High Court of KeralaSingle JudgeThe appeal is allowed without any order on cost...

Augusthy Joseph @ Baby S/o Joseph v. Rajesh Moonnuthodiyil and Others (respondents: Prince; ICICI Lombard GIC Ltd.)

Case / Petition Number:MACA. No.2616 of 2012
Neutral Citation:,

Case Details & Bench

Court
High Court of Kerala
Hon'ble Judges
  • K. Vinod Chandran
Judgment Date
2019-01-21
Court Decision / Holding
The appeal is allowed. The award is modified: the Insurance Company’s total exoneration is not upheld; the insurer shall pay the claimant with a right to recover the amounts with interest and future interest from the owner. Enhancement of compensation is granted under Pranay Sethi guidelines: detailed heads show increases in loss of earnings to Rs. 18,000 ( Rs. 6,000 x 3 months), transport Rs. 1,500, extra nourishment Rs. 5,000, clothing Rs. 500, medical expenses Rs. 9,853, bystander’s expenses Rs. 3,200, pain and suffering Rs. 25,000, permanent disability Rs. 77,760 (12% of 6,000 x 12 x 9 years), and loss of amenities Rs. 10,000; total Rs. 150,813. The payment is to be made within two months, with transfer by NEFT/RTGS, and the appellant to provide bank details and Aadhar copy to facilitate payment. The appeal is allowed without costs.
Final Disposition
The appeal is allowed without any order on costs in the appeal.

Parties to the Case

Appellants / Petitioners

  • Augusthy Joseph @ Baby S/o Joseph

Respondents

  • Rajesh Moonnuthodiyil
  • Prince
  • ICICI Lombard GIC Ltd.

Legal Representation & Advocates

Counsels for Petitioners

  • • Sri. Mathew John (K)
  • • Sri. Domson J. Vattakuzhy

Counsels for Respondents

  • • Sri. Agi Joseph

Case Synopsis & Summary

This is a Motor Accident Claims Appeal under MACA No. 2616 of 2012, challenging the MACT, Kottayam award dated 19-09-2012. The appellant was a pedestrian severely injured in a motorcycle collision, leaving him disabled from agricultural work. The appeal raises two principal issues: (i) whether the Insurance Company can be completely exonerated under Section 149(2) of the Motor Vehicles Act, 1988 for lack of driver’s license, given that the policy exists and the owner remains vicariously liable; (ii) whether the compensation should be enhanced. The Insurance Company admitted liability but claimed the right to recover paid amounts from the vehicle owner; the Court held that total exoneration of the insurer is not warranted and that the insurer must pay, with a right to recover from the owner. On quantum, the Tribunal’s income figure of Rs. 4,500 per month was challenged; the Court accepted Rs. 6,000 per month for an agriculturist (citing Ramachandrappa) as reasonable. The disability percentage, though clinically assessed at 12%, was not reduced; Rajkumar v. Ajay Kumar is invoked to treat Medical Board findings as valid absent contrary evidence. Applying the Pranay Sethi framework, the Court recalculated and enhanced various heads of compensation, resulting in a total reward of Rs. 150,813, to be paid within two months with directions for orderly disbursement and future interest. The appeal is allowed with no costs.

Provisions of Law Cited

Section 149(2) of the Motor Vehicles Act, 1988

Legal Doctrines & Maxims

  • Pranay Sethi guidelines for compensation under Heads of Damage (Loss of earnings, transport, nourishment, medical expenses, pain and suffering, permanent disability, etc.)
  • Medical Board disability acceptance principle (Rajkumar v. Ajay Kumar)

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellant contends that the Insurance Company cannot be totally exonerated under Section 149(2) simply because the driver had no license, as there is a valid policy and the insurer would be liable to pay the claimant, with a right to recover from the owner. On quantum, the appellant asserts that Rs. 6,000 per month is a more accurate income for an agriculturist than the Tribunal’s Rs. 4,500, citing Ramachandrappa for the baseline. The disability should remain at 12% per the Medical Board, following Rajkumar v. Ajay Kumar, and the court should apply the Pranay Sethi framework to enhance all heads of compensation, including loss of earnings, medical expenses, pain and suffering, and permanent disability.

