High Court of KeralaSingle Judge2022-03-11Partially allowed (enhanced compensation grante...

C.S. Sunil Kumar v. P.B. Antony, C.R. Jayesh and The Oriental Insurance Company Ltd.

Case / Petition Number:MACA NO. 1531 OF 2015

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: Murali Purushothaman J.
Judgment Date: 2022-03-11
Court Decision / Holding: The appeal is partly allowed. The claimant is entitled to an enhanced amount of Rs. 13,62,220 with 9% interest from the date of petition till realization and proportionate costs. The insurer is directed to deposit the enhanced amount with interest and costs before the Tribunal within two months from receipt of a certified copy of the judgment.
Final Disposition: Partially allowed (enhanced compensation granted; deposit required)

Parties to the Case

Appellants / Petitioners

C.S.Sunil Kumar

Respondents

P.B. Antony
C.R. Jayesh
The Oriental Insurance Company Ltd.

Legal Representation & Advocates

Counsels for Petitioners

• Sri. Rahul Sasi
• Smt. Neethu Prem

Counsels for Respondents

• Sri. George Cherian
• Smt. Latha Susan Cherian
• Smt. K.S. Santhi

Case Synopsis & Summary

The matter concerns a motor accident that occurred on 28 July 2011, where a motorcycle (KL-43/1985) was struck by a container trailer (KL-43/B 1875) driven rashly by the 2nd respondent, injuring the claimant, who sought compensation under the Motor Vehicles Act before the Additional Motor Accidents Claims Tribunal (MACT). The Tribunal awarded Rs. 19,95,430 with 9% interest and costs, despite the appellant claiming Rs. 36.5 lakh and contesting several heads of compensation. The insurer admitted the policy but alleged claimant negligence and argued the claim was excessive. In appeal, the appellant relied on Exts. A15–A16 and income-tax returns to press a higher monthly income and invoked the Supreme Court ruling in Malarvizhi and Others v. United India Insurance Co. Ltd. to contend that the highest net income of the three years prior to the accident should determine annual income. The High Court, examining the financial records for 2007–08 to 2010–11, identified 2008–2009 as the year with the highest net income but ultimately preferred Rs. 25,000 as monthly income (based on the 3-year average and the date of accident). It then re-evaluated loss of earnings and disability, determining 45% whole-body disability, added 25% future prospects, and computed an enhanced total of Rs. 13,62,220 over the existing award. The appeal was partly allowed, with directions to deposit the enhanced amount plus interest and costs.

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellant contends that the tribunal erred in fixing the claimant’s monthly income at Rs. 16,083 and failed to consider higher earnings evidenced by Exts. A15–A16. Relying on Malarvizhi v. United India Insurance Co. Ltd. (2020 (1) KHC 526), the appellant submits that the highest net income in the three financial years preceding the accident should determine annual income for computation of compensation. He cites higher figures for 2008–2009 (Rs. 3,71,652) and 2009–2010 (Rs. 3,00,000) and argues for adopting the higher income, with future prospects applied. The disability should be assessed according to post–board evaluation, with 25% future prospects and an appropriate multiplier, to arrive at a fair compensation. The appellant seeks enhancement of compensation and its timely deposit.

Contentions of Respondents

The insurer contends that the Tribunal rightly fixed income for the year of the accident and that the higher figures cited are not to be taken as a rule. It defends the Tribunal’s approach and argues against reliance on Malarvizhi to overhaul the income determination, noting that the accident occurred in 2011 and that the income ought to reflect the financial year in which the injury occurred. It argues that the award should stand with proper adjustments limited to the evidence presented and the settled computation heads.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Malarvizhi and Others v. United India Insurance Co. Ltd. and Another	2020 (1) KHC 526	Distinguished	The High Court cited the decision to discuss the proposition on determining annual income but concluded that it does not lay down the proposition contended by the appellant; hence it distinguished the authority. The court ultimately did not adopt the highest three-year net income approach from that decision.

