K. Surendran & Ors. v. The National Insurance Co. Ltd.

**IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN FRIDAY, THE 17[TH] DAY OF MARCH 2023 / 26TH PHALGUNA, 1944 MACA NO. 1920 OF 2015 AGAINST THE ORDER/JUDGMENT OPMV 925/2013 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, KOZHIKODE** ## **APPELLANT/PETITIONER:** 1 K.SURENDRAN, AGED 56 YEARS, S/O. RAMAN, RESIDING AT KOOTUMUCHUKKAL HOUSE, P.O.PAYIMBRA, KUNNAMANGALAM VIA, KOZHIKODE - 673571. ( DIED) 2 ADDL. APPELLANT 2 SHANTHA.K, W/O. SURENDRAN, AGED 59 YEARS, KOOTTUMOCHI PARAMBIL (H), PAYIMBRA P.O., KUNNAMANGALAM (VIA), KOZHIKODE - 673 571. 3 ADDL. APPELLANT 3 SUNILKUMAR.K, S/O. K. SURENDRAN, AGED 39 YEARS, KOOTTUMOCHI PARAMBIL (H), PAYIMBRA.P.O., KUNNAMANGALAM (VIA), KOZHIKODE - 673 571. 4 ADDL. APPELLANT 4 ANILKUMAR.K, S/O. K. SURENDRAN, AGED 37 YEARS, KOOTTUMOCHI PARAMBIL (H), PAYIMBRA P.O., KUNNAMANGALAM (VIA), KOZHIKODE - 673 571. 5 ADDL. APPELLANT 5 SABISHA.K, W/O. NINDHESH, PATHIYARUKANDIYIL (H), KARANTHUR P.O, KUNNAMANGALAM (VIA), KOZHIKODE - 673 571. (ADDL. APPELLANTS 2 TO 5 ARE IMPLEADED AS PER ORDER DATED 31/3/2021 IN I.A.NO. 1/2020 IN THE MACA – 1920/2015.) BY ADVS. SRI.AVM.SALAHUDIN SMT.A.D.DIVYA M.A.C.A.No.1920 of 2015 : 2 : ## **RESPONDENT/3RD RESPONDENT:** THE NATIONAL INSURANCE CO.LTD 2ND FLOOR, NOOR COMPLEX, MAVOOR ROAD, KOZHIKODE. BY ADV SRI.T.V.AJAYAKUMAR THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 17.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.A.C.A.No.1920 of 2015 : 3 : ## **DEVAN RAMACHANDRAN, J.** **========================= M.A.C.A.No. 1920 of 2015 ========================== Dated this the 17[th] day of March, 2023** ## **JUDGMENT** The original appellant – Sri.K.Surendran, was involved in a road accident on 16.01.2013, when the motorcycle he was riding was hit by the offending vehicle, driven in a rash and negligent manner. He suffered very grievous injuries; and thereupon filed OP(MV)No.925/2013, before the Motor Accidents Claims Tribunal, Kozhikode (the 'Tribunal' for short), seeking compensation of an amount of Rs.10,00,000/-, but which has been allowed only to a sum of Rs.4,68,780/-. He thus assailed this Award as being low. 2. Pending this appeal, however, the original appellant died and his legal heirs have been brought on record, through the order of this Court dated 31.03.2021, and they are prosecuting it now. 3. Smt.A.D.Divya – learned counsel for the appellants, argued that the primary reason why the compensation awarded in favour of the original appellant is so low, is because the learned Tribunal erred in adopting his notional income to be a mere Rs.4,000/- per month, even though he had claimed M.A.C.A.No.1920 of 2015 : 4 : Rs.12,000/-. She argued that when the income had been properly proved, the learned Tribunal ought to have accepted the same and then to have added future prospects to it, particularly because, it itself adopted the percentile of disability of the original appellant to be 50%. She then argued that the percentile of disability as aforesaid, in fact, was wrongly adopted, because the Disability Certificate, namely, Ext.C1 issued by a validly constituted Medical Board, assessed it to be 80%; and, thus prayed that the compensation under the head “Loss of Future Earning Power / Disability”, as also “Loss of Earnings”, be revised appropriately. The learned counsel concluded her submissions saying that the compensation awarded by the Tribunal under the heads “Extra Nourishment” and “Bystander's Expenses” is so exiguous, that it has no rational nexus to the facts involved, particularly because it is admitted that the original appellant had been hospitalised for a period of 89 days for inpatient treatment. She thus prayed that this appeal be allowed. 4. Sri.T.V.Ajayakumar – learned counsel appearing for the Insurance Company, on the other hand, submitted that the computations adopted by the Tribunal, in arriving at the compensation, is without error, because the accident happened M.A.C.A.No.1920 of 2015 : 5 : in the year 2013; and further because the income of the original appellant has not been established in any manner at all, except for his bald claim of Rs.12,000/- per month. He, therefore, prayed that this appeal be dismissed. 5. I have evaluated the afore submissions on the touchstone of various materials and evidence on record – copies of which have been handed over across the Bar by the learned counsel for the parties, with the express consent that they can be acted upon by this Court without dispute. 