Kerala High Court
The Oriental Insurance Company Limited vs K.P.Samuel on 20 June, 2024
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE SOPHY THOMAS
THURSDAY, THE 20TH DAY OF JUNE 2024 / 30TH JYAISHTA, 1946
MACA NO. 1231 OF 2012
AGAINST THE AWARD DATED 30.11.2011 IN OPMV NO.30 OF 2000 OF
MOTOR ACCIDENTS CLAIMS TRIBUNAL ,ERNAKULAM
APPELLANT/ADDITIONAL 4TH RESPONDENT:
THE ORIENTAL INSURANCE COMPANY LIMITED
NOW REPRESENTED BY ITS ASSISTANT MANAGER,
REGIONAL OFFICE, METRO PALACE, KOCHI-18.
BY ADVS.
SRI.MATHEWS JACOB (SR.)
SRI.P.JACOB MATHEW
RESPONDENT/PETITIONER:
K.P.SAMUEL
S/O.MATHAI PAPPY, REPRESENTED BY HIS
NEXT FRIEND AND WIFE ANU SAMUEL, SIJU'S
BHAVAN, SDPY ROAD, PALLURUTHY,
KOCHI-682 006.
BY ADV SRI.B.RENJITHKUMAR
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY
HEARD ON 12.06.2024, ALONG WITH MACA.1307/2014, THE COURT ON
20.06.2024 DELIVERED THE FOLLOWING:
MACA Nos.1231 of 2012 & 1307 of 2014 2
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE SOPHY THOMAS
THURSDAY, THE 20TH DAY OF JUNE 2024 / 30TH JYAISHTA, 1946
MACA NO. 1307 OF 2014
AGAINST THE AWARD DATED 30.11.2011 IN OPMV NO.30 OF 2000 OF
MOTOR ACCIDENT CLAIMS TRIBUNAL, ERNAKULAM
APPELLANT/PETITIONER:
K.P SAMUEL
AGED 51 YEARS
S/O.MATHAI PAPPY MURUPPEL SAMSON VILLA,
KIDANGANNOOR P.O., PATHANAMTHITTA DISTRICT
(ORIGINALLY REPRESENTED BY WIFE NEXT FRIEND
ANU SAMUEL, AGED 42 YEARS, W/O K.P.SAMUEL,
TEMPORARILY RESIDED AT C/O SIJU'S BHAVANAM,
SDPY ROAD, PALLURUTHY, KOCHI-6.
BY ADV B.RENJITHKUMAR
RESPONDENTS/RESPONDENTS 1, 2 & ADDL. 4TH RESPONDENT:
1 MAHA SULAIMAN
S/O.SULAIMAN, MAHA MANZIL, 33/2442 A,
THAMMANAM, COCHIN-32.
2 C.P.SUBAIR
S/O PAREED, CHEKKALAPARAMBIL HOUSE, 44/165
1A, KALOOR, COCHIN-17.
3 THE ORIENTAL INSURANCE CO. LTD.,
REPRESENTED BY ITS ASSISTANT MANAGER
REGIONAL OFFICE, METRO PLAZA, KOCHI-18.
(3RD RESPONDENT IN THE O.P IS NOT A
NECESSARY PARTY IN THE MACA)
BY ADVS.
SRI.MATHEWS JACOB (SR.)
SRI.P.JACOB MATHEW
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD
ON 12.06.2024, ALONG WITH MACA.1231/2012, THE COURT ON THE
SAME DAY DELIVERED THE FOLLOWING:
MACA Nos.1231 of 2012 & 1307 of 2014 3
JUDGMENT
These appeals are directed against the award in OP(MV)
No.30 of 2000 on the file of Motor Accidents Claims Tribunal,
Ernakulam. MACA No.1231 of 2012 is filed by the 4th respondent/
insurer and MACA No.1307 of 2014 is filed by the claimant. The
insurer is assailing the award as it is excessive in nature, whereas
the claimant is seeking further enhancement.
2. On 07.05.1999 at 10 a.m, while the claimant was riding a
motorcycle through Kollam-Alappuzha National Highway, at Haripad
Danappady bridge, KL-7/T 9996 car driven by the 2nd respondent,
in a rash and negligent manner, dashed against his motorcycle, and
he sustained very serious injuries. He was admitted and treated at
Medical Trust Hospital, Ernakulam and thereafter he was admitted
at VSM Hospital, Thattarambalam. He was a 37 year old Operator
working in NTPC, Kayamkulam, earning monthly income of
Rs.15,000/-. He approached the Tribunal claiming compensation of
Rs.25 lakh, and learned Tribunal awarded Rs.7,07,500/-.
