High Court of KeralaSingle Judge2021-03-05Appeal allowed in part; enhanced compensation; ...

M. Harish v. Sheeja Aneesh, Antony Jestine, The National Insurance Co. Ltd., United India Insurance Co. Ltd.

Case / Petition Number:MACA.No.2025 OF 2014

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: C. S. Dias
Judgment Date: 2021-03-05
Court Decision / Holding: Appeal allowed in part; enhanced compensation by Rs.34,000 with 8% interest on enhanced amount from date of petition till realization and proportionate costs; third respondent to deposit enhanced amount before the Tribunal within two months; Tribunal to disburse in accordance with law.
Final Disposition: Appeal allowed in part; enhanced compensation; deposit and disbursement as per law

Parties to the Case

Appellants / Petitioners

M. Harish

Respondents

Sheeja Aneesh
Antony Jestine
The National Insurance Co. Ltd.
United India Insurance Co. Ltd.

Legal Representation & Advocates

Counsels for Petitioners

• Sri Rahul Sasi
• Smt. Neethu Prem

Counsels for Respondents

• Sri M.A. Georgebono
• Smt. Deepa George
• Sri P. Muraleedharan
• Sri M.A. George (B/O, No Memo)

Case Synopsis & Summary

This is a motor-vehicle accident compensation appeal under MACA No. 2025 of 2014 arising from OP(MV) No. 2068 of 2008 before the Addl. Motor Accident Claims Tribunal, Ernakulam. The appellant, M. Harish, sought compensation for injuries suffered in a 23 October 2006 accident when his motorcycle KL-7 AD 9465 was struck by a bus KL 7AZ 2554 driven rashly. The Tribunal awarded Rs. 1,70,310 with 8% interest from 4.10.2008 and proportionate costs, partially allowing the petition. The petitioner challenged the quantum of compensation, arguing that his income was not properly assessed and that the award undervalued heads such as pain and suffering, loss of earnings, and loss of amenities. The respondents denied liability or contested the amounts. In his judgment dated 5 March 2021, Justice C. S. Dias allowed the appeal in part. He held that the notional monthly income should be fixed at Rs. 7,500 (the claimed wage of a marble stone worker) based on Supreme Court and Kerala decisions, and re-calculated losses of earnings to Rs. 30,000, among other adjustments. He enhanced several heads: pain and suffering to Rs. 50,000, disfiguration to Rs. 10,000, and other heads to reflect reasonable compensation. The award was increased by Rs. 34,000 in total, with 8% interest on the enhanced amount from the petition date to realization, and costs. The third respondent (insurer) was directed to deposit the enhanced amount within two months, and the Tribunal was to distribute it as per law.

Provisions of Law Cited

Section 168 of the Motor Vehicles Act, 1988

Legal Doctrines & Maxims

Just compensation doctrine
Fairness, reasonableness and equitability as the basis for determining just compensation
Notional income approach for calculating loss of earnings

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellant contends that the Tribunal erred in fixing the petitioner's notional income at Rs. 4,000 per month, despite evidence that he was a marble stone worker earning substantially more. He relies on established notional income benchmarks from Ramachandrappa (Rs. 4,500 for a Coolie in 2004) and Syed Sadiq (Rs. 6,500 for a vegetable vendor in 2006), as well as Soman v. Jinesh James (Kerala, ILR 2020) establishing Rs. 7,500 for a Coolie Worker; In view of the 2006 accident, these authorities justify notional income around Rs. 7,500. The appellant argues for enhancement of other heads, including Pain and Suffering (Rs. 50,000), Loss of Earning Capacity, and Loss of Amenities, as well as expenses for future treatment. The Tribunal's award is unreasonably low and inconsistent with fair compensation; He submits that Section 168's 'just compensation' concept requires reasonable standards of fairness and equitability; He asks for re-calculation using the above notional income and recommendations from Pranay Sethi for 'just' relief; The appellant also highlighted hospitalization for 21 days and the nature of the injuries as serious; He asserts not permanent disability; The remedy requested is to allow the appeal and recompute the award accordingly.

