High Court of KeralaSingle Judge2022-02-17Appeal allowed; enhanced compensation and costs...

Arjun C Govind v. Jayakumar, Sanalkumar, New India Assurance Co. Ltd. and Abdul Kader

Case / Petition Number:MACA No.1033-2010

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: C.S.DIAS
Judgment Date: 2022-02-17
Court Decision / Holding: The appeal is allowed; compensation is enhanced by Rs. 6,49,000 with interest at 6% per annum from the date of petition to deposit, along with costs. The third respondent-insurer is directed to deposit the enhanced amount before the Tribunal within sixty days of receiving a certified copy of the judgment. Upon deposit, the enhanced amount shall be disbursed to the appellant after deducting Court fees and in accordance with law.
Final Disposition: Appeal allowed; enhanced compensation and costs; deposit before Tribunal; disbursement to appellant upon deposit.

Parties to the Case

Appellants / Petitioners

Arjun C. Govind

Respondents

Jayakumar
Sanalkumar
New India Assurance Co. Ltd.
Abdul Kader

Legal Representation & Advocates

Counsels for Petitioners

• P. V. Baby

Counsels for Respondents

• P. K. Santhamma

Case Synopsis & Summary

This appeal arises from MACA 1033/2010 challenging the award of the Motor Accidents Claims Tribunal, Irinjalakuda, in OPMV 1253/2006, arising from a road accident on 29 October 2005 when the claimant, a 19-year-old engineering student, sustained severe injuries to his hip with permanent disability. The Tribunal found liability and awarded Rs.1,36,800 but declined to grant any compensation under the head of loss due to disability since the disability certificate was not properly proved. The appellant challenged the quantum and the Tribunal’s approach to disability, arguing that the notional income of an engineering student should be higher and that the disability should be compensated fully. He relied on the principle fixed by a Division Bench in National Insurance Co. Ltd v. Fathimath Zuhara (2016 (3) KLT 459) to adopt a notional income of Rs.12,000 per month and on the multiplier prescribed by Sarla Verma v. Delhi Transport Corporation (2009) 6 SCC 121, which yields a multiplier of 18 for a person of youthful age. The Court re-examined the claims, had the appellant examined by a Medical Board, and accepted a 25% functional disability. It recalculated the losses: notional income Rs.12,000/month, disability Rs.6,48,000, and other heads, ultimately concluding a total enhanced award and ordering deposit with interest at 6% and costs. The appeal was allowed, and the enhanced amount was directed to be deposited within sixty days.

Provisions of Law Cited

Section 166 of the Motor Vehicles Act, 1988

Legal Doctrines & Maxims

Multiplier principle under Sarla Verma v. Delhi Transport Corporation and others (2009) 6 SCC 121

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellant submitted that the Tribunal under-compensated him for the injuries, disability, and heads of loss, and failed to take into account the 25% permanent disability certified by the disability board. He contended that his notional income as a 19-year-old engineering student should be fixed at Rs.12,000 per month in line with the governing decision in National Insurance Company Ltd v. Fathimath Zuhara, and that the proper multiplier should be 18 as per Sarla Verma. He argued that the loss due to disability must be compensated; the tribunal erred by treating the disability certificate as not properly proved and by not calculating the disability head adequately. He sought enhancement of the overall award to reflect these losses, with interest and costs.

Contentions of Respondents

The respondents contended that the accident was the appellant's fault, that the disability certificate was not properly proved, and that there was no basis for a higher award. They argued that the Tribunal's findings on income and multiplication were correct and that the insurer should not be held liable for amounts beyond the initial quantum. They also challenged the computation of damages and argued against enhanced compensation.

Cited Precedents (2)

Case Name	Citation	Treatment	Explanation
National Insurance Company Ltd v. Fathimath Zuhara	2016 (3) KLT 459	Positive	Court relied on this decision for fixing the notional income of an engineering student at Rs.12,000 per month.
Sarla Verma and Others v. Delhi Transport Corporation and another	[(2009) 6 SCC 121]	Positive	Court applied the multiplier rule and fixed the relevant multiplier as 18.