Contentions of Respondents

The respondents argue that liability lies primarily with the insurer under the policy, albeit with the insurer reserving a right to recover from the owner; they rely on the insurer’s right to recoup amounts from the owner if a recovery is ordered. They contend the trial award should be respected and the enhancement should be limited in line with policy considerations and the evidence presented, including any objections to the Medical Board’s disability assessment.

Cited Precedents (3)

Case NameCitationTreatmentExplanation
Ramachandrappa v. Royal Sundaram Alliance Insurance Company Limited[(2011) 13 SCC 236]PositiveCited to justify accepting a higher monthly income for an agriculturist than the Tribunal’s figure, aligning with the Supreme Court’s approach in Ramachandrappa.
Rajkumar v. Ajay Kumar[2011 (1) KLT 620 (SC)]PositiveUsed to support accepting the Medical Board’s disability finding if not contradicted by other evidence.
National Insurance Company Ltd. v. Pranay Sethi and Others[2017 (5) KHC 350]PositiveProvides the framework for calculating enhanced compensation heads adopted by the court.

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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 K.VINOD CHANDRAN** **MONDAY, THE 21ST DAY OF JANUARY 2019 / 1ST MAGHA, 1940** ## **MACA. No.2616 of 2012** **AGAINST THE AWARD IN OP(MV) NO.513/2009 OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, KOTTAYAM DATED 19-09-2012** ## **APPELLANT/PETITIONER:** **AUGUSTHY JOSEPH @BABY S/O.JOSEPH, ARYAKALAYIL HOUSE, ETTUMANOOR POST PADINJATTUMBHAGAM, ATHIRAMPUZHA VILLAGE, KOTTAYAM DISTRICT.** **BY ADVS. SRI.MATHEW JOHN (K) SRI.DOMSON J.VATTAKUZHY** ## **RESPONDENTS/RESPONDENTS:** - **1 RAJESH MOONNUTHODIYIL HOUSE, KANAKARY POST, ETTUMANOOR KOTTAYAM DISTRICT-686 632.** **2 PRINCE, S/O.BABY KURISINKAL HOUSE, NEAR S.N.D.P.MANDIRAM, PEROOR VILLAGE, ETTUMANOOR, KOTTAYAM DISTRICT PIN-686 631.** **3 ICICI LOMBARD GIC LTD. ROOM NO.1, 4TH FLOOR, MUTHOOT CROWN PLAZA, T.B.ROAD, KOTTAYDM DISTRICT - 686 001.** ## **BY ADV. SRI.AGI JOSEPH** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 21.01.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA. No.2616 of 2012 2 ## **JUDGMENT** **The appeal is from an award of the Tribunal. The appellant was a pedestrian, who was hit by a motorcycle, causing serious injuries, which also led to his being disabled from carrying on his occupation of agriculture. The appeal is on two grounds; one against the complete exoneration of the Insurance Company for reason of there being no licence for the driver of the offending vehicle and the other for enhancement.** **2. On the question of a complete exoneration of the liability, it is clear that the violation found is one under Section 149(2) of the Motor Vehicles Act, 1988. The Insurance Company admitted that since there is a valid insurance policy, they would have the liability to pay up the compensation, but would be reserved the right to recover the same from the owner.** MACA. No.2616 of 2012 3 **3. The above case was posted in the defect list, since the driver of the offending vehicle, the 2[nd] respondent, was not served. However, the owner of the vehicle, the 1[st] respondent, was served and if at all a recovery is ordered, the liability is on such owner, who is vicariously liable. In such circumstances, the award in so far as a total exoneration of the liability of the Insurance Company is concerned, is set aside to that extent. The Insurance Company shall pay up the amounts to the claimant, but shall be reserved the right to recover the amounts with interest as paid to the claimant, along with the future interest, from the 1[st] respondent, the owner of the vehicle.** **4. The further contention in the appeal is with respect to enhancement of compensation. The appellant was allowed a total compensation of Rs.79,000/-. The appellant before the Tribunal asserted that he had a monthly income of** MACA. No.2616 of 2012 4 **Rs.6,000/- from agriculture. The Tribunal adopted only an amount of Rs.4,500/- as the monthly income. The Hon'ble Supreme Court had adopted Rs.4,500/- as the monthly income of a coolie in the year 2004 in** _**Ramachandrappa v. Royal Sundaram Alliance Insurance Company Limited [(2011) 13 SCC 236].