John Kusmas v. District Insurance Officer, Kerala State Insurance Department

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: Murali Purushothaman Monday
Judgment Date: 2022-05-30
Court Decision / Holding: The appeal is disposed of; the enhanced amount of Rs.2,44,200 (comprising Rs.32,000 for enhanced loss of earnings, Rs.1,87,200 additional disability/amenities recalculated to Rs.3,74,400, and Rs.25,000 for amenities) is to be deposited by the 3rd respondent before the Tribunal within two months from receipt of a certified copy of this judgment.
Final Disposition: The appeal is disposed of.

Parties to the Case

Appellants / Petitioners

John Kusmas

Respondents

The District Insurance Officer, Kerala State Insurance Department, Alappat Cross Road, 682 016

Legal Representation & Advocates

Counsels for Petitioners

• Sri K.K. Appu
• Sri Isac Sanjay

Counsels for Respondents

• Government Pleader Adv. Riyal Devassy

Case Synopsis & Summary

This High Court of Kerala appeal arises from MACA No. 2774 of 2015 challenging the Motor Accidents Claims Tribunal, Ernakulam award under OP(MV) No. 375 of 2012 for injuries sustained on 18 August 2011 while the claimant, riding a bicycle, was hit by a lorry. The Tribunal held the driver negligent and the insurer liable, awarding Rs 2,51,200 with 8% interest from the date of petition and proportionate costs, across heads including loss of earnings, medical expenses, pain and suffering, disability and future treatment. The appellant contends the compensation is insufficient and seeks enhancement. He relies on the Supreme Court’s Ramachandrappa decision to fix a notional income for a manual labourer (as of 2011) at Rs 8,000 per month and argues the loss of earnings should cover about six months of incapacity (36 days hospitalization), leading to a higher tally: notional income Rs.8,000, loss of earnings Rs.48,000, and consequently higher sums for continuing/permanent disability and amenities in life. The Tribunal’s head on disability was Rs.1,87,200, which the appellant seeks to refix at Rs.3,74,400, and he also claims Rs.25,000 for loss of amenities. The court, applying the Ramachandrappa principle, increases the compensation to Rs.2,44,200 above the Tribunal’s award. The 3rd respondent is directed to deposit the enhanced amount within two months of receiving a certified copy of the judgment.

Legal Doctrines & Maxims

Notional income for a manual labourer (Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Co. Ltd., 2011 (13) SCC 236, AIR 2011 SC 2951)

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellant argues that the Tribunal erred in under-compensating the claimant by applying a too-low notional income and an insufficient period of loss of earnings. Relying on the Ramachandrappa decision, he contends notional monthly earnings should be Rs.8,000 as of 2011, resulting in higher compensation for loss of earnings (6 months) and higher disability and life-amenities awards. He also seeks Rs.25,000 for loss of amenities in life, which the Tribunal did not grant.

Contentions of Respondents

The respondents contend the vehicle had insurance and that there was negligence by the driver; the policy was in force but described as an act-only policy. The insurer's liability and the lack of negligence on the part of the driver were the position; the document provides a limited scope of liability under an act-only policy and asserts no grounds to defeat liability but to contest the quantum of compensation.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Co. Ltd.	2011 (13) SCC 236 : AIR 2011 SC 2951	Positive	relied upon to fix the notional income of a manual labourer and compute enhanced compensation.

