High Court of KeralaSingle Judge2024-04-03The appeal is allowed in part; the award is par...

Aji N.R. v. Gireesh M.S. and Sunnymon Joseph and The New India Insurance Company Ltd.

Case / Petition Number:MACA NO. 1301 OF 2019

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: C.S. Sudha
Judgment Date: 2024-04-03
Court Decision / Holding: The appeal is allowed in part. The High Court modifies the Tribunal’s award by increasing the notional income to ₹9,000/month (citing Ramachandrappa), and revises several heads: pain and suffering to ₹1,00,000 (from ₹80,000), loss of amenities to ₹1,00,000 (from ₹80,000), while keeping other heads as is. The total enhanced compensation is ₹10,32,925 (₹9,09,125 awarded by Tribunal + ₹1,23,800). Interest is fixed at 7.5% per annum from the date of petition till realization, with proportionate costs. The third respondent/insurer must deposit the enhanced amount within 60 days from receiving the judgment, after which the Tribunal will disburse to the petitioner. Interlocutory applications pending, if any, are closed.
Final Disposition: The appeal is allowed in part; the award is partly modified and enhanced with direction to deposit the enhanced amount within 60 days.

Parties to the Case

Appellants / Petitioners

Aji N.R.

Respondents

Gireesh M.S.
Sunnymon Joseph
The New India Insurance Company Ltd.

Legal Representation & Advocates

Counsels for Petitioners

• K.M. Madhu
• Smti. Vishnuja Ajayan

Counsels for Respondents

• P.M.M. Najeeb Khan

Case Synopsis & Summary

This is a Motor Accidents Claims Appeal under Section 173 of the Motor Vehicles Act, 1988 filed by Aji N.R. challenging an award of ₹9,09,125 with interest from the date of petition, granted by the Motor Accidents Claims Tribunal, Ernakulam, in O.P.(MV) No.1138/2014. The underlying incident occurred on 28 December 2013 when the petitioner, a pedestrian, was allegedly struck from behind by a second respondent on a public road near Uppupura, Athirampuzha, while walking. The second respondent-driver's negligence was found by the Tribunal, with the third respondent insurer arrayed as a party. The appeal concerns several heads of compensation, including notional income, pain and suffering, nourishment, loss of amenities, treatment and other expenses. The petitioner contends the Tribunal erred by inadequately calculating notional income (₹8,000/month) and inadequately compensating for pain and suffering, nourishment, and loss of amenities. The insurer contends lack of evidence for carpentry status and that the wage rate in GO (P) 134/2016/LBR is inapplicable without proof. The High Court modifies the notional income to ₹9,000/month, increases pain and suffering to ₹1,00,000, and grants ₹1,00,000 for loss of amenities, resulting in a total enhanced compensation of ₹10,32,925 with 7.5% interest and costs.

Provisions of Law Cited

Section 173 of the Motor Vehicles Act, 1988

Legal Doctrines & Maxims

Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Ltd., [(2011) 13 SCC 236] - Notional income principle for calculating compensation under MACT

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellant contends that the Tribunal erred in fixing the notional income at ₹8,000/month in the absence of verifiable evidence of carpentry work. Referring to Government Order GO (P) 134/2016/LBR, and citing Ramachandrappa (2011) 13 SCC 236, the petitioner argues for a higher notional income of ₹9,000/month. On damages, the appellant asserts ₹2.5 lakh for pain and suffering in light of 40% permanent disability, argues for higher amounts for nourishment, and contends that compensation for loss of amenities and comfort should reflect the disability and ongoing needs. The appellant seeks enhanced awards across heads, pointing out the Tribunal’s modest awards as inadequate. Ultimately, the appellant seeks total enhancement and full protection of rights under the Act.

Contentions of Respondents

The respondents contest the application of GO (P) 134/2016/LBR for notional income, arguing that the petitioner has not proven he is a carpenter or skilled worker; thus the ₹8,000/month notional income should stand. They submit there is no material to apply the Government Order, and that the Tribunal’s assessment should be kept intact. They contend the award for pain and suffering, nourishment, and loss of amenities is reasonable and supported by the evidence on record, and that the insurer’s liability is properly determined, urging dismissal of any substantial upward modification.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Ltd.	[(2011) 13 SCC 236]	Positive	Cited as a controlling authority for using a notional income in MACT assessments; justified higher monthly notional income (₹9,000) in the present case.

