High Court of KeralaSingle Judge2021-06-22Appeal allowed in part; compensation enhanced; ...

MACA NO. 2227 OF 2009

Case / Petition Number:MACA NO. 2227 OF 2009

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: C. S. Dias
Judgment Date: 2021-06-22
Court Decision / Holding: The appeal is allowed in part; the compensation is enhanced by Rs 14,000 with interest at 7% per annum from the date of petition till realisation and proportionate costs. The 2nd respondent is directed to deposit the additional compensation before the Tribunal with interest and proportionate costs within two months from receipt of a certified copy of this judgment, and the Tribunal shall disburse the enhanced amount to the appellant in accordance with law.
Final Disposition: Appeal allowed in part; compensation enhanced; insurer liable for enhanced amount; two-month deposit window; Tribunal to disburse accordingly.

Parties to the Case

Appellants / Petitioners

RAJESH, S/O.KUMARAN

Respondents

P.V. POULOSE
UNITED INDIA INSURANCE CO. LTD.
VARGHESE SHIBU

Legal Representation & Advocates

Counsels for Petitioners

• SMT. LATHA PRABHARAN

Counsels for Respondents

• Sri P.K. MANOJKUMAR

Case Synopsis & Summary

This High Court of Kerala, in MACA No. 2227 of 2009, examines an appeal from an award under the Motor Vehicles Act rendered by the Principal Motor Accident Claims Tribunal, Kozhikode. Rajesh, the appellant and the claimant in OP(MV) No. 572/2003, sustained injuries when a parked mini lorry (Reg. No. KL-6/9380) tilted and collapsed on him on 20 June 2002 at Koodathai Muslim Palli. The accident was caused by the rash and negligent act of the vehicle owner (1st respondent); the lorry's insurer (2nd respondent) disputed liability on the ground that the appellant was a gratuitous passenger and not covered by the policy, while the owner and third party did not contest. The Tribunal held the insurer liable and awarded Rs 16,100 with 7% interest from 28 February 2002, along with costs. On appeal, the appellant contends that the compensation is inadequately low despite inpatient treatment for 15 days and serious injuries evidenced by Ext A1. The insurer argues that gratuitous passenger coverage was excluded by Ext B1. The Kerala High Court, relying on Ramachandrappa v. Manager, Royal Sundaram, re-fixes the appellant's notional income at Rs 4,000 per month, enhances loss of income to Rs 12,000 and loss of amenities to Rs 7,500, and finally allows the appeal in part, increasing total compensation from Rs 16,100 to Rs 30,100 and awarding an additional Rs 14,000 with interest at 7%. The liability remains with the insurer, and the insurer is directed to deposit the enhanced amount within two months.

Legal Doctrines & Maxims

Notional income principle for quantum of compensation (Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Co. Ltd., 2011 (13) SCC 236)
Gratuitous passenger concept under motor vehicle insurance and related liability analysis

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellant contends that the Tribunal awarded meager compensation despite inpatient treatment for 15 days and serious injuries, as evidenced by Ext A1. He was a driver by profession and not a gratuitous passenger, so notional income should reflect his earning capacity. Relying on Ramachandrappa (2011), the appellant argues the notional income should be higher, and the Tribunal erred in the quantum. The appeal also seeks enhancement under heads such as loss of income and loss of amenities, arguing the amount awarded by the Tribunal was inadequate to reflect actual losses and the period of disability. The liability of the insurer should be upheld, as policy Ext B1 does not exclude all compensation in a manner that absolves liability; the insurer did not challenge the liability finding in the Tribunal.

Contentions of Respondents

The respondents contend that the policy excludes gratuitous passengers, so the insurer should not be liable for compensation to a gratuitous passenger. They argue that the Tribunal’s finding on liability was erroneous and that the notional income calculation, if touched at all, must align with policy terms and evidence. No cross-appeal was filed by the insurer challenging liability findings in the tribunal. They assert the compensation awarded by the Tribunal is reasonable given the evidence and that the appellant did not provide adequate material to prove higher income or greater loss of amenities.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Co. Ltd.	2011 (13) SCC 236	Positive	The court relies on Ramachandrappa's notional income framework to re-fix the appellant's notional income and to quantify compensation.

