Wilson v. Jessy Simon, Linson and The Manager Oriental Insurance Company Ltd.

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: C.S.Dias
Judgment Date: 2021-07-28
Court Decision / Holding: The appeal is allowed. The High Court enhanced the compensation by Rs. 76,940 over the Tribunal’s award, with interest at 7% per annum from the date of petition to realisation and proportionate costs. The 3rd respondent (insurer) shall deposit the enhanced compensation before the Tribunal within two months of receipt of a certified copy of the judgment, and the Tribunal shall disburse the enhanced amount in accordance with law.
Final Disposition: Appeal allowed; enhanced compensation

Parties to the Case

Appellants / Petitioners

Wilson, S/O KannANn"

Respondents

Mrs. Jessy Simon
Linson
The Manager Oriental Insurance Company Ltd.

Legal Representation & Advocates

Counsels for Petitioners

• Sri.T.N.Manoj

Counsels for Respondents

• Sri.P.Jacob Mathew
• Sri.Mathews Jacob

Case Synopsis & Summary

On 19 February 2004, Wilson, a scooter rider, was struck by a Tempo Van driven rashly by the 2nd respondent. He sustained a fracture of the shaft of the right femur and was treated at St. James Hospital, Chalakudy. The Tempo Van was owned by the 1st respondent and insured with the 3rd respondent. Wilson, a toddy tapper by profession, claimed compensation from the respondents in OP(MV) No. 1437/2004 before the Motor Accidents Claims Tribunal, Irinjalakkuda, quantified at Rs. 1,70,000. The Tribunal allowed the claim in part, awarding Rs. 53,100 with interest at 7% per annum from the date of petition and costs. The 1st and 2nd respondents were ex parte; the 3rd respondent admitted insurance coverage and asserted negligence on the part of the appellant. Exhibits A1–A8 were marked; however, the Tribunal refused to rely on Ext. A7 (an 8% permanent disability certificate) because the issuing doctor was not examined, despite Ext. A7 being on record. The appellant challenged the Tribunal’s approach. On appeal, the High Court re-evaluated the evidence, observed that Ext. A8 certified 8% disability by an Orthopedic Surgeon, and held the Tribunal’s findings irregular. Relying on the multiplier principle (Sarala Varma), the court adopted a multiplier of 14, recalculated losses, and increased the total compensation to Rs. 1,30,040, with a further enhancement of Rs. 76,940, plus interest and costs. The insurer is to deposit the enhanced amount within two months.

Legal Doctrines & Maxims

Multiplier principle for determining compensation (as laid down in Sarala Varma v. Delhi Transport Corporation)
Notional income approach for calculating loss of earnings

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellant contends that Ext. A7 (8% permanent disability certificate) was correctly marked and should be relied upon; the Tribunal’s refusal to accept it due to non-examination of the issuing doctor was erroneous. He argues for higher compensation based on notional income (Rs. 4,215 per month), six months’ incapacity, and the disability, applying the appropriate multiplier (14) as per Sarala Varma; objects to the Tribunal’s calculation and seeks re-determination of heads of loss.

Contentions of Respondents

The respondents contend that the accident occurred due to negligence of the 2nd respondent; insurance coverage is valid; the Tribunal’s findings are otherwise just; they challenge the disabling certificate’s admissibility if not properly proved; they rely on the Tribunal’s assessment and seek no further enhancement.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Sarala Varma and others v. Delhi Transport Corporation and others	(2010) 2 KLT 802	Positive	Adopted multiplier principle from the cited case; fixed multiplier 14 based on age for this appellant.

