High Court of KeralaSingle Judge2024-04-08Appeal partly allowed; award enhanced and heads...

Frankle Jose V. vs Mayanadi S/o Medaswamy Nadar; A. Devendran S/o Arumukhee Nadar; Manager, National Insurance Co. Ltd.

Case / Petition Number:MACA 1591 of 2019

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: C.S. Sudha
Judgment Date: 2024-04-08
Court Decision / Holding: The impugned Award is partly modified; enhanced compensation of ₹81,283 is awarded (₹75,000 previously granted plus ₹6,283). The insurer is directed to deposit the enhanced amount with interest at 7.5% per annum and costs before the Tribunal within 60 days from receipt of the judgment, and the Tribunal shall disburse the amount to the claimant expeditiously. Interlocutory applications, if any, are closed.
Final Disposition: Appeal partly allowed; award enhanced and heads modified; insurer directed to deposit enhanced compensation within 60 days; interl applications closed; disbursement to the claimant to be made as per law.

Parties to the Case

Appellants / Petitioners

Frankle Jose V.

Respondents

Mayanadi S/o Medaswamy Nadar
A. Devendran S/o Arumukhee Nadar
Manager, National Insurance Co. Ltd.

Legal Representation & Advocates

Counsels for Petitioners

• T.K. Koshy
• Sri Sabu I. Koshy
• Smt. V.V. Risani

Counsels for Respondents

• P. Jacob Mathew

Case Synopsis & Summary

Frankle Jose V., the injured claimant in O.P.(MV) No.1252/2010, appeals the Motor Accidents Claims Tribunal, Pathanamthitta, award on 23 March 2018 granting ₹75,000 as compensation for injuries sustained in a road accident on 27 November 2006 involving a mini lorry driven by the first respondent. The tribunal held the driver negligent and jointly and severally liable the owner and insurer; it awarded ₹75,000 with 9% interest and proportionate costs. The appellant contends that the assessment of notional income was defective owing to lack of opportunity to adduce oral evidence, arguing he was a Government servant; he posits that income should be notionally fixed using precedents (Ramachandrappa) at about ₹5,500 per month in 2006, and that he suffered loss of income for seven days and incurred medical expenses. He also challenges the rejection of Ext.A10 disability certificate and seeks consideration of loss of future prospects and loss of amenities. The respondents contend the absence of evidence justifies the Tribunal's findings. The High Court, taking a liberal approach consistent with the Act’s benevolent purpose, partially allows the appeal, fixing enhanced compensation of ₹81,283 (₹75,000 awarded by the Tribunal plus ₹6,283 in appeal), adjusts several heads, and directs the insurer to deposit the amount with interest (7.5%) and costs within 60 days for disbursal to the claimant. Interlocutory applications are closed.

Provisions of Law Cited

Motor Vehicles Act, 1988 — Section 173Kerala Motor Vehicles Rules, 1989 — Rule 387

Legal Doctrines & Maxims

The Act being a benevolent legislation, a liberal approach should be adopted in awarding compensation.
Notional income can be fixed on the basis of settled precedents even in the absence of direct evidence (Ramachandrappa).
Loss of earning capacity is not automatically equivalent to permanent disability and must be assessed with evidence; disability does not by itself fix future prospects (Raj Kumar v. Ajay Kumar).
Disability certificates and the manner of their collection must follow proper procedure; medical examination by proper authorities may be required (as discussed in Manikantan G. v. K. Janardhanan Nair).
Permanent disability need not always translate into loss of earnings; assessment depends on the nature of employment and evidence; compensation for loss of amenities may be warranted.

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellant contends the Tribunal erred in not granting opportunity to prove income; being a government servant, he contends his salary should be considered; relying on Ramachandrappa, the income for 2006 should be notionally fixed at about ₹5,500 per month, with a liberal approach due to the Act’s benevolent nature. He challenges the Tribunal’s rejection of documentary evidence, the non-consideration of Ext.A10 disability certificate, and seeks consideration of loss of future prospects and loss of amenities. He argues for admission of medical evidence and proper calculation of loss of earnings for the period unable to work; contends that the Tribunal should have allowed adducing evidence to establish income and disability.

