High Court of KeralaSingle Judge2021-12-08Appeal allowed; enhanced compensation with inte...

Thomas Mathew @ Kunju v Renju and The Oriental Insurance Company Limited

Case / Petition Number:MACA No.216 of 2013

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: T. R. Ravi
Judgment Date: 2021-12-08
Court Decision / Holding: The appeal is allowed; enhanced compensation is awarded. The monthly income is to be Rs. 6,000 with 25% future prospects, applying a multiplier of 18 for permanent disability, and disability assessed at 84%. Future bystander expenses and loss of earnings subjected to the 65 months limitation are adjusted, resulting in an additional Rs. 2,67,500 for bystander expenses and an Rs. 7,77,600 addition for permanent disability. The total enhanced compensation amounts to Rs. 10,63,100, with interest at 9% per annum from the date of filing the claim petition (30.12.2009) to realization, and proportionate costs. Delay in filing the appeal was condoned on the condition that there would be no interest for the 46-day period of delay. The insurer is directed to deposit the enhanced compensation (along with interest and costs) before the Tribunal within two months, after deducting any liable amounts toward court fee and legal benefits fund. The judgment was corrected later by RP 22/2022 to reflect modifications in directions regarding payment and recovery.
Final Disposition: Appeal allowed; enhanced compensation with interest and costs; directions issued to insurer for deposit; delay condoned with a restricted period for interest; judgment corrected later by RP 22/2022 to reflect modifications in payment and recovery directions.

Parties to the Case

Appellants / Petitioners

Thomas Mathew @ Kunju, S/o Late Mathai, Residing at Karimpunkal House, Kooroppada Village, Kothala P.O., Kottayam District
Mary Mathai, W/o Late Mathai, Residing at Karimpunkal House, Kooroppada Village, Kothala P.O., Kottayam District
Jacob Mathew, S/o Late Mathai, Residing at Karimpunkal House, Kooroppada Village, Kothala P.O., Kottayam District

Respondents

Renju s/o Babu, Residing at Vallamthottam House, Anickadu Village, Anickadu West P.O., Mundankavala Bhagom, Kottayam District, Pin-686503
The Oriental Insurance Company Limited represented by its Divisional Manager, Tonio Chambers, Kanjikuzhy, Kottayam, Pin-685602

Legal Representation & Advocates

Counsels for Petitioners

• Sri. T. C. Suresh Menon
• Sri. P. S. Appu
• Sri. A. R. Nimod

Counsels for Respondents

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

Case Synopsis & Summary

This Motor Accident Claims Appeal (MACA No. 216 of 2013) arises from an enhanced compensation claim under the Motor Vehicles Act, decided by the Kerala High Court. The original claimant, who sustained severe head injuries in a motorcycle accident on 06.01.2009, was treated in hospital and assessed with an 84% disability by a Medical Board, though the Tribunal had fixed 60%. The claimant died on 03.06.2014 while the appeal was pending, with his mother and others impleaded as next friends. The Tribunal had adopted a monthly income of Rs. 4,500 and, applying the accident-year approach, awarded limited compensation for permanent disability, loss of amenities and other heads. The appellants contended that the Tribunal erred by underestimating income (should be Rs. 6,000), failing to apply 25% future prospects, and not using a proper multiplier, which should be 18, given the injury-like nature of the loss and the claimant’s life expectancy. They also challenged the calculation of future bystander expenses (arguing for a multiplier-based compensation). The respondents argued the death occurred five years after the accident with no proven link to the accident, and that the disability head should be restricted by time and multiplier. The High Court, allowing the appeal, enhanced compensation by recalculating with Rs. 6,000 monthly income, 25% future prospects, 18 as multiplier, and 84% disability, and by adjusting bystander expenses per Kajal v. Jagdish Chand, while awarding 9% interest and directing deposit by the insurer. The delay in filing the appeal was condoned with a condition regarding interest.

