High Court of KeralaSingle Judge2020-08-17MACA No.2751/2017 – Rejected; Cross-appeal dism...

MACA.No.2232 of 2017 (B) and MACA.No.2751 of 2017

Case / Petition Number:MACA No. 2232 of 2017 (B); MACA No. 2751 of 2017

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: K. Vinod Chandran
Judgment Date: 2020-08-17
Court Decision / Holding: MACA No.2232 of 2017 allowed; enhanced compensation awarded with heads adjusted (total Rs 12,43,260) and payment to be made within three months with 9% interest. MACA No.2751 of 2017 rejected; cross-appeal dismissed. The insurer shall credit the payment via NEFT/RTGS after obtaining bank details and ID, with necessary court-fee remittances.
Final Disposition: MACA No.2751/2017 – Rejected; Cross-appeal dismissed. MACA No.2232/2017 – Allowed; enhanced award with specified heads and total; payment within three months with 9% interest.

Parties to the Case

Appellants / Petitioners

O.K. Saji
The New India Assurance Company Limited

Respondents

Williams
M. Sandeep

Legal Representation & Advocates

Counsels for Petitioners

• Sri Sheji P. Abraham
• Sri Mathews Jacob (Sr.)
• Sri P. Jacob Mathew

Counsels for Respondents

• Sri C.A. Chacko
• Sri P. J. Mathew
• Sri Mathews Jacob Sr.

Case Synopsis & Summary

These related MACA appeals were heard by a single judge of the Kerala High Court on 17 August 2020, arising from an award under OP(MV) 754/2015 of the MACT Ottapalam. The insurer challenged the award on grounds including a missing badge/licence of the driver. The court invoked Mukund Dewangan v. Oriental Insurance Co. Ltd. to hold that there is no badge requirement for a vehicle with unladen weight below 7500 kg, and that the type of vehicle does not absolve the insurer of liability where the vehicle qualifies as a LMV with unladen weight below the threshold. The goods vehicle, though a Medium Goods Vehicle, had an unladen weight below the prescribed limit and the driver held an LMV licence; hence the insurer's appeal was not entertained. The injured claimant, through MACA 2232/2017, sought enhancement of compensation. Relying on Ramachandrappa and Pranay Sethi, the court recognised an incremental income principle for even self-employed/unorganized sector workers, adopting a notional income of Rs. 10,000 per month for 2015. The court recalculated compensation across heads: loss of earnings, transport, nourishment, clothing, medical and miscellaneous, future medical expenses, bystander’s expenses, pain and suffering, disability, and loss of enjoyment of life, resulting in a total of Rs 12,43,260. The insurer's cross-appeal in MACA 2751/2017 was rejected; the enhanced award stands to be paid within three months with 9% interest.

Legal Doctrines & Maxims

Notional income doctrine for compensation calculations
Incremental income principle for unorganized sector/self-employed workers
Use of precedents (Ramachandrappa; Pranay Sethi) to justify enhancements

Submissions & Arguments

Contentions of Appellants / Petitioners

The applicants contended for enhancement of compensation, arguing that the notional income should be increased to reflect 2015 economic realities and that the court should apply the incremental enhancement principle for unorganized sector workers, as recognised in Pranay Sethi and Ramachandrappa, leading to higher awards for the claimant’s losses, medical costs, future care, and disability. The applicant emphasized the 30% disability and the need for adequate compensation for pain, loss