High Court of KeralaSingle Judge2021-07-14MACA allowed; enhanced compensation; the appell...

Vimal P. M. v. Johny, M. U. Scaria & National Insurance Company Ltd.

Case / Petition Number:MACA No.1286 of 2014

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: A. Badharudeen
Judgment Date: 2021-07-14
Court Decision / Holding: MACA allowed. The court enhanced the award from Rs. 7,12,260 to Rs. 12,44,660, fixed the monthly income at Rs. 8,000 for loss of earnings and disability, recalculated to Rs. 8,64,000 for disability income, increased pain and suffering by Rs. 15,000, and increased loss of amenities by Rs. 20,000. It further held that the appellant is entitled to a further amount of Rs. 5,32,400 in addition to the impugned award. The entire compensation shall carry 9% interest from the petition date until deposit/realisation, and the respondents shall deposit the total within two months with joint and several liability."
Final Disposition: MACA allowed; enhanced compensation; the appellant is entitled to a higher total amount; 9% interest; deposit within two months; joint and several liability on respondents.

Parties to the Case

Appellants / Petitioners

Vimal P. M.

Respondents

Johny
M. U. Scaria
National Insurance Company Ltd.

Legal Representation & Advocates

Counsels for Petitioners

• Sri. N. Manoj Kumar
• Smt. Jayasree Manoj

Counsels for Respondents

• Sri. Mathew KuriaKose
• Smt. Sarah SalvY

Case Synopsis & Summary

This appeal arises from an award of Rs 7,12,260 under the Motor Accidents Claims Tribunal, Wayanad, dated 26 October 2013 in OPMV No. 78/2012, granting compensation to the claimant for injuries sustained in a road accident on 7 August 2011 involving a bus (KL-12-B-6434) driven by the first respondent. The appellant, a 23-year-old, challenges the tribunal’s assessment, arguing that the disability and income determinations understate the loss. Ext. C1 is a medical certificate noting a Grade III open fracture with substantial right leg damage, culminating in amputation above the knee, and showing a disability of 37% (per the tribunal’s finding) contradicted by the certificate and the NIOH’s 80% disability scale. The insurer contends the 37% figure is correct. The High Court re-evaluates the evidence, holding that the disability should be fixed at 50% in light of the amputation and Ext. C1, and fixes monthly income at Rs. 8,000 (following Ramachandrappa) for calculating loss of earnings and disability income. The court increases loss of earnings from 3 to 6 months, recalculates the disability income to Rs. 8,64,000, enhances pain and suffering and loss of amenities, and ultimately raises the total compensation to Rs. 12,44,660. The MACA is allowed, with 9% interest and joint and several liability on respondents, to be deposited within two months."

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellant contends that Ext. C1 shows a 50% disability with amputation of the right leg, and the tribunal’s fixation at 37% is erroneous. He argues that the disability should be assessed as 80% per the NIOH scale given the amputation and severe injuries; the monthly income should be Rs. 8,000 (per Ramachandrappa) for both loss of earnings and disability income. He seeks recalculation for 6 months of loss of earnings, higher disability benefits, and additional compensation for pain, suffering, and loss of amenities, thereby increasing the total award. He claims that the existing award undervalues the claimant’s loss and demands a more realistic assessment aligned with medical records and standard disability scales.

Contentions of Respondents

The insurer contests the enhanced disability claim, maintaining that the Tribunal correctly fixed disability at 37% as per Ext. C1 and that the evidence does not justify a higher impairment. It supports the Tribunal’s ruling on income and argues against using higher figures, cautioning against speculative escalation of compensation. The respondents rely on the settled jurisprudence to support the lower baseline for earnings and disability and emphasize that the original award was not defective to the extent suggested by the appellant.

Cited Precedents (2)

Case Name	Citation	Treatment	Explanation
Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Co. Ltd.	(2011) 13 SCC 236	Positive	The court relied on the ratio of Ramachandrappa to fix the monthly income at Rs. 8,000 for calculating loss of earnings and disability income.
Syed Sadiq v. Divisional Manager, United India Insurance Co. Ltd.	(2014) 2 SCC 735	Mentioned Only	Cited in the arguments as part of the legal context; the decision primarily relies on Ramachandrappa for income fixation, with Syed Sadiq not expressly applied in the final calculation.

