High Court of KeralaDivision Bench2011-08-11Appeal partly allowed; enhanced compensation an...

VARKEY, S/O FABIN vs NAZAR, S/O MUHAMMED KOYA; PRABHUKUMAR, S/O THANKAPPAN; THE ORIENTAL INSURANCE COMPANY LTD.

Case / Petition Number:MACA.No.1257 of 2005

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Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: R. Basant
M. C. Hari Rani
Judgment Date: 2011-08-11
Court Decision / Holding: This appeal is allowed in part. The appellant is entitled to a further amount of Rs. 20,500 (in addition to the amount already awarded by the Tribunal). Interest shall be payable on the entire amount of compensation at the rate of 7.5% per annum from the date of the petition to the date of deposit/realisation. All other directions of the Tribunal are upheld.
Final Disposition: Appeal partly allowed; enhanced compensation and higher interest; Tribunal directions upheld in all other respects; final order directs increased compensation and 7.5% interest on total amount.

Parties to the Case

Appellants / Petitioners

VARKY, S/O FABIN, Kakkariyil, Ward No. X, Cherthala South, Panchayat

Respondents

Nazar, S/O Muhammed Koya, Madappallil, Varnam P., Cherthala
Prabhu kumar, S/O Thankappan, Puthen Purackal, Charmangalam P.O., Cherthala
The Oriental Insurance Company Ltd., Divisional Office, T.H.Towers, Market Road, Moovattupuzha 686 673

Legal Representation & Advocates

Counsels for Petitioners

• Sri Babu Varghese, Senior Advocate
• Sri A.N. Santosh
• Sri P.V. Baby

Counsels for Respondents

• Sri M. Jacob Murickan

Case Synopsis & Summary

Claimant Varkey seeks compensation for injuries sustained in a motor vehicle accident on 27 April 1998. The Tribunal for the Motor Accidents Claims awarded a total of Rs 16,600 against an original claim of Rs 1,15,500, distributing the sum across heads of pain and suffering, loss of amenities, medical expenses, transportation, loss of earnings, bystander expenses, disability and damage to property. The appellant, aged about 75 with a documented 12% disability (Ext. A9) and three days of hospitalization, submits that the award under pain and suffering is manifestly inadequate and that the other heads deserve re-assessment in light of the disability and possible future medical costs. He argues that the amount under pain and suffering should be Rs 10,000 and that a proper calculation under the factors of earning capacity and amenities would yield higher sums for loss of amenities, and loss of earning capacity, with a revised total. The Insurance Company supports the tribunal's award but does not disagree with the appellant's challenge to quantum. The High Court applies the multiplier principle from Sarla Verma v. D.T.C. (2009) 6 SCC 121 to determine an appropriate earning-capacity reduction, re-estimates monthly income at Rs 1,250, and notes that the tribunal did not separately assess loss of amenities. The court increases pain and suffering to Rs 10,000, fixes loss of amenities at Rs 10,000, and awards a further Rs 9,000 for reduced earning capacity and Rs 2,500 for loss of earnings, totaling Rs 20,500, plus 7.5% interest on the total amount.

Provisions of Law Cited

Motor Vehicles Act, Schedule I, Clause 6

Legal Doctrines & Maxims

Multiplier principle under the Motor Vehicles Act as laid down in Sarla Verma v. D.T.C., (2009) 6 SCC 121

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellant argues that at about 75 years of age, with three days of hospitalization and a 12% disability, the amount awarded for pain and suffering is grossly inadequate. He contends that pain and suffering should be Rs 10,000 and that the recommendations under earning capacity and loss of amenities require higher awards: loss of amenities Rs 10,000; reduced earning capacity Rs 9,000; loss of earnings Rs 2,500. He relies on the multiplier principle (Sarla Verma) and an assumed monthly income of Rs 1,250, and asserts interest should be 7.5% on the total amount.

Contentions of Respondents

The respondents (insurance company) participate in the hearing but argue that the Tribunal’s award was not excessive and that any enhancement should be modest. They contest any drastic shifts in the earnings-capacity calculations and rely on the Tribunal’s considered approach; the primary focus of their submission is maintaining the Tribunal’s framework with limited or no upward revision, apart from participating in the appellate process.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Sarla Verma v. D.T.C.	(2009) 6 SCC 121	Positive	The court applies the multiplier and prudence principles from Sarla Verma to recompute compensation, particularly for earning-capacity reduction and future losses.

