High Court of KeralaSingle Judge2021-09-14Appeal allowed in part

K.C. Appukutty v. The National Insurance Co. Ltd.

Case / Petition Number:MACA No. 1599 of 2011

Neutral Citation::null

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: C.S. Dias
Judgment Date: 2021-09-14
Court Decision / Holding: The appeal is allowed in part; the court enhanced the compensation by Rs. 1,54,550 and directed interest at 7% per annum on the enhanced amount from the date of petition until payment, after deducting delay, with costs of Rs. 3,000. The insurer is ordered to deposit the enhanced amount with interest and costs before the Tribunal within 60 days of receipt of a certified copy of the judgment, and the Tribunal is to disburse the enhanced sum to the appellant after deduction of any liability toward court fee, in accordance with law.
Final Disposition: Appeal allowed in part

Parties to the Case

Appellants / Petitioners

K.C. Appukutty

Respondents

K.C. Premanand (owner-driver)
The National Insurance Company Ltd.

Legal Representation & Advocates

Counsels for Petitioners

• Sri. Jacob Abraham

Counsels for Respondents

• Smt. Raji T. Bhaskar

Case Synopsis & Summary

On 29 August 2008, the claimant, K.C. Appukutty, sustained fractures and other injuries while travelling in a Maruthi van that collided with a Maruthi Alto near Manthadam, Kozhikode. The accident occurred due to the negligence of the van driver/owner (first respondent), and the vehicle was insured by the second respondent. The appellant filed a claim under Section 166 of the Motor Vehicles Act seeking compensation for medical expenses, loss of earnings, and damages for permanent disability, supported by Exts A1–A10 and medical records including a 45% permanent disability certificate. The Tribunal partly allowed the petition, awarding Rs. 1,23,768 with 7% interest from the date of petition till payment and costs of Rs. 1,000, but held other heads and the total lower than claimed. The appellant challenged the quantum in MACA 1599/2011. The High Court undertook a re-appreciation of evidence, fixing a notional income of Rs 5,000 per month (instead of Rs 2,000), based on Ramachandrappa and other precedents, and applying a 5 multiplier (per Sarala Varma for a 75-year-old claimant). The court recalculated loss of earnings, bystander expenses, loss of amenities, and loss due to disability, resulting in a new total of Rs 2,78,318. The appeal is allowed in part; enhanced compensation of Rs 1,54,550 is awarded, with 7% interest, and the insurer is directed to deposit the enhanced amount within 60 days, after which it will be disbursed by the Tribunal.

Provisions of Law Cited

Section 166 of the Motor Vehicles Act, 1988

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellant contends that the Tribunal's quantum is too low, arguing the notional income should be Rs. 5,000 per month in light of Ramachandrappa (2011) and the appropriate multiplier of 5 in view of the claimant's age, with 75 years at the time of the accident. He asserts disability at 45% with substantial hospitalization and loss of earnings; seeks enhancement across heads including loss of earnings, bystander expenses, loss of amenities, and loss due to disability, supported by medical evidence (45% disability) and Exts A2, A5, C1. The appellant asks for recalculation to Rs. 2,78,318 and payment of the enhanced amount with interest.

Contentions of Respondents

The insurer contests the quantum as per the Tribunal’s assessment, arguing the original award was reasonable and that liability arises under the policy for the first respondent. They challenge the higher heads of damages and contend that the notional income and other figures should align with evidence adduced, maintaining that there should be no substantial deviation from the Tribunal’s calculation.

Cited Precedents (2)

Case Name	Citation	Treatment	Explanation
Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited	(2011) 13 SCC 236	Positive	Cited to justify higher notional income (Rs 5,000/month) and framework for calculating compensation.
Sarala Varma and others v. Delhi Transport Corporation and others	(2010) 2 KLT 802 (SC)	Positive	Cited for multiplier rule (5) applicable here given the claimant's age (75).