Contentions of Respondents

The respondents contest the claim on the ground that the claimant did not furnish evidence of income or loss of earnings; the Tribunal correctly found negligence and assessed compensation, with no substantial evidence of income or expenses to support higher quantum. They contend that without proof of income and employment status, notional income cannot be multiplicatively enhanced. They rely on Raj Kumar and Rule 387 to emphasize the need for proper medical examination and evidence before determining disability and future prospects.

Cited Precedents (5)

Case Name	Citation	Treatment	Explanation
Ramachandrappa v. Manager, Royal Sundaram Allian Co. Ltd	2011 SCC 236	Positive	Used to justify notional fixation of income in absence of direct evidence, aligning with liberal approach under the Act.
Raj Kumar v. Ajay Kumar	2011 1 SCC 343	Positive	Cited for the principle that loss of earning capacity must be assessed with evidence and that permanent disability does not automatically equate to loss of earning capacity; supports procedural and evidentiary standards.
Manikantan G. v. K. Janardhanan Nair	2021(5) KHC 305	Positive	Cited to illustrate irregularity in tribunal procedures regarding disability certificates and the necessity of proper medical examination; supports the appellant's challenge to procedure.
National Insurance Company Ltd., Kozhikode v. Anoopkumar T.K.	2014 KHC 13	Positive	Used to distinguish cases where absence of salary reduction means no loss of earning capacity, influencing the computation of future prospects.
Raju Sebastian v. United India Insurance Company	2021(5) KHC 662	Distinguished	Cited by the appellant to argue for loss of future prospects post-retirement, but court distinguishes and rejects that reasoning in the present fact pattern.

