High Court of KeralaSingle Judge2022-08-26Appeal allowed; enhanced compensation; 10% cont...

BABU K.M. v. Avarachan K. (Deleted) and The Branch Manager, National Insurance Co. Ltd.

Case / Petition Number:MACA NO. 1555 OF 2013

Neutral Citation:,

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: Sophy Thomas
Judgment Date: 2022-08-26
Court Decision / Holding: Appeal allowed. Notional income fixed at Rs. 6,000/month. Enhanced compensation awarded across heads: Loss of earnings Rs. 48,000; Pain and suffering Rs. 35,000; Loss of amenities Rs. 30,000; Bystander expenses Rs. 5,600; Extra nourishment Rs. 5,000; Permanent disability 15% Rs. 1,40,400; Total enhanced compensation Rs. 1,19,000; Additionally, 10% of the original award (Rs. 24,023) payable as enhanced amount, totaling Rs. 1,43,023. The Insurance Company is directed to deposit Rs. 1,43,023 in the appellant’s bank account with 8% interest per annum from the date of the original petition till realization (excluding 17 days delay) within two months from receipt of the judgment, after adjusting any liabilities for tax, court fee, and legal benefits fund. No order as to costs.
Final Disposition: Appeal allowed; enhanced compensation; 10% contributory negligence not sustained; insurer directed to deposit sums with interest; no costs.

Parties to the Case

Appellants / Petitioners

Babu K.M.

Respondents

The Branch Manager, National Insurance Co. Ltd.

Legal Representation & Advocates

Counsels for Petitioners

• SMT.ANEY PAUL
• SRI.PHILIP J.VETTIKATTU

Counsels for Respondents

• SRI.AGI JOSEPH

Case Synopsis & Summary

This is a Motor Accidents Claims Appeal (MACA 1555/2013) arising from OP(MV)971/2008 before the Motor Accidents Claims Tribunal, Movattupuzha, challenging an award of Rs. 2,16,210 for head injuries to Babu K.M. after a 01.10.2008 accident involving a motorcycle driven rashly by the 1st respondent. The Tribunal deducted 10% for contributory negligence and awarded compensation, which the appellant sought to enhance to Rs. 6,46,000. The appellant contends that as a 49-year-old coolie his notional income should be higher; citing Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Co. Ltd (AIR 2011 SC 2951) to argue for a notional income of Rs. 6,500 per month for 2008. The Tribunal had fixed notional income at Rs. 3,000 due to lack of evidence, while the appellant stated Rs. 6,000. The High Court held the notional income should be Rs. 6,000, not Rs. 3,000, and enhanced compensation across several heads: loss of earning Rs. 48,000 (instead of Rs. 24,000); pain and suffering Rs. 35,000; loss of amenities Rs. 30,000; bystander expenses Rs. 5,600; extra nourishment Rs. 5,000; permanent disability 15% Rs. 1,40,400; total enhanced compensation Rs. 1,19,000. It held the 10% contributory negligence deduction unwarranted and directed the insurer to deposit Rs. 1,43,023 with 8% interest within two months. The appeal is allowed; no costs awarded.

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellant contends that the notional income of a 49-year-old coolie in 2008 should be higher than the Tribunal’s Rs. 3,000, relying on Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Co. Ltd (AIR 2011 SC 2951) to fix a notional income around Rs. 6,500 per month. He asserts his actual income is about Rs. 6,000 per month, and the Tribunal’s 3,000 figure underestimates his loss; he seeks enhanced compensation across all heads and removal of the 10% contributory negligence deduction, arguing the rash driving of the rider was the real cause of the accident.

Contentions of Respondents

The respondents (insurer) do not dispute the accident or policy and primarily defend the Tribunal’s findings. They advocate maintaining the Tribunal’s approach, including the 10% deduction for contributory negligence, and rely on the evidence presented, including a lower notional income, to contend the award should be upheld or modestly adjusted rather than drastically enhanced.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited	AIR 2011 SC 2951	Mentioned Only	Cited to discuss notional income for unskilled workers; the court cites the principle but ultimately fixes notional income at Rs. 6,000 based on the appellant’s own evidence.