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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 22[ND] DAY OF JUNE 2021 / 1ST ASHADHA, 1943** **MACA NO. 2227 OF 2009** **AGAINST THE ORDER/JUDGMENT IN OP(MV) 572/2003 OF PRINCIPAL MOTOR** **ACCIDENT CLAIMS TRIBUNAL ,KOZHIKODE,** ## **APPELLANT/PETITIONER IN O.P(MV):** RAJESH, S/O.KUMARAN, AGED 32 YEARS, RESIDING AT VALLIKUDIYIL HOUSE, KODENCHERY.P.O., POOLAPPARA, KOZHIKODE. BY ADV SMT.LATHA PRABHAKARAN ## **RESPONDENTS/RESPONDENTS IN OP(MV):** 1 P.V.POULOSE, S/O.VARGHESE, AGE NOT KNOWN RESIDING AT PUNNAKOMBIL HOUSE,, MAIKKAVU, KOODATHAI AMSOM, KOZHIKODE. 2 UNITED INDIA INSURANCE CO. LTD. BRANCH OFFICE, THAMARASSERY. 3 VARGHESE SHIBU, S/O. POULOSE, PUNNAKOMBIL HOUSE, P.O.MAIKKAVU,, KOZHIKODE. BY ADV SRI.P.K.MANOJKUMAR THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 22.06.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **MACA NO. 2227 OF 2009 2** ## **JUDGMENT** The appellant was the petitioner in OP(MV) No.572 of 2003 on the file of the Principal Motor Accident Claims Tribunal, Kozhikode. The respondents in the claim petition are the respondents in the appeal. 2. The relevant facts in the claim petition, for the determination of the appeal, are: On 20.06.2002 while the appellant was travelling in a Mini Lorry bearing Reg. No.KL-6/9380, while the vehicle was parked at Koodathai Muslim Palli, the load in the vehicle tilted and fell on the appellant causing him injuries. The 1[st] respondent is the owner of the vehicle, which was insured with the 2[nd] respondent. The appellant was aged 27 years and was a driver by profession. He was earning a monthly income of Rs.5,000/-. The accident occurred solely due to the rashness and negligence on the part of the 1[st] respondent. ## **MACA NO. 2227 OF 2009 3** Hence, the respondents were jointly and severally liable to pay compensation to the appellant, which he quantified at Rs.2,71,000/-, but limited to Rs.2,00,000/-. 3. The 2[nd] respondent filed a written statement admitting that the vehicle had a valid insurance policy. However, it was contended that the 2[nd] respondent had no liability to compensate the appellant as he was a gratuitous passenger in the vehicle. The lorry was not meant for carrying passengers. 4. The respondents 1 and 3 did not contest the proceedings. 5. The appellant was examined as PW1 and Exts.A1 to A4 were marked on his side in evidence. The 2[nd] respondent produced Ext.B1 insurance policy which was marked in evidence. 6. The Tribunal, after analyising the pleadings and materials on record, by the impugned award allowed the ## **MACA NO. 2227 OF 2009 4** claim petition in part, by directing the 2[nd] respondent to pay an amount of Rs.16,100/- with interest @ Rs.7% per annum from 28.2.2002 till the date of payment and proportionate costs. 7. Dissatisfied with the quantum of compensation, the petitioner is in appeal. 8. Heard the learned counsel appearing for the appellant/petitioner and the learned counsel appearing for the 2[nd] respondent. 9. The learned counsel for the appellant argued that the Tribunal has not awarded just and reasonable compensation to the appellant. The appellant underwent treatment for 15 days as an inpatient and he had sustained serious injuries in the accident as evidenced from Ext.A1 Wound Certificate. Nevertheless, the Tribunal had awarded a amount as only meager compensation. **MACA NO. 2227 OF 2009 5** 10. Per contra, the learned counsel appearing for the 2[nd] respondent argued that the 2[nd] respondent is not liable to pay any amount as compensation, because as per Ext.B1 insurance policy a gratuitous passenger is not covered. However, the Tribunal has erroneously directed the 2[nd] respondent to pay the compensation. 