High Court of KeralaSingle Judge2020-09-16Appeal allowed in part; award enhanced; no cost...

Biju John @ Bijumon John S/O. John Devassia v. United India Insurance Co. Ltd.

Case / Petition Number:MACA.No.3126/2016(A)

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: K. Vinod Chandran
Judgment Date: 2020-09-16
Court Decision / Holding: The appeal is partly allowed. The court accepts notional income adjustments and future-prospects principles, enhances the compensation, and directs the Insurance Company to pay the revised total of 17,29,051/- within three months with 9% interest from the date of application, after accounting for amounts already paid. The payment shall be by NEFT/RTGS to the appellant’s bank account; costs are not awarded in this appeal.
Final Disposition: Appeal allowed in part; award enhanced; no costs; payment to be made within three months with interest.

Parties to the Case

Appellants / Petitioners

Biju John @ Bijumon John S/O. John Devassia

Respondents

United India Insurance Co. Ltd.

Legal Representation & Advocates

Counsels for Petitioners

• SMT. M.R. Jayalatha
•

Counsels for Respondents

• Sri. M.A. George
• Sm t. A. Sreekala

Case Synopsis & Summary

This is an appeal under MACA No.3126/2016(A) from the Kerala High Court challenging the Motor Accident Claims Tribunal, Taliparamba’s award in OPMV 130/2015 (dated 30-04-2016) arising out of a motor vehicle accident where the appellant, a bike rider, sustained grievous injuries resulting in multiple fractures and 47% disability. The Tribunal awarded compensation on various heads but fixed the applicant’s income at a modest level and did not grant future prospects. The appellant contends that the insurer did not specifically controvert the claim and cites Satheesan E.K. v. Musthafa K.P to press for higher compensation and future prospects given disability. He relies on Annexure A8 showing a money-lending business to argue higher income, and seeks enhancement of other heads, citing established precedents for notional income and incremental gains in unorganised sectors. The insurer argues the Tribunal’s award is just, income evidence is inadequate, and there is no demonstrated loss of future prospects. The court evaluates evidence, applies precedents (Ramachandrappa; Pranay Sethi) on notional income and incremental enhancement, and awards higher sums for loss of earning, future earning, and other heads. Ultimately, the court modifies the award to a total of 17,29,051/-, directs payment within three months with 9% interest, and holds no costs.

Legal Doctrines & Maxims

Incremental enhancement in future prospects for self-employed/unorganised sector (Pranay Sethi; Ramachandrappa)
Notional income principle for earning capacity (Ramachandrappa)

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellant’s counsel relies on Satheesan E.K. v. Musthafa K.P (2018) 5 KHC 884 to contend that where the insurer does not specifically controvert the claim, the Tribunal should allow compensation, and seeks future prospects given 47% disability. Annexure A8 shows the appellant’s money-lending activity, but there is no independent income proof; the court should not assume Rs.20,000 per month. The decision in Satheesan is distinguished because the income proof was not presented in accordance with that precedent. The appellant urges notional income enhancements (Ramachandrappa; Pranay Sethi) for a self-employed, unorganised worker, noting the coolie benchmark and the need for annual increments; thus income should be higher than the Tribunal’s figure, and other heads should also be enhanced to reflect actual loss of earning power and earning capacity.

Contentions of Respondents

The Insurance Company contends the Tribunal’s award is just and adequate, with no credible proof of current income beyond the cla im petition and deposition. It argues Satheesan E.K. is not applicable since a salary certificate was not objected to, and there is no proven evidence of future prospects or sustained loss of earning capacity. The insurer urges maintaining the Tribunal’s evaluation and counters any presumption of higher income or prospects, emphasizing reliance on the Tribunal’s findings and the lack of contrary evidence.

