High Court of KeralaSingle Judge2020-06-19MACA dismissed; Tribunal award stands.

MACA No. 3076 of 2017 (B) — United India Insurance Company Limited v. Kallyani and others

Case / Petition Number:MACA.No.3076 of 2017(B)

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: N. Nagareesh
Judgment Date: 2020-06-19
Court Decision / Holding: MACA dismissed; the High Court upheld the Tribunal’s award and found no merit in the insurer’s contentions.
Final Disposition: MACA dismissed; Tribunal award stands.

Parties to the Case

Appellants / Petitioners

United India Insurance Company Limited

Respondents

Kallyani
Shijil Kumar
Saneesh

Legal Representation & Advocates

Counsels for Petitioners

• John Joseph Vettikad

Counsels for Respondents

• Smt. K.V. Reshmi

Case Synopsis & Summary

This High Court of Kerala, Ernakulam, heard a Motor Accidents Claims Appeal arising from an award of the Motor Accidents Claims Tribunal, Vatakara, in OP(MV) No.406/2014 dated 11 April 2017. The first respondent, aged about 60, suffered grievous injuries in a road traffic accident on 20 March 2014 when a lorry owned by the second respondent and driven by the third respondent struck her as she walked along the Kuttiadi–Perambra road. The Tribunal found negligence on the part of the vehicle’s owner and driver and awarded a total compensation of ₹16,94,481 (rounded to ₹16,94,490) under multiple heads, including loss of earnings, medical expenses, hospitalization, pain and suffering, loss of amenities, and substantial sums for ongoing care: ₹4,20,000 for home nursing and ₹8,00,000 for prosthetics and maintenance, even though the disability certificate showed 30% disability and the tribunal assessed 50% disability for WC Act purposes. The appellant insurer challenged the award, arguing that the notional income of ₹5,000 per month fixed by the Tribunal in 2014 was too low, that the home nursing and prosthetics figures were unsupported or excessive, and that Workmen’s Compensation Act Schedule could not be used for a Section 166 MVA claim. The respondent claimant supported the award, contending lifelong care is required and the figures are justified. The High Court, while noting the guideline from Syed Sadiq regarding notional income, dismissed the MACA and upheld the Tribunal’s award in full, indicating no merits in the insurer’s challenge.

Provisions of Law Cited

Motor Vehicles Act, 1988, Section 166Workmen's Compensation Act (Schedule)

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellant-insurer submits that applying the Workmen's Compensation Act schedule to a Section 166 MVA claim is incorrect. The notional monthly income fixed at ₹5,000 for a 2014 accident under guidelines from the Supreme Court is inappropriately low; the tribunal’s reliance on a 50% disability, based on a 30% certificate, and the awards of ₹4,20,000 for home nursing and ₹8,00,000 for prosthetics are either unsupported by proper evidence or excessive. It argues the notional income should be ₹9,500 per month as per Syed Sadiq, which would elevate losses and disability benefits and offset any excessive prosthetics/maintenance awards. The insurer requests reduction of the home-nurse and prosthetic costs and overall recalibration of the quantum to reflect legal guidelines and evidence on record.

Contentions of Respondents

The respondent claimant contends the accident caused lifelong disability requiring continuous care. The Tribunal rightly held negligence by the lorry owner and driver and fixed compensation across heads including accommodation for home nursing and prosthetics, which were supported by evidence and necessary for ongoing care. The claimant asserts that a higher notional income (₹10,000 as argued) and consequent recalibration would not undermine the need for lifelong assistance; the present awards already reflect serious injuries and future care costs. The counsel stresses that the award accounts for medical expenses, hospitalization, pain and suffering, and disability compensation suitable to the claimant’s age and condition. The respondent emphasizes that the home nursing and prosthetic heads are justified and essential given the amputation and life-long care requirements.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Syed Sadiq and others v. Divisional Manager, United India Insurance Co. Ltd.	(2014) 2 SCC 735	Positive	The judgment cites this Supreme Court decision to justify fixing notional income at ₹9,500 per month in the absence of other proof, indicating its guidelines were to be followed, and acknowledges that applying these guidelines would influence the compensation calculations.