3. The 2nd respondent was the driver of the offending car, 1st
respondent was its owner and 3rd respondent/New India Assurance
Company Ltd. was stated to be its insurer. But, later it was found
that the offending car was insured with the Oriental Insurance
Company Ltd., which was later impleaded as additional 4th
respondent.
4. Learned Tribunal found that, the accident occurred due to
the rash and negligent driving of the offending car by the 2nd
respondent, and that car was duly insured with the additional 4th
respondent, and so, the insurer was directed to pay compensation
of Rs.7,07,500/- to the claimant, as per award dated 20.06.2007.
5. Thereafter the 4th respondent filed MACA No.310 of 2008
before this Court, contending that, the compensation awarded by
the Tribunal was excessive in nature. As per judgment dated
26.07.2011, this Court allowed that appeal in part, and set aside
the award of the Tribunal dated 20.06.2007, and remanded the
matter for fresh consideration, directing the Tribunal to give
opportunity to both parties to adduce fresh evidence.
6. Learned Tribunal, on getting back the matter on remand,
gave opportunity to both parties to adduce fresh evidence, and
obtained fresh disability certificate of the claimant, from the
Medical Board. After evaluating the facts and evidence afresh,
learned Tribunal passed an award on 30.11.2011, for an amount of
Rs.9,15,100/-, even exceeding the earlier award amount of
Rs.7,07,500/-.
7. According to the 4th respondent, as the award amount of
Rs.7,07,500/- was really excessive, they filed MACA No.310 of
2008 for reducing that amount. But, after remand, learned
Tribunal passed an award even exceeding that amount. Hence
they preferred MACA No.1231 of 2012. Thereafter, the claimant
preferred MACA No.1307 of 2014, claiming enhancement in
compensation.
8. For easy reference, the appellant in MACA No.1231 of
2012 shall be referred as the insurer and the appellant in MACA
No.1307 of 2014 shall be referred as the claimant.
9. Heard learned counsel for the insurer as well as learned
counsel for the claimant.
10. There is no dispute with respect to the accident, injuries
or about the policy of the offending vehicle, as on the date of
accident.
11. Learned counsel for the insurer would contend that, even
the award dated 20.06.2007 for Rs,7,07,500/- was excessive and
so, they preferred MACA No.310 of 2008. That award was set
aside and the matter was remanded back for fresh consideration.
So, according to them, learned Tribunal ought not have passed an
award exceeding the earlier award. But, on going through the
judgment in MACA No.310 of 2008, it could be seen that, the
claimant was seeking further enhancement of compensation on
various grounds including his disability. This Court, without
expressing any final opinion on the rival contentions taken up from
either side, set aside the award and remanded the matter for fresh
disposal. There was further direction to send the claimant, again
to the Medical Board, for getting his disability authentically
evaluated and assessed, if found necessary. Accordingly, after
remand, the claimant was sent again for medical examination, and
a fresh certificate was obtained as Ext.X4, in which his disability
was assessed to be 38%. On analysing the entire facts and
evidence, on 30.11.2011, learned Tribunal passed a fresh award for
an amount of Rs.9,15,100/-, which, according to the insurer, is
highly excessive, but, according to the claimant, it is inadequate.
12. Learned counsel for the claimant would say that, the
claimant was working as an Operator in NTPC, Kayamkulam and
Ext.X2 copy of his pay slip shows that, in May 1999, including HRA
and other allowances, his total salary was Rs.9,159.67/-. Learned
counsel for the insurer would contend that, the claimant continued
his employment in NTPC even after the accident and he obtained
all promotions, and he retired from service only on superannuation.
So, there was no salary loss on account of the accident, till his
retirement. The date of birth of the claimant was stated to be
05.06.1962 by PW6, the Deputy General Manager of NTPC
Kayamkulam. So, the appellant was 37 years old as on the date of
accident i.e. on 07.05.1999. His age of superannuation was 60.
So, he was having 23 years of service more, even after the
accident. The claimant has no case that, he lost his salary till his
retirement, except during the period of leave he had availed in
connection with this accident. It has come out in evidence that the
claimant had availed 35 months of leave since the date of accident.
Ext.A9 document shows his leave account as follows:
1. Earned leave for the period from 07.05.1999 to
01.06.1999.
2. Half pay leave for the period from 02.06.1999 to
11.07.1999.
3. Extra ordinary leave (leave without pay and
allowances) for the period from 12.07.1999 to
02.04.2002.
So, for three years short of one month, he was on continuous
leave. It is true that, for the earned leave availed by him from
07.05.1999 to 01.06.1999, he had not lost his salary. But, if that
leave was not availed by him, he could have encashed it through
surrender. By availing half pay leave for one month, he lost half of
the salary, and on availing LWA for the period 12.07.1999 to
02.04.2002, he lost full salary.
