High Court of KeralaSingle Judge2022-11-18Appeal allowed to the extent indicated; enhance...

Abdul Rasheed K v. Abobacker S/o Mammathali, Shafi P, and Reliance General Insurance Co. Ltd.

Case / Petition Number:MACA No. 208 of 2015

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: C. Jayachandran
Judgment Date: 2022-11-18
Court Decision / Holding: The appeal is allowed to the above extent. The notional income is set at Rs. 8,500 per month; transportation expenses are increased to Rs. 18,000; loss of income deemed for ten months; bystander expenses added at Rs. 200 per day; loss of amenities increased to Rs. 20,000; and the 20% contributory negligence deduction for helmet non-use is struck down. The total compensation is enhanced to Rs. 4,53,100, with interest at 5% on the enhanced amount from the date of petition and NEFT/RTGS transfer arrangements.
Final Disposition: Appeal allowed to the extent indicated; enhanced compensation and specified transfer/interest provisions.

Parties to the Case

Appellants / Petitioners

Abdul Rasheed K

Respondents

Abobacker S/o Mammathali
Shafi P
Reliance General Insurance Co. Ltd.

Legal Representation & Advocates

Counsels for Petitioners

• Mohamed Rafuf
• P. Chandrasekhar
• S. Prasanth
• Sooraj T. Elenjickal
• Uma Gopinath

Counsels for Respondents

• Smt. Dhanya Babu

Case Synopsis & Summary

Abdul Rasheed K. v. Abobacker S/o Mammathali, Shafi P, and Reliance General Insurance Co. Ltd., MACA No. 208 of 2015, is a High Court of Kerala appeal arising from OP(MV) No. 75/2013 of the Motor Accidents Claims Tribunal, Tirur. The claimant sustained a brain injury when his motorcycle collided with a bus on 9 July 2012. The Tribunal awarded compensation which the appellant challenges as being inadequately calculated. The court accepts that the applicant was earning more than the Tribunal assumed: while the Tribunal used a lower notional income, the High Court applies the Supreme Court standard from Ramchandrappa to fix monthly income at Rs. 8,500. It also revises transportation allowances to Rs. 18,000, after noting 18 hospital trips. The period of loss of income is extended to ten months, reflecting treatment from 4.8.2012 to 23.12.2013. Bystander expenses during hospitalization are added at Rs. 200 per day, resulting in Rs. 2,200 for 11 days. The court maintains the trial result on pain and suffering, but increases loss of amenities to Rs. 20,000. It also holds that the Tribunal’s 20% reduction for contributory negligence due to helmet non-use is unwarranted and strikes it down. Consequently, the appeal is allowed and the overall compensation is enhanced to Rs. 4,53,100, with interest and transfer arrangements prescribed.

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellant argued that the income used by the Tribunal (Rs. 4,000/month) was unrealistically low and not supported by proof. Citing Ramchandrappa v. Manager, Royal Sundaram Alliance Insurance (2011 KHC 4675), the court should adopt a notional income of Rs. 8,500 per month for 2012. He urged enhancement of transportation charges (18 hospital visits) to Rs. 18,000, and that loss of income be calculated for ten months because treatment extended from 4.8.2012 to 23.12.2013. Bystander expenses should be allowed at Rs. 200 per day for the hospitalization period (11 days => Rs. 2,200). While pain and suffering was argued for enhancement, the court found the award reasonable, but increased the head of loss of amenities from Rs. 10,000 to Rs. 20,000. The appellant urged removal of the Tribunal’s 20% deduction for contributory negligence on helmet non-use, contending there was no material on record to support such a finding. Overall, the appeal seeks a higher compensation and removal of unwarranted deductions.

Contentions of Respondents

The Insurance Company argued that the Tribunal’s findings should otherwise stand, including the helmet-based contributory negligence reduction. It relied on evidence suggesting helmet use and asserted that the detailed travel and medical costs should align with the Tribunal’s calculations, with only limited room for adjustment. The respondents contended that the income assessment should reflect proven earnings rather than notional figures and maintained that the loss of income head, bystander expenses, and other heads should be constrained within the evidence presented. They urged caution in attributing liability and in expanding heads of damages beyond the Tribunal’s record. The insurer also addressed the need for robust evidence when inferring helmet non-use from the accident. Overall, the respondents sought compliance with the Tribunal’s framework or limited, justified adjustments, while opposing extravagant enhancements.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Ramchandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited	2011 KHC 4675	Positive	The High Court explicitly adopts the notional income principle from Ramchandrappa to fix the claimant’s monthly income at Rs. 8,500 for 2012.