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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 N.NAGARESH** **FRIDAY, THE 19TH DAY OF JUNE 2020 / 29TH JYAISHTA, 1942** ## **MACA.No.3076 OF 2017(B)** **AGAINST THE AWARD IN OP(MV)No.406/2014 DATED 11-04-2017 OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, VATAKARA** ## **APPELLANT/3rd RESPONDENT:** **UNITED INDIA INSURANCE COMPANY LIMITED, REGIONAL OFFICE, HOSPITAL ROAD ERNAKULAM, COCHIN - 682 035.** **BY ADV. SRI.JOHN JOSEPH VETTIKAD** ## **RESPONDENTS/PETITIONER & RESPONDENTS 1 & 2:** **1 KALLYANI, AGED 50 YEARS, W/O.KUNHIKANARAN, RESIDING AT ARAYULLAPARAMBIL, CHERIYAKUMBALAM P.O., PALERI KUTTIADI (VIA), KOZHIKODE - 673 508. 2 SHIJIL KUMAR, MALANAD AGENCIES, P.O.ORKKATTERI, VELLIKULANGARA, VATAKARA, KOZHIKODE - 673 501. 3 SANEESH, AGED 26 YEARS, S/O.KARUNAN, RESIDING AT CHERUVANGATTU KUNIYIL HOUSE, P.O.ONCHIYAM, VATAKARA, KOZHIKODE - 673 308.** **BY ADV. SMT.K.V.RESHMI** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 19-06-2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA.No.3076 OF 2017(B)** **:2:** ## **J U D G M E N T** ~ ~ ~ ~ ~ ~ ~ ~ ~ ## _**Dated this the 19[th] day of June, 2020**_ The appellant, who is the 3[rd] respondent-insurer in OP(MV) No.406/2014 of the Motor Accidents Claims Tribunal, Vatakara, is in appeal aggrieved by Award dated 11.04.2017. 2. The 1[st] respondent filed OP(MV) No.406/2014 stating that she sustained injuries in a road traffic accident on 20.03.2014 while she was walking along Kuttiadi – Perambra road. A lorry owned by the 2[nd] respondent and driven negligently by the 3[rd] respondent hit the 1[st] respondent. The 1[st] respondent contended that the lorry ran over her left leg and she sustained serious injuries. The 1[st] respondent was first taken to Taluk Hospital, Kuttiadi, from where she was referred to Medical College Hospital, Kozhiode. The left leg of the 1[st] respondent was amputated and she is now bed ridden. She cannot do any work and requires the help of a bystander **MACA.No.3076 OF 2017(B)** **==> picture [23 x 9] intentionally omitted <==** to survive. The 1[st] respondent sought ₹10,00,000/- as compensation. 3. The owner and driver of the offending vehicle remained _ex parte_ . The appellant-insurer filed written statement admitting the policy but, denying negligence of the driver of the offending vehicle. The accident was due to the contributory negligence of the 1[st] respondent, it was contended. 4. The 1[st] respondent-claimant produced Exts.A1 to A13 documents. Disability certificate dated 25.02.2017 was marked as Ext.C1. The Tribunal, on appreciation of evidence, found that the accident occurred due to the negligence of the 2[nd] and 3[rd] respondents. The appellant was held liable to compensate the 1[st] respondent. The Tribunal fixed the notional income of the 1[st] respondent as ₹5,000/-. The Tribunal found that though the disability certificate reveals only 30% disability, as per the Schedule of Workmen's Compensation Act, the disability is to be taken as 50%. **MACA.No.3076 OF 2017(B)** **:4:** Accordingly, the Tribunal awarded ₹16,94,481/- under the following heads:- |**Sl.** **No.**|**The compensation** **claimed under different** **heads**|**Amount** **claimed**|**Amount** **allowed**|**Basis/vital** **details in a** **nutshell**| |---|---|---|---|---| |1|Loss of earnings due to the accident|30,000/-|60,000/-|5000 x 12 months| |2|Transport to hospital|5,000/-|2,000/-|| |3|Medical bills asper A13|35,000/-|2,281/-|| |4|Hospitalization as per A3, A5 & A6|30,000/-|35,200/-|800 x 44 days| |5|Pain and sufferings|50,000/-|50,000/-|| |6|Loss of amenities|45,000/-|25,000/-|| |7|Compensation for 50% disabilityasper W C Act|4,50,000/-|2,70,000/-|5,000x12x9x50%| |8|Compensation for disfiguration of left leg|Nil|30,000/-|| |9|Expenses for home nurse for her care|Nil|4,20,000/-|5,000x12x7 (without interest)| |10|Purchase of prosthetics for left leg with expenses for its maintenance for 7 years|Nil|8,00,000/-|(without interest)| ||**Total**||**16,94,481/- **|**Rounded** **to** `**16,94,490/-**| The amount was to carry 9% interest (except for heads where interest is exempted) from the date of the OP(MV). Aggrieved by the Award, the appellant-insurer has filed this MACA. **MACA.No.3076 OF 2017(B)** **==> picture [23 x 9] intentionally omitted <==** 5. Learned Standing Counsel for the appellant-insurer stated that the 1[st] respondent was 60 years old. The disability fixed by the Tribunal at 50% is erroneous. When the claim was under Section 166 of the Motor Vehicles Act, the Tribunal ought not have adopted the Schedule contained in the Workmen's Compensation Act. The Tribunal granted ₹4,20,000/- towards compensation for engaging Home Nurse. The amount is excessive. Similarly, the Tribunal awarded ₹8 lakhs for purchase of prosthetics for left leg and for its maintenance for seven years. This amount has no basis. There is nothing on record to prove the purchase value of the prosthetics or of its maintenance. Therefore, the Award amount is to be reduced substantially. 