Extracted Judgment Text

Exact text extracted from official judgment records.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **WEDNESDAY, THE 28[TH] DAY OF JULY 2021 / 6TH SRAVANA, 1943** **MACA NO. 1646 OF 2009** **AGAINST THE AWARD IN OP(MV)NO.1437/2004 OF MOTOR ACCIDENT** **CLAIMS TRIBUNAL , IRINJALAKUDA, THRISSUR** ## **APPELLANT/PETITIONER:** **WILSON, S/O.KANNANPUZHA PATHROSE, VALLAPARAMBU, KURUVILASSERY VILLAGE,MALA.** **BY ADV SRI.T.N.MANOJ** ## **RESPONDENTS:** - **1 MRS.JESSY SIMON, PARAPPADAN HOUSE,MALA.** - **2 LINSON,S/O.ARAKKAL JOSEPH KAVANAD,VADAMA,MALA VIA.** - **3 THE MANAGERORIENTAL INSURANCE COMPANY LTD.,KODUNGALLUR.** **BY ADVS. SRI.P.JACOB MATHEW SRI.MATHEWS JACOB SR.** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 28.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA No. 1646 of 2009 _2_ ## **C.S.DIAS,J** - - - - - - - - - - - - - - - - - - - - - - - - MACA No. 1646 of 2009 - - - - - - - - - - -- - - - - - - - - - - - - Dated this the 28[th] day of July, 2021 ## **JUDGMENT** The appellant was the petitioner in OP(MV) No. 1437 of 2004 on the file of the Motor Accidents Claims Tribunal, Irinjalakkuda. The respondents in the appeal were the respondents before the Tribunal. 2. The facts in brief, relevant for the determination of the appeal, are: on 19.02.2004 while the appellant was riding his Scooter bearing registration No. KL 8 E/1947, a Tempo Van bearing registration No. KL 8/ A 2084 ( Tempo Van) driven by the 2[nd] respondent in a rash and negligent manner hit the Scooter of the appellant. The appellant sustained serious injuries and was treated at the St.James Hospital, Chalakudy. He suffered a fracture of the MACA No. 1646 of 2009 _3_ shaft of his right femur. The Tempo Van was owned by the 1[st] respondent and insured with the 3[rd] respondent. The appellant was a toddy tapper by profession and earning a monthly income of Rs.4215/-. The appellant claimed compensation from the respondents, which he quantified at Rs.1,70,000/- 3. The respondents 1 and 2 did not contest the proceedings and were set ex-parte. 4. The 3[rd] respondent filed a written statement admitting that the Tempo Van had a valid insurance It was contended that the accident coverage. occurred due to the negligence on the part of the appellant. 5. The appellant produced and marked Exts.A1 to A8 in evidence. 6. The respondents did not let in any contra evidence. 7. The Tribunal, after analyzing the pleadings MACA No. 1646 of 2009 _4_ and materials on record, allowed the claim petition, in part, by permitting the appellant to realise an amount of Rs.53,100/- from the 3[rd] respondent with interest at the rate of 7% per annum from the date of petition till the date of realisation and proportionate costs. 8. Dissatisfied with the quantum of compensation, the petitioner is in appeal. 9. Heard Sri.T.N.Manoj, the learned Counsel appearing for the appellant/petitioner and Sri.P. Jacob Mathew, the learned Counsel appearing for the 3[rd] respondent – insurance company. 10. The sole question that arises for consideration in this appeal whether the quantum of compensation awarded by the Tribunal is reasonable and just? 11. Ext.A2 charge-sheet filed by the Mala police in Crime No.65 of 2004 substantiates that the MACA No. 1646 of 2009 _5_ accident occurred solely on account of the negligence of the 2[nd] respondent. Admittedly, the 1[st] respondent was the owner and the 3[rd] respondent was the insurer of the Tempo Van. Therefore, it is the 3[rd] respondent who is to indemnify the liability of the 1[st] respondent to pay the compensation amount. 12. The appellant had produced Ext.A7 disability certificate issued by the Doctor who treated him. It is certified in Ext.A7 that the appellant has a permanent disability of 8%. The Tribunal, with the consent of both parties marked the document in evidence. Nevertheless, the Tribunal refused to accept the certification of disability in Ext.A7 on the ground that the Doctor who issued the certificate was not examined as a witness. 