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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 C.S. SUDHA** **MONDAY, THE 8[TH] DAY OF APRIL 2024 / 19TH CHAITHRA, 1946** **MACA NO. 1591 OF 2019** **AGAINST THE AWARD DATED 23.03.2018 IN O.P.(MV)NO.1252 OF 2010 OF ADDITIONAL DISTRICT COURT & SESSIONS COURT - IV,** **PATHANAMTHITTA/IV ADDL. M.A.C.T.** ## **APPELLANT/PETITIONER:** **FRANKLE JOSE V., AGED 48 YEARS, JOSE BHAVAN HOUSE, ENATHU P.O., ENATHU VILLAGE, ADOOR TALUK. BY ADVS. T.K.KOSHY SRI.SABU I.KOSHY SMT.V.V.RISANI** ## **RESPONDENTS/RESPONDENTS:** **1 MAYANADI, S/O. MEDASWAMY NADAR, 94 NORTH STREET, KALINGAPATTI, V.K.PUDUR,THIRUNELVELI DISTRICT, TAMILNADU STATE -627 001. 2 A.DEVENDRAN, S/O.ARUMUKHEE NADAR, 6/6/131/ KAMARAJ NAGAR, 14TH STREET, SIVAGURU NAGAPURAM, SURANDAI VILLAGE, V.PUDUR TALUK, THIRUNELVELI DISTRICT, TAMILNADU,PIN-627 001. 3 MANAGER, NATIONAL INSURANCE CO.LTD, 2ND FLOOR, 169 ANNAI SALAI, CHENNAI, PIN-600 002. BY ADV SRI.P.JACOB MATHEW** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR HEARING ON 08.04.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** M.A.C.A. No.1591 of 2019 2 ## **C.S. SUDHA, J.** **---------------------------------------------------M.A.C.A. No.1591 of 2019 ---------------------------------------------------Dated this the 08[th] day of April 2024** ## **J U D G M E N T** This appeal under Section 173 of the Motor Vehicles Act, 1988 (the Act), has been filed by the claimant in O.P.(MV) No.1252/2010 on the file of the Motor Accidents Claims Tribunal, Pathanamthitta, (the Tribunal), aggrieved by the amount of compensation granted by Award dated 23/03/2018. The respondents herein are the respondents before the Tribunal. The parties and the documents will be referred to as described in the original petition. 2. According to the petitioner, on 27/11/2006 at 10:00 a.m. he was riding his motorcycle, bearing registration No. KL-H1082 through the Adoor-Punalur public road and when he reached Adoor-Thatta road, a mini lorry, bearing registration No.TN-76A-1218, driven by the first respondent in a rash and negligent M.A.C.A. No.1591 of 2019 3 manner knocked him down as a result of which he sustained serious injuries. The first respondent driver, the second respondent owner and the third respondent insurer of the offending vehicle are jointly and severally liable to compensate the petitioner. Hence the petitioner claimed an amount of ₹6,00,250/- as compensation under various heads. 3. . Respondents 1 and 2 remained _ex parte_ 4. The third respondent filed written statement, admitting the existence of a policy, but denied liability. 5. Before the Tribunal, no oral evidence was adduced by either side. Exts.A1 to A11 were marked on the side of the petitioner. No documentary evidence was produced by the respondents. 6. The Tribunal on a consideration of the documentary evidence and after hearing both sides, found negligence on the part of the first respondent resulting in the incident and hence awarded an amount of ₹75,000/- with interest @ 9% per annum from the date of the petition till realisation along with M.A.C.A. No.1591 of 2019 4 proportionate costs. Aggrieved, the petitioner has come up in appeal. 7. The only point that arises for consideration in this appeal is whether there is any infirmity in the findings of the Tribunal calling for an interference by this Court. 8. Heard both sides. 9. The petitioner/injured challenges the Award of the Tribunal under the following heads - **Notional income** – In the appeal memorandum it is contended that no opportunity had been granted to the petitioner to adduce oral evidence to prove his income. However, no such argument was advanced during the course of arguments. The petitioner is stated to have been working as Head Clerk, Munsiff Court, Adoor. Therefore, there would certainly have been documents to show his monthly income. The petitioner could very well have produced his salary certificate to prove his income. However, for reasons best known to the petitioner, no oral or documentary evidence was adduced to substantiate his case that M.A.C.A. No.1591 of 2019 5 he was drawing a monthly salary of ₹14,000/-. In the absence of any sort of evidence to prove his monthly income, the claim of the petitioner that he was drawing an amount of ₹14,000/- per month cannot be accepted. However the case of the petitioner that he was a Government servant at the time of the incident and that he had sustained injuries in the incident are not disputed. The Act being a beneficial legislation, a liberal approach needs to be adopted. Therefore even in the complete absence of either oral or documentary evidence, the income of the petitioner can be notionally fixed on the basis of settled precedents. In **Ramachandrappa v. Manager, Royal Sundaram