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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 R.BASANT & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI THURSDAY, THE 11TH AUGUST 2011 / 20TH SRAVANA 1933 MACA.No. 1257 of 2005() ----------------------OPMV.757/1998 of M.A.C.T. ALAPPUZHA .................... APPELLANT/PETITIONER IN OP(MV) ----------------------------------- VARKEY, S/O.FABIN, KAKKARIYIL, WARD NO. X. CHERTHALA SOUTH, PANCHAYATH. BY ADV. SRI.BABU VARGHESE, SENIOR ADVOCATE SRI.A.N.SANTHOSH SRI.P.V.BABY RESPONDENTS/RESPONDENTS 1,2 & 4 IN OP(MV) --------------------------- 1. NAZAR, S/O.MUHAMMED KOYA, MADAPPALLIL, VARNAM P. CHERTHALA. 2. PRABHUKUMAR, S/O.THANKAPPAN, PUTHEN PURACKAL, CHARMANGALAM P.O. CHERTHALA. 3. THE ORIENTAL INSURANCE COMPANY LTD. DIVISONAL OFFICER, T.H.TOWERS, MARKET ROAD, MOOVATTUPPUZHA 686 673. ADV. SRI.M.JACOB MURICKAN FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 11/08/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: **R.BASANT & M.C.HARI RANI, JJ. * * * * * * * * * * * * *** M.A.C.A.No.1257 of 2005 ---------------------------------------Dated this the 11[th] day of August 2011 ## **J U D G M E N T** ## **R.BASANT,J** Claimant is the appellant. He claimed compensation for personal injuries suffered by him in a motor accident which took place on 27/4/1998. Against a total claim of Rs.1,15,500/-, the tribunal awarded a total amount of Rs.16,600/- as compensation as per the details shown below: |**_Sl._**<br>**_No._**|**_Head_**|**_Amount claimed_**<br>**_Rs._**|**_Amount_**<br>**_awarded Rs._**| |---|---|---|---| |1.|Pain and sufferings|25000|5000| |2.|Loss of amenities|30000|Nil| |3.|Medical Expenses|8000|4100| |4.|Transportation expenses|1000|500| |5.|Loss of earnings|18000|Nil| |6.|Bystander expenses|1000|500| |7.|Disability|25000|6000| |8.|Future medical expenses||Nil| |9.|Damage to cycle||500| ||**Total**||16600| 2. The appellant had suffered fracture of fibula. He was an in-patient for three days. He was aged 75 years at the time of 2 M.A.C.A.No.1257 of 2005 the accident. He had suffered physical disability to the tune of 12% and the same is borne out by the disability certificate Ext.A9 issued by the doctor. The appellant examined himself as PW1. 3. We have heard the learned counsel for the appellant/claimant and respondent/Insurance Company. The challenge is raised on the sole ground that the quantum of compensation awarded is not fair, reasonable and just. 4. Called upon to explain and be specific, the learned counsel for the appellant contends that for the appellant, a person aged about 75 years, the quantum of compensation awarded under the head of pain and suffering is painfully low. He was an in-patient for three days. He had suffered fracture of the fibula. He must have continued treatment thereafter for some period of time. At any rate, the amount of Rs.5,000/awarded by the tribunal for pain and suffering is grossly inadequate, contends the counsel. We agree. We are satisfied that an amount of Rs.10,000/- can be awarded as compensation under that head. 5. The appellant claims to be employed and earning an 3 M.A.C.A.No.1257 of 2005 income of Rs.3,000/- per month. Even in the absence of any better evidence, in the light of the oral evidence tendered by him, we are satisfied that the presumption of prudence permissible under clause 6 of schedule 1 of the Motor Vehicles Act can safely be invoked in his favour. It is reasonable to assume that he would have been involuntarily unemployed for a period of two months. 6. The evidence clearly shows that the appellant has suffered disability. The certificate shows that the disability was to the tune of 12%. The tribunal did not separately assess compensation payable for reduction in earning capacity and loss of amenities. Reckoning 5 as the multiplier as permitted by **Sarla Verma v. D.T.C [(2009)6 SCC 121]** and reckoning Rs.1,250/- as the monthly income, we are satisfied that an amount of Rs.9,000/- can be awarded under the head of reduction in earning capacity. Only an amount of Rs.6,000/- has been awarded under that head. Considering the advanced age of the appellant and the nature of disability, we are satisfied that a separate amount ought to have been awarded under the head of loss of amenities. We fix that amount to be Rs.10,000/-. 4 M.A.C.A.No.1257 of 2005 7. The above discussions lead us to the conclusion that the appellant is entitled to the following further amount in addition to the amount already awarded by the tribunal. Pain and suffering Rs.5,000/(Rs.10,000/- minus Rs.5,000/- Reduction in earning capacity Rs.3,000/[Rs.9,000/- (Rs.1,250/- x 12 x 5 x 12/100) minus Rs.6,000/-] Loss of earnings Rs.2,500/(Rs.1,250/- x 2) Loss of amenities Rs.10,000/------------------- **Total Rs.20,500/========** 8. Interest has been awarded by the tribunal only at the rate of 6% per annum. The learned counsel argues and we agree that interest ought to have been awarded atleast at the rate of 7.5% per annum. 9. In the result, - a) This appeal is allowed in part. - b) Appellant is found entitled to a further amount of M.A.C.A.No.1257 of 2005 5 **Rs.20,500/** - (Rupees twenty thousand and five hundred only) in addition to the amount already awarded by the Tribunal. c) We direct that interest shall be payable on the entire amount of compensation at the rate of 7.5% per annum from the date of the petition to the date of deposit/realisation. d) 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.1257 of 2005 6 7 M.A.C.A.No.1257 of 2005 **K.M.JOSEPH & M.C.HARI RANI, JJ.** .No. of 200 ORDER/JUDGMENT 30/082010