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 MONDAY, THE 30[TH] DAY OF MAY 2022 / 9TH JYAISHTA, 1944** **MACA NO. 2774 OF 2015** **AGAINST THE AWARD IN OPMV 375/2012 DATED 10.03.2015 OF MOTOR** **ACCIDENT CLAIMS TRIBUNAL ,ERNAKULAM** ## **APPELLANT/PETITIONER IN OP (MV):** **JOHN KUSMAS, AGED 49 YEARS, S/O.AUGUSTINE, KADAPPURATH VEETTIL, M.L.A.ROAD, NOW RESIDING AT THEKEPADATH VETTIL, KACHERIPADY PALLURUTHY, ERNAKULAM DISTRICT.** **BY ADVS. SRI.K.K.APPU SRI.ISAC SANJAY** ## **RESPONDENT/3RD RESPONDENT IN OP(MV):** **THE DISTRICT INSURANCE OFFICER KERALA STATE INSURANCE DEPARTMENT, ALAPPAT CROSS ROAD 682 016.** **BY ADVS. GOVERNMENT PLEADER ADV.RIYAL DEVASSY** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD** **ON 30.05.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA NO. 2774 OF 2015 ..2..** ## **JUDGMENT** The petitioner/claimant in O.P.(MV) No.375 of 2012 on the files of the Motor Accidents Claims Tribunal, Ernakulam has preferred this appeal, aggrieved by the amount of compensation awarded by the Tribunal for the personal injuries sustained in an accident occurred on 18.08.2011, while riding his bicycle. The parties are referred to as per their status in the claim petition. 2. According to the petitioner, while he was riding his bicycle, a lorry bearing registration No.KL-07-BH5734, driven by the 1[st] respondent came from the opposite direction in a rash and negligent manner and hit on the bicycle and the petitioner fell down and sustained injuries. The petitioner claimed an amount of Rs.4,00,000/- as total compensation for the injury sustained by him in the accident. The 1[st] respondent / **MACA NO. 2774 OF 2015 ..3..** driver of the vehicle and 2[nd] respondent /owner of the vehicle were set _ex parte_ . The vehicle was insured with the Kerala State Insurance Department; the 3[rd] respondent herein and 3[rd] respondent entered appearance and filed a written statement contending that the vehicle was having a valid insurance policy at the time of the accident, however, the same is only an act only policy. It is further contended that there was no negligence on the part of the 1[st] respondent. 3. The Tribunal found that the accident happened due to the negligence on the part of the driver of the lorry and the 3[rd] respondent is liable to indemnify the 2[nd] respondent, the owner of the vehicle. The Tribunal awarded a compensation of Rs.2,51,200/- with 8% interest per annum from the date of petition till realisation with proportionate costs. The compensation awarded by the Tribunal under different heads are as **MACA NO. 2774 OF 2015 ..4..** ## follows: |Sl. No.|Heads|Amount claimed (Rs.)|Amount awarded (Rs.)| |---|---|---|---| |1|Loss of earnings|30000|16000| |2|Partial loss of earnings|0|0| |3|Transport to hospital and back to home|2000|2000| |4|Extra nourishment|2000|2000| |5|Damage to cloths and articles|1000|500| |6|Attendant expenses|5000|5000| |7|Medical expenses|15000|13500| |8|Compensation for pain and suferings|40000|25000| |9|Compensation for continuing and permanent / partial disability|150000|187200| |10|Compensation for disfguration|0|0| |11|Compensation for loss of earning power|150000|0| **MACA NO. 2774 OF 2015 ..5..** |12|Compensation for future treatment|15000|0| |---|---|---|---| |13|Compensation for expectatin of life|0|0| |14|Compensation for loss of expectation of life / amenities and enjoyment in life|25000|0| |15|Total|435000|251200| ||Claimed Rs.400000||| The 3[rd] respondent was directed to satisfy the award. The claimant has preferred this appeal being aggrieved by the amount of compensation awarded. 4. to the he was an According petitioner, autorickshaw driver and was earning an amount of Rs.5,000/- at the time of the accident. The Tribunal has taken the income of the petitioner as Rs.4,000/-. Going _**v**_ **.** by the dictum laid down in **Ramachandrappa Manager, Royal Sundaram Alliance Insurance** **MACA NO. 2774 OF 2015 ..6..** **Company Limited** [2011 (13) SCC 236 : AIR 2011 SC 2951], the notional income of a manual labourer as on 2014 was fixed as Rs.4,500/-. Hence, following the above said dictum, the notional income of the petitioner for the purpose of assessment of compensation can be taken as Rs.8,000/- as on 18.08.2011, the date of accident. From the nature of injuries and the period of hospitalization (36 days), it has to be taken into consideration that there was loss of earnings for the petitioner for a period of six months. Accordingly, the compensation for loss of earnings is re-fixed as Rs.48,000/- [8,000 x 6]. The Tribunal has awarded an amount of Rs.16,000/- under the head loss of earnings and the petitioner is entitled for an enhanced amount of **Rs.32,000/-** [48,000-16,000] under the said head. 5. Towards compensation for continuing and permanent / partial disability, the Tribunal has awarded **MACA NO. 2774 OF 2015 ..7..** an amount of Rs.1,87,200/-. Since I have fixed the notional income of the petitioner as Rs.8,000/-, the compensation under the said head is refixed as Rs.3,74,400/- [8000x12x30/100x13]. Since an amount of Rs.1,87,200/- has already been awarded under the said head, the petitioner is entitled for an enhanced amount of **Rs.1,87,200** /- [3,74,000-1,87,000] as compensation under the said head. 6. Towards compensation for amenities in life, though the petitioner claimed an amount of Rs.25,000/-, no amount has been awarded by the Tribunal. Taking into consideration the nature of injuries sustained and the percentage of disability certified by the Medical Board, an amount of **Rs.25,000/-** , as claimed by the petitioner is awarded towards compensation for loss of expectation of life /amenities and enjoyment in life. Accordingly, the petitioner is entitled for an **MACA NO. 2774 OF 2015 ..8..** enhanced amount of **Rs.2,44,200/-** (Rupees two lakhs forty four thousand and two hundred only) [32,000+187200+25,000] with 8% interest with proportionate costs. The 3[rd] respondent shall deposit the said amount before the Tribunal, within a period of two months from the date of receipt of a certified copy of this judgment. The appeal is disposed of. **Sd/MURALI PURUSHOTHAMAN JUDGE** SB/31/05/2022