High Court of KeralaSingle Judge2021-08-27Partly allowed; remanded for policy-violation i...

IN THE HIGH COURT OF KERALA AT ERNAKULAM — MACA Nos. 1245/2017, 1246/2017, 2682/2017 and CO 89/2017

Case / Petition Number:MACA 1245/2017; MACA 1246/2017; MACA 2682/2017; CO 89/2017

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: P. Somarajan
Judgment Date: 2021-08-27
Court Decision / Holding: The Court allowed MACA 2682/2017; Cross Objection CO 89/2017 and MACA 1246/2017 and 1245/2017 are allowed in part. The Tribunal is remitted to adjudicate the policy-violation issue (license validity of driver and liability of owner/driver) within six months from 23/09/2021. The insurer is directed to deposit or pay the enhanced compensation notwithstanding remand. The judgment modifies the quantum on several heads (notably loss of earnings and disability) in line with the discussions, and remands the policy-recovery issue for final adjudication.
Final Disposition: Partly allowed; remanded for policy-violation issues; enhanced compensation to be deposited by insurer pending remand.

Parties to the Case

Appellants / Petitioners

United India Insurance Company Limited
Nanu P.V.
Ajayan

Respondents

Ajayan, S/O Narayanan
Vinodan, S/O Rajappan
Nijil P.P., S/O Vijayan K.K
United India Insurance Company Limited

Legal Representation & Advocates

Counsels for Petitioners

• Smt. K.V. Reshmi
• Smt.K.V. Reshmi
• Smt. K.V. Reshmi

Counsels for Respondents

• Sri John Joseph Vettikad
• Sri M.A. George
• Sri P.K. Manojkumar

Case Synopsis & Summary

The Kerala High Court heard consolidated Motor Accidents Claims Appeals (MACA Nos. 1245/2017, 1246/2017, 2682/2017) and Cross-Objections (CO 89/2017) arising from awards of the Motor Accidents Claims Tribunal, Vadakara, Kozhikode, on 9 December 2016. The insurer United India Insurance challenged quantum and method of assessment, while the claimants Ajayan (2682), NanU P.V. (cross), Nanu P.V. (1246), Vinodan and Nijil P.P. (drivers/owner) sought higher compensation. The court assessed income based on decisions in Ramachandrappa and Syed Sadiq and modified several heads: loss of earnings, loss of income due to disability, and future treatment; hospitalisation and medical expenses were adjusted, and a remand was ordered on policy-violation issues (driver license validity and owner/driver responsibility). The court held the insurer liable to pay enhanced compensation initially, with the tribunal to adjudicate recovery from the owner/driver on remand. The cross-objection and two MACAs were allowed in part. An order for deposit of enhanced compensation was directed, and the matter was to be re-adjudicated within six months from appearance date of 23/09/2021. The judgment is by a single-judge bench of Justice P. Somarajan.

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellants contended that the Tribunal’s compensation award did not reflect the true loss and future treatment needs. Relying on Ramachandrappa v. Manager (2011 KHC 4675) and Syed Sadiq, they urged a higher monthly income (Rs. 8,500 in 2012 terms) for computation, leading to increased sums under loss of earnings and loss of income due to disability; they pressed for enhanced future treatment and other heads where appropriate. The cross-appeal contended that issues of policy-violation should be adjudicated to determine insurer recourse after payment of enhanced compensation.

Contentions of Respondents

The respondents argued that the Tribunal’s calculations were consistent with precedent and evidentiary standards, noting lack of decisive evidence on actual income. They urged remand on policy-violation issues—whether the vehicle owner or driver should bear liability—while recognizing the insurer’s obligation to pay enhanced compensation initially, with rights of recovery subsequently to be determined by the Tribunal; a remand was sought to adjudicate the policy issue within six months.