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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 A. BADHARUDEEN** **WEDNESDAY, THE 14[TH] DAY OF JULY 2021 / 23RD ASHADHA, 1943 MACA NO. 1286 OF 2014** **AGAINST THE AWARD DATED 26.10.2013 IN OPMV 78/2012 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, KALPETTA, WAYANAD** ## **APPELLANT:PETITIONER** VIMAL P.M. AGED 23 YEARS, S/O.MOHANDAS, PADANGARA HOUSE, THIRUNELLI, S.BATHERY POST, KUPPADI VILLAGE, S.BATHERY TALUK, WAYANAD DISTRICT. BY ADVS. SRI.N.MANOJ KUMAR SMT.JAYASREE MANOJ ## **RESPONDENTS:RESPONDENTS** 1 JOHNY AGED 55 YEARS THAMARAKKOLLY HOUSE, IRUKANNI, KENICHIRA, POOTHADI AMSOM (DRIVER OF KL-12-B-6434 BUS). 2 M.U.SCARIA S/O.ULAHANNAN, MAPPANATH HOUSE, SEETHAMOUNT POST, PULPALLY, WAYANAD DISTRICT (OWNER OF KL-12-B-6434 BUS). 3 NATIONAL INSURANCE COMPANY LTD. KALPANA SHOPPING COMPLEX, MAIN ROAD, KALPETTA (INSURER OF KL-12-B-6434 BUS). BY ADVS. SRI.MATHEW KURIAKOSE FOR R1 & R2 SMT.SARAH SALVY FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 14.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.A.C.A No.1286 of 2014 : 2 : ## _**A. BADHARUDEEN, J.**_ ================================ _M.A.C.A No.1286 of 2014_ ================================ _Dated this the 14[th] day of July, 2021_ _**J U D G M E N T**_ The petitioner in O.P(MV) No.78/2012 on the file of the Motor Accident Claims Tribunal, Wayanad is before this Court since he was aggrieved in the matter of compensation granted by the Tribunal as per award dated 26.10.2013. 2. Heard both sides. 3. The precise allegation led to filing of this petition is that on 7.8.2011 at about 6.30 p.m, the petitioner sustained injuries in an accident while he was riding his motorcycle bearing Reg.No.KL12E/7908. According to the petitioner, a bus bearing Reg.No.KL12B6434 driven by the 1[st] respondent hit against him and thereby he sustained injuries. Alleging negligence against the original 1[st] respondent, the petitioner had filed the Original Petition claiming compensation of Rs.10 lakhs. M.A.C.A No.1286 of 2014 : 3 : 4. Respondents 1 to 3 filed written statement. The 3[rd] respondent filed written statement disputing liability and admitting policy. 5. On anxious consideration of the evidence laid down before the Tribunal, the Tribunal granted Rs.7,12,260/- as against the claim of Rs.10 lakhs. 6. The learned counsel for the appellant/petitioner canvassed increase in disability income pointing out the fact that the Tribunal fixed the disability of the petitioner as 37% though as per Ext.C1, the disability was assessed as 37% permanent disability and 80% as per National Institute of Orthopedically Handicapped Scale (NIOH). According to the learned counsel for the petitioner, the Tribunal ought to have fixed 80% disability in the case of the petitioner since he sustained both bone fracture and ultimately his right leg above knee was amputated. 7. The learned counsel for the insurance company submitted that 37% is the permanent disability fixed as per Ext.C1 and therefore, the Tribunal is justified in fixing disability as 37%. M.A.C.A No.1286 of 2014 : 4 : 8. While crystalising the dispute as to whether what actually is the percentage of the disability in the present case, as I have already extracted, 37% permanent disability and 80% disability as per NIOH was assessed as per Ext.C1 medical certificate issued by the Medical Board, District Hospital, Wayanadu. As per Ext.C1 the following injuries are noted: - _"1. Grade III open fracture right tibia and fibula with bone loss._ _2. Injury to extensor muscle with substane loss right leg._ _3. Inferior tibiofibular diastasis right side._ _4. Blunt injury right thumb with fracture 1st metacarpal._ _5. Loose teeth."_ It was stated therein that treated at Malabar Institute of Medical Science Hospital, Kozhikode (as per available records). Thus going by the medical records inclusive of disability certificate as well as Ext.A7 discharge summary, the petitioner, who was aged 23 years at the time of the accident, was subjected to amputation of his right leg above knee. Considering the above facts, the disability fixed by the Tribunal could not be justified. Therefore, disabiity is to be fixed on a higher side and hence disability is fixed as 50% in M.A.C.A No.1286 of 2014 : 5 : this case in view of the events discussed above. 