6. The learned counsel for the 1[st] respondent submitted that as the accident was in the year 2014, the notional monthly income of the 1[st] respondent ought to have been fixed as ₹10,000/-. The 1[st] respondent is totally bed ridden and cannot live without the assistance of a Nurse for the rest of her life. ₹4,20,000/- granted by the Tribunal **MACA.No.3076 OF 2017(B)** **==> picture [23 x 9] intentionally omitted <==** towards expenses for Home Nurse is therefore perfectly justified. Similarly, the artificial limb sought to be purchased by the 1[st] respondent will cost ₹8 lakhs. Therefore, there is no error on the part of the Tribunal for awarding that amount. 7. I have heard the learned Standing Counsel for the appellant and learned counsel appearing for the 1[st] respondent. 8. Going by the compensation amounts awarded by the Tribunal under various heads, it can be seen that the Tribunal has awarded only ₹2,000/- towards transport to hospital, ₹2,281/- towards medical bills evidenced by Ext.A13 and ₹35,200/- towards hospitalisation. An amount of ₹60,000/- is awarded by the Tribunal towards loss of earning for 12 months. The award of such amounts are based on documentary evidence produced and does not require any revision. 9. The 1[st] respondent had to suffer amputation of one leg at the age of 60 years. The Tribunal awarded ₹50,000/- **MACA.No.3076 OF 2017(B)** **==> picture [23 x 9] intentionally omitted <==** towards pain and suffering, ₹25,000/- towards loss of amenities and ₹30,000/- towards compensation of disfiguration of left leg. Taking note of the serious injuries leading to amputation of a limb, the aforesaid amounts awarded cannot be said to be excessive. 10. The main grievance of the appellant is on awarding of ₹4,20,000/- towards expenses for Home Nurse and ₹8 lakhs for purchase of prosthetics. Learned Standing Counsel strongly argued that the maximum amount that could have been awarded to the 1[st] respondent for expense for Home Nurse is ₹2,50,000/-. Similarly, there is no document or any other evidence to award ₹8 lakhs for purchase of prosthetics. 11. I have considered the afore submissions. The Tribunal has awarded ₹4,20,000/- towards expenses for Home Nurse, taking into account the fact that the left leg of the 1[st] respondent stands amputated and she will require the assistance of a Nurse or bystander for the rest of her life. The Tribunal took ₹5,000/- as monthly expenses payable for **MACA.No.3076 OF 2017(B)** **==> picture [23 x 9] intentionally omitted <==** nursing care and granted compensation for a period of seven years. The rate and duration fixed by the Tribunal cannot be said to be excessive or unreasonable. No interference is therefore warranted in award of compensation towards expenses for Home Nurse. 12. There is some merit in the contention of the counsel for the appellant that in the absence of materials on record, the Tribunal ought not have assumed that the purchase price and maintenance charges of prosthetics would be ₹8 lakhs. True, there is no documentary evidence in support of the cost of prosthetics. The amount of ₹8 lakhs, though inclusive of maintenance, may therefore be slightly on a higher side. 13. But, one factor that has to be taken into account in the case is that the accident occurred in the year 2014 and in spite of the claim of the 1[st] respondent that she was earning ₹10,000/- per month, the Tribunal fixed notional monthly income as ₹5,000/-. Going by the guidelines given by the Hon'ble Apex Court in _**Syed Sadiq and others v. Divisional**_ **MACA.No.3076 OF 2017(B)** **==> picture [23 x 9] intentionally omitted <==** _**Manager, United India Insurance Co. Ltd.** [(2014) 2 SCC 735]_ , the notional monthly income of the appellant should have been fixed at ₹9,500/-, in the absence of any proof of income. Had the Tribunal fixed the income on the above lines, the compensation payable to the appellant under the heads loss of earnings and disability benefits, would have been much much higher. The said amounts would indeed have set off any excess awarded by the Tribunal towards purchase of prosthetics. Therefore, in the said circumstances, interference with the amount of ₹8 lakhs awarded by the Tribunal towards purchase and maintenance of prosthetics, would be unjust and harsh. For the afore reasons, I find that the MACA filed by the appellant-insurer is devoid of merits and accordingly, it is dismissed. Sd/- **N. NAGARESH, JUDGE** aks/17/06/2020