High Court of KeralaSingle Judge2021-09-27Partial allowed; enhanced compensation and dire...

Ayyappan v. Mohanan and others

Case / Petition Number:MACA No. 497 of 2009

Neutral Citation::null

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: C.S. Dias
Judgment Date: 2021-09-27
Court Decision / Holding: The appeal is allowed in part. The High Court enhanced compensation by Rs.57,120, with interest at 7.5% per annum on the enhanced amount from the date of petition, and awarded Rs.3,000 costs. The third respondent-insurer is to deposit the enhanced sum with interest and costs before the Tribunal within two months of receipt of a certified copy of this judgment, and the Tribunal is to disburse the enhanced amount to the appellant in accordance with law. All pending interlocutory applications are closed.
Final Disposition: Partial allowed; enhanced compensation and directions to deposit before the Tribunal within two months; interlocutory applications closed.

Parties to the Case

Appellants / Petitioners

Ayyappan

Respondents

Mohanan
Saji K. John
The New India Assurance Co. Ltd.
P.J. Navas
Manu
The United India Insurance Co. Ltd.
P.O. Joykutty

Legal Representation & Advocates

Counsels for Petitioners

• K. A. Hashim

Counsels for Respondents

• George Karithanam Varghese
• V. J. John
• N. S. Mohammed Usman
• Unni. K. K. Ezhumattoor

Case Synopsis & Summary

Ayyappan, the appellant, challenged the Motor Accidents Claims Tribunal, Kottayam, award in OP(MV)No.1497/2002 for injuries sustained on 02.06.2002 when he rode pillion on a scooter halted by a bus on the Changanacherry–Vazhoor road. The Tribunal awarded Rs.50,000 with 7.5% interest from the date of petition and Rs.3,000 costs against the insurer (bus involved) though liability was admitted by the insurer and owner. The appellant claimed higher compensation across several heads, including loss of earnings, medical expenses, pain and suffering, loss of amenities and disability, but the Tribunal had assessed a relatively modest quantum and notional income. The appellant and allied respondents contested, arguing liability and quantum based on their respective positions. The High Court undertook a thorough reassessment, noting the bus driver’s negligence supported by Ext.A3 and accepting liability on the bus owner/insurer. It applied Ramachandrappa to fix a notional income of Rs.3,500 per month (for 2002), held the claimant was indisposed for about four months, and, using a multiplier of 17 (per Sarala Varma), fixed an 8% disability (per Ext.A10) and recalculated loss of earnings (Rs.14,000) and disability (Rs.57,120). It enhanced losses for loss of amenities (to Rs.20,000) and totalled Rs.1,07,120, with 7.5% interest and Rs.3,000 costs. The appeal was allowed in part, directing deposit of the enhanced amount before the Tribunal within two months and closing all interlocutory applications.

Provisions of Law Cited

Section 166 of the Motor Vehicles Act, 1988

Legal Doctrines & Maxims

Notional income concept for calculating compensation (Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited, (2011) 13 SCC 236)
Duty to refer to a Medical Board if disability certificate is not satisfactory (Rajkumar v. Ajayakumar, 2011(1) KLT 620(SC))
Multiplier principle for rehabilitation/compensation based on age (Sarala Varma and others v. Delhi Transport Corporation and others, (2010) 2 KLT 802 (SC))

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellant contended that the quantum of compensation awarded by the Tribunal was inadequate and that the notional income and losses across heads such as loss of earnings, amenities, and disability required proper assessment. He relied on judicial precedents to justify higher compensation, particularly in light of the injuries and duration of disability.

Contentions of Respondents

The respondents contended that liability lay with the insurer as the bus owner’s insurer and that the award was within the Tribunal’s discretion; they argued the appellant had not proven exact income and that the compensation should reflect insurance policy limits and evidence presented. They urged the court to uphold the Tribunal’s reasons regarding liability and quantum, or at least maintain a conservative figure.

Cited Precedents (3)

Case Name	Citation	Treatment	Explanation
Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited	(2011) 13 SCC 236	Positive	Used as the governing precedent to fix the notional income (Rs.3,500) and to engage the notional income framework for calculation of compensation.
Sarala Varma and others v. Delhi Transport Corporation and others	(2010) 2 KLT 802 (SC)	Positive	Applied to fix the multiplier at 17 for a young claimant, following SC guidance.
Rajkumar v. Ajayakumar	2011(1) KLT 620(SC)	Positive	Used to argue the necessity of Medical Board referral if a disability certificate is not satisfactory; the court notes the tribunal should have referred.