13. As we have seen, in May 1999, the monthly salary of the
claimant including all allowances was Rs.9,159/-. The allowances
such as tea reimbursement, conveyance reimbursement, wash
reimbursement etc. are not to be taken into account during the
period of absence from duty, since those allowances will be
available while on duty only. So, from Ext.X2 salary slip, this Court
is inclined to take Rs.8,264/- which can be rounded to Rs.8,260/-,
as the amount, which he had lost, on account of loss of leave and
salary. He could have utilised the earned leave for encashment
through surrender, and he could not have lost half pay or full pay
for the period 02.06.1999 to 02.04.2002, but because of the
accident. So, for the leave period of total 35 months, he is entitled
to get compensation @ Rs.8,260/- for 34 months, which will come
to Rs.2,80,840/-, and for the remaining one month, Rs.4,130/-, as
he lost only half pay, during that month. So, for loss of leave of 35
months, he is entitled to get Rs.2,84,970/-.
14. The claimant was on leave for about three years. If he
was on duty for those three years, every year he could have
earned 30 days of earned leave. So, he lost 90 days of earned
leave, that could have accrued, if he had not taken leave for three
years in connection with the accident. So for 90 days of earned
leave lost @ Rs.8,260/- per month, he is eligible to get
Rs.24,780/-. So, the total amount that could be awarded to the
claimant for loss of leave for 35 months and for loss of earned
leave for 90 days, could be assessed as Rs.3,09,750/-. But,
learned Tribunal awarded Rs.4,32,000/- for loss of income
including Rs.7,000/- towards ex gratia in lieu of bonus. So, there
is an excess amount of Rs.1,22,250/- awarded by the Tribunal
under the head loss of income, due to loss of leave. That amount
is liable to be deducted from the compensation amount awarded by
the Tribunal.
15. Towards transportation expenses, the Tribunal awarded
only Rs.10,000/-. The claimant was admitted in various hospitals
after the accident and he was hospitalised for 108 days in total.
So, this Court is inclined to award Rs.5,000/- more towards
transportation expenses.
16. Towards extra nourishment, learned Tribunal awarded
only Rs.5,000/-. The claimant had suffered serious fractures and
he was admitted in various hospitals for a period of 108 days.
Considering that aspect, this Court is inclined to award Rs.20,000/-
more towards extra nourishment.
17. Towards attendant expenses, learned Tribunal awarded
no amount though there was clear evidence to show that the
claimant was hospitalised for 108 days. Even after discharge, he
was in need of an assistant, as stated by learned counsel for the
claimant. So, this Court is inclined to award Rs.50,000/- towards
attendant expenses.
18. Towards pain and suffering, this Court is inclined to
award Rs.35,000/- more, considering the nature of injuries
suffered and also the period of hospitalisation. There is evidence
to show that even after discharge from hospital, he was not able to
resume his job and so he was on leave for about three years.
19. Learned counsel for the claimant would say that, since
he was an Operator, he could have earned additional income by
doing night shift as well as overtime duty. He would rely on the
deposition of PW5, who was senior officer, Human Resources in
NTPC, Kayamkulam to say that, after the accident, the claimant
was working in general shift, as he was not able to do night shift.
So, he lost night shift allowance and also overtime allowance.
Moreover, since he was on leave for a continuous period of three
years after the accident, he lost his timely promotion from W6
category to W7 category. Taking into account all those facts such
as, loss of additional income by way of night shift allowance,
overtime allowance and loss of timely promotion, this Court is
inclined to award a lumpsum amount of Rs.1 lakh.
20. Ext.X4 disability certificate shows that the claimant had
suffered 38% permanent disability. The date of birth of the
claimant was 05.06.1962. So, he might have superannuated in the
year 2022 at the age of 60. Since he was working in NTPC,
Kayamkulam, till the date of his retirement, the disability could not
have affected his salary or even pension thereafter.
21. Learned counsel for the claimant would say that, as a
skilled Operator who had long years of experience in NTPC, the
claimant might have been re-employed in NTPC itself even after his
retirement. But, because of the disability he lost that chance.
According to him, the disability has considerably affected his
earning capacity after retirement.
22. As we have already found, the disability might not have
affected his salary and other emoluments while he was in service.