Cited Precedents (4)

Case Name	Citation	Treatment	Explanation
Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited	2011 KHC 4675	Positive	Cited to justify using an enhanced notional income (Rs 8,500) for purposes of computation where earnings evidence is insufficient.
Syed Sadiq v. Divisional Manager, United India Insurance Co.	Not provided in document	Mentioned Only	Referenced to illustrate past benchmarks for monthly income; not expressly adopted in full.
And Others v. Divisional Manager, United India Insurance Co. (2014 KHC 4027)	2014 KHC 4027	Positive	Cited alongside Ramachandrappa to support income assessment approach.
National Insurance Co. Ltd. v. Kusum Rai	2006 KHC 540 = 2006(2) KLT 300	Positive	Cited for principles on insurer’s recourse (recovery from owner/driver for policy violations) and related liability.

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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 P.SOMARAJAN** **FRIDAY, THE 27[TH] DAY OF AUGUST 2021 / 5TH BHADRA, 1943** **MACA NO. 1245 OF 2017** **AGAINST THE AWARD DATED 09/12/2016 IN OPMV 678/2013 OF MOTOR** **ACCIDENTS CLAIMS TRIBUNAL, VADAKARA, KOZHIKODE** ## **APPELLANT/3RD RESPONDENT:** **UNITED INDIA INSURANCE COMPANY LIMITED, REGIONAL OFFICE, HOSPITAL ROAD, ERNAKULAM, COCHIN - 682 035.** ## **BY ADV SRI.JOHN JOSEPH VETTIKAD** ## **RESPONDENTS/PETITIONER & RESPONDENTS 1 & 2:** - **1 AJAYAN, S/O. NARAYANAN (LATE), AGED 39 YEARS, THARAVATTATH HOUSE, MUTHUVANNACHA AMSOM,DESOM, MUTHUVANNACHA PO, KUTTIYADI (VIA), KOZHIKODE - 673 508 (CLAIMANT)** - **2 VINODAN, S/O. RAJAPPAN, AGED NOT KNOWN,PALATHINGAL HOUSE, CHANGAROTH,AVADUKKA, KOZHIKODE, PIN - 673 525 (OWNER)** - **3 NIJIL P.P., S/O VIJAYAN K.K, AGED ABOUT 28 YEARS, KAPPACHIKANDI HOUSE,THANDORAPPARA, KOYILANDY, KOZHIKODE, PIN - 673 526 (DRIVER)** ## **BY ADV SMT.K.V.RESHMI** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 27.08.2021, ALONG WITH CO.89/2017, 1246/2017 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **[MACA Nos.1245/2017, 1246/2017, 2682/2017 and CO. 89/2017] 2** # **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** **THE HONOURABLE MR. JUSTICE P.SOMARAJAN** **FRIDAY, THE 27[TH] DAY OF AUGUST 2021 / 5TH BHADRA, 1943** **CO NO. 89 OF 2017** **AGAINST THE ORDER/JUDGMENT IN MACA 1246/2017 OF HIGH COURT OF** ## **KERALA, ERNAKULAM** ## **CROSS APPELLANT/CLAIMANT** **NANU.P.V, S/O.CHANDU, AGED 61 YRS,PADINJARE VANNAN THAROL HOUSE,P.O.MUTHUVANNACHA, KUTTIYADI(VIA), KOZHIKODE-673508.** **BY ADV SMT.K.V.RESHMI** ## **RESPONDENT/3RD RESPONDENT:** **UNITED INDIA INSURANCE COMPANY LIMITED, HAPPY TOWERS,2ND FLOOR,EAST ROAD, KOYILANDY,KOZHIKODE-673005, REPRESENTED BY ITS MANAGER.** **BY ADV SRI.JOHN JOSEPH VETTIKAD** **THIS CROSS OBJECTION/CROSS APPEAL HAVING COME UP FOR ADMISSION ON 27.08.2021, ALONG WITH MACA.1245/2017 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **[MACA Nos.1245/2017, 1246/2017, 2682/2017 and CO. 89/2017] 3** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.SOMARAJAN** **FRIDAY, THE 27[TH] DAY OF AUGUST 2021 / 5TH BHADRA, 1943** ## **MACA NO. 1246 OF 2017** **AGAINST THE AWARD DATED 09/12/2016 IN OPMV 679/2013 OF MOTOR** ## **ACCIDENTS CLAIMS TRIBUNAL VADAKARA, KOZHIKODE** ## **APPELLANT/3RD RESPONDENT:** **UNITED INDIA INSURANCE COMPANY LIMITED, REGIONAL OFFICE, HOSPITAL ROAD, ERNAKULAM,COCHIN - 682 035.