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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 MRS. JUSTICE C.S. SUDHA** **WEDNESDAY, THE 3[RD] DAY OF APRIL 2024 / 14TH CHAITHRA, 1946** **MACA NO. 1301 OF 2019** **AGAINST THE ORDER/JUDGMENT DATED 31.10.2018 IN OPMV NO.1138 OF** **2014 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, ERNAKULAM** ## **APPELLANT/PETITIONER:** **AJI.N.R., AGED 39 YEARS S/O. RAGHAVAN, NIKATHITHARA HOUSE, NEAR NJARACKAL GOVT. HOSPITAL, NJARACKAL, VYPINKARA, ERNAKULAM DISTRICT.** **BY ADVS. K.M.MADHU SMT.VISHNUJA AJAYAN** ## **RESPONDENTS/RESPONDENTS:** **1 GIREESH.M.S., S/O. SUBRAMANIAN, MUKALEL (H), MANNANAM P.O, ATHIRAMPUZHA VILLAGE, KOTTAYAM DISTRICT-686 561 2 SUNNYMON JOSEPH AGED 54 YRS, S/O. JOSEPH, PLAPARAMBIL HOUSE, MANNANAM P.O, ATHIRAMPUZHA VILLAGE, KOTTAYAM DISTRICT-686 561 3 THE NEW INDIA INSURANCE COMPANY LTD. 3RD PARTY CELL, NEAR MAHARAJA'S COLLEGE GROUND, ERNAKULAM-682 011 BY ADV SRI.PMM.NAJEEB KHAN** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 03.04.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA NO. 1301 OF 2019** **2** ## **C.S.SUDHA, J.** **-------------------------------M.A.C.A. No.1301 of 2019 -------------------------------------------Dated this the 3[rd] day of April, 2024** ## **J U D G M E N T** This appeal under Section 173 of the Motor Vehicles Act, 1988 (the Act) has been filed by the petitioner in O.P.(MV) No.1138/2014 on the file of the Motor Accidents Claims Tribunal, Ernakulam, (the Tribunal), aggrieved by the amount of compensation granted by Award dated 31/10/2018. The respondents herein are the respondents before the Tribunal. The parties and the documents will be referred to as described in the original petition. 2. According to the petitioner, on 28/12/2013 at 11:20 a.m., he was walking through the side of Athirampuzha-Ettumanoor public road and when he reached near the place by name Uppupura at Athirampuzha, the second respondent riding Activa scooter bearing registration No.KL-05/AE-1297 in a rash and negligent manner, hit the petitioner from behind as a result of which the petitioner fell down and sustained multiple injuries. The first respondent owner, the second **MACA NO. 1301 OF 2019** **3** respondent driver and the third respondent insurer of the offending vehicle are jointly and severally liable to compensate the petitioner. Hence the petitioner claimed an amount of ₹23 lakhs as compensation under various heads. 3. . Respondents 1 and 2 remained _ex parte_ 4. The third respondent filed written statement and additional written statement admitting the policy, but denying the liability. 5. Before the Tribunal, no oral evidence was adduced by the petitioner. Exts.A1 to A13 were marked on the side of the petitioner. RW1 was examined on the side of the third respondent. Ext.X1, the certificate issued by the Medical Board, Govt. T.D. Medical College Hospital, Alappuzha, was also marked. 6. The Tribunal on a consideration of the oral and documentary evidence and after hearing both sides, found negligence on the part of the second respondent resulting in the incident and hence awarded an amount of ₹9,09,125/- with interest @ 9% per annum from the date of the petition till realisation and proportionate costs. Aggrieved, the petitioner has come up in appeal. **MACA NO. 1301 OF 2019** **4** 7. The only point that arises for consideration in this appeal is whether there is any infirmity in the findings of the Tribunal calling for an interference by this Court. 8. Heard both sides. 9. The learned counsel for the petitioner/injured challenges the Award of the Tribunal under the following heads- ## **Notional income** According to the learned counsel for the petitioner/injured, the minimum wages fixed by the Government of Kerala as per G.O.(P) No.134/2016/LBR dated 06.08.2016 for a carpenter is ₹550/day. The Tribunal, on the other hand, has fixed the notional income at ₹8,000/only, which is too low. _Per contra_ , it was submitted by the learned counsel for the 3[rd] respondent-insurer that no evidence had been let in by the petitioner to show that he was a carpenter or a skilled worker. In such circumstances, the rate of wages referred to in the aforesaid Government Order cannot be made applicable to the petitioner. 