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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 SOPHY THOMAS FRIDAY, THE 26[TH]DAY OF AUGUST 2022 / 4TH BHADRA,1944 MACA NO. 1555 OF 2013 ``` ``` OP(MV)NO.971/2008 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, MUVATTUPUZHA ``` ## **`APPELLANT/PETITIONER:`** ``` BABU K.M., S/O. PAILY, RESIDING AT KANATTUMALAYIL HOUSE, KADATHY, AMBALAMPADY, MEKADAMBU P.O., MUVATTUPUZHA. ``` ``` BY ADVS. SMT.ANEY PAUL SRI.PHILIP J.VETTIKATTU ``` ## **`RESPONDENTS/RESPONDENTS:`** - **`*1 AVARACHAN K., S/O. PATHROSE, KOLLAMPADICKAL HOUSE, EZHIPURAM, AIKARANADU, PERUMBAVOOR-683542.(DELETED)`** - **`2 THE BRANCH MANAGER, NATIONAL INSURANCE CO. LTD., KOLENCHERY-682311.`** ``` *RESPONDENT NO.1 IS DELETED FROM PARTY ARRAY AT THE RISK OF APPELLANT VIDE ORDER DATED 18.05.2020 IN IA.NO.1 OF 2020 IN MACA 1555/2013 ``` ## **`BY ADV SRI.AGI JOSEPH`** ``` THISMOTORACCIDENTCLAIMSAPPEALHAVINGBEENFINALLYHEARD ON 23.08.2022, THE COURT ON 26.08.2022 DELIVERED THE FOLLOWING: ``` MACA 1555 of 2013 2 ## **J U D G M E N T** This appeal has been preferred by the claimant in OP(MV)No.971 of 2008 on the file of the Motor Accidents Claims Tribunal, Movattupuzha, challenging the inadequacy of the compensation awarded. 2. On 01.10.2008, at 8.15 p.m., while the appellant was walking through the side of the national highway at Mekkadamb, KL-17/B-6115 motorcycle ridden by the 1[st] respondent in a rash and negligent manner, knocked him down and he sustained serious head injuries. He was hospitalised for 29 days and he suffered permanent disability also because of the accident. He approached the Tribunal claiming compensation of Rs.6,46,000/-. But the Tribunal awarded only Rs.2,16,210/- after deducting 10% towards contributory negligence. Challenging the same, he has come up with this appeal. 3. The respondent-Insurance Company is not disputing MACA 1555 of 2013 3 the accident, injuries or the policy of the offending vehicle. 4. Let us see whether there is any illegality or impropriety so as to interfere with the impugned award. 5. According to the appellant, he was a 49 year old Coolie, earning monthly income of Rs.6,000/- at the time of accident. The Tribunal took his notional income as Rs.3,000/- in the absence of evidence to prove his income. Since he was a Coolie, going by the decision **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited [AIR 2011 SC 2951]** , he was eligible to get his notional income fixed @ Rs.6,500/- as the accident was in the year 2008. But even according to him, his monthly income was only Rs.6,000/and so, he is not eligible to get his income fixed beyond that. So, his notional income is fixed at Rs.6,000/-. 6. The Tribunal assessed loss of earning for 8 months. @Rs.6,000/- per month, he was eligible to get Rs.48,000/towards loss of earning. After deducting Rs.24,000/- MACA 1555 of 2013 4 already paid, he is eligible to get Rs.24,000/- as enhanced compensation towards loss of earning. 7. For pain and suffering, he was given Rs.25,000/-. He was hospitalised for one month with severe head injury. So, this Court is inclined to award Rs.10,000/more towards pain and suffering. 8. Towards loss of amenities, he was given Rs.20,000/-. Since he had suffered head injury with 15% permanent disability, this Court is inclined to award Rs.10,000/- more towards loss of amenities. 9. Towards bystander expenses, he was paid @ Rs.100/- alone for 28 days of hospitalisation. He was eligible to get Rs.200/- per day and so, Rs.2,800/- more is awarded towards bystander expenses. 10. Towards extra nourishment, Rs.2,000/- more is awarded as he was hospitalised for one month with head injury. 12. Towards permanent disability of 15% proved MACA 1555 of 2013 5 through Ext.C1, he was awarded Rs.70,200/- taking his monthly income as Rs.3,000/-. We have fixed his monthly income as Rs.6,000/-. So, he is eligible to get Rs.70,200/more as enhanced compensation for permanent disability. 13. Under all other heads the compensation awarded is reasonable and it need not be interfered with. |Head of claim|Amount awarded by the Tribunal|Amount awarded in appeal|Difference to be drawn as enhanced compensation| |---|---|---|---| |Loss of earning|Rs.24,000/-|Rs.48,000/-|Rs.24,000 /-| |Pain and suffering|Rs.25,000/-|Rs.35,000/-|Rs.10,000/-| |Loss of amenities|Rs.20,000/-|Rs.30,000/-|Rs.10,000/-| |Bystander expenses|Rs.2,800/-|Rs.5,600/-|Rs.2,800/-| |Extra nourishment|Rs.3,000/-|Rs.5,000/-|Rs.2,000/-| |Permanent disability|Rs.70,200/-|Rs.1,40,400/-|Rs.70,200/-| |Total|||Rs.1,19,000 /-| MACA 1555 of 2013 6 14. So, the total amount towards enhanced compensation will come to Rs.1,19,000/(24,000 + 10,000+ 10,000+ 2,800 +2,000 + 70,200) 15. The Tribunal found that the accident occurred at the tarred portion of the road and the road at that place was straight. Though the Tribunal found that even if the claimant was walking through the tarred portion of the road, if the rider was riding the motorcycle at a normal speed, the accident could have been averted. Even then, the Tribunal reduced 10% of the compensation amount towards contributory negligence from the part of the appellant only because of the fact that the accident occurred at the tarred portion of the road. The roads are meant for pedestrians also and only because of the fact that the accident occurred at the tarred portion, we cannot jump into a conclusion that there was contributory negligence from his part. If the rider was carefully riding the motorcycle at a normal speed, he could have averted that accident, since the road at that MACA 1555 of 2013 7 place was straight with distant vision, as seen from the scene mahazar. So the Tribunal was not justified in reducing 10% of the compensation towards contributory negligence. Moreover, the rider was chargesheeted for his rash and negligent riding of the motorcycle. 16. In the result, the appellant is entitled to get 10% of the award amount i.e., Rs.24,023/- which was reduced by the Tribunal, along with enhanced compensation of Rs.1,19,000/totaling Rs.1,43,023/-. (Rupees One Lakh Forty Three Thousand and Twenty Three only). 17. The respondent-National Insurance Company is directed to deposit Rs.1,43,023/- (Rupees One Lakh Forty Three Thousand and Twenty Three only) in the Bank account of the appellant with 8% interest per annum from the date of original petition till realisation (excluding 17 days of delay in filing the appeal) within a period of two months from the date of receipt of a copy of this judgment. The deposit must be in terms of the directives issued by this Court in Circular MACA 1555 of 2013 8 No.3 of 2019 dated 06/09/2019 and clarified in O.M.No.D1/62475/2016 dated 07/11/2019 after deducting the liabilities, if any, of the appellant towards Tax, balance court fee and legal benefit fund. The appeal is allowed accordingly. No order as to costs. Sd/- **SOPHY THOMAS JUDGE** DSV/25.08.2022