matter is finalised by the Tribunal. This appeal is disposed of accordingly. The Registry is directed to transmit the L.C.R. back to the Tribunal, along with the original of the Medical Certificate dated 20/8/2015 forwarded by the Medical Board of the Government T.D. Medical College Hospital, Alappuzha, after keeping a copy to form part of the records. Sd/- - **(P.R. RAMACHANDRA MENON, JUDGE)** Sd/- ## **(K. HARILAL, JUDGE)** ## **Nan/** //true copy// P.S. to Judge