9.1. The Tribunal on the ground that the petitioner had not adduced any oral or documentary evidence to substantiate his case that **MACA NO. 1301 OF 2019** **5** he was a carpenter, fixed the notional income at ₹8,000/month. It is true that it is practically not possible for the petitioner to produce any documentary evidence to establish his case that he is a carpenter. But, as pointed out by the learned counsel for the respondent-insurer, the petitioner could have at least mounted the box and given a sworn statement to the said effect. In the absence of any material to find that the petitioner is a carpenter, the Government Order referred to cannot be made applicable to the petitioner. However, in the light of the dictum in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Ltd., [(2011) 13 SCC 236]** , the notional income of the petitioner can be fixed at the rate of ₹9,000/month and to the said extent, the award shall stand modified. **-** 10. **Pain and suffering** It is submitted by the learned counsel for the petitioner that as per Ext.X1 disability certificate, the petitioner has 40% permanent disability which has been accepted by the Tribunal also. In such circumstances, the compensation to be awarded for pain and suffering ought to have been ₹2.5 lakhs as claimed by the petitioner. However, the Tribunal has awarded a meagre sum of **MACA NO. 1301 OF 2019** **6** ₹80,000/- only, which also requires to be interfered with. On the other hand, the learned counsel for the third respondent submitted that the amount awarded is adequate and hence no interference is required. 10.1 In the light of the injuries sustained by the petitioner, I think an amount of ₹1 lakh towards pain and suffering would be just compensation. ₹80,000/- has already been granted by the Tribunal under the said head. Therefore, I find that the petitioner is entitled to ₹20,000/- more in addition to ₹80,000/- granted by the Tribunal under this head. **-** 11. **Extra nourishment** It is pointed out by the learned counsel for the petitioner that extra nourishment of ₹10,000/- granted requires to be enhanced to ₹35,000/-. I disagree. An amount of ₹10,000/- has been granted, which in my opinion is reasonable and just compensation. **-** 12. **Compensation for loss of amenities and comfort** It is further submitted by the learned counsel for the petitioner, that due to the injuries sustained, the petitioner has become a complete invalid, unable to do any work or earn for himself. He is also not in a position **MACA NO. 1301 OF 2019** **7** to carry out any normal activities or lead a matrimonial life and therefore, an amount of ₹2 lakhs ought to have been granted. Though it is submitted that the petitioner has become a complete invalid, unable to perform any normal activities, there is no evidence to substantiate the said aspect. As per Ext.X1, the total disability has been assessed at 40.31%. This has been accepted by the Tribunal against which there is no challenge also. In the light of the injuries sustained, I find that an amount of ₹1 lakh as compensation for loss of amenities and comforts would be just compensation. 13. The impugned Award is partly modified thus - |Sl. No.|Head of claim|Amount claimed|Amount awarded by Tribunal|Modified in appeal| |---|---|---|---|---| |1.|Compensation for loss of earnings|₹10,00,000/-|₹56,000/-|₹63,000/- [9,000x 7 months] (56,000+7,000)| |2.|Transport to hospital and back to home|₹25,000/-|₹5,000/-|₹5,000/- (No modification)| |3.|Extra nourishment|₹35,000/-|₹10,000/-|₹10,000/- (No modification)| |4.|Damage to clothes and articles|₹1,500/-|₹1,000/-|₹1,000/- (No modification)| **MACA NO. 1301 OF 2019** **8** |Sl. No.|Head of claim|Amount claimed|Amount awarded by Tribunal|Modified in appeal| |---|---|---|---|---| |5.|Bystander expenses|₹2,600/-|₹6,200/-|₹6,200/- (No modification)| |6.|Treatment expenses|₹25,716/-|₹56,525/-|₹56,525/- (No modification)| |7.|Compensation for pain and sufferings|₹2,50,000/-|₹80,000/-|₹1,00,000/- (80,000+20,000)| |8.|Compensation for disability|₹7,50,000/-|₹6,14,400/-|₹6,91,200/- [9,000x12x16 x40/100] (6,14,400+76,800)| |9.|Compensation for future treatment expenses|₹25,000/-|0|0 (No modification)| |10.|Compensation for loss of amenities and comforts|₹2,00,000/-|₹80,000/-|₹1,00,000/- (80,000+20,000)| ||**Total**|₹23,14,816/-|₹9,09,125/-|₹10,32,925/-| ||Claim amount ₹23,00,000/-|||| In the result, the appeal is allowed in part by enhancing the compensation by a further amount of **₹1,23,800/-** (total compensation ₹10,32,925/-, that is, ₹9,09,125/- granted by the Tribunal + ₹1,23,800/- granted in appeal) with interest at the rate of 7.5% per annum from the **MACA NO. 1301 OF 2019** **9** date of petition till date of realization and proportionate costs. The third respondent/insurer is directed to deposit the enhanced compensation with interest and costs before the Tribunal within a period of 60 days from the date of receipt of a copy of the judgment. On deposit of the compensation amount, the Tribunal shall disburse the amount to the petitioner/appellant at the earliest in accordance with law. Interlocutory applications, if any pending, shall stand closed. **Sd/C.S. SUDHA JUDGE** NP