High Court of KeralaSingle Judge2021-03-02Appeal allowed in part; enhanced compensation a...

Abdul Kareem C.S. v. The New India Assurance Co. Ltd, Kannur Branch

Case / Petition Number:MACA.No.3090 OF 2017(C)

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: C.S.Dias
Judgment Date: 2021-03-02
Court Decision / Holding: Appeal allowed in part; enhanced compensation of Rs.6,34,000 payable with interest at 9% per annum from the date of petition till realization, plus proportionate costs. The 3rd respondent is to deposit the enhanced amount within two months from receiving a certified copy of this judgment, after deduction of any liability towards court fee and legal aid fund. Disbursement to the claimant will be through the Tribunal in accordance with law.
Final Disposition: Appeal allowed in part; enhanced compensation awarded; directions for deposit and disbursement as stated above.

Parties to the Case

Appellants / Petitioners

Abdul Kareem C.S.

Respondents

The New India Assurance Co. Ltd, Kannur Branch

Legal Representation & Advocates

Counsels for Petitioners

• Smt. M.R. JayalathA

Counsels for Respondents

• Sri. Viju Thomas

Case Synopsis & Summary

This appeal under MACA No. 3090 of 2017 arises from the Motor Accident Claims Tribunal, Taliparamba’s award in O.P.(MV) No. 475/2016, dated 30-11-2016, granting compensation for injuries sustained in a road accident on 18-11-2015. The appellant/petitioner, aged 56, claimed compensation for medical expenses, loss of earning, permanent disability, and future treatment, alleging that he suffered a serious injury in a car collision caused by the first respondent’s negligent driving. The Tribunal awarded Rs.11,18,100 with 9% interest and costs. The insurer (3rd respondent) contested liability and the quantum, while the petitioner argued that notional income and certain heads of compensation were understated and that future prospects and additional medical treatment should be included. The High Court, applying the principles of just compensation set out by the Supreme Court, re-evaluated the evidence, noting 60% permanent disability and a hospitalisation period extending beyond a year. It fixed notional income at Rs.10,000 per month (instead of Rs.6,000) and held the petitioner entitled to 11 months of loss of earnings (not five). It awarded future prospects at 10% of permanent disability and granted Rs.2,30,000 for future treatment in addition to Rs.70,000 earlier provided. Upon re-calculation, the court enhanced the compensation to Rs.6,34,000 and directed payment with 9% interest from petition date, with standard costs and tribunal disbursement. The appeal is thus allowed in part, modifying the quantum of award.

Provisions of Law Cited

Section 166 of the Motor Vehicles Act, 1988Section 168 of the Motor Vehicles Act, 1988

Legal Doctrines & Maxims

Just compensation doctrine under the Motor Vehicles Act – fairness, reasonableness and equitability (National Insurance Co. Ltd. v. Pranay Sethi)
Principles of fairness, reasonableness and equitability in determining just compensation

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner contends that the Tribunal erred in not awarding full compensation, especially by underestimating loss of earnings, notional income, and future medical treatment. He asserts a higher notional income in line with his real estate business and insists on including future prospects and future treatment costs in the compensation. He also argues the period of loss should be 11 months given the extended treatment and disability.

Contentions of Respondents

The insurer contends that the accident and liability are not unequivocally admitted and argues that the claimed quantum is excessive. It maintains that the tribunal’s decision should be upheld or, if necessary, adjusted downward. It challenges the notional income figures and questions the inclusion of future prospects and additional treatment costs.