Cited Precedents (3)

Case Name	Citation	Treatment	Explanation
Satheesan E.K. v. Musthafa K.P and another	2018 (5) KHC 884	Distinguished	Court states Satheesan E.K. would not be applicable given the specific facts (income proof not as per that decision).
Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited	(2011) 13 SCC 236	Positive	Recognised the principle of notional income and incremental enhancement for self-employed/unorganised sector.
National Insurance Co. Ltd. vs. Pranay Sethi	(2017) 16 SCC 680	Positive	Recognised the principle of incremental enhancement for future prospects in compensation calculations.

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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** **WEDNESDAY, THE 16TH DAY OF SEPTEMBER 2020 / 25TH BHADRA, 1942** ## **MACA.No.3126 OF 2016(A)** **AGAINST THE AWARD IN OPMV 130/2015 DATED 30-04-2016 OF MOTOR ACCIDENT CLAIMS TRIBUNAL , TALIPARAMBA** ## **APPELLANT/PETITIONER:** **BIJU JOHN @ BIJUMON JOHN S/O.JOHN DEVASSIA, AGED 39 YEARS, KOORAPALLI HOUSE, ALAKODE AMSOM, P.O.THERTHALLY, VIA ALAKODE, TALIPARAMBA TALUK, KANNUR DISTRICT PIN** **BY ADV. SMT.M.R.JAYALATHA** ## **RESPONDENT/3RD RESPONDENT:** **UNITED INDIA INSURANCE CO. LTD DIVISIONAL OFFICE, SADHOO BUILDING, FORT RAOD, KANNUR, KANNUR DISTRICT, PIN 670 001, (POLICY NO. 1008003110P0010805000 INSURER OF BUS KL. 59 C 5335)** **R1 BY ADV. SRI.M.A.GEORGE R1 BY ADV. SMT.A.SREEKALA** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 16.09.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA No.3126/2016 2 ## **K. VINOD CHANDRAN, J.** **===================== MACA No.3126 of 2016 ======================== Dated this the 16[th] day of September, 2020** ## **JUDGMENT** An accident occurred while the appellant was driving a motor bike by reason of a bus having collided with the bike. The appellant suffered grievous injuries and was hospitalized for 32 days. The appellant had about eight fractures and suffered disability of 47% as assessed by the Medical Board proved by Ext.X1 certificate. The appellant claimed before the Tribunal that he was a business man and produced Annexure-A8, a licence issued by the Commercial Taxes Department permitting him to carry on money lending business. The appellant claimed that he had an income of Rs.20,000/-. The Tribunal accepted only Rs.5,000/-. 2. The learned Counsel relies on the judgment of this Court in _**Satheesan E.K. v. Musthafa K.P and another 2018 (5) KHC 884**_ to contend that when the MACA No.3126/2016 3 insurance company has not specifically controverted the claim, it should have been allowed by the Tribunal. It is also contended there should have been future prospects since 47% disability was assessed. There should be enhancement in the other heads also is the contention of the appellant's counsel. 3. The learned Standing counsel for the Insurance Company however asserts that the compensation awarded by the Tribunal is just and adequate. 4. The injury suffered by the appellant are the following which are quite serious and grievous in nature; **“** Avulsed laceration of 10x10x bone deep, obliquely placed over the outer aspect of right ankle joint (foot); tenderness and swelling over the right leg in its upper one third with underlying fracture of tibia bone – right side; tenderness and swelling over the right forearm with underlying fracture of right radius bone in its lower one third; tenderness and swelling over the right clavicle with underlying MACA No.3126/2016 4 fracture of right clavicle bone; tenderness and swelling over the right side of the face with underlying fracture of lateral wall of right orbit, fracture of lateral wall of maxillary sinus and fracture of right sygomatic bone- facial bone; fracture of right frontal bone- skull bone; fracture of petrous and squamous part of right temporal bone – skull bone; fracture of ramus part of right mandible bone – jaw bone; cerebral concussion with cerebral oedema and petechial haemorrhage over frontal lobe; be arachnoid hemorrgagic over the frontal lobe bilaterally – brain; extradural hemorrhage over the right frontal lobe of the brain **.”** 5. The appellant produced Annexure A8 which shows that he is a money lender. However, no proof of income was offered, but for the statement in the claim petition as also in the deposition, which was by way of proof affidavit. The decision in _**Satheesan**_ _**E.K.