Allian.Co.Ltd, (2011) 13 SCC 236** , the monthly income of a coolie in the year 2004 was taken to be ₹4,500/-. The incident in this case took place in the year 2006. Therefore going by the aforesaid dictum, in the absence of any evidence or material to show the income of the petitioner and coupled with an increase of ₹500/- per year, the income of the petitioner in the year 2006 can be fixed at ₹5,500/-. M.A.C.A. No.1591 of 2019 6 10. **Loss of income** - According to the petitioner, due to the injuries sustained by him he was unable to work for a period of six months and hence claimed an amount of ₹98,000/-. No amount has been granted by the Tribunal under this head. It is true that no evidence was adduced by the petitioner to prove the days on which he was absent from duty. Here also it was quite possible and easy for the petitioner to produce necessary documents to show his absence from duty due to the accident. But, no documents were produced before the Tribunal. Annexure A has been produced in this appeal to show the details of the leave taken by him. As per Annexure A, the petitioner is seen to have taken leave on several occasions for different durations during the period from 25/11/2006 to 09/12/2008. The incident in this case took place on 27/11/2006. Going by Annexure A, the petitioner was on earn leave for 14 days from 25/11/2006 to 08/12/2006. Therefore, even before the date of the accident, the petitioner was on leave. Hence, Annexure A cannot be relied on by the petitioner to prove his absence from duty due to the accident. M.A.C.A. No.1591 of 2019 7 10.1. The injuries noted in Annexure A8 wound certificate relied on by the petitioner shows that he had pain, tenderness and deformity of right knee and abrasion of right elbow. In such circumstances he probably may have been absent from duty for a period of seven days and therefore loss of income for seven days can be granted to him which comes to ₹1,283/- (₹5,500/30 x7). 11. **Medical expenses** - The petitioner claimed ₹74,000/towards medical bills. However, no evidence was produced to substantiate the same and hence no amount was granted by the Tribunal. In the appeal memorandum it is contended that no opportunity was given to adduce evidence before the Tribunal. Even assuming that to be true, no documents have been produced along with the appeal also to substantiate his claim under this head. Ext.A9 is the scan report of the petitioner. In the light of Ext.A10 and in the light of the injuries sustained by him and as the accident or the fact that the petitioner had sustained injuries is not disputed, in the interest of justice, an amount of ₹5,000/- is granted under this head. M.A.C.A. No.1591 of 2019 8 12. **Rejection of Ext.A10 disability certificate and compensation towards loss of future prospects** - The Tribunal rejected Ext.A10 disability certificate on the ground that it had not been issued by a competent authority. Learned counsel for the appellant relying on the decision of a Single Bench of this Court in **Manikantan G. v. K.Janardhanan Nair, 2021(5) KHC 305** , submitted that the procedure adopted by the Tribunal was not proper and that if Ext.A10 disability certificate was not sufficient, opportunity ought to have been granted to the petitioner to produce satisfactory evidence. 12.1. In **Manikantan** ( _Supra_ ) also, the disability certificate was rejected as the doctor had not been examined. It was held that the procedure adopted by the Tribunal was highly irregular, improper and in flagrant violation of the dictum of the Apex Court in **Raj Kumar v. Ajay Kumar, (2011)1 SCC 343** and Rule 387 of the Kerala Motor Vehicles Rules, 1989 which says that the Claims Tribunal may, if it considers necessary direct any Medical Officer in a Government hospital or in a Medical College Hospital M.A.C.A. No.1591 of 2019 9 or any Board consisting of such Medical Officers to examine the injured and issue disability certificate indicating the degree and extent of the disability, if any, sustained as a result of the accident. ## 12.2. The conclusion of the doctor in Ext.A10 reads - _“On examination, he has partial ankylosis of right knee. He is unable to squat or climb stairs. He is unable to stand for long time or walk for long distances. As per Mc Bride index, he has permanent disability of NINE (9)%.”