13. The learned counsel appearing for the appellant submits that the course adopted by the Tribunal was wrong and unsustainable in law, MACA No. 1646 of 2009 _6_ because the appellant had filed Annexure A - list of witnesses, wherein, the Doctor who issued Ext.A7 was cited as a witness. It was only due to the fact that Ext.A7 was marked in evidence, the petitioner did not feel that there was a necessity to examine the Doctor who issued the said certificate. 14. On a re-appreciation of issue Nos.2 in the impugned award it is seen that the Tribunal had marked Ext.A8 certificate in evidence, wherein, it is clearly found that the appellant has a permanent disability of 8%. More over, the said certificate was issued by the Orthopedic Surgeon attached to the Government Taluk Headquarters Hospital, Irinjalakkuda. According to me, it was for the Tribunal to have alerted the appellant to examine the Doctor, if the Tribunal was not satisfied of the certificate. The course adopted by the Tribunal, after marking the document and then refusing to accept its MACA No. 1646 of 2009 _7_ contents, is erroneous and wrong. Not at this distance of time, after the lapse of nearly 18 years, I do not think it is necessary to remand the matter to the Tribunal for the sole purpose of examining the Doctor to prove Ext.A7 certificate. I accept the submission of the learned counsel appearing for the appellant on its face value that the appellant was on the mistaken impression that because Ext.A7 was marked in evidence, there was no necessity to examine the Doctor who certified it. Further more, as the procedure adopted by the Tribunal was irregular, I set aside the said findings and accept the disability of the appellant at 8% as certified in Ext.A7. ## **Multiplier** 15. As the appellant was aged 42 years, in the light of the law laid down in **Sarala Varma and others v. Delhi Transport Corporation and others** [ **(** 2010) 2 KLT 802], the relevant multiplier is ‘14’. MACA No. 1646 of 2009 _8_ ## **Loss due to disability** 16. In view of the afore-stated factors namely, the fixation of the notional income of the appellant at Rs.4215/- per month, the multiplier at ‘14’, the disability at 8%, I re-fix the compensation for ‘loss due to disability’ at 56,649/- ## **Loss of earnings** 17. It is on record, as per Ext.A3 wound certificate and Ext.A4 discharge summary, that the appellant sustained a fracture of the shaft of the right femur. The appellant, as per Annexure C certificate, was a toddy tapper by profession. In view of the injury that the appellant had sustained, certainly, he was indisposed for a period of six months. Taking note of the re-fixation of the notional income of the appellant at Rs.4,215/- per month and fixing his period of incapacity at six months, I re-fix the compensation for 'loss of earnings' at Rs.25,208/- MACA No. 1646 of 2009 _9_ ## **Other heads of claim** 19. With respect to the other heads of compensation, I find that the Tribunal has awarded reasonable and just compensation. 19. On an overall re-appreciation of the pleadings and materials on record, I hold that the appellant/petitioner is entitled for compensation as recalculated above and given in the table below for easy reference. |Sl. No|Heads of claim|Amount awarded by the Tribunal (in rupees)|Amounts modified and recalculated by this Court| |---|---|---|---| |1|Loss of earning|5000|25290| |2|Transport|500|500| |3|Bye-stander expenses|1600|1600| |4|Medical expenses|26000|26000| |5|Compensation for pain and sufferings|15,000|15,000| |6|Compensation for loss of amenities|5000|5000| |7|Loss due to disability|nil|56649| |||53100|130039 (rounded of to 130040)| MACA No. 1646 of 2009 _10_ In the result, the appeal is allowed, by enhancing the compensation by a further amount of Rs.76,940/with interest at the rate of 7% per annum from the date of petition till the date of realisation and proportionate costs. The 3[rd] respondent shall deposit the enhanced compensation awarded in this appeal before the Tribunal with interest and proportionate costs within a period of two months from the date of receipt of a certified copy of the judgment. The Tribunal shall disburse the enhanced compensation to the appellant, in accordance with law. Sd/- ## **C.S.DIAS,JUDGE** **dlk 28.07.2021**