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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 C. JAYACHANDRAN** **FRIDAY, THE 18[TH] DAY OF NOVEMBER 2022/27TH KARTHIKA, 1944** **MACA NO. 208 OF 2015** **OP(MV) 75/2013 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, TIRUR** ## **APPELLANT/PETITIONER:** ABDUL RASHEED K AGED 24 YEARS S/O.MOIDEENKUTTY, KUNNUMMAL HOUSE, (ATTAKUZHINGARA HOUSE,)PO ULLANAM(VIA), PARAPPANANGADI, MALAPPURAM DISTRICT. BY ADVS.MOHAMED RAFUF SRI.P.CHANDRASEKHAR SRI.S.PRASANTH SRI.SOORAJ T.ELENJICKAL SMT.UMA GOPINATH ## **RESPONDENTS/RESPONDENTS:** 1 ABOOBACKER S/O.MAMMATHALI, MEPINALIL HOUSE, NECHINAPPIL, CHENAKKALANGADI PO, VIA THENHIPPALAM, PIN - 673 636 (RC OWNER) 2 SHAFI P AGED 31 YEARS S/O.UMMER PARAPPURATH, ERECHATTIL HOUSE, AREEPARA, PO CHENAKKALANGADI VIA THENHIPPALAM, PIN - 673 636 (DRIVER) 3 M/S.RELIANCE GENERAL INSURANCE CO. LTD, RC ROAD, OPPOSITE TAGORE CENTENARY HALL, KOZHIKODE PIN - 673 032(INSURER) SRI.K.B.RAMANAND SMT.DHANYA BABU ## **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP** **FOR ADMISSION ON 18.11.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** M..A.C.A.No.208 of 2015 ..2.. ## **C.JAYACHANDRAN, J.** ----------------------------------------------------------M.A.C.A.No.208 of 2015 ------------------------------------------------------------Dated this the 18[th] day of November, 2022 ## **JUDGMENT** This appeal is carried by the claimant/injured in O.P. (M.V.)No.75/2013 of the Motor Accidents Claims Tribunal, Tirur. The claimant/appellant met with an accident on 9.7.2012, when the motorcycle driven by him collided with a bus driven by the 2[nd] respondent, allegedly in a rash and negligent manner. The appeal is essentially directed against the insufficiency of the compensation granted by the Tribunal. **2.** Heard Sri.Mohamed Ravuf, learned counsel for the appellant and Smt.Dhanya Babu, learned counsel for the 3[rd] respondent Insurance Company. Perused the records. **3.** Learned counsel for the appellant submitted that the appellant/claimant was working as a salesman at the time of accident drawing a monthly salary of Rs.9,500/-, as against which the Tribunal reckoned only Rs.4,000/-, which is grossly on the lower side. However, no proof of income has been M..A.C.A.No.208 of 2015 ..3.. adduced. The notional income indicated in the judgment of the Hon'ble Supreme Court in **Ramchandrappa v. Manager, Royal Sundaram Aliance Insurance Company Limited** [2011 KHC 4675] pertaining to the year 2012 is Rs.8,500/-. This Court therefore reckons Rs.8,500/- as the monthly income. **4.** The second aspect highlighted by the appellant is in the context of transportation charges reckoned by the Tribunal at Rs.10,000/- only. It was pointed out that the claimant/appellant had to travel to the hospital on 18 occasions altogether, as evidenced from Ext.A12 and Exts.A15 to A18. Even a modest reckoning of the travel expenses at the rate of Rs.1,000/- per day from Parappanangadi to Kozhikode, Rs.18,000/- ought to have been granted, is the submission of the learned counsel for the appellant. This Court finds merits in the said submission and accordingly fix the transportation expenses at Rs.18,000/-. **5.** The third count is with respect to the period for which the loss of income was reckoned. The Tribunal took five months. M..A.C.A.No.208 of 2015 ..4.. It was pointed out that, going by Exts.A14 to A18, it could be seen that the appellant/claimant had to undergo treatment from 4.8.2012 to 23.12.2013. Thus, he was under treatment for a period of one year and 4 months. In the backdrop of the above fact, this Court is of the view that the period of loss of income can be reckoned as ten months. **6.** The fourth count is with respect to bystander's expense, which was not reckoned by the Tribunal. It is not in dispute that the appellant/claimant was hospitalized for a period of 11 days commencing from 9.7.2012 to 19.7.2012. This Court therefore reckons the bystander's expense at Rs.200/- per day. **7.** The fifth count is with respect to 'pain and suffering', which was reckoned by the Tribunal at Rs.30,000/-. The learned counsel pointed out that appellant had suffered serious brain injury and he was under treatment for a period of more than one year. Therefore, the compensation paid under the head 'pain and suffering' has to be enhanced appropriately. This Court finds little merit in the said submission. This Court M..A.C.A.No.208 of 2015 ..5.. is of the opinion that reasonable amount has already been granted by the Tribunal. **8.