_ It is not clear from Ext.A10 whether the disability sustained is permanent disability of the whole body or a limb. As held in **Raj Kumar** ( _Supra_ ), all injuries (or permanent disabilities arising from injuries) do not result in loss of earning capacity. The percentage of permanent disability with reference to the whole body of a person, cannot be assumed to be the percentage of loss of earning capacity. To put it differently, the percentage of loss of earning capacity is not the same as the percentage of permanent disability (except in a few cases, where the Tribunal based on evidence, concludes that percentage of loss of earning capacity is M.A.C.A. No.1591 of 2019 10 the same as percentage of permanent disability). The doctor who treated the injured/claimant or who examined him subsequently to assess the extent of his permanent disability can give evidence only regarding the extent of permanent disability. The loss of earning capacity is something that will have to be assessed by the Tribunal with reference to the evidence in entirety. The same permanent disability may result in different percentages of loss of earning capacity in different persons, depending upon the nature of profession, occupation or job, age, education, and other factors. 12.3. In this case the petitioner is stated to be a Government servant, that is, Head Clerk in an office and therefore would be discharging his duties sitting in a chair. Therefore the disabilities referred to in Ext.A10 is not likely to have caused any loss of future prospects. Therefore even if Ext.A10 is accepted, that would not in any way help the petitioner as no evidence has come on record that due to the incident, there was any reduction of income of the petitioner or loss of earning power. Where a person is employed in a salaried job and notwithstanding the M.A.C.A. No.1591 of 2019 11 disability suffered by him on account of the injuries in the accident, if he does not suffer any reduction in salary or loss of future prospects in his employment, then he would not be entitled to any compensation for loss of earning capacity (See **National Insurance Company Ltd., Kozhikode v. Anoopkumar T.K.,** **2014 KHC 13)** . Even in such cases, the claimant would be entitled to compensation for loss of amenities in life, considering the effect of disability on his personal life and his ability to do the personal chose in his private life. For **loss of amenities** , an amount of ₹30,000/- has been granted by the Tribunal. 13. It was submitted relying on the decision in **Raju Sebastian** **v. United India Insurance Company, 2021(5) KHC 662** that even if loss of future prospects during the period the petitioner in service cannot be granted, he is certainly entitled to the loss of future prospects for his post retirement days. Due to the injuries, he would be unable to take up any post retirement jobs and hence he is entitled to compensation. Even assuming that the petitioner takes in all up employment post-retirement, probability M.A.C.A. No.1591 of 2019 12 the nature of employment would be similar to the one done by him before retirement. It cannot be expected that he would go in for some manual labour. I have already held that in the light of the injuries and the disability stated to have been sustained by him, the same has not in any way affected the discharge of his duties and in such circumstances there can be no loss of earning capacity or future prospects. The impugned Award is partly modified thus - |Sl. No.|Head of claim|Amount claimed|Amount awarded by Tribunal|Modified in appeal| |---|---|---|---|---| |1.|Loss of earning|₹98,000/-|-|₹1,283/- (5,500x 30/7 days)| |2.|Pain and sufferings|₹60,000/-|₹40,000/-|₹40,000/- (No modification)| |3.|Loss of amenities|₹30,000/-|₹30,000/-|₹30,000/- (No modification)| |4.|Transport to Hospital|₹8,000/-|₹1,000/-|₹1,000/- (No modification)| |5.|Extra nourishment|₹7,000/-|₹1,000/-|₹1,000/- (No modification)| |6.|Bystander expenses|₹8,000/-|₹2,000/-|₹2,000/- (No modification)| M.A.C.A. No.1591 of 2019 13 |7.|Damage to clothing|₹3,000/-|₹1,000/-|₹1,000/- (No modification)| |---|---|---|---|---| |8.|Medical expenses|₹74,000/-|-|₹5,000/-| |9.|Others|₹3,12,250/-|-|- (No modification)| ||**Total**|₹6,00,250/-|₹75,000/-|₹81,283/-| ||Claim amount ₹10,00,000/-|||| |||||| ||In the result,|the appeal is||| compensation by a further amount of **₹6,283/-** (total compensation ₹81,283/-, that is, ₹75,000/- granted by the Tribunal + ₹6,283/granted in appeal) with interest at the rate of 7.5% per annum from the date of petition till date of realization and proportionate costs. The third respondent/insurer is directed to deposit the enhanced compensation with interest and costs before the Tribunal within a period of 60 days from the date of receipt of a copy of the judgment. On deposit of the compensation amount, the Tribunal shall disburse the amount to the petitioner/appellant at the earliest in accordance with law. M.A.C.A. No.1591 of 2019 14 Interlocutory applications, if any pending, shall stand closed. **SD/C.S. SUDHA JUDGE** ak M.A.C.A. No.1591 of 2019 15 ## **APPENDIX OF MACA 1591/2019** **PETITIONER ANNEXURES:-** **Annexure A** **ORIGINAL LEAVE CERTIFICATE ISSUED BY THE DISTRICT COURT, PATHANAMTHITTA DATED. 15-02-2020.**