High Court of KeralaSingle Judge2022-03-29Appeal partly allowed; enhanced compensation by...

Abdul Vahab v. AJI and The Oriental Insurance Company Ltd.

Case / Petition Number:MACA NO. 2971 OF 2009

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: C. S. Dias
Judgment Date: 2022-03-29
Court Decision / Holding: Appeal allowed in part; enhanced compensation by Rs 38,000 (Rs 18,000 for loss of earnings, Rs 10,000 for pain and suffering, Rs 10,000 for loss of amenities) with interest at 6% per annum from the petition date to the date of deposit, after deducting 243 days of delay. The insurer is directed to deposit the enhanced amount before the Tribunal within sixty days from receipt of a certified copy of the judgment, and on deposit, it must be disbursed to the appellant in accordance with law; the appeal thereby partly succeeds and partly fails.
Final Disposition: Appeal partly allowed; enhanced compensation by Rs 38,000, with 6% interest and costs; insurer to deposit enhanced amount within sixty days; disbursal to appellant thereafter.

Parties to the Case

Appellants / Petitioners

ABDUL VAHAB, S/O. SAIDU MUHAMMED AGED 27 MALAYIL PUTHENPURACKAL HOUSE, VIRIPARA, MANKULAM P.O., IDUKKI.

Respondents

AJI, S/O CHELLAPPAN, MANGALATHU HOUSE, KONNATHADY, IDUKKI
THE ORIENTAL INSURANCE COMPANY LTD. P.M.A.BUILDING BANK JUNCTION, ALUVA

Legal Representation & Advocates

Counsels for Petitioners

• C. K. Vidyasagar
• P. Chandy Joseph

Counsels for Respondents

• Dr. Abraham P. Meachinkara
• Sri P.V. Jyothi Prasad
• Sri Joy C. Paul

Case Synopsis & Summary

Abdul Vahab, the appellant, challenges the Motor Accidents Claims Tribunal, Thodupuzha’s common award in OP(MV) Nos. 435/2005 and 803/2005 arising from a 31 March 2005 accident. A jeep, driven by the additional third respondent, struck him as he walked at Adimali junction, causing a fractured right humerus and multiple rib fractures, requiring inpatient treatment and six days’ hospitalisation; he resumed work later in December 2006. The Tribunal held the second respondent insurer liable to indemnify the first respondent and awarded Rs 77,000 as compensation, a sum appellant contends is inadequate. The appellant claimed Rs 6,20,000, but the evidence of income was insufficient to sustain that figure, and the Tribunal had assessed notional income at Rs 3,000 per month. In appealing, the appellant relies on the Supreme Court’s Ramachandrappa decision to fix higher notional income for the time (2005) and to re-evaluate heads of damages. The High Court, applying the Ramachandrappa yardstick, re-fixes the notional monthly income at Rs 5,000 and increases the award under loss of earnings to Rs 30,000, while adding Rs 10,000 each for pain and suffering and loss of amenities—thereby enhancing the total by Rs 38,000. The appeal is allowed in part with 6% interest and costs, directing the insurer to deposit the enhanced amount within 60 days for disbursement to the claimant.”

Provisions of Law Cited

Section 166 of the Motor Vehicles Act, 1988

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellant contends that the Tribunal’s quantum is inadequate and not supported by evidence. Relying on Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Co. Ltd. (2011) 13 SCC 236, the appellant argues for a higher notional income (Rs 5,000 per month in 2005) and a consequent increase in loss of earnings, as well as higher compensation for pain and suffering and loss of amenities. The evidence of income was not produced by the claimant, but the Supreme Court’s approach supports re-evaluating the notional income and the heads of damages to reflect the severity of injuries (fracture of the humerus and seven ribs) and six days of inpatient care.

Contentions of Respondents

The respondents contend the Tribunal’s determination on quantum was reasonable and just. They emphasize that the accident occurred due to negligence by the third-party and that the insurer is liable to indemnify the first respondent. They also argue that the compensation claimed is excessive and that the insurer’s liability has been correctly assessed; the insurer contends the evidence does not justify a higher notional income and that the Tribunal’s order should stand.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited	[(2011) 13 SCC 236]	Positive	The High Court relies on the Supreme Court’s decision in Ramachandrappa to fix the notional income for the injured at Rs 5,000 per month for the relevant period, guiding the enhancement of compensation.