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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 MURALI PURUSHOTHAMAN FRIDAY, THE 11[TH] DAY OF MARCH 2022 / 20TH PHALGUNA, 1943** **MACA NO. 1531 OF 2015** **AGAINST THE AWARD IN OPMV 1984/2011 OFTHE ADDITIONAL MOTOR ACCIDENTS CLAIMS TRIBUNAL ,ERNAKULAM** ## **APPELLANT/PETITIONER:** **C.S.SUNIL KUMAR, AGED 44 YEARS S/O. SARASAN, CC XIX/761, CHIRATTAKKATTU HOUSE, PULLAR DESONM, PALLURUTHY COCHIN 6** **BY ADVS. SRI.RAHUL SASI SMT.NEETHU PREM** ## **RESPONDENT/RESPONDENTS:** - **1 P.B.ANTONY,MANAGING PARTNER, M/S NTA, MOVERS, 15/2096, NASERTH, COCHIN 682002** - **2 C.R. JAYESH** - **S/O. RAMACHANDRAN, PUTHENPURACKAL HOUSE, WEST KARUVELYPPADY, COCHIN 682005** **3 THE ORIENTAL INSURANCE COMPANY LTD REGIONAL OFFICE, METRO PLACE, OPP. NORTH RAILWAY STATION, ERNAKULAM KOCHI 682018** **BY ADVS. SRI.GEORGE CHERIAN SR. SMT.LATHA SUSAN CHERIAN SMT.K.S.SANTHI** ## **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD** **ON 11.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA NO. 1531 OF 2015 ..2..** ## **JUDGMENT** The appellant is the claimant in O.P.(M.V.)No.1984 of 2011 on the files of the Additional Motor Accidents Claims Tribunal-IV, Ernakulam. 2. The parties are referred to as per their status in the claim petition. 3. On 28.07.2011, while the claimant was riding a motor cycle bearing registration No.KL-43/1985, a container trailer bearing registration No.KL-43/B 1875 driven by the 2[nd] respondent, came in a rash and negligent manner and hit the motor cycle and the claimant sustained serious injuries. The 1[st] respondent is the owner of the trailer and the 3[rd] respondent is the insurer. The claimant claimed an amount of Rs.36,50,000/- as total compensation, which was limited to Rs.25,00,000/-. Respondents 1 and 2 were set _ex parte_ before the Tribunal. The 3[rd] respondent **MACA NO. 1531 OF 2015 ..3..** insurance company filed a written statement contending that the accident happened due to the negligence on the part of the claimant and that the amount of compensation claimed is excessive. The 3[rd] respondent, however, admitted that the vehicle was having a valid policy of insurance at the time of accident. The Tribunal awarded an amount of Rs.19,95,430/- as total compensation with 9% interest per annum from the date of petition till realisation with proportionate costs for the injuries sustained by the claimant in the accident, under the following heads: |Head|Amount claimed|Amount awarded| |---|---|---| |Transport to hospital|35000|20000| |Damage to clothing|10000|1500| |Loss of earnings|200000|96500| |Extra nourishment|30000|8000| |Medical expenses|700000|580650| ## **MACA NO. 1531 OF 2015 ..4..** |Attendant expenses|25000|15000| |---|---|---| |Compensation for pain and sufering|200000|100000| |Compensation for loss of amenities|200000|100000| |Compensation for dis- fguration|50000|20000| |Compensation for disability|1000000|1053780| |Total||1995430| The 3[rd] respondent insurer was directed to satisfy the award. 4. The claimant has filed this appeal aggrieved by the amount of compensation awarded. According to the claimant, the Tribunal went wrong in taking the monthly income of the claimant as Rs.16083/-. The claimant had produced Ext.A15 income return verification forms from the year 2008 to 2014 and Ext.A16 certificate regarding Income Tax return for the 2010-2011 and 2011-2012. The claimant years **MACA NO. 1531 OF 2015 ..5..** contends that, going by the income return of the claimant for the year 2009-10, the net income of the claimant is Rs.3,00,000/- and the net income of the claimant for the period 2008-09 is Rs.3,71,652/-. The claimant relies on the decision of the Hon'ble Supreme Court in **Malarvizhi and Others** v. **United India Insurance Company Ltd. and Another** [2020 (1) KHC 526], to contend that the highest net income for the 3 previous financial years from the date of accident must be taken into consideration to determine the annual income of the claimant. Paragraph '6' of the said judgment is extracted hereunder: 6. In appeal, the High Court concluded that on an analysis of the income tax returns filed by the deceased for the financial years 1995-1996 to 2000-2001, the income declared for the financial year 1997-1998 was the highest and must be taken as the annual income of the deceased. Hence, Rs.2,09,211 was determined to be the annual income of the deceased. Rs.40,000 per annum was added towards future prospects. The total income **MACA NO. 1531 OF 2015 ..6..