**_ would not be applicable since the declaration was insofar as the proof of income, a salary certificate, offered by the claimant having been MACA No.3126/2016 5 accepted by the Court without any objection being raised by the Insurance Company. Only in such circumstance, the proof of income as per the document produced was found to be not controverted by the Insurance Company. In the present case, but for the statement in the claim petition and the deposition there is nothing produced to prove the income as such. There can be no assumption that a money lender would get an average of Rs. 20,000/- every month. 6. A coolie was fixed with a notional income of Rs.4,500/- per month in the year 2004, in _**Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited**_ **[** _**(2011) 13 SCC 236**_ **]** . The Hon'ble Supreme Court has also recognised the principle that there would be incremental enhancement in the case of even self-employed individuals in the un-organised sector **(** _**National Insurance Co. Ltd. vs. Pranay Sethi (2017)16 SCC 680**_ **)** . With respect to an unspecified job of a coolie considering the increase in cost of living and economic advancements over the years, it can be safely assumed that even a coolie MACA No.3126/2016 6 would be eligible for incremental addition of at least Rs.500/- in every subsequent year. Even a coolie would be entitled to be fixed with an notional income of Rs.8,000/- in a month, a money lender definitely would have more income than the coolie and it can be fixed at Rs.12,000/- per month. Especially since the certificate at Annexure A8 proves that he was carrying on money lending business. 7. As for future prospectus, there is nothing to show that the disability affected his future prospectus. The appellant also does not have a contention that the business was stopped because of the injury suffered. The Tribunal has accepted the disability and granted compensation for loss of earning power on the disability suffered which is found to be sufficient; looking at the nature of the employment. Which however has to be enhanced on the basis of enhancement of income. Considering the injuries, this Court is of the opinion that the appellant would have lost his earning power for atleast one year. The multiplier has to be reduced to MACA No.3126/2016 7 14. The following modifications are made to the ## award; |**Sl.** **No.**|**Head of Claim**|**Amount awarded** **by the** **Tribunal** `|**Total amount** **after** **enhancement in** **appeal** `| |---|---|---|---| |**1**|**Loss of earning**|**50,000/-**|**1,20,000/-**| |**2**|**Transport to hospital**|**37,700/-**|**37,700/-**| |**3**|**Extra nourishment**|**20,000/-**|**20,000/-**| |**4**|**Damage to clothing**|**2,000/-**|**2,000/-**| |**5**|**Others: Medical bills/** **By standers expenses**|**3,43,131/-** **8,700/-**|**3,43,131/-** **8,700/-**| |**6**|**Pain and suffering**|**1,00,000/-**|**1,00,000/-**| |**7**|**Compensation for loss of** **earning power/future** **earning**|**4,23,000/-**|**9,47,520/-** **(** **12,000*14*12*47%)**| |**7**|**Loss of amenities**|**94,000/-**|**1,50,000**| ||**Total**|**10,78,531/-**|**17,29,051/-**| MACA would stand allowed. Considering the fact that about three years have elapsed from the date of the award, there is no requirement to deposit any amounts in fixed deposit as directed by the Tribunal. The payment as per the award and the modification made herein shall be made within three months with interest as directed by the Tribunal @9%, from the date of application, after deducting the amounts already paid or deposited. MACA No.3126/2016 8 The appellant shall produce a copy of a cancelled cheque of the Bank Account in a Nationalized Bank in his name, with copy of AADHAAR or acceptable identification, before the Tribunal within one month, with copy to the Insurance Company. The Insurance Company shall credit the amounts through NEFT/RTGS mode to the said account, failing which the Tribunal shall proceed with the recovery in accordance with law. The transfer/deposit of the award amount shall be made by the Insurance Company after first satisfying the liability to Court Fee payable by reason of the amounts awarded exceeding that claimed in the application; deducting the same from the award. No order as to costs in this appeal. **Sd/-** **Sn** **K. VINOD CHANDRAN, JUDGE**