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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`** ``` THURSDAY, THE 17[TH] DAY OF FEBRUARY 2022 / 28TH MAGHA, 1943 ``` ## **`MACA NO. 1033 OF 2010`** ``` AGAINST THE AWARD DATED 09.11.2009 IN OPMV 1253/2006 OF MOTOR ``` ## **`ACCIDENT CLAIMS TRIBUNAL, IRINJALAKUDA`** ## **`APPELLANT/PETITIONER:`** ``` ARJUN C.GOVIND AGED 48 YEARS S/O.CHAKKUMTHODY GOVINDAN, RAILWAY STATION ROAD, THORAVU VILLAGE, PUDUKAD P.O., MUKUNDAPURAM TALUK, THRISSUR DISTRICT. ``` ``` BY ADV SRI.P.V.BABY ``` ## **`RESPONDENT/RESPONDENTS:`** - `1 JAYAKUMAR AGED 38 YEARS S/O. PUTHETH POULOSE, 1/18, PALLARIMANGALAM P.O, KOTHAMANGALAM.` - `2 SANALKUMAR, S/O. KARUTHANATH SANKARAN NAIR, ELANGAVAMKARA P.O, VARAPPETTY VILLAGE, KOTHAMANGALAM.` - `3 NEW INDIA ASSURANCE CO.LTD., G.H. ROAD, MUNNAR.` - `4 ABDUL KADER, 9/570, KADUKKAMOLEL HOUSE, VANNARPURAM, THODUPUZHA P.O, IDUKKI` ``` BY ADV SMT.P.K.SANTHAMMA ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 17.02.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 2 MACA No.1033-2010 ## **Dated this the 17[th] day of February, 2022.** ## **JUDGMENT** The appellant was the petitioner in OP(MV) No.1253/2006 on the file of the Motor Accidents Claims Tribunal, Irinjalakuda. The respondents in the appeal were the respondents before the Tribunal. 2. The appellant 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 29.10.2005. It was his case that, on the aforesaid date, while he was riding a motorcycle bearing registration No. KL 8/AD 4782, along the Thrissur- Ernakulam National Highway, a lorry bearing registration No. KL -7/L 2817, driven by the second respondent in a rash and negligent manner, hit the motorcycle of the appellant. The appellant sustained multiple injuries and was treated at the Mother 3 MACA No.1033-2010 Hospital, Thrissur and the Ganga Hospital, Coimbatore for a period of 15 days. The appellant suffered multiple fractures of his hip and has shortening of his right leg and flexion and extension movement of his right leg. He is permanently disabled. He was an Engineering student at the Cochin University, Ernakulam. The lorry was owned by the first respondent and insured with the third respondent. The fourth respondent was the insurance policy holder. Hence the appellant claimed a compensation of Rs.8,03,500/-, from the respondents, which claim was limited to Rs.3,00,000/- 3. The respondents 1, 2 and 4 did not contest the proceedings and were set exparte. 4. The third respondent had filed a written statement admitting that the lorry had a valid insurance coverage. However, the third respondent contended that the accident occurred due to the negligence of the appellant. The third respondent also disputed the age, income and occupation of the appellant. 4 MACA No.1033-2010 5. The appellant had produced and marked Exhibits A1 to A8 in evidence. The respondents did not let in any evidence. 6. Even though the appellant had produced Exhibit A7 disability certificate, wherein it was certified that he has a permanent disability of 25%, the Tribunal for the reason that the certificate was not properly proved, declined to award any compensation under the head ‘loss due to disability’. But, the Tribunal awarded an amount of Rs.1,36,800/- as compensation and directed the third respondent to pay the amount with interest and proportionate cost. 7. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioner is in appeal. 8. Heard Sri.P.V Baby, the learned counsel appearing for the appellant/petitioner and Smt.P.K.Santhamma, the learned counsel appearing for the third respondent/insurer. 9. When this appeal was taken up for 5 ## MACA No.1033-2010 consideration on 30.06.2021, this Court had directed the appellant to be present in person before this Court. This Court personally interacted with the appellant and referred him to a Medical Board under the Medical College Hospital, Thrissur. 10. Pursuant to the above order, the appellant was examined by the Medical Board attached to the above hospital. 11.The Superintendent of the hospital, by communication dated 20.9.2021, has forwarded to this Court, the Disability Assessment Board Certificate dated 08.09.2021. The said certificate is accepted on record and marked as Exhibit X1. 12. As per Exhibit X1, the appellant’s functional disability due to musculoskeletal neurological is assessed and fixed at 25%. ## **Notional income** 13. The appellant was an Engineering student in the Cusat Engineering College, Cochin University 6 MACA No.1033-2010 Centre, Kochi. 14. A Division Bench of this Court in **National Insurance Company Ltd v. Fathimath Zuhara** [2016 (3) KLT 459], has fixed the notional income of an Engineering student, who met with an accident in the year 2005, at Rs.12,000/- per month. 15. As the accident in the instant case also happened in the year 2005, and the appellant being Engineering student, I fix his notional income as per the principles laid down in the above said decision at Rs.12,000/- per month. ## **Multiplier** 16. The appellant was aged 19 years at the time of the accident. In the light of the law laid down in **Sarla Verma and Others v. Delhi Transport Corporation and another[(2009) 6 SCC 121],** the relevant multiplier to be adopted is ‘18’. 7 MACA No.1033-2010 ## **Loss due to disability** 17. Taking into account the above mentioned factors, namely, the notional monthly income of the appellant at Rs.12000/-, his functional disability at 25% and the multiplier at ‘18’, I award the appellant an amount of Rs.6,48,000/- towards ‘loss due to disability’. 18. With respect to other heads of compensation, I find that the Tribunal has awarded reasonable and just compensation. 19. On an overall re-appreciation of the pleadings and materials on record and the law referred to in the afore-cited decisions, I hold that the appellant/petitioner is entitled for enhancement of compensation as modified and re-calculated above, and given in the table below for easy reference. |SI. No|Head of claim|Amount awarded (in rupees)|Amounts modifed and recalculated by this Court| |---|---|---|---| |1|Transport|3000|3000| |2|Clothing|1000|1000| |3|By-stander expenses|1500|1500| |4|Medical expenses|77300|77300| 8 MACA No.1033-2010 |5|Pain and suferings|15000|15000| |---|---|---|---| |6|Loss of amenities|30000|30000| |7|Loss of studies|10000|10000| |8|Loss due to disability|0|648000| ||Total|136800|785800| In the result, the appeal is allowed, by enhancing the compensation by a further amount of Rs.6,49,000/with interest at the rate of 6% per annum from the date of petition till the date of deposit, and proportionate cost. The third 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. Immediately on the compensation amount being deposited, the same shall be disbursed to the appellant/petitioner, after deducting his liability towards courts fee, and in accordance with law Sd/- **C.S.DIAS, JUDGE** rmm/18/02/2022 9 MACA No.1033-2010 The appellant’s/petitioner’s age in the cause title of judgment in MACA 1033/2010 dated 17.02.2022 is corrected as ‘19 years’ instead of ‘48 years’ vide order dated 26/10/2022 in I.A. No.2/2022. SD/- ASSISTANT REGISTRAR 10 MACA No.1033-2010 ## APPELLANT’S EXHIBITS EXHIBIT X1 – DISABILITY ASSESSMENT BOARD CERTIFICATE DATED 08.09.2021 RESPONDENTS EXHIBITS NIL