11. The questions that emerge for consideration in this appeal are (i) whether the 2[nd] respondent can be exonerated to pay compensation and (ii) whether the compensation is awarded by the Tribunal is reasonable and just. 12. Undisputedly, the Tribunal by the impugned award has found that the appellant was not a gratuitous passenger to be excluded as per Ext.B1 insurance policy. The 2[nd] respondent has not preferred any appeal challenging the findings of the Tribunal. Therefore, the finding of the Tribunal as regards the liability of the 2[nd] **MACA NO. 2227 OF 2009 6** respondent has become final and conclusive and the 2[nd] respondent cannot take such a contention in the appeal preferred by the petitioner/appellant. Hence, the said contention is meritless and is only liable to be rejected. 13. Now coming to the question as to whether the quantum of compensation awarded by the Tribunal is reasonable and just. 14. The appellant had claimed that he was a driver by profession and earning an amount of Rs.5000/- per month. The Tribunal fixed the notional income of the appellant at Rs.17,000/- per annum, i.e Rs.1416/- per month. True, the appellant had not produced any materials to substantiate his contention. 15. The Hon'ble Supreme Court in _**Ramachandrappa vs. Manager, Royal Sundaram Alliance Insurance Company Ltd., (2011 (13) SCC 236)**_ has fixed the notional income of a Coolie Worker in the year 2004 **MACA NO. 2227 OF 2009 7** at Rs.4,500/- per month. 16. Following the parameters laid down in the aforecited decision and taking into consideration the fact that the appellant was only 27 at the time of accident and that he was a driver by profession, I am of the considered opinion that the appellant's notional income can be safely be fixed at Rs.4,000/- per month. Hence, I re-fix the notional income of the appellant at Rs.4,000/- per month instead of Rs.1416/- per month fixed by the Tribunal. 17. In view of re-fixation of the notional income of the appellant and the fact that he was unable from carrying on his avocation for a period of three months, I find that the appellant is entitled for enhancement of compensation under the head 'loss of income' at Rs.12,000/- instead of Rs.3,500/- fixed by the Tribunal, i.e an enhancement of Rs.8,500/- under the said head. 18. The appellant had claimed an amount of **MACA NO. 2227 OF 2009 8** Rs.25,000/- as compensation under the head 'loss of amenities', but the Tribunal awarded only an amount of Rs.2,000/-. Considering the fact that the appellant was treated as an inpatient for 15 days and that he was unable to carry on his avocation for a period of three months, I am of the opinion that the appellant is entitled for an amount of Rs.7,500/- under the head loss of amenities, i.e an enhancement of Rs.5,500/-. 19. With respect to the other heads of claim awarded by the Tribunal, I find that the Tribunal has awarded reasonable and just compensation. 20. On an over all re-appreciation of the pleadings and materials on record and the law laid down by the aforecited decision, I am of the considered opinion that the appellant is entitled for enhancement of compensation as modified and recalculated above and given in the table below for easy reference. **MACA NO. 2227 OF 2009 9** |Head of claim|Amount Awarded by the Tribunal (in Rs.)|Amounts modified and recalculated by this Court| |---|---|---| |||| |Medical Treatment|1,500/-|1,500/-| |Incidental charges|1,600/-|1,600/-| |Pain and sufferings|7,000/-|7,000/-| |Loss of amenity|2,000/-|7,500/-| |Loss of income|3,500/-|12,000/-| |Transportation expenses|500/-|500/-| |Total|16,100/-|30,100/-| In the result, the appeal is allowed in part, by enhancing the compensation by a further amount of **MACA NO. 2227 OF 2009 10** Rs.14,000/- with interest at the rate of Rs.7% per annum on the enhanced compensation from the date of petition till the date of realisation and proportionate costs. The 2nd respondent shall deposit the additional compensation awarded in this appeal before the Tribunal with interest and proportionate costs within a period of two months from the date of receipt of a certified 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