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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** **MONDAY, THE 27[TH] DAY OF SEPTEMBER 2021 / 5TH ASWINA, 1943** **MACA NO. 497 OF 2009** **AGAINST THE AWARD DATED 29.08.2008 IN OP(MV)NO.1497/2002 OF THE ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL ,KOTTAYAM.** ## **APPELLANT/PETITIONER:** **AYYAPPAN, PARACKAL HOUSE, THOTTIKAL BHAGOM, NEDUMKUNNAM KARA, NEDUMKUNNAM VILLAGE.** **BY ADV SRI.K.A.HASHIM** ## **RESPONDENTS/ RESPONDENTS:** - **1 MOHANAN, S/O. KRISHNAN, AYYANKUNNEL HOUSE, AMAYANNOOR BHAGOM, AYARKUNNAM KARA, AYARAKUNNAM VILLAGE.** - **2 SAJI K.JOHN, S/O.JOHN, KATTAKUNNOL (H), KARUKACHAL, CHANGANACHERRY.** - **3 THE NEW INDIA ASSURANCE CO.LTD., BRANCH, CHANGANACHERRY.** - **4 P.J.NAVAS, VALLIPPATTU HOUSE, PEZHAKKAPPALLY P.O., MUVATTUPUZHA.** **5 MANU, S/O.THANKAPPAN, KARUVACKAL HOUSE, NEDUMKUNNAM KARA, THOTTIKAL BHAGOM, NEDUMKUNNAM VILLAGE.** - **6 THE UNITED INDIA INSURANCE CO.LTD., BRANCH, CHANGANACHERRY.** M.A.C.A.No.497/2009 -:2:- **7** **P.O.JOYKUTTY, PUTHUKALLEL HOUSE, PUNNAVELI P.O., MALLAPPALLY.** **BY ADVS.SRI.GEORGE KARITHANAM VARGHESE SRI.V.J.JOHN SRI.N.S.MOHAMMED USMAN SRI.UNNI. K.K. EZHUMATTOOR** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 27.09.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** M.A.C.A.No.497/2009 -:3:- _Dated this the 27[th] day of September,2021_ ## **J U D G M E N T** The appellant was the petitioner in O.P. (MV)No.1497/2002 on the file of the Additional Motor Accidents Claims Tribunal, Kottayam. 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 that he sustained in an accident on 02.06.2002. It was his case that, while he was riding pillion on a scooter bearing registration No. KL-3/E-328(scooter) driven by his friend-Manu through the Changanacherry-Vazhoor road, a bus bearing registration No.KL-7R-5310(bus), driven by the first respondent in a rash and negligent manner, hit the scooter. The appellant fell down on the road and sustained multiple fractures. He was treated M.A.C.A.No.497/2009 -:4:- as an inpatient at the St. Thomas Hospital, Chethipuzha and, thereafter, at the Medial College Hospital, Kottayam, for a period of 24 days. The bus was owned by the second respondent and insured with the third respondent. The respondents 4 to 7 were the owners and insurer of the scooter. The appellant was wood worker by profession and earning a monthly income of Rs.4,500/-. He claimed a compensation of Rs.2,01,500/- from the respondents 1 to 3, which was limited to Rs.2,00,000/- 3. The rider of the scooter, who also sustained injuries in the accident, filed O.P.(MV)No.1490/2002 before the same Tribunal against the respondents 1 to 3. 4. The respondents 1 and 2 did not contest the proceedings. 5. The third respondent had filed a written statement admitting that the bus had a valid insurance M.A.C.A.No.497/2009 -:5:- coverage. Nevertheless, it was contended that the accident occurred due to the negligence of the rider of the scooter. The third respondent also disputed the age, income and occupation of the appellant. 6. The respondents 4 to 7 also filed formal written statements. 7. The appellant examined himself and a witness as PW1 and PW2, and Exts.A1 to A18 were marked through them in evidence. The third respondent produced and marked Exts.B1 and B2 in evidence. 8. The Tribunal by its common award allowed the captioned claim petition, by permitting the appellant to realise an amount of Rs.50,000/- with interest at the rate of 7.5% per annum from the date of petition till the date of realisation and a cost of Rs.3,000/- from the third respondent. 9. Dissatisfied with the quantum of M.A.C.A.No.497/2009 -:6:- compensation awarded by the Tribunal, the petitioner is in appeal. 10. Heard; Sri. K.A Hashim, the learned counsel appearing for the appellant/petitioner and Sri. N.S. Mohammed Usman, the learned counsel appearing for the third respondent/insurer. 11. The sole question that emerges for consideration in the appeal is whether the quantum of compensation awarded by the Tribunal is reasonable and just? ## **Negligence and liability:** 12. Ext.A3 chargesheet filed by the Police establishes that the accident happened due to negligence of the first respondent. Undisputedly, the second respondent was the owner and the third respondent was the insurer of the bus. The third respondent admitted that the bus had a valid insurance coverage and did not allege any violation of M.A.C.A.No.497/2009 -:7:- policy conditions. Therefore, the third respondent is to indemnify the liability of the second respondent. ## **Notional income:** 13. The appellant had claimed that he was a wood worker by profession and earning a monthly income of Rs.4,500/- per month. The appellant did not produce any material to substantiate his income. The Tribunal fixed the notional income of the appellant at Rs.2,000/-. 14. In _**Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited**_ [(2011) 13 SCC 236], the Hon'ble Supreme Court has fixed the notional income of a coolie worker in the year 2004, at Rs.4,500/- per month. 