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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 C.S.DIAS** **TUESDAY, THE 14[TH] DAY OF SEPTEMBER 2021 / 23RD BHADRA, 1943** **MACA NO. 1599 OF 2011** **AGAINST THE AWARD DATED 24.07.2010 IN OP(MV0NO.1258/2009 OF PRINCIPAL MOTOR ACCIDENT CLAIMS TRIBUNAL ,KOZHIKODE.** ## **APPELLANT/PETITIONER:** **K.C.APPUKUTTY, SON OF KUNHIKANNAN, VALLIYANGACHALIL HOUSE, MADAVOOR POST, KOZHIKODE.** **BY ADV SRI.JACOB ABRAHAM** ## **RESPONDENTS/RESPONDENTS:** - **1 K.C.PREMANAND MADAVOOR POST, KOZHIKODE.** **2 THE NATIONAL INSURANCE CO.LTD., DIVISIONAL OFFICE NO.10, FLAT NO.101-106 NO.1, BMC HOUSE, CONNAUGHT PLACE, NEW DELHI.** **BY ADV SMT.RAJI T.BHASKAR** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 14.09.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** M.A.C.A.No.1599/2011 -:2:- Dated this the 14[th] day of September, 2021 ## **J U D G M E N T** The appellant was the petitioner in O.P.(MV) No.1258/2009 on the file of the Principal Motor Accidents Claims Tribunal, Kozhikode. 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 that he sustained in an accident on 29.08.2008. It was his that, while he was travelling in a Maruthi Omini Van bearing registration No.KL-11/X-9395(van), from Guruvayoor to Kozhikode, when he reached a place near Manthadam, due to the rash and negligent driving of the van by the first respondent, the van hit M.A.C.A.No.1599/2011 -:3:- against the a Maruthi Alto car. The first respondent was also the owner and the second respondent was the insurer of the car. The appellant sustained serious injuries, including fractures and was treated as an inpatient at the Baby Memorial Hospital, Kozhikode, for a period of 34 days. He was a retired Teacher and taking private tuitions, and earning a monthly income of Rs.5,000/-. Hence, the appellant claimed an amount of Rs.5,22,000/- as compensation from the respondents, but limited to Rs.4,00,000/-. 3. The first respondent did not contest the proceeding. 4. The second respondent filed a written statement admitting that the car had a valid insurance coverage. Nevertheless, it was contended that the accident occurred on account of the negligence of the driver of the van. The second respondent also disputed the age, income and occupation of the appellant. 5. The appellant produced and marked Exts.A1 M.A.C.A.No.1599/2011 -:4:- to A10 in evidence. The certificate issued by the Medical Board attached to the Medical College Hospital, Calicut, was produced and marked as Ext.X1, certifying that the appellant had a permanent disability of 45%. 6. The Tribunal, after analysing the pleadings and materials on record, allowed the claim petition in part, by permitting the appellant to realise from the second respondent an amount of Rs.1,23,768/- with interest at the rate of 7% per annum from the date of petition till the date of deposit and a cost of Rs.1,000/-. 7. Dissatisfied with the quantum of compensation, the petitioner is in appeal. 8. Heard; Sri. Jacob Abraham, the learned counsel appearing for the appellant/petitioner and Smt. Raji. T. Bhaskar, the learned counsel appearing for the second respondent /insurer. 9. The sole question that emerges for consideration in the appeal is whether the quantum of M.A.C.A.No.1599/2011 -:5:- compensation awarded by the Tribunal is reasonable and just? ## **Negligence and liability:** 10. As per Ext.A3 Final Report filed by the Police, it is proved that the accident occurred solely due to negligence of the first respondent-the owner/driver of the van. Undisputedly, the van was insured with the second respondent and there was violation of the insurance policy conditions. Therefore, it is the second respondent who is to indemnify the liability of the first respondent. ## **Notional income:** 11. The appellant had claimed that he was a retired Teacher and taking private tuitions at his residence and earning a monthly income of Rs.5,000/-. The Tribunal fixed the notional income of the appellant at Rs.2,000/-. ## 12. In _**Ramachandrappa v. Manager, Royal**_ M.A.C.A.No.1599/2011 -:6:- ## _**Sundaram Alliance Insurance Company Limited**_ [(2011) 13 SCC 236], the Hon'ble Supreme Court has fixed the notional income of a coolie worker in the year 2004, at Rs.4,500/- per month. 