Legal Doctrines & Maxims

Multiplier principle for compensatory damages in motor vehicle accident cases
Future prospects/addition for earning capacity in determining compensation
Multiplier method for bystander/unrequited expenses in the context of pending appeals (as per Kajal v. Jagdish Chand)

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellants contended that the Tribunal erred in fixing disability at 60% rather than 84%/100%, and in adopting an income of Rs. 4,500 instead of Rs. 6,000. They urged application of 25% future prospects and a proper multiplier (18) for damages, including loss of earnings, bystander expenses and loss of amenities. They argued that since the claimant died during the appeal, the calculation of compensation should reflect the period up to death, and future expenses should be capped accordingly. They also submitted that the insurer should be liable with recovery from the insured party for the lack of license evidence. Respondents’ counsel disputed the causal link to death five years later and argued that the disability head and multiplier should be constrained by the time horizon, and that the amenities/head damages were excessive.

Contentions of Respondents

The respondents submitted that the death occurred years after the accident with no confirmed link to the accident. They argued that disability compensation should be limited to a five-year horizon and that the multiplier 18 should not apply. They contended that the Tribunal’s compensation for loss of amenities was on the higher side and that the income could not be augmented by 25% for future prospects, given the time elapsed since the accident.

Cited Precedents (2)

Case Name	Citation	Treatment	Explanation
Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Co.Ltd.	AIR 2011 SC 2951	Positive	The High Court relied on the Ramachandrappa principle to adopt the correct approach to income calculation and to apply future prospects in computing compensation.
Kajal v. Jagdish Chand	2020 (1) KLT 743	Positive	Used to justify multiplier-based calculation for bystander expenses and the method of modification in light of the claimant’s death during the appeal.