15. Following the yardstick in the afore-cited decision and keeping in mind the fact that the accident occurred in the year 2002, I am of the firm opinion that the appellant's notional income can safely be fixed M.A.C.A.No.497/2009 -:8:- at Rs.3,500/- per month. ## **Loss of earnings:** 16. Ext.A10 disability certificate substantiates that the appellant had suffered a fracture patella (R) knee, and a fracture mandible and maxilla. The appellant was admitted in the hospital on 02.06.2002 and discharged on 26.06.2002. The plaster cast was removed on 15.07.2002. Again he was admitted in the hospital on 07.08.2002. All these aspects prove that the appellant was indisposed for a considerable period of time. The appellant had claimed that he was indisposed for a period of four months. However, the Tribunal held that the appellant was indisposed only for a period of two months. 17. Taking into account the aforementioned factors, I hold that the appellant was indisposed for a period of four months. 18. In view of the re-fixation of the notional M.A.C.A.No.497/2009 -:9:- income of the appellant at Rs.3,500/- per month, I hold that the appellant is entitled for 'loss of earnings' for a period of four months, which amounts to Rs.14,000/- ## **Multiplier** 19. The appellant was aged 26 years at the time of accident. Following the ratio in _**Sarala Varma and others v. Delhi Transport Corporation and others**_ [(2010) 2 KLT 802 (SC)], I re-fix the multiplier at '17', instead of '16' fixed by the Tribunal. ## **Loss due to disability** 20. It is proved from Ext.A10 disability certificate that the appellant has a permanent functional disability of 8%. However, the Tribunal for the reason that the appellant had not examined the Doctor who issued Ext.A10 certificate, fixed the disability of the appellant at 6%. 21. In _**Rajkumar v. Ajayakumar**_ [2011(1) KLT 620(SC)], the Honourable Supreme Court has M.A.C.A.No.497/2009 -:10:- categorically held that, if the Tribunal is not satisfied with the disability certificate produced before it, it has a bounden duty to refer the injured/claimant to a duly constituted Medical Board. 22. In the instant case, the Tribunal without referring the appellant to the Medial Board has scaled down the disability to 6%. 23. Considering the serious injuries that the appellant had sustained to his right leg and that he was a wood worker by profession, I am of the opinion that the appellant's functional disability has to be fixed at 8%, as certified in Ext.A10. 24. Taking into account the above-mentioned factors, namely; notional income of the appellant at Rs.3,500/-, his disability at 8%, multiplier at '17', I hold that the appellant is entitled for compensation for 'loss due to disability' at Rs.57,120/- instead of Rs.23,000/fixed by the Tribunal. M.A.C.A.No.497/2009 -:11:- ## **Loss of amenities:** 25. The appellant had claimed a compensation of Rs.30,000/- for 'loss of amenities'. Nevertheless, the Tribunal awarded only an amount of Rs.7,000/- for 'loss of amenities' and 'disfiguration', this quantification, according to me, is on the lower side. On a consideration that the appellant had sustained fractures and has a permanent disability of 8%, I am of the firm opinion that the amount under the above head has to be enhanced by a further amount of Rs.13,000/totalling to Rs.20,000/- 26. With respect to the other heads of compensation, I find that the Tribunal has awarded reasonable and just compensation. 27. On a comprehensive re-appreciation of the pleadings and materials on record and the law referred to in the afore-cited decision, I am of the definite opinion that the appellant/petitioner is entitled M.A.C.A.No.497/2009 -:12:- for enhancement of compensation as modified and recalculated above and given in the table below for easy reference. |Sl.No|Head of claim|Amount awarded by the Tribunal (in rupees)|Amounts modified and recalculated by this Court| |---|---|---|---| |1|Loss of earnings|4,000|14,000| |2|Transport expenses|1,000|1,000| |3|Clothing|500|500| |4|Bystander expenses|1,000|1,000| |5|Extra nourishment|1,000|1,000| |6|Medical expenses|2,500|2,500| |7|Pain and sufferings|10,000|10,000| |8|Loss of amenities|7,000|20,000| |9|Loss due to disability|23,000|57,120| ||**Total**|**50,000**|**1,07,120**| In the result, the appeal is allowed in part, by enhancing the compensation by a further amount of **Rs.57,120/-** with interest on the enhanced compensation at the rate of 7.5% per annum from the M.A.C.A.No.497/2009 -:13:- date of petition till the date of deposit and a cost of Rs.3,000/-. The third respondent is directed to deposit the enhanced compensation with interest and costs before the Tribunal within a period of two months from the date of receipt of a certified copy of this judgment. The Tribunal shall disburse the enhanced compensation to the appellant/petitioner, in accordance with law. All pending interlocutory applications will stand closed. Sd/- ## **C.S.DIAS,JUDGE** DST //True copy/ P.A.To Judge