** ## **BY ADV SRI.JOHN JOSEPH VETTIKAD** ## **RESPONDENTS/PETITIONER & RESPONDENTS 1 & 2:** - **1 NANU P.V., S/O. CHANDU, AGED ABOUT 61 YEARS,** **PADINJARE VANNAN THAROL HOUSE, MUTHUVANNACHA AMSOM,DESOM, MUTHUVANNACHA P.O, KUTTIYADI (VIA), KOZHIKODE - 673508 (CLAIMANT)** - **2 VINODAN, S/O. RAJAPPAN, PALATHINGAL HOUSE, CHANGAROTH, AVADUKKA, KOZHIKODE, PIN - 673 525 (OWNER)** - **3 NIJIL P.P, S/O. VIJAYAN K.K, AGED ABOUT 28 YEARS, KAPPACHIKANDI HOUSE, THANDORAPPARA,KOYILANDY, KOZHIKODE PIN - 673 526. (DRIVER)** **BY ADV SMT.K.V.RESHMI** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 27.08.2021, ALONG WITH MACA.1245/2017 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **[MACA Nos.1245/2017, 1246/2017, 2682/2017 and CO. 89/2017] 4** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.SOMARAJAN** **FRIDAY, THE 27[TH] DAY OF AUGUST 2021 / 5TH BHADRA, 1943** **MACA NO. 2682 OF 2017** **AGAINST THE AWARD DATED 09/12/2016 IN OPMV 678/2013 OF MOTOR** **ACCIDENTS CLAIMS TRIBUNAL VADAKARA, KOZHIKODE** ## **APPELLANT/CLAIMANT:** **AJAYAN, S/O.(LATE) NARAYANAN, AGED 39 YEARS, THARAVATTATH HOUSE, P.O.MUTHUVANNACHA, KUTTIYADI (VIA), KOZHIKODE-673508.** **BY ADV SMT.K.V.RESHMI** ## **RESPONDENT/3RD RESPONDENT:** **UNITED INDIA INSURANCE COMPANY LIMITED, HAPPY TOWERS, 2ND FLOOR, EAST ROAD, KOYILANDY, KOZHIKODE-673005, REPRESENTED BY ITS MANAGER.** **BY ADVS. SRI.M.A.GEORGE SRI.P.K.MANOJKUMARSCUNITED INDIA INSU** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 27.08.2021, ALONG WITH MACA.1245/2017 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **[MACA Nos.1245/2017, 1246/2017, 2682/2017 and CO. 89/2017] 5** ## **JUDGMENT** In MACA No.2682, the claimant is the rider of the scooter. An amount of Rs.7,92,844/- rounded as Rs.7,92,850/- was awarded by way of compensation under various heads: The petitioner/rider came up dissatisfied by the quantum of the amount awarded under three heads, ie., loss of earnings due to accident, future treatment charges and the compensation for loss of income due to disability. Admittedly he had sustained comminuted fracture to femur, fracture of both bones right leg, fracture of both bones right forearm and fracture on distal end of radius right. Ext. A8 series are the medical bills for Rs.92,054/-. He had undergone inpatient treatment for a long period of 78 days. Ext.A5 to A7 are the treatment records. The petitioner was aged 35 years and claimed an amount of Rs.15,000/- as his monthly income. He is a carpenter by profession. No evidence adduced to show his income. The learned counsel hence relied on two decisions of Apex Court in _**Ramachandrappa v. Manager, Royal Sundaram Aliance Insurance Company Limited (2011 KHC 4675)**_ and _**Syed Sadiq**_ **[MACA Nos.1245/2017, 1246/2017, 2682/2017 and CO. 89/2017] 6** _**and Others v. Divisional Manager, United India Ins. Co. (2014 KHC 4027)**_ . In **Ramchandrappa's** case (supra) an amount of Rs.4500/- was taken to a person who is working as a coolie in the absence of evidence in the year 2004 by the Apex Court. In _**Syed Sadiq's**_ case (supra) which was of the year 2008, monthly income was taken as Rs.6500/-. It was submitted that there is yearly enhancement of Rs.500/- to the monthly income assessed. Hence petitioner is entitled Rs.8,500/- per month since it is related to the year 2012. No other reliance was placed to the notice of this court so as to reject the argument advanced by the learned counsel for the petitioner. As such, I am of the view that, it is fit and proper to take the income of the petitioner at Rs.8,500/- and hence, head No.1- loss of earning due to