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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 T.R.RAVI** **WEDNESDAY, THE 8TH DAY OF DECEMBER 2021/17TH AGRAHAYANA, 1943** ## **MACA NO. 216 OF 2013** **AGAINST THE AWARD IN OPMV 1925/2009 OF ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL, KOTTAYAM** ## **APPELLANT/PETITIONER:** |*1 SUPPL. APPELLANT 2 SUPPL. APPELLANT 3|THOMAS MATHEW @ KUNJU S/O.LATE MATHAI, RESIDING AT KARIMPUNKAL| |---|---| ||HOUSE, KOOROPPADA VILLAGE, KOTHALA P.O.,| ||KOTTAYAM DISTRICT, REPRESENTED BY HIS MOTHER| ||AND NEXT FRIEND MARY MATHAI, W/O.LATE MATHAI| ||RESIDING AT KARIMPUNKAL HOUSE,| ||KOOROPPADA VILLAGE, KOTHALA P.O.,| ||KOTTAYAM DISTRICT. **(DIED)**| ||**SUPPLEMENTAL APPELLANTS 2 AND 3 ARE IMPLEADED**| ||MARY MATHAI AGED 67 YEARS| ||W/O LATE MATHAI,RESIDING AT| ||KARIMPUNKAL HOUSE,| ||KOOROPPADA VILLAGE,| ||KOTHALA P.O., KOTTAYAM DISTRICT. JACOB MATHEW AGED 30 YEARS S/O LATE MATHAI,RESIDING AT KARIMPUNKAL HOUSE,KOOROPPADA VILLAGE, KOTHALA P.O.,| ||KOTTAYAM DISTRICT.| ||(LEGAL HEIRS OF THE DECEASED SOLE APPELLANT ARE IMPLEADED AS SUPPLEMENTARY APPELLANTS 2| ||AND 3 VIDE ORDER DATED 15/7/2014 IN IA1988/14| ||IN MACA 216/13) BY ADVS. SRI.T.C.SURESH MENON SRI.P.S.APPU SRI.A.R.NIMOD| ## **RESPONDENTS/RESPONDENTS:** 1 RENJU,S/O.BABU, RESIDING AT VALLAMTHOTTAM HOUSE, ANICKADU VILLAGE, ANICKADU WEST P.O., MUNDAN KAVALA BHAGOM, KOTTAYAM DISTRICT, PIN-686503. M.A.C.A.No.216 of 2013 2 2 THE ORIENTAL INSURANCE COMPANY LIMITED REPRESENTED BY ITS DIVISIONAL MANAGER, TONIO CHAMBERS, KANJIKUZHY, KOTTAYAM, PIN-685602. BY ADVS. SRI.P.JACOB MATHEW SRI.MATHEWS JACOB (SR.) THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 17.09.2021, THE COURT ON 08.12.2021 DELIVERED THE FOLLOWING: M.A.C.A.No.216 of 2013 3 ## **T.R. RAVI, J.** ## **--------------------------------------------** M.A.C.A.No.216 of 2013 -------------------------------------------Dated this the 8[th ] day of December, 2021 ## **JUDGMENT** This appeal was originally filed by the claimant before the Tribunal, seeking enhanced compensation. Pending the appeal, the claimant died and his legal legal representatives have been impleaded as additional 2[nd] and 3[rd] appellants. 2. On 06.01.2009, the claimant was travelling as a pillion behind the 1[st] respondent. The 1[st] respondent lost control over the motorcycle and hit against an electric post, resulting in serious injuries to the claimant. The claimant was taken to the Medical College Hospital, Kottayam and thereafter he was referred to the Indo-American Hospital, Vaikom for expert management. As a result of the accident, the claimant suffered left frontal contusion, compound depressed fracture of left frontal bone, left temporal bone fracture, fracture of roof and lateral wall of left orbit, fracture of medial and lateral wall of left maxillary sinus, increased left frontal hemorrhagic contusion with brain swelling, loss of vision of left eye and continuing epilepsy. He was treated as inpatient for 30 days. He was again hospitalised on two different occasions. The M.A.C.A.No.216 of 2013 4 Medical Board in Exhibit X1 disability Certificate assessed his disability as 84%. The claimant was present before the Tribunal on 3.6.2012. He was brought with the help of two persons as he could not move freely without the help of bystanders. The Tribunal noticed that the claimant cannot speak in the usual manner. The claimant was aged 24 years at the time of the accident and he was a manual labourer. After noticing the nature of the injury and the condition of the claimant, the Tribunal however fixed the disability at 60%, which is challenged in this appeal. The claimant had claimed that he was earning Rs.6,000/- as monthly income. However, the Tribunal adopted a monthly income of Rs.4,500/-, which needs to be enhanced going by the yardstick in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Co.Ltd.,** reported in **[AIR 2011 SC 2951]** . The claimant was completely paralysed and he was being represented through his mother as next friend. He died on 3.6.2014. The counsel for the appellant submitted that the Tribunal went wrong in awarding Rs.25,000/- alone towards compensation for future bystanders expenses. It is further submitted that the disability should have been treated as 100% and the compensation towards permanent disability has to be reworked, applying the income of M.A.C.A.No.216 of 2013 5 Rs.6,000/- per month. Though, I find considerable force in the above submission, taking into account the fact that the claimant died pending the proceedings, I am of the opinion that it would be just to adopt the disability of 84% assessed by the Medical Board. It is also submitted that the appellants are entitled to have the income increased by future prospects. Since it was found that the driver of the 2 wheeler did not have a driving license, the Tribunal had directed the Insurance Company to pay the compensation and recover the same from the 1[st] respondent. 