High Court of KeralaSingle Judge2022-03-31Appeal partly allowed; enhanced compensation by...

Ismail v. P. GOPALAKRISHNAN NAIR and Sujadh and The New India Assurance Co.

Case / Petition Number:MACA No.3231 of 2009

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: C.S.DIAS
Judgment Date: 2022-03-31
Court Decision / Holding: The appeal is allowed in part. The court enhances the compensation by Rs. 68,720 (comprising Rs. 12,000 for loss of earnings, Rs. 10,000 for pain and suffering, Rs. 10,000 for loss of amenities, and Rs. 36,720 for loss of earning capacity) with interest at 6% per annum from the date of petition till realisation, and imposes costs of Rs. 5,000. The third respondent (insurer) is ordered to deposit the enhanced amount with interest and costs before the Tribunal within 60 days from the date of receipt of a certified copy of the judgment, and on such deposit the fund is to be disbursed to the appellant in accordance with law.
Final Disposition: Appeal partly allowed; enhanced compensation by Rs. 68,720 with 6% interest and costs; deposit to be made before the Tribunal within 60 days; disbursement on deposit.

Parties to the Case

Appellants / Petitioners

ISMAIL, S/O MOHAMMED

Respondents

P. GOPALAKRISHNAN NAIR
SUJADH
THE NEW INDIA ASSURANCE CO.

Legal Representation & Advocates

Counsels for Petitioners

• Sri R. Bindu Sasthamangalam

Counsels for Respondents

• Sri P.K. Babu

Case Synopsis & Summary

Ismail, a scooter rider, challenged a Motor Accidents Claims Tribunal (MACT) award on a petition under Section 166 of the Motor Vehicles Act, 1988, arising from an accident on 25 February 2004. The lorry owned by P. Gopalakrishnan Nair and insured with The New India Assurance Co. was held liable for the injuries sustained by Ismail, who is described as a coolie with a claimed monthly income of Rs 4,000. The Tribunal allowed compensation but only partly, awarding Rs 1,47,600 to be recovered from the insurer. Ismail argued that the amount was inadequate given the severity of his injuries (three fractures, including an open fracture of the tibia and left lateral malleolus), extended hospitalisation, and six months of disability, and he sought a higher quantum under heads such as loss of earnings, pain and suffering, loss of amenities, and loss of earning capacity. The court noted evidence including medical exhibits and a wound certificate, and fixed the monthly income at Rs 4,000 after considering relevant precedents. It enhanced compensation across several heads, notably increasing loss of earnings and loss of earning capacity, applying a multiplier of 17 and an enhanced sum of Rs 68,720 with 6% interest and costs. The insurer was directed to deposit the enhanced amount within 60 days. The appeal thus succeeds in part. The decision references Ramachandrappa v. Manager (SCC 2011) for income fixation in 2004.

Provisions of Law Cited

Section 166 of the Motor Vehicles Act, 1988

Submissions & Arguments

Contentions of Appellants / Petitioners

Ismail contends that the MACT awarding only Rs 1,47,600 failed to consider the full extent of his injuries, disability, and loss of earning capacity. He maintains the notional monthly income should reflect the 2004 context and the Supreme Court’s guidance in Ramachandrappa, advocating a higher baseline (ultimately supported by the court). He asserts entitlement to enhanced compensation across heads—loss of earnings, pain and suffering, loss of amenities, and loss of earning capacity—given six months’ disability, 12% functional disability, hospitalization, and the impact on his ability to work as a coolie. He seeks deposit of the enhanced amount with interest and equitable disbursement. The appellant’s counsel relies on medical evidence (Exhibits A6, A7, A11) and the accident’s clear negligence (Exhibit A6) to justify a higher quantum. respondents:The insurer contends liability is admitted but maintains that the Tribunal’s award was perceptively reasonable. They argue only to the extent of liability and did not challenge the liability finding. The defense points to the contested heads of compensation as a matter of quantum, urging restraint consistent with evidence and policy terms. They emphasize that the primary fault lies with the insured’s vehicle operators, and insist the award should reflect proportional compensation rather than sweeping enhancement; and that the insurer’s obligation remains restricted to the terms of the policy.