After retirement, if he was an able bodied man, he could have
taken up some other engagement profitably, as an experienced
operator in NTPC, which he lost because of the disability suffered in
the accident. As a skilled worker, this Court is inclined to fix his
notional income @ Rs.15,000/- in the year 2022 on his
superannuation at the age of 60. Though learned counsel for the
insurer submitted that the multiplier to be applied is 7, since the
claimant was aged only 60 at the time of superannuation, and he
had not attained the age of 61, relying on the decision Sarla
Verma v. Delhi Transport Corporation [2010 (2) KLT 802 (SC)],
this Court is inclined to adopt the multiplier of 9. So, the disability
compensation can be assessed as Rs.6,15,600/-
(15000x12x9x38/100). After deducting Rs.3,87,600/- awarded by
the Tribunal, the claimant will get Rs.2,28,000/- towards
enhancement in disability compensation.
23. Towards loss of amenities and enjoyment in life, learned
Tribunal awarded only Rs.25,000/- against his claim of Rs.1 lakh.
He had suffered permanent disability of 38% and right half of his
facial movement was not functioning, and he had diplopia of right
side and hemiparesis on his right side, affecting his day-to-day
activities to a great extent. It was difficult for him to write with his
right hand, and due to facial palsy, he was not able to hold food on
his right side which may dribble out through the right angle of the
mouth. Considering these difficulties in day-to-day life, this Court
is inclined to award Rs. 30,000/- more, towards loss of amenities.
24. The compensation awarded by the Tribunal under all
other heads seems to be reasonable and so, it need not be
interfered with.
Head of claim Amount Amount Amounts Difference to
awarded by awarded in deducted in be drawn as
the Tribunal appeal appeal enhanced
(1) compensation
(2) (3) (4) (5)
Loss of earning Rs.4,32,000/ Rs.3,09,750/- Rs.1,22,250/- -
-
Transportation Rs.10,000/- Rs.15,000/- - Rs.5,000/-
expenses
Extra Rs.5,000/- Rs.25,000/- - Rs.20,000/-
nourishment
Attendant - Rs.50,000/- - Rs.50,000/-
expenses
Pain and Rs.40,000/- Rs.75,000/- - Rs.35,000/-
suffering
Loss of - Rs.1,00,000/- - Rs.1,00,000/-
additional
income by way
of night shift,
overtime
allowance,
timely
promotion etc.
Compensation Rs.3,87,600/ Rs.6,15,600/- - Rs.2,28,000/-
for disability -
Loss of Rs.25,000/- Rs.55,000/- - Rs.30,000/-
amenities
Total Rs.1,22,250/- Rs.4,68,000/-
Enhanced compensation (Rs.4,68,000 - Rs.1,22,250) Rs.3,45,750/-
25. The claimant will get enhanced compensation of
Rs.3,45,750/-, on deducting Rs.1,22,250/- which was awarded in
excess under the head loss of income.
26. Learned counsel for the insurer would submit that, the
claim was originally made against New India Assurance Company
Ltd., in the year 2000. But Oriental Insurance Company Ltd. with
whom the offending vehicle was actually insured, was impleaded
only in the year 2006, more specifically on 21.08.2006. So,
according to them, they are not liable to pay interest on the award
amount, till the date of their impleadment. Such a contention was
taken up by the insurer before the Tribunal also, but learned
Tribunal, relying on the decision Oriental Insurance Co. v.
Ananda Pai [2002 (1) KLT 269] found that, the insurer was liable
to pay interest from the date of petition onwards.
27. The claim was made in the year 2000. Learned counsel
for the claimant would say that, on the basis of the information
obtained from Police Station, New India Assurance Co.Ltd was
shown as the insured. But later, when they denied the policy, the
real insurer was found out, and they were impleaded. If the real
insurer was made a party in the original claim petition itself, they
could not have denied their liability to pay interest from the date of
petition itself. So, the malinformation or misinformation received
by the claimant from the authorities concerned cannot take away
his right to claim interest from the date of petition itself. When the
insurer is found liable to compensate the claimant, in all respects
that liability relates back to the date of the claim. So, this Court
finds that the insurer is liable to pay interest from the date of
petition itself.
28. The insurer (appellant in MACA No.1231 of 2012) is
directed to deposit enhanced compensation of Rs.3,45,750/-
(Rupees Three lakh forty five thousand seven hundred and fifty
only) with interest @ 7.5% per annum from the date of petition till
the date of deposit (excluding 750 days of delay in filing MACA
No.1307 of 2014 by the claimant) before the Motor Accidents
Claims Tribunal, Ernakulam within a period of two months from the
date of receipt of a copy of this judgment. Learned Tribunal shall
disburse that amount to the claimant (appellant in MACA No.1307
of 2014), after deducting the liabilities, if any, towards Tax, balance
court fee and legal benefit fund.
The appeals are allowed in part to the extent as above and no
order as to costs.
Sd/-
SOPHY THOMAS
JUDGE
smp