13. Following the parameters in the afore-cited decision and taking into account the fact that the accident occurred in the year 2008, I am of the firm opinion that the appellant's notional income can safely be fixed at Rs.5,000/- per month, as claimed in the claim petition. ## **Loss of earnings:** 14. It is proved by Ext.A2 wound certificate, Ext.A5 Discharge Summary and Ext.C1 Medical Board Report that the appellant had sustained serious injuries, including a Type III open fracture of his left middle 1/3 and a bimallcolar fracture left ankle. He was treated at as inpatient for a period of 34 days at the Baby Memorial Hospital, Kozhikode. As per Ext.C1, M.A.C.A.No.1599/2011 -:7:- the appellant's permanent disability has been assessed by a duly constituted Medical Board at 45%. In the above background, I hold that the appellant was indisposed for a period of six months. In view of the re-fixation of the notional income of the appellant at Rs.5,000/- per month, I re-fix the compensation for 'loss of earnings' at Rs.30,000/-. ## **Loss due to disability:** 15. Even though the appellant was aged 75 years at the time of accident, he was taking private tuitions at his residence. As per Ext.C1, the Medical Board has assessed that the disability of the appellant for each limb and the whole body at 45%. The Medical Board has also assessed his occupational disability at 45%. In view of the fact that the appellant was a retired teacher and taking private tuitions, I am of the opinion that the assessment made by the duly constituted expert body at 45% is only to be accepted. M.A.C.A.No.1599/2011 -:8:- ## **Multiplier** 16. As the appellant was aged 75 years at the time of accident, the relevant multiplier is '5', as per the law laid down in _**Sarala Varma and others v. Delhi Transport Corporation and others**_ [(2010) 2 KLT 802 (SC)]. ## **Loss due to disability:** 17. Taking into account the above mentioned factors i.e., the notional income of the appellant fixed at Rs.5,000/-, his occupational disability at 45%, the multiplier at '5', I re-fix the compensation for 'loss due to disability' at Rs.1,35,000/- instead of Rs.54,000/fixed by the Tribunal. ## **Bystander expenses:** 18. It is proved that the appellant was treated as an inpatient for a period of 34 days. However, the Tribunal awarded only a meagre amount of Rs.3,400/towards 'bystander expenses', which according to me M.A.C.A.No.1599/2011 -:9:- is on the lower side. Keeping in mind the fact that the accident occurred in the year 2008, I am of the opinion that at least Rs.300/- per day has to be fixed towards 'bystander expenses'. Hence, I enhance the compensation under the head 'bystander expenses' by a further amount of Rs.6,800/- totalling to Rs.10,200/(i.e. Rs.300 x 34 days) ## **Loss of amenities** 19. Even though the appellant had claimed an amount of Rs.50,000/- towards compensation for 'loss of amenities', the Tribunal has failed to award any amount under the said head. 20. Keeping in mind that the appellant has suffered serious and has sustained an injuries occupational disability of 45%, that he was indisposed for a period of six months and that he was treated as an inpatient for a period of 34 days, I am of the considered opinion that a reasonable amount has to be awarded under the said head. Accordingly, I award an M.A.C.A.No.1599/2011 -:10:- amount of Rs.40,000/- under the said head. 21. With respect to the other heads of compensation, I find that the Tribunal has awarded reasonable and just compensation. 22. On a comprehensive re-appreciation of the pleadings, materials on record and the law referred to in the afore-cited decisions, I am of the definite opinion that the appellant/petitioner is entitled for enhancement of compensation as modified and re-calculated above and given in the table below for easy reference. |Sl.No|Head of claim|Amount awarded by the Tribunal (in rupees)|Amounts modified and recalculated bythis Court| |---|---|---|---| |1|Loss of earnings|4,000|30,000| |2|Transport expenses|750|750| |3|Damage to Clothing|Nil|750| |4|Bystander expenses|3,400|10,200| |5|Extra nourishment|750|750| M.A.C.A.No.1599/2011 -:11:- |6|Medical expenses|50,868|50,868| |---|---|---|---| |7|Pain and sufferings|10,000|10,000| |8|Loss of amenities|Nil|40,000| |9|Loss due to disability|54,000|1,35,000| ||**Total**|**1,23,768**|**2,78,318**| In the result, the appeal is allowed in part by enhancing the compensation by a further amount of **Rs.1,54,550/-** (Rupees one lakh fifty four thousand five hundred and fifty only) with interest on the enhanced compensation at the rate of 7% per annum from the date of petition till the date of payment, after deducting interest for a period of 310 days i.e., the period of delay in preferring this appeal and as directed by this Court on 18.10.2011 in C.M.Appln.No.2443/2011, and a cost of Rs.3,000/-. The second respondent/insurer is ordered to deposit the enhanced compensation with interest and cost before the Tribunal within a period of sixty days from the date of receipt of a certified copy of this judgment. M.A.C.A.No.1599/2011 -:12:- The Tribunal shall disburse the enhanced compensation amount to the appellant, after deducting his liability, if any, towards court fee and in accordance with law. All pending interlocutory applications will stand closed. Sd/- ## **C.S.DIAS,JUDGE** DST //True copy/ P.A.To Judge