Contentions of Respondents

The respondents’ counsel focuses on liability and policy terms, arguing that the quantum should not be inflated beyond evidentiary support. They contend that the Tribunal’s framework and the insured’s responsibility warrant measured compensation, and that the asserted heads should be anchored to evidence and policy limits. They acknowledge the insurer’s obligation to indemnify the owner’s liability but emphasize that the quantum must be tailored to the injuries, medical evidence, and the loss of earning capacity supported by proof rather than speculative enhancement.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited	[(2011) 13 SCC 236]	Positive	Cited to justify notional income for a coolie worker in 2004; the court adopts the principle in this decision to fix the appellant’s notional monthly income at Rs. 4000.

Diagnostic Tool

Beta

Does this judgment govern your specific facts?

Don't risk relying on a distinguishable precedent. Enter your facts or proposition below. We will test it against Ismail v. P. GOPALAKRISHNAN NAIR and Sujadh and The New India Assurance Co. and instantly map out authorities that support, challenge, or govern your position.

Extracted Judgment Text

Exact text extracted from official judgment records.

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE C.S.DIAS`** ``` THURSDAY, THE 31[ST] DAY OF MARCH 2022 / 10TH CHAITHRA, 1944 ``` ## **`MACA NO. 3231 OF 2009`** ``` AGAINST THE AWARD DATED 07.05.2009 IN OPMV 1390/2004 OF MOTOR ``` ## **`ACCIDENT CLAIMS TRIBUNAL ,PERUMBAVOOR`** ## **`APPELLANT/PETITIONER:`** ``` ISMAIL, S/O MOHAMMED, AGED 35 CHIRAKAKKUDY HOUSE, ALLAPPRA P.O., VENGOLA KARA,, PERUMBAVOOR. ``` ``` BY ADV SRI.R.BINDU (SASTHAMANGALAM) ``` ## **`RESPONDENTS/RESPONDENTS:`** - `1 P.GOPALAKRISHAN NAIR, MANAGING PARTNER M/S.ROAYAL PLASTIC INDUSTRIES, SHED NO.10,M/E.EDATHALA P.O.,ALUVA.` - `2 SUJADH, S/O. HASSAINAR PALLATHUKUDY HOUSE, KANJIRAKKAT KARA, PERUMBAVOOR.` - `3 THE NEW INDIA ASSURANCE CO. ST JOSEPH BUILDING, A.M.ROAD, PERUMBAVOOR. BY ADV SRI.P.K.BABU` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 31.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 2 MACA No.3231 of 2009 ## **Dated this the 31[st] day of March, 2022.** ## **JUDGMENT** The appellant was the petitioner in OP(MV) No.1390/2004 on the file of the Motor Accidents Claims Tribunal, Perumbavoor. The respondents in the appeal were the respondents before the Tribunal. 2. The appellant had filed the claim petition under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of the injuries sustained to him in an accident on 25.02.2004. It was his case that, on the aforesaid date, while he was riding his scooter bearing registration No. KCE -7654 through the AluvaPerumbavoor road, a lorry bearing registration No. KL 7/X 6143, driven by the second respondent in a negligent manner, hit the scooter. The appellant had suffered multiple injuries, including a Type III B open fracture of his left tibia and a Type I open fracture of the 3 MACA No.3231 of 2009 lateral malleolus left. The appellant was treated as an inpatient for a period of 30 days at the Sancho Hospital, Perumbavoor and Medical Trust Hospital, Ernakulam. The lorry was owned by the first respondent and insured with the third respondent. The appellant was a coolie worker by profession and was earning a monthly income of Rs.4000/-. Hence, the appellant had claimed a compensation of Rs.4,56,500/- from the respondents, which claim was limited to Rs.3,50,000/-. 3. The respondents 1 and 2 did not contest the proceeding and were set ex parte. 4. The third respondent had filed a written statement, inter alia, contending that the accident occurred due to the negligence of the appellant. However, the third respondent had admitted that the lorry had a valid insurance coverage. 5. The appellant had examined a Doctor as PW1 and marked Exhibits A1 to A12 series in evidence. The 4 MACA No.3231 of 2009 respondents did not let in any evidence. 6. The Tribunal, after analysing the pleadings and materials on record, allowed the claim petition in part, by permitting the appellant to recover from the third respondent an amount of Rs.1,47,600/- with interest from the date of petition till the date of realisation. 7. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioner is in appeal. 