**_ **In such circumstances, it is only reasonable that the income of Rs.6,000/- as asserted by the claimant,who is an agriculturist, is accepted.** **5. The further contention is with respect to reduction of disability percentage from 12% to 5%. A Disability Certificate was produced as Annexure X1, in which the Board constituted in the Government Medical College Hospital, Kottayam had found the disability to be 12%. The injuries suffered by the appellant are as follows:** _**“(1) Hip fracture-neck of femur**_ _**left.**_ MACA. No.2616 of 2012 5 - _**(2) Contusion and swelling on left hip.**_ - _**(3) Injury on both hands.**_ - _**(4) Dislocation of ball joint of hip.**_ - _**(5) Severe pain all over the body.”**_ **6. Though Annexure X1 Disability Certificate** **assessed the disability at 12%, the Tribunal looked at the injuries sustained by him and assessed the disability seen on his appearance before the Tribunal and fixed it at 5%.** ## **7. The learned Counsel for the appellant** **relied on the decision of the Hon'ble Supreme Court in** _**Rajkumar v. Ajay Kumar [2011 (1) KLT 620 (SC)]**_ **to contend that the Tribunal has to accept the disability as found by the Medical Board, unless the contrary is proved. The learned Counsel would rely on paragraph 18 of the judgment to submit that, when the Certificate is issued by a duly constituted** MACA. No.2616 of 2012 6 **Medical Board and the genuineness of the same is not disputed by any of the respondents, then the same has to be accepted invariably and there could be no reduction of the disability, unless there is contra evidence led.** **8. This Court has gone through the deposition of PW1. PW1, the appellant herein, had specifically contended that his left leg has a permanent disability and that after the accident, he is unable to do any work. Annexure X1 Disability Certificate was also before the Tribunal at the time of trial. On going through the cross-examination of PW1 by the Insurance Company, this Court does not see any challenge to the disability percentage as assessed by the Medical Board, in the Certificate. This Court does not find any reason for the Tribunal to interfere with the disability as assessed by a duly constituted Medical Board in a Government Hospital.** MACA. No.2616 of 2012 7 **9. In such circumstances, the following enhancement shall be made under the various heads as has been declared by the Hon'ble Supreme Court in** _**National Insurance Company Ltd. v. Pranay Sethi and Others [2017 (5) KHC 350]**_ **as tabulated below:** |**Sl.**<br>**No.**|**Head of Claim**|**Amount**<br>**awarded by**<br>**the**<br>**Tribunal**<br>`|**Total amount**<br>**after**<br>**enhancement in**<br>**appeal**<br>`| |---|---|---|---| |**1**|**Loss of earning**|**13500**|**18000 [6000*3]**| |**2**|**Transport to hospital**|**1500**|**1500**| |**3**|**Extra nourishment**|**1000**|**5000**| |**4**|**Damage to clothing**|**500**|**500**| |**5**|**Medical expenses**|**9853**|**9853**| |**6**|**Bystander's expenses**|**3200**|**3200**| |**7**|**Pain and suffering**|**15000**|**25000**| |**8**|**Compensation for**<br>**permanent disability**|**24300**|**77760**<br>**[6000*12*9***<br>**12%]**| |**9**|**Compensation for loss**<br>**of amenities**|**10000**|**10000**| ||**Total**|**78853**|**150813**| **10. The amounts awarded as above, after** MACA. No.2616 of 2012 8 **deducting what has already been paid, shall be paid within two months from the date of receipt of a certified copy of this judgment with interest from the date of application and cost, if any, as directed by the Tribunal. The appellant shall produce a copy of a canceled cheque of the Bank account in his name with copy of AADHAAR before the Tribunal within one month, with copy to the Insurance Company. The Insurance Company shall credit the amount through NEFT/RTGS mode to the said account, failing which, the applicant can approach the Tribunal.** **The above appeal is allowed without any order on costs in the appeal.** ## **K. VINOD CHANDRAN** ## **JUDGE** **//True Copy//** **sp/23/01/19** **P.A. To Judge**