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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.S.DIAS** **TUESDAY, THE 29[TH] DAY OF MARCH 2022 / 8TH CHAITHRA, 1944** ## **MACA NO. 2971 OF 2009** **AGAINST THE AWARD DATED 30.10.2008 IN OPMV 435/2005 OF THE MOTOR** ## **ACCIDENT CLAIMS TRIBUNAL ,THODUPUZHA** ## **APPELLANT/PETITIONER:** ABDUL VAHAB, S/O. SAIDU MUHAMMED AGED 27 MALAYIL PUTHENPURACKAL HOUSE, VIRIPARA, MANKULAM P.O., IDUKKI. BY ADVS. C.K.VIDYASAGAR P.CHANDY JOSEPH ## **RESPONDENTS/RESPONDENTS:** 1 AJI, S/O CHELLAPPAN, MANGALATHU HOUSE, KONNATHADY, IDUKKI. 2 THE ORIENTAL INSURANCE COMPANY LTD. P.M.A.BUILDING BANK JUNCTION, ALUVA. BY ADVS. DR.ABRAHAM P.MEACHINKARA SRI.P.V.JYOTHI PRASAD SRI.JOY C. PAUL THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 29.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **MACA NO. 2971 OF 2009 2** ## **Dated this the 29[th] day of March, 2022.** ## **JUDGMENT** The appellant was the petitioner in OP(MV) No.435/2005 on the file of the Motor Accidents Claims Tribunal, Thodupuzha. The respondents in the appeal were the respondents 1 and 2 before the Tribunal. The appellant has not impleaded the additional third respondent as a party in the appeal. Therefore, the parties are, for the sake of convenience, referred to as per their status before the Tribunal. 2. The petitioner had filed the claim petition under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of the injuries sustained to him in an accident on 31.03.2005. It was his case that, on the aforesaid date, while he was walking through the Adimali junction, a jeep bearing registration No. KL -6B – 245, **MACA NO. 2971 OF 2009 3** driven by the additional third respondent in a negligent manner, hit the petitioner. The jeep ran over the chest of the petitioner, who sustained serious injuries. He was treated at the Morning Star Hospital, Adimali, and then referred to the Amritha Hospital, Ernakulam. The petitioner had suffered a fracture to his right humerus and also fractures to his 3, 4, 6, 7, 8, 9 and 10 right ribs. He was treated as an inpatient for a period of six days, and thereafter, visited the hospital on the 14[th] day for the removal of the suture. The petitioner was an agriculturist by profession and was earning a monthly income of Rs.6000/-. The jeep was owned by the first respondent and insured with the second respondent. Hence, the petitioner had claimed a compensation of Rs.6,20,000/from the respondents, which claim was limited to Rs.2,00,000/-. 3. Another injured in the same accident had also filed O.P.(M.V) No.803/2005 before the same Tribunal, against ## **MACA NO. 2971 OF 2009 4** the respondents, seeking compensation. 4. The first respondent did not contest both the claim petitions. 5. The second respondent had filed separate written statements in the claim petitions admitting that the jeep had a valid insurance coverage. Nevertheless, it was contended that the accident occurred due to the negligence of the petitioners in the two claim petitions. The second respondent also stated that the compensation claimed was excessive. 6. The additional third respondent had also filed separate written statements in the two claim petitions reiterating the same contentions of the second respondent. The third respondent had additionally pleaded that, as the jeep was covered by a valid insurance policy, it was the second respondent who was to indemnify the liability of the first respondent. 7. The Tribunal consolidated and jointly tried the ## **MACA NO. 2971 OF 2009 5** two claim petitions. 8. The petitioner in this appeal was examined as PW1 and Exhibits A1 to A11 were marked in evidence in the two claim petitions. The respondents did not let in any evidence. 9. The Tribunal, after analysing the pleadings and materials on record, by its common award, allowed the captioned claim petition in part, by permitting the petitioner to recover from the second respondent an amount of Rs.76,988/- rounded off to Rs.77,000/- with interest from the date of petition till the date of realisation. 10. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioner is in appeal. 11. Heard; Sri.P. Chandy Joseph, the learned counsel appearing for the appellant/petitioner and Sri.P.V.Jyothi Prasad, the learned counsel appearing for the second respondent/insurer. ## **MACA NO. 2971 OF 2009 6** 12. The point that emanates for consideration in this appeal is whether the quantum of compensation awarded by the Tribunal is reasonable and just. ## **Negligence and liability** 13. Exhibit A2 final report, filed by the Adimali police in Crime No.125/2005, proves that the accident occurred due to the negligence of the additional third respondent. The respondents have not let in any evidence to discredit Exhibit A2 final report. The second respondent has also not proved that the first respondent had violated the insurance policy conditions. Therefore, the second respondent is to indemnify the liability of the first respondent arising out of the accident. ## **Income** 14. The petitioner had claimed that he was an agriculturist by profession and was earning a monthly income of Rs.6000/. However, the petitioner did not produce any material to prove his income. The Tribunal ## **MACA NO. 2971 OF 2009 7** had fixed the notional monthly income of the petitioner at Rs.3000/-. 15. In **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited** [(2011) 13 SCC 236], the Honourable Supreme Court has fixed the notional income of a coolie worker in the year 2004 at Rs. 4500/- per month. 16. Following the yardstick in the afore-cited decision and considering the fact that the accident occurred in the year 2005, I re-fix the notional monthly income of the petitioner at Rs.5000/-. ## **Loss of earnings** 17. It is proved and established, as per Exhibit A8 Discharge summary and Exhibit A11 Accident Register cum wound certificate, that the petitioner had suffered a fracture of his humerus and also fractures to his 3,4, 6, 7,8,9 and 10 right ribs. He was treated as an inpatient for a period of six days and he had resumed duty only on ## **MACA NO. 2971 OF 2009 8** 18.12.2006. Therefore, I am of the firm view that the petitioner was indisposed for a period of six months, instead of four months fixed by the Tribunal. 18. In view of the re-fixation of the notional monthly income of the petitioner at Rs.5000/-, I award the petitioner an amount of Rs.30,000/- under the head ‘loss of earnings’, instead of Rs.12,000/- awarded by the Tribunal i.e., an enhancement of Rs.18,000/-. ## **Pain and sufferings and loss of amenities** 19. The Tribunal has awarded an amount of Rs.15,000/- each under the heads ‘pain and sufferings’ and ‘loss of amenities’. 20. On a consideration of the fact that the petitioner had sustained fracture of his humerus and fractures of his seven ribs, that he was treated as an inpatient for a period of six days, and that he was indisposed for a period of six months, I hold that the petitioner is entitled to a further amount of Rs.10,000/- each under the heads ‘pain ## **MACA NO. 2971 OF 2009 9** and sufferings’ and ‘loss of amenities’. 21. With respect to other heads of compensation awarded by the Tribunal, I find the same to be reasonable and just. In the result, the appeal is allowed in part, by enhancing the compensation by an amount of Rs.38,000 **/-** (i.e. an enhancement of Rs.18,000/- under the head ‘loss of earnings’, Rs.10,000/- under the head ‘pain and sufferings’ and Rs.10,000/- under the head ‘loss of amenities’) with interest at the rate of 6% per annum, from the date of petition till the date of deposit,after deducting interest for a period of 243 days (i.e.the period of delay in filing the appeal and as ordered by this Court on 24.11.2021 in C.M.Application No.1/2009) and a cost of Rs.5000/-. The second respondent is ordered to deposit the enhanced compensation with interest and cost before the Tribunal within sixty days from the date of receipt of a certified copy of the judgment. ## **MACA NO. 2971 OF 2009 10** Immediately on the compensation amount being deposited, the same shall be disbursed to the appellant/petitioner in accordance with law. SD/- **C.S.DIAS, JUDGE** rmm29/03/2022