8. Heard Sri.R.Bindu Sasthamangalam, the learned counsel appearing for the appellant/petitioner and Sri. P.K. Babu, the learned counsel appearing for the third respondent/insurer. 9. The point that emanates for consideration in this appeal is whether the quantum of compensation awarded by the Tribunal is reasonable and just. ## **Negligence and liability** 10. Exhibit A6 charge sheet filed by the Perumbavoor police in Crime No.147/2004 proves that 5 MACA No.3231 of 2009 the accident occurred due to the negligence of the second respondent. Indisputably, the first respondent was the owner and the third respondent was the insurer of the lorry. The respondents have not let in any evidence to discredit Exhibit A6 charge sheet. The third respondent has also not proved that the first respondent had violated the insurance policy conditions. Therefore, the third respondent is to indemnify the liability of the first respondent arising out of the accident. ## **Income** 11. The appellant had claimed that he was a coolie worker by profession and was earning monthly income of Rs.4000/-. However, he did not produce any material to substantiate his income. Accordingly, the Tribunal fixed the notional monthly income of the appellant at Rs.2000/-. 12. In **Ramachandrappa v. Manager, Royal** 6 MACA No.3231 of 2009 ## **Sundaram Alliance Insurance Company Limited** [(2011) 13 SCC 236], the Honourable Supreme Court has fixed the notional income of a coolie worker in the year 2004 at Rs. 4500/- per month. 13. Following the yardstick in the afore-cited decision and considering the fact that the accident occurred in the year 2004, I re-fix the notional monthly income of the appellant at Rs.4000/- as claimed in the claim petition. ## **Loss of earnings** 14. The Tribunal had found that the appellant was indisposed for a period of six months. I confirm the said finding. Nonetheless, in view of the re-fixation of the notional monthly income of the appellant at Rs.4000/-, I award him a further amount of Rs.12,000/- under the head ‘loss of earnings’. ## **Pain and suferings and loss of amenities** 15.The Tribunal has awarded an amount of 7 MACA No.3231 of 2009 Rs.25,000/- under the head ‘pain and sufferings’ and Rs.15,000/- under the head ‘loss of amenities’. 16. On a consideration of Exhibit A7 wound certificate and Exhibit A11 disability certificate and taking note of the fact that the appellant had suffered three fractures, that he was treated as an inpatient for a period of 30 days, that he was indisposed for a period of six months and that he has a functional disability of 12%, I am of the firm view that the appellant is entitled to enhancement of compensation under the aforesaid heads by a further amount of Rs.10,000/- each. ## **Loss of earning capacity** 17. The appellant was 30 years at the time of the accident. The Tribunal on the basis of Exhibit A11 has fixed the functional disability of the appellant at 12%. On a re-appreciation of the materials on record, I find the assessment made by the Tribunal to be correct. However, in view of the re-fixation of the notional 8 MACA No.3231 of 2009 monthly income of the appellant at Rs.4000/- and taking the multiplier at 17, I hold that the appellant is entitled to an amount of Rs.97,920/-, instead of Rs.61,200/awarded by the Tribunal i.e., an enhancement of Rs.36,720/- towards ‘loss of earning capacity’. 18. With respect to other heads of compensation, I find that the Tribunal has awarded reasonable and just compensation. In the result, the appeal is allowed in part, by enhancing the compensation by a further amount of Rs.68,720/- (Rupees sixty eight thousand seven hundred and twenty only) (i.e., an enhancement of Rs.12,000/under the head ‘loss of earnings’, Rs. 10,000/- each under the heads ‘pain and sufferings’ and ‘loss of amenities’ and Rs.36,720/- under the head ‘loss of earning capacity’) with interest at the rate of 6% per annum on the enhanced compensation from the date of petition till the date of deposit, and a cost of Rs.5000/-. 9 MACA No.3231 of 2009 The third respondent is ordered to deposit the enhanced compensation with interest and cost before the Tribunal within sixty days from the date of receipt of a certified copy of the judgment. Immediately on the compensation amount being deposited, the same shall be disbursed to the appellant in accordance with law. SD/- **C.S.DIAS, JUDGE** rmm/31/03/2022