Contentions of Respondents

The respondents contend that the Tribunal's award was just and the notional income of Rs. 4,000 was appropriate given evidence of occupation and the absence of permanent disability. They rely on Ext X1 and hospital records showing recovery, and maintain that liability is properly assessed under the MV Act, with the insurer's obligations being limited to its policy terms. They argue no grounds to overturn the award beyond minor adjustments.

Cited Precedents (4)

Case Name	Citation	Treatment	Explanation
National Insurance Company Ltd. v. Pranay Sethi	2017 (16) SCC 680	Positive	Authority on 'just compensation' under Section 168 MV Act and fairness criteria.
Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Ltd.	2011 (13) SCC 236	Positive	Notional income benchmarks for workers like Coolie; used to fix notional income in this case.
Syed Sadiq and Others v. Divisional Manager, United India Insurance Company	2014 (2) SCC 735	Positive	Authority on notional income for specific occupations.
Soman v. Jinesh James and Others	ILR 2020 (3) Kerala 1003	Positive	Kerala High Court authority on notional income for 2010 period.

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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** **FRIDAY, THE 05TH DAY OF MARCH 2021 / 14TH PHALGUNA, 1942** **MACA.No.2025 OF 2014** **AGAINST THE AWARD IN OP(MV) 2068/2008 DATED 30-11-2013 ON THE FILE OF THE ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL, ERNAKULAM** ## **APPELLANT/PETITIONER:** **M.HARISH, AGED 32 YEARS, S/O.MURALI, MOOZHOTHKAD HOUSE, JANATHA JUNCTION, KUMBALANGHIVAZHI, PALLURUTHY, COCHIN-682 006** **BY ADVS. SRI.RAHUL SASI SMT.NEETHU PREM** ## **RESPONDENTS/RESPONDENTS:** |**1**|**SHEEJA ANEESH,**| |---|---| ||**W/O.ANEESH, CHAKKANATTUPADIKKAL HOUSE, NAMBIAPURAM**| ||**PALLURUTHY, COCHIN-682 006**| |**2**|**ANTONY JESTINE,**| ||**S/O.ANTONY, PUTHENVEETTIL HOUSE, SOUTH OF GOVERNMENT**| ||**HOSPITAL, KUMBALANGHI, COCHIN-682 007**| |**3**|**THE NATIONAL INSURANCE CO.LTD.,**| ||**ST.AUGUSTINE CHURCH BUILDING, N.H.BYEPASS JUNCTION**| ||**AROOR, PIN-688 534**| |**4**|**UNITED INDIA INSURANCE CO. LTD.,**| ||**BRANCH OFFICE-4, JOS TRUST BUILDING, CHITTOOR ROAD**| ||**COCHIN-682 035**| ||**R1 BY ADV. SRI.M.A.GEORGEBONO MEMO**| ||**R1 BY ADV. SMT.DEEPA GEORGE**| ||**R1 BY ADV. SRI.P.MURALEEDHARAN**| ||**R3 BY ADV. SRI.M.A.GEORGE(B/O,NO MEMO)**| **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 01-09-2014, THE COURT ON 05-03-2021 DELIVERED THE FOLLOWING:** **MACA.No.2025 OF 2014 2** ## **JUDGMENT** The appellant was the petitioner in OP(MV) No.2068 of 2008 on the file of the Addl. Motor Accident Claims Tribunal, Ernakulam. The respondents in the claim petition are the respondents in the appeal. The parties are, for the sake of convenience, referred to as per their litigate status in the claim petition. 2. The concise case of the petitioner in the claim petition before the Tribunal, for the determination of the appeal, was that: On 23.10.2006, as the petitioner was riding a motorcycle bearing Reg.No.KL-7/AD9465 through the Kumbalangi – Palluruthy road, a bus bearing Reg.No.KL7AZ 2554 (offending vehicle) driven by the 2[nd] respondent in a rash and negligent manner hit the motorcycle of the petitioner. The petitioner sustained serious injuries and was treated as an inpatient at the Specialist Hospital, Ernakulam from 23.10.2006 to 13.11.2006. The first respondent was the owner of the vehicle and the third respondent was the **MACA.No.2025 OF 2014 3** insurer. The 4[th] respondent was the insurer of the motorcycle. The petitioner claimed a compensation of Rs.10,02,000/- which was limited to Rs.4,00,000/-. 3. The respondents 1 and 2 were absent and were set ex parte. 