6. I will first deal with the contentions of the rival parties with respect to the notional income of the original appellant. The learned Tribunal has adopted it to be Rs.4,000/-, and it is seen that this has been done only because the actual income claimed by him has not been established. The conclusion of the learned Tribunal, that the income of the original appellant had not been established, is without any mistake because there is no evidence except his statement. Obviously, therefore, it ought to have then proceeded to reckon his notional income in terms of law. In this regard, **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Ltd. [(2011) 13 SCC 236]** should have guided the learned Tribunal since the ratio therein postulates that, in the case of a person without an M.A.C.A.No.1920 of 2015 : 6 : ascertainable income, or who is a “coolie”, in the year 2013 – when the accident occurred – the notional income must be reckoned to be a minimum of Rs.9,000/-. I see no reason to deny this to the original appellant; and since the disability found by the learned Tribunal itself is 50% – which is disputed by the appellants – it is without doubt that, future prospects ought to have been added to this at the rate of 10%, taking note of the fact that the original appellant was 56 years of age at the time of the accident. 7. Coming to the percentile of disability, I notice that Ext.C1 has been issued by a valid Medical Board and its competence has not been impeached or controverted by the Insurance Company. It has been recorded therein that fracture of both bones of the left leg of the deceased is malunited, with osteomyelitis and its shortening. On such basis, it certified 80% to be the disability; but the learned Tribunal found that this percentile has been adopted without citing any reasons, and thus reduced it to 50%, as being the functional disability. Taking note of the fact that the original appellant is stated to have been working as a milk vendor, obviously, his incapacity to walk and even stand for a long period of time ought to have guided the learned Tribunal in arriving at a more pragmatic percentile of M.A.C.A.No.1920 of 2015 : 7 : disability. As I have already said, Ext.C1 records the same to be 80%; while the learned Tribunal has taken it as 50%. Both these have been arrived at without citing any cogent reason; and am, therefore, of the view that a more realistic position will have to be taken, I, resultantly, deem it appropriate to enhance the same to 60%, taking note of the fact that the original appellant was a milk vendor, who would have normally been required to walk or stand for longer duration. Undoubtedly, the disability of his limb, as certified in Ext.C1, would certainly impede this to a large extent. 8. The afore being seen, there is no doubt that the original appellant must have gone through great amount of pain and trauma during his treatment. The learned Tribunal has, therefore, granted what has been sought for under the head “Pain and Sufferings”, and I do not, therefore, propose to modify it; but as regards ”Loss of Amenities”, taking note of the disabilities found in Ext.C1 – Disability Certificate, and being fully cognizant that a large escalation is not permissible because the disability is also independently compensated, I propose to enhance it marginally to Rs.25,000/-. 9. Qua the compensation awarded by the Tribunal under the head “Extra Nourishment” and “Bystander's Expenses”, I M.A.C.A.No.1920 of 2015 : 8 : find great force in the submissions of Smt.A.D.Divya, because what has been awarded is extremely low. I propose to take the expenses per day for the afore two heads to be Rs.250/- and Rs.350/-, respectively. Resultantly, this appeal is partly allowed, in the following manner: - (a) The compensation under the head “Loss of Future Earning Power/Disability” is enhanced to Rs.6,41,520/-, adopting the notional income of the original appellant to be Rs.9,000/- per month, with 10% future prospects added to it, and adopting his percentile of disability as 60%. - (b) The compensation under the head “Loss of Earnings” is axiomatically enhanced to Rs.1,08,000/-, again reckoning the monthly notional income to be Rs.9,000/- per month. - (c) The compensation under the head “Extra Nourishment” is enhanced to Rs.22,250/-, taking the per day expenses for such purpose to be Rs.250/-, for 89 days of hospitalisation. - (d) The compensation under the head “Bystander's Expenses” is enhanced to Rs.31,150/-, reckoning the M.A.C.A.No.1920 of 2015 : 9 : per day expenses for such purpose to be Rs.350/-, for 89 days of hospitalisation. (e) The compensation under the head “Loss of Amenities” is enhanced to Rs.25,000/-, from Rs.15,000/- now awarded by the Tribunal. - (f) In all other heads, the compensation awarded by the Tribunal will remain unaltered. Consequently, the appellant will be at full liberty to recover the compensation, as enhanced by this Court, from the Insurance Company, along with interest at the rate of 7.5% (modifying the rate of interest of 8% as awarded by the Tribunal in view of the escalation granted by this Court), from the date of claim until it is recovered. She will also be entitled to proportionate costs, on the enhanced amount, as ordered by the Tribunal. In view of the afore, the amount as fixed above shall be deposited by the Insurance Company before the learned Tribunal, within a period of two months from the date of receipt of a copy of this judgment. **Sd/DEVAN RAMACHANDRAN JUDGE** anm