9. Coming to the monthly income also, there is challenge on the part of the petitioner relying on _**Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited**_ [(2011) 13 SCC 236] and _**Syed Sadiq v. Divisional Manager, United India Insurance Co. Ltd.**_ [(2014) 2 SCC 735]. If reliance is given to the ratio of _**Ramachandrappa**_ 's case ( _supra_ ), the monthly income of the petitioner would have been fixed at Rs.8,000/- for assessing loss of earnings as well as disability income. Therefore, I fix Rs.8,000/- as the monthly income of the petitioner for the purpose of recalculating loss of earning as well as loss of disability income. 10. On a perusal of the award, loss of earnings for 3 months @ Rs.5,000/- fixed by the Tribunal was granted. Considering the nature of the injuries sustained and the treatment underwent, I am of the view that the petitioner is entitled to get at least 6 months' loss of earnings. Therefore, loss of earnings is recalculated as M.A.C.A No.1286 of 2014 : 6 : Rs.8,000/- X 6 = Rs.48,000/-, out of which Rs.15,000/- was granted by the Tribunal and the remaining **Rs.33,000/-** is to be **more** granted . Coming to the disability, by fixing Rs.5,000/- as monthly income of the petitioner, the Tribunal granted Rs.3,99,600/-. Since the disability is refixed as 50% and the monthly income is fixed as Rs.8,000/- recalculation of the same is also necessary. Therefore, disability income is recalculated as : 8000 X 12 X 18 X 50/100 = Rs.8,64,000/-. Thus the disability income is Rs.8,64,000/-. Reducing Rs.3,99,600/- granted by the Tribunal from the same, it would be : Rs.8,64,000/- minus Rs.3,99,600/- = Rs.4,64,000/-. The compensation granted under the head pain and suffering also is on the lower side is the submission of the learned counsel for the appellant/petitioner. It could be noticed that Rs.40,000/- was granted towards pain and suffering, though Rs.1 lakh was claimed. Considering the amputation and consequential treatment as elicited above, I am inclined to increase **Rs.15,000/- more** under the above head. Similarly, the loss of amenities granted by the Tribunal is only M.A.C.A No.1286 of 2014 : 7 : Rs.5,000/-. The same also is on the lower side considering the nature of injuries. Therefore, I am intending to increase the same by Rs.20,000/- more. 11. Therefore, the award passed by the Tribunal to the tune of Rs.7,12,260/- is enhanced to Rs.12,44,660/- (Rupees Twelve lakhs forty four thousand six hundred and sixty only) and hence modified award is passed. The interest granted by the court below as such is confirmed. All other directions issued by the Tribunal will be in force. 12. Therefore, the award is modified and enhancement granted as follows: ||||**Modified award** **amount**|**Modified award** **amount**| |---|---|---|---|---| |**Sl.No.**|**Head of claim**|**Amount awarded**||| ||Income/notional income|Rs. 5,000.00||| |1|Income/notional income|Rs. 5,000.00|Rs. 8,000.00|| |2|Loss of earning|Rs. 15,000.00|Rs. 48,000.00|| ||Medical and miscellaneous expenses|||| |3||Rs. 2,33,742.00|Rs. 2,33,742.00|| |||||| |4|Bystander expenses|Rs. 5,100.00|Rs.|5,100.00| |5|Transportation expenses|Rs. 7,818.00|Rs. 7,818.00|| |6|Extra nourishment|Rs. 5,000.00|Rs. 5,000.00|| |7|Damage to clothing|Rs. 1,000.00|Rs. 1,000.00|| |8|Pain and suffering|Rs. 40,000.00|Rs. 55,000.00|| ||||Rs. 8,64,000.00 (Rs.8000X12X18X50 /100)| |---|---|---|---| ||Compensation for permanent disability|Rs.3,99,600.00 (5000X12X18X37/100)|| |9|||| ||||| ||||| |10|Loss of amenities|Rs. 5,000.00|Rs. 25,000.00| ||||| ||Total|**Rs. 7,12,260.00**|**Rs. 12,44,660.00**| ## 13. In the result: - a) This M.A.C.A is allowed; b) The appellant/petitioner is found entitled to a further amount of ## _**Rs.5,32,400/- (Rupees Five lakhs thirty two thousand four hundred only)**_ in addition to the amount already awarded by the Tribunal under the impugned award; c) The entire amount of compensation shall carry interest at the rate of 9% from the date of petition till the date of deposit or realisation. d) The respondents are jointly and severally liable to pay the compensation and shall deposit the entire amount of compensation within a period of two months from this date. On deposit, the petitioner is at liberty to release the same as per rules. _Sd/-_ ## _**(A. BADHARUDEEN, JUDGE)**_ _rtr/_