4. The third respondent filed a written statement refuting the allegations in the claim petition. However, the third respondent admitted that the offending vehicle had a valid insurance policy. The third respondent also denied that the petitioner sustained injuries and contended that the compensation claimed was excessive and exorbitant. 5. The 4[th] respondent also filed a written statement admitting that the motorcycle was insured by it. However, the 4[th] respondent contended that it had no liability to pay any amount towards compensation because the accident was caused due to the negligence of the driver of the offending vehicle. 6. The petitioner was examined as PW1 and Exts.A1 to A11 series were marked in evidence. The non-disability ## **MACA.No.2025 OF 2014 4** certificate was marked as Ext.X1. The respondent did not let in any evidence. 7. The Tribunal, after considering the pleadings and materials on record, by the impugned award allowed the claim petition in part, by permitting the petitioner to realise an amount of Rs.1,70,310/- from the third respondent as compensation with interest on it at 8% per annum from 4.10.2008 till the date of deposit and proportionate cost. 8. The comparative table of compensation that was sought for by the petitioner and that was awarded by the Tribunal is as follows: |Tribunal is as follows:||| |---|---|---| |Head|Amount claimed (in Rs.)|Amount Awarded (in Rs.)| |Loss of earnings|1,00,000/-|16,000/- (4000 X 4 months| |Transportation expenses|10,000/-|1,000/-| |Extra-nourishment|25,000/-|2,500/-| |Damages to clothing|2,000/-|1000/-| |Medical Treatment|100,000/-|87,410/-| |Bystander Expenses|15,000/-|2,400/ (200 X 21 days)| |Pain and suffering|50,000/-|30,000/-| |Permanent Disability|1,50,000/-|Not entitled| **MACA.No.2025 OF 2014 5** |Compensation for disfiguration|25,000/-|10,000/-| |---|---|---| |Loss of amenities and enjoyment in life|200,000/-|| |Loss of earning capacity|2,00,000/-|| |Expenses for future treatment|75,000/-|| |Compensation for short expectation in life|50,000/-|| |Total Claim is limited to Rs.4,00,000/-|10,02,000/--|1,70,310/-| 9. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioner is in appeal. 10. Heard the learned counsel appearing for the appellant/petitioner and the learned counsel appearing for the respondents 3 and 4/ respondents 3 and 4 - Insurance Companies. 11. The question that emerges for consideration in this appeal is whether the quantum of compensation awarded by the Tribunal is reasonable and just. 12. A Constitution Bench of the Hon'ble Supreme **MACA.No.2025 OF 2014 6** Court in _**National Insurance Company Ltd., v. Pranay Sethi (2017 (16) SCC 680)**_ , has held that Section 168 of the Motor Vehicles Act, 1988, deals with the concept of 'just compensation' and the same has to be determined on the foundation of fairness, reasonableness and equitability on acceptable legal standards. The conception of 'just compensation' has to be viewed through the prism of fairness, reasonableness and non-violation of the principle of equitability. 13. Ext.A10 charge sheet filed by the police after investigation substantiates that the accident occurred on 23.10.2006, as pleaded in the claim petition, due to the rashness and negligence on the part of the second respondent. Ext.A2 discharge summary also proves that the petitioner underwent hospitalization for a period of 21 days. It is discernible from Ext.A1 wound certificate that the petitioner sustained serious injuries including type 3 open fracture on the medial malleolus with bone loss and soft tissue loss. However, as per Ext.X1 certificate, it is **MACA.No.2025 OF 2014 7** evidenced that the petitioner had not suffered any permanent disability. 14. The area of dispute is regarding the fixation of notional income of the petitioner. 15. The petitioner had claimed that he was a marble stone worker earning an amount of Rs.7,500/- per month. However, the Tribunal, on finding that no reliable materials were placed to prove the vocation of the petitioner, fixed the petitioner's monthly notional income at Rs.4,000/-. 