the accident and head No.8- compensation for loss of income due to disability would stand modified to Rs.1,02,000/- as against the amount of Rs.54,000/allowed by the Tribunal and Rs.7,34,400/- as against Rs.5,05,440/- granted by the Tribunal respectively. An amount of Rs.30,000/- was granted by way of future treatment. Nothing was brought to the notice of this court with respect to any surgery or internal fixation **[MACA Nos.1245/2017, 1246/2017, 2682/2017 and CO. 89/2017] 7** and no other future medical requirement brought to the notice of this court and hence, the claim for enhancement is hereby rejected. So the amount awarded would stand modified as follows:- ||**The** **compensation** **claimed** **under** **different heads**|**Amount** **claimed**|**Amount** **allowed**|**Basis/vital** **details in** **a nutshell**| |---|---|---|---|---| |1|Loss of earnings due to the accident|1,50,000/-|1,02,000/-|8500x12 months| |2|Transport to hospital|15,000/-|1,750/-|| |3|Hospitalisation for 78 days as per A6 &A7|25,000/-|54,600/-|700x78 days| |4|Medical bills as per A8|1,00,000/-|92,054/-|| |5|Future treatment|50,000/-|30,000/-|| |6|Pain and sufferings|50,000/-|35,000/-|| |7|Loss of amenities|25,000/-|20,000/-|| |8|Compensation for loss of income due to 45% disability as per C1|3,00,000/-|7,34,400|8500x12x16x 45/100| ||**Total**||**1,069,804/-**|| **[MACA Nos.1245/2017, 1246/2017, 2682/2017 and CO. 89/2017] 8** 2. By applying the same ratio in Cross Objection No.89/2017 in M.A.C.A.No.1246/2017, the pillion rider/petitioner is entitled to an amount of Rs.1,02,000/- as against Rs.54,000/-granted as loss of earnings, by applying monthly income at Rs.8,500/-. Necessarily, the compensation for loss of income would stand enhanced to **Rs.8,500x12x9x39/100=3,58,020/-** as against Rs.2,46,402/- granted by the trial court on account of loss income due to disability. It is also brought to the notice of this court that he had undergone open reduction internal fixation surgery, as such, an additional enhancement of Rs.10,000/- also granted for meeting the future treatment charges. It is submitted that at the time when the accident took place the driver of the Autorikshaw was not having valid driving license. Hence, it was admitted that the company is though bound to pay the amount initially since there is policy violation, is entitled to recover the same from the owner and the driver, and relied on the decision rendered by the Apex Court in _**National**_ _**Insurance Co.Ltd. v. Kusum Rai (2006 KHC 540 = 2006(2)**_ _**KLT 300).**_ The said question requires consideration at first by the Tribunal as it was neither taken into **[MACA Nos.1245/2017, 1246/2017, 2682/2017 and CO. 89/2017] 9** consideration, nor discussed or adjudicated by the Tribunal. The policy produced is also not seen marked or received in evidence. Hence, the same requires consideration and adjudication by the Tribunal. For that purpose, the matter is remanded back to the Tribunal with a direction to adjudicate the said issue within a time schedule of 6 months from the date of appearance of the parties. The parties shall appear before the Tribunal on 23/09/2021. The Insurance Company shall deposit or pay the enhanced compensation notwithstanding this order of remand. The M.A.C.A.No.2682 of 2017 is allowed accordingly. Cross Objection 89/2017, M.A.C.A No.1246/2017 and M.A.C.A.1245 of 2017 are allowed in part accordingly. ## **Sd/-** ## **P.SOMARAJAN** ## **JUDGE** ## **msp**