3. The counsel for the Insurance Company submitted that the death happened 5 years after the accident, and there was nothing to show that the death was owing to the accident. It is further submitted that the compensation for permanent disability should be restricted to 5 years and the multiplier of 18 should not have been adopted. The counsel further argued that the compensation for loss of amenities that has been awarded by the Tribunal is on the higher side. 4. Having heard the counsel on either side, I am of the opinion that the amount awarded by the Tribunal has to be enhanced. The monthly income of the deceased ought to have been taken as Rs.6,000/- and not Rs.4,500/-. An increase of 25% M.A.C.A.No.216 of 2013 6 of the income ought to have been made towards future prospects. Since compensation is being awarded treating the case as an injury case, the multiplier to be taken has to be 18 and cannot be restricted, merely for the reason that the claimant died. Having regard to the serious injuries suffered by the claimant, I am of the opinion that the amount awarded by the Tribunal towards amenities is reasonable. Regarding the future bystanders expenses, going by the dictum in **Kajal v. Jagdish Chand** reported in **[2020 (1) KLT 743]** , the compensation has to be calculated by following the multiplier method. However, since the claimant died pending the appeal, I am of the opinion that the compensation under that head should be restricted to the period between the date of the accident and the date of his death, which is 65 months. Thus, the amount awarded towards loss of earnings should be Rs.72,000/- (6000x12). After deducting the sum of Rs.54,000/- awarded by the Tribunal, the appellants are entitled to an additional sum of **Rs.18,000/-** under that head. Adopting an amount of Rs.4,500/- as monthly expense for a bystander, an amount of Rs.2,92,500/-(4500x65) will be payable under that head future bystanders expenses for 65 months. After deducting the sum of Rs.25,000/- awarded under the head, the appellants M.A.C.A.No.216 of 2013 7 will be entitled to an additional sum of **Rs.2,67,500/-** under that head. The compensation for permanent disability applying the income of Rs.6,000/- increased by 25% towards future prospects and applying the multiplier of 18 and disability of 100%, would be Rs.13,60,800/- (6000x125%x12x18x84%). After deducting the amount of Rs.5,83,200/- awarded by the Tribunal, the appellants will be entitled to an additional sum of **Rs.7,77,600/-** under that head. 5. In the result, the appeal is allowed and the appellants are awarded an enhanced compensation of **₹Rs.10,63,100/(Rupees Ten Lakhs Sixty Three Thousand One Hundred only)** with interest at the rate of 9% per annum from the date of filing of the claim petition (30.12.2009) till the date of realisation, with proportionate costs. The appeal was filed with a delay of 46 days. By order dated 24.03.2021, this Court condoned the delay in filing the appeal on condition that the appellants will not be entitled to interest on the enhanced compensation which may be awarded by this Court for the period of 46 days. The interest payable on the enhanced compensation shall be hence excluding the period of 46 days. The 2nd respondent insurer shall deposit the additional compensation granted in this appeal along with the M.A.C.A.No.216 of 2013 8 interest and proportionate costs, before the Tribunal within two months from the date of receipt of a certified copy of this judgment, after deducting any amount to which the appellants are liable towards balance court fee and legal benefit fund. The disbursement of the compensation to the appellants shall be in accordance with law. Sd/- **T.R. RAVI JUDGE** dsn The judgment dated 08.12.2021 in MACA 216/2013 is corrected as per order dated 13.01.2022 in RP 22/2022 as follows: ***** The last sentence in paragraph 2 at page 5 is replaced as; “Finding that the driver of the 2 wheeler did not have a driving licence, the Tribunal exonerated the Insurance Company and directed the 1st respondent to pay the compensation. The appellant contends that the Tribunal ought to have directed the Insurance Company to pay the compensation and recover the same from the 1st respondent.” ***** The 5th sentence in paragraph No.5 of the judgment at pages 7 & 8 is replaced as “The 2nd respondent insurer shall deposit the compensation awarded by the Tribunal as modified by M.A.C.A.No.216 of 2013 9 the judgment in this appeal along with interest with proportionate costs before the Tribunal within two months from the date of receipt of a certified copy of this judgment, after deducting any amount to which the appellants are liable towards balance court fee and legal benefit fund. The 2nd respondent will be entitled to recover the amounts paid as compensation from the 1st respondent.” Sd/- **Deputy Registrar**