** The 6[th] count is with respect to the head 'loss of amenities' where the Tribunal had reckoned Rs.10,000/-. Going by Ext.C1 disability certificate, permanent disability has been assessed at 15%. In such circumstances, this Court is of the view that the compensation on account of 'loss of amenities' can be enhanced to Rs.20,000/-. **9.** The last and important point canvassed by the learned counsel for the appellant is the finding of the Tribunal with respect to the contributory negligence and corresponding reduction of compensation amount to the extent of 20%, only for the reason that the injured was not wearing an helmet at the time of accident. Learned counsel for the appellant submitted that it is factually incorrect to say that the injured was not wearing helmet at the time of accident. Attention of this Court was invited to Ext.A5 charge sheet, where two witnesses gave statement to the effect that they have removed helmet from the head of the injured. There is also no M..A.C.A.No.208 of 2015 ..6.. whisper in Ext.A5 that the injured was not wearing a helmet. Again, it was pointed out that, the Tribunal arrived at such a finding in the absence of any material on record and that the same is merely on the basis of a contention taken by the insurance company. In this regard, learned counsel for the insurance company submitted that the extensive injuries caused to the brain of the injured itself would indicate that he was not wearing a helmet. This proposition is difficult to accept, for, no such general inference is legally possible. This Court is, therefore, of the opinion that reduction of 20% of the compensation amount, alleging contributory negligence, was not proper in law. The same is therefore done away with. **10.** In the result, this M.A.C.A. is allowed and the compensation amount payable to the applicant/appellant is re-worked as indicated in the table hereinbelow: |**Sl.No.**|**Head of Claim**|**Amount** **awarded** **by the** **Tribunal** **(Rs.)**|**Total amount after** **enhancement in** **appeal** **(Rs.)**| |---|---|---|---| |1|Loss of earning (Total)|20,000|85,000 (8,500x10)| M..A.C.A.No.208 of 2015 ..7.. |2|Loss of earning (partial)|Nil|--| |---|---|---|---| |3|Medical, miscellaneous and bystander expenses|15,000|15,000| |4|Future treatment|5,000|5,000| |5|Bystander expenses|Nil|2,200 (11x200)| |6|Transportation expenses|10,000|18,000| |7|Extra-nourishment|2,000|2,000| |8|Damage to clothing, etc.|500|500| |9|Pain and suffering|30,000|30,000| |10|Loss of dependency|Nil|--| |11|Loss of consortium|Nil|--| |12|Loss of love and affection|Nil|--| |13|Loss of estate|Nil|--| |14|Compensation towards permanent disability, loss of earning power, loss of matrimonial prospects etc.|1,29,600|2,75,400 (8,500x12x18x15/100)| |15|Compensation for loss of amenities, discomfort etc.|10,000|20,000| |16|Any other heads : Loss of earning power Funeral expenses|Nil Nil|–- --| ||**Total**|2,22,100|4,53,100| |Amount enhanced = Rs.2,31,000/- (Rupees Two lakhs thirty one thousand only)|||| **11.** The Insurance Company shall pay interest for the amounts awarded by the Tribunal at the rate directed in the impugned award, and for the enhanced amount, at the rate of M..A.C.A.No.208 of 2015 ..8.. 5% from the date of petition. If any amount has already been paid, the same shall be granted set off. **12.** The claimant shall produce the details of the Bank account before the Insurance Company/Tribunal within two months from the date of receipt of a certified copy of this judgment and amount shall be transferred to the Bank account directly through NEFT/RTGS mode, within a period of one month thereafter. If the Bank account is not given within the time stipulated, it is made clear that, no interest shall run on the enhanced amount after the period stipulated by this Court. However, if the Insurance Company fails to deposit the amount, as directed, interest on the enhanced amount shall also run at the rate ordered by the Tribunal from the date of petition. The appeal is allowed to the above extent. Sd/- ## **C.JAYACHANDRAN, JUDGE** skj