** was thus arrived at Rs.2,50,000/- per annum. No deduction was made towards personal expenses. Applying a multiplier of 13, the loss of dependency was calculated to be Rs.32,50,000/-. To this, funeral expenses, loss of consortium and loss of love and affection were added in the amount of Rs.1,05,000. A total compensation of Rs.33,55,000 was awarded. 5. Smt.K.S.Shanthi, the learned Standing Counsel for the respondent submits that the said decision does not lay down the proposition of law as contended by the appellant. According to her, the Tribunal has rightly taken the income of the claimant for the financial year, during which the accident occurred. 6. The accident occurred on 28.07.2011 during the financial year 2010-2011. During this period, the net income of the claimant was Rs.1,93,000/-. During the financial year 2009-2010, the net income of the claimant was Rs.3,00,000/-. During the financial year 2008-2009, the net income of the claimant was Rs.3,71,652/-. During the financial year 2007-2008, the **MACA NO. 1531 OF 2015 ..7..** net income of the claimant was Rs.2,36,650/-. The net income during the financial year 2008-2009 is the highest and the monthly income comes to Rs. 30,971/-. The average net income for the previous 3 financial years comes to Rs.3,02,767/- and the average monthly income comes to Rs.25,230/-. The net income for the financial year immediately preceding the date of accident is 3,00,000/- and the monthly income comes to Rs.25,000/. The income claimed by the claimant in the claim petition is Rs.25,000/-. To arrive at a just and reasonable compensation, I am of the view that Rs.25,000/- can be taken as the monthly income of the claimant. Therefore, the monthly income of the claimant is taken as Rs.25,000/-. 7. The Tribunal has awarded Rs.96,500/- towards loss of earnings. The claimant had sustained loss of earning for a period of six months. Since, I have taken the monthly income of the claimant as Rs.25,000/-, the **MACA NO. 1531 OF 2015 ..8..** claimant is entitled for an amount of Rs.1,50,000/(25,000×6) as compensation for loss of earnings. Since the Tribunal has already awarded an amount of Rs.96,500/- towards loss of earnings, the claimant is entitled for an enhanced amount of **Rs.53,500/-** (1,50,000-96,500). 8. With regard to the compensation for disability, by Ext.C1, the Medical Board has assessed the disability of the claimant as '40%'. The Tribunal has taken the same as 30%. As directed by this Court, the claimant was examined by the members of the Medical Board, Medical College Hospital, Thiruvananthapuram and the Disability Certificate issued by the Superintendent of the Medical College Hospital, Thiruvananthapuram, certifies as follows: “The disability is Permanent nature and partial degree of disability having been found as 80%.” 9. The said certificate is marked as Ext.C2. Since the whole body disability of the claimant is 40% and the **MACA NO. 1531 OF 2015 ..9..** partial degree of disability with regard to the upper limb of the claimant has been found as 80% by the Medical Board, in the nature of the occupation of the claimant as a transportation-forwarding agent, I take the disability of the petitioner as '45%' for assessment of compensation. 25% has to be added towards future prospects. Hence, the monthly income of the claimant is re-fixed as Rs.31,250/- [25,000+6,250] for the purpose of calculating the loss of disability. Accordingly, the compensation for loss of dependency is re-fixed as 23,62,500/- [31250x12x14x45/100]. Since the Tribunal has already awarded an amount of Rs.10,53,780/towards compensation for disability, the claimant is entitled for an enhanced amount of **Rs.13,08,720/-** (23,62,500-10,53,780) under the said head. 10. I find that the compensation awarded under other heads is just and reasonable. **MACA NO. 1531 OF 2015 ..10..** In the result, the appeal is partly allowed. The claimant is entitled for an enhanced amount of **Rs.13,62,220/-** [13,08,720 + 53,500] (Rupees thirteen lakhs sixty two thousand two hundred and twenty only) with 9% interest from the date of petition till realisation with proportionate costs. The 3[rd] respondent insurer shall deposit the said amount with interest and proportionate costs before the Tribunal, within a period of two months from the date of receipt of a certified copy of this judgment. **Sd/-** **MURALI PURUSHOTHAMAN JUDGE** SB/15/03/2021