16. The Hon'ble Supreme Court in _**Ramachandrappa vs. Manager, Royal Sundaram Alliance Insurance Company Ltd., (2011 (13) SCC 236)**_ and _**Syed Sadiq and Others vs. Divisional Manager, United India Insurance Company (2014 (2) SCC 735)**_ has fixed the notional income of a Coolie Worker at Rs.4.500/- per month in the year 2004 and that of a Vegetable Vendor in the year 2006 at Rs.6500/- per month. Similarly, this Court in _**Soman v. Jinesh James and Others [ILR 2020 (3) Kerala 1003]**_ has fixed the notional income of a Coolie **MACA.No.2025 OF 2014 8** Worker in the year 2010 @ Rs.7,500/- per month. 17. Following the above parameters laid down by the Hon'ble Supreme Court and this Court in the aforecited decisions, I am of the opinion that, the petitioner who claimed to be a marble stone worker and there being no contra evidence from the respondents, and the accident having occurred in the year 2006, the petitioner's notional income can safely be fixed at Rs.7,500/- as claimed in the claim petition. 18. In light of the re-fixation of the notional income of the petitioner, his loss of earnings is re-fixed at Rs.30,000/instead of Rs.16,000/- as fixed by the Tribunal. 19. It is seen that the petitioner had undergone inpatient treatment for 21 days at the Specialist Hospital and underwent external fixation for healing the fracture. Though the petitioner had claimed an amount of Rs.50,000/under the head 'pain and suffering', the Tribunal awarded only an amount of Rs.30,000/-. This according to me is on the lower side. Taking note of the above materials, I am of ## **MACA.No.2025 OF 2014 9** the opinion that the petitioner is entitled to an amount of Rs.50,000/- under the said head. 20. With respect to the other heads of claim, I find that the Tribunal has awarded reasonable and just compensation. 21. Therefore, on an overall re-appreciation of the pleadings, materials on record and the law laid down by the Hon'ble Supreme Court and this Court in the aforecited decisions, I am of the firm opinion that the petitioner is entitled for enhancement of the amounts as modified and recalculated above and given in the table below for easy reference. |Head|Amount claimed (in Rs.)|Amount Awarded by the Tribunal (in Rs.)|Amounts modified and recalculated by this Court| |---|---|---|---| ||||| |Loss of earnings|1,00,000/-|16,000/- (4000 X 4 months|30,000/-| |Transportation expenses|10,000/-|1,000/-|1,000/-| |Extra- nourishment|25,000/-|2,500/-|2,500/-| **MACA.No.2025 OF 2014 10** |Damages to clothing|2,000/-|1000/-|1000/-| |---|---|---|---| |Medical Treatment|100,000/-|87,410/-|87,410/-| |Bystander Expenses|15,000/-|2,400/ (200 X 21 days)|2,400/ (200 X 21 days)| |Pain and suffering|50,000/-|30,000/-|50,000/-| |Permanent Disability|1,50,000/-|Not entitled|--| |Compensation for disfiguration|25,000/-|10,000/-|10,000/-| |Loss of amenities and enjoyment in life|200,000/-||| |Loss of earning capacity|2,00,000/-||| |Expenses for future treatment|75,000/-||| |Compensation for short expectation in life|50,000/-||| |Total (Claim is limited to Rs.4,00,000/-)|10,02,000/-|1,70,310/-|2,04,341/-| In the result, the appeal is allowed in part, by enhancing the compensation by a further amount of Rs.34,000/- with interest at the rate of Rs.8% per annum on the enhanced compensation from the date of petition till the ## **MACA.No.2025 OF 2014 11** date of realisation and proportionate costs. The third respondent shall deposit the additional compensation granted in this appeal before the Tribunal with interest and proportionate costs within a period of two moths from the date of receipt of a copy of this judgment. The Tribunal shall disburse the additional compensation to the appellant/ petitioner in accordance with law. Sd/-. **C.S.DIAS, JUDGE** pm