Cited Precedents (5)

Case Name	Citation	Treatment	Explanation
National Insurance Co. Ltd. v. Pranay Sethi	[(2017) 16 SCC 680]	Positive	Cited to establish the framework of ‘just compensation’ emphasizing fairness, reasonableness, and equitability in determining the award.
Ramachandrappa v. Manager, Royal Sundaram Alliance	[(2011) 13 SCC 236]	Positive	Cited for the notional income approach and determination of earnings in injury cases.
Syed Sadiq and others v. Divisional Manager, United India Insurance Co. Ltd	[(2014) 2 SCC 735]	Positive	Cited for principles on notional income and compensation methodology.
Soman v. Jinesh James and others	ILR 2020 (3) Kerala 1003	Positive	Cited regarding notional income fixed in 2010 and its relevance to the present calculation.
Pappu Deo Yadav v. Naresh Kumar and others	[AIR 2020 SC 4424]	Positive	Cited to justify including future prospects in permanent disability compensation.

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Extracted Judgment Text

Exact text extracted from official judgment records.

**MACA.No.3090 OF 2017** **1** **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **TUESDAY, THE 02ND DAY OF MARCH 2021 / 11TH PHALGUNA, 1942** **MACA.No.3090 OF 2017(C)** **AGAINST THE AWARD IN OPMV 475/2016 DATED 30-11-2016 OF MOTOR ACCIDENT CLAIMS TRIBUNAL , TALIPARAMBA** ## **APPELLANT/PETITIONER:** **ABDUL KAREEM.C. S/O MUHAMMED @ KUNHAHAMMAD,AGED 56 YEARS, CHERIYANDEELAKATH,KODICHAL, PALLIVAYAL, PANNIYOOR AMSOM,MUYYAM. P.O., KARIMBAM,THALIPARAMBA, KANNUR DISTRICT-670142.** ## **BY ADV. SMT.M.R.JAYALATHA** ## **RESPONDENT/3RD RESPONDENT:** **THE NEW INDIA ASSURANCE CO.LTD KANNUR BRANCH, 963/2, SADHOO BUILDING,KANNUR670002(INSURER OF KL-59-L-1517 CAR POLICY NO. 76080131150100002345)** **R1 BY ADV. SRI.VIJU THOMAS** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 02.03.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA.No.3090 OF 2017** **2** ## **JUDGMENT** ## **Dated this the 2nd day of March 2021** The appellant is the petitioner in O.P.(MV) No.475/2016 on the file of the Motor Accident Claims Tribunal, Taliparamba. The respondent in the appeal was the 3[rd] respondent in the claim petition. The parties are, for the sake of convenience, referred to as per their status in the claim petition. 2. The petitioner had filed the claim petition under Section 166 of the Motor Vehicles Act,1988 ( in short “Act”) claiming compensation on account of the injuries that he sustained in a motor accident on 18.11.2015. 3. The case of the petitioner in, brief, for the determination of the appeal in the claim petition is that on 18.11.2015 while he was travelling in a car bearing Reg. No.KL 59 H 2382 from Kozhikode to Taliparamba, a car bearing Reg. No. KL 59L 1517 (offending vehicle) driven by the 1st respondent, in a **MACA.No.3090 OF 2017** **3** rash and negligent manner, hit the car in which the petitioner was travelling. The petitioner sustained serious injuries. He was hospitalised as an inpatient for 54 days and underwent treatment in different spells for the period from 18.11.2015 to 26.10.2016. The petitioner was doing business in real estate and he was getting an income of Rs.20,000/- per month. The petitioner had to spent a considerable amount for his medical treatment. Hence, the petitioner is entitled for a compensation of Rs.20,00,000/-. 4. The respondents 1 and 2 were set ex parte. 5. The 3[rd] respondent – Insurance Company – filed a written statement, inter alia, refuting the allegations in the claim petition. However, the 3[rd] respondent admitted that the offending vehicle was insured with the said respondent. The 3[rd] respondent denied the factum of accident. It was contended that the amount claimed by the petitioner was excessive and exorbitant. Hence, the 3[rd] respondent prayed that the claim petition be dismissed. **MACA.No.3090 OF 2017** **4** 6. The petitioner was examined as PW1 and Exts.A1 to A11 were marked through him. Ext.X1 disability certificate issued by the Government Taluk Headquarters Hospital, Taliparamba was also marked in evidence. 7. The Tribunal, after considering the pleadings and materials on record, by the impugned award allowed the claim petition, in part, by directing the 3[rd] respondent to pay the petitioner compensation of Rs.11,18,100/- with interest at the rate of 9% per annum from the date of petition till the date of realisation and proportionate costs. 8. The comparative table showing the compensation that was claimed by the petitioner and that was awarded by the Tribunal is as follows:- **MACA.No.3090 OF 2017** **5** |SI . No|Head of claim|Amount claimed (in rupees)|Amount awarded (in rupees)|Basis-vital details in a nut-shell| |---|---|---|---|---| |1|Loss of earning|80,000/-|30,000/-|(5 months)| |2|Partial loss of earning|---|----|| |3|Transport to hospital|---|---|| |4|Extra nourishment|3,000--|10,000/-|| |5|Damage to clothing|2,000|2,000/-|| |6|Others: Medical bills/bystanders expenses|8,00,000/-|3,71,100/- 16,200/-|(Medical bills produced)| |7|Pain and suffering|2,00,000/-|1,00,000/-|| |8|Compensation for permanent disability||3,88,800/-|(43,200x9)| |9.|Compensation for loss of earning power|9,00,000/-|--|| |10.|Amenities|---|1,20,000/-|| |11.|Future Treatment|---|70,000/-|| ||Total|Rs.20,00,000-|Rs.11,18,100|| 9. Dissatisfied with the quantum of compensation awarded by the Tribunal, under the various heads mentioned above, the petitioner is in appeal. 10. Heard the learned counsel appearing for the appellant/petitioner and the learned counsel appearing for the 3[rd] respondent/Insurance Company. 11. The point that emerges for consideration in this appeal is whether the quantum of compensation awarded by the Tribunal is just and reasonable? **MACA.No.3090 OF 2017** ## **6** 12. A Constitution Bench of the Hon'ble Supreme Court in **National Insurance Company Ltd. v. Pranay Sethi [(2017) 16 SCC 680],** has held that Section 168 of the Motor Vehicles Act, 1988, deals with the concept of 'just compensation' and the same has to be determined on the foundation of fairness, reasonableness and equitability on acceptable legal standards. The conception of 'just compensation' has to be viewed through the prism of fairness, reasonableness and non-violation of the principle of equitability. 13. On a re-appreciation of the pleadings and materials on record, it is proved that the petitioner was aged 56 years on the date of accident. Ext.A1 F.I.R substanties that it was the 1[st] respondent who was negligent in causing the accident. Exts.A3 to A6 discharge summeries substantiate that the petitioner underwent treatment for the period from 18.11.2015 to 26.10.2016, i.e., for more than 11 months. Ext.X1 disability certificate issued by the Medical Board establishes that the petitioner has a **MACA.No.3090 OF 2017** **7** permanent disability of 60%. All these facts are not disputed. The petitioner had produced Ext.A9 series medical bills, which shows that the petitioner incurred expenses of Rs.3,71,100/- for his medical treatment. The petitioner has also produced medical bills along with I.A No.1/2019 before this Court, to substantiate that the medical treatment he underwent subsequent to the award. The said application was allowed and the medical bills have been accepted and marked in evidence as Ext.A12 series. 14. The pivotal point of dispute now before this Court, is with regard to the notional income fixed by the Tribunal. The petitioner claimed that he was doing business in real estate. Although he claimed that he was gettiing an income of Rs.20,000/- per month, he had not produced any document to prove his income. Accordingly,, the Tribunal fixed the notional income of the petitioner at Rs.6,000/- per month. 15. In **Ramachandrappa v. Manager,** **MACA.No.3090 OF 2017** **8** **Royal Sundaram Alliance** [(2011) 13 SCC 236] and in **Syed Sadiq and others v. Divisional Manager, United India Insurance Co.Ltd** [(2014) 2 SCC 735] , the Hon'ble Supreme Court has fixed the notional income of a coolie worker in year 2004 at the rate of Rs.4500/- per month and for a vegetable vendor at the rate of Rs.6,500/per month in the year 2006, respectively. Recently, this Court in **Soman v. Jinesh James and others** [ILR 2020 (3) Kerala 1003] has fixed the notional income of a coolie worker in the year 2010 at Rs.7,500/- per month. 16. Following the parameters laid down in the above precedents and considering the fact that the petitioner had claimed himself to be a business man in real estate and that the accident occurred in the year 2015, I am of the considered opinion that the petitioner's notional income can safely be fixed at Rs.10,000/- **MACA.No.3090 OF 2017** **9** 17. In view of the re-fixation of the notional income of the petitioner and on finding that he had undergone treatment for the period from 18.11.2015 to 26.10.2016 as evidenced by Exts.A4 to A6, I am of the firm opinion that the petitioner is entitled for loss of earnings for a period of 11 months instead of five months fixed by the Tribunal. 18. Although the Tribunal had taken the correct multiplier at 9, the Tribunal has failed to award any amount towards future prospects as laid down in **Pappu Deo Yadav v. Naresh Kumar and others** [AIR 2020 SC 4424] and a line of precedents of the Hon'ble Supreme Court. 19. Taking into account the age of the petitioner and the multiplier, I find that the petitioner is entitled to10% of the compensation on permanent disability as future prospects. 20. In light of Ext.A12 series medical bills, **MACA.No.3090 OF 2017** **10** to prove that the petitioner is still undergoing treatment, I am of the firm opinion that the petitioner is entitled for a further amount of Rs.2,30,000/- towards future treatment in addition to the amount of Rs.70,000/- awarded by the Tribunal. 21. With respect to the other heads of claim namely, Transport to hospital, Clothing, Bystander expenses, Extra nourishment, Pain and sufferings and Loss of amenities, I find that the Tribunal has awarded reasonable and just compensation. 22. On an overall re-appreciation of the pleadings, materials on record and the law laid down by the Hon'ble Supreme Court and this Court in the aforecited decisions, I hold that the petitioner is entitled for enhancement of the amounts as modified and re-calculated above and given in the table below for easy reference. **MACA.No.3090 OF 2017** **11** |SI. No|Head of claim|Amount claimed (in rupees)|Amount awarded (in rupees)|Amounts modified and recalculate d by this Court| |---|---|---|---|---| |1|Loss of earnings|80,000/-|30,000/-|1,10,000 (11 months)| |2|Partial loss of earning|---|----|| |3|Transport to hospital|15,000|10,000|10,000| |4|Extra nourishment|3,000--|10,000/-|10,000| |5|Damage to clothing|2,000|2,000/-|2,000| |6|Others: Medical bills/bystanders expenses|8,00,000/-|3,71,100/- 16,200/-|3,71,100/- 16,200/-| |7|Pain and suffering|2,00,000/-|1,00,000/-|1,00,000/-| |8|Compensation for permanent disability (Loss due to disability with future prospects||3,88,800/-|7,12,800| |9.|Compensation for loss of earning power|9,00,000/-|--|| |10.|Amenities|---|1,20,000/-|1,20,000| |11.|Future Treatment|---|70,000/-|3,00,000| ||Total|Rs.20,00,000 -|Rs.11,18,100|17,52,100| In the result, the appeal is allowed by directing the 3[rd] respondent to pay the appellant/petitioner an enhanced compensation of Rs.6,34,000/- with interest at the rate of 9% per annum on the enhanced compensation from the date of petition till the date of realisation with proportionate costs. The 3[rd] respondent shall deposit the additional **MACA.No.3090 OF 2017** **12** compensation with interest and proportionte costs granted in this appeal before the Tribunal within two months from the date of receipt of a certified copy of this judgment, after deducting the liability, if any, of the appellant/petitioner towards the balance court fee and legal benefit fund. The disbursement of compensation to the appellant/petitioner shall be done by the Tribunal,in accordance with law. Sd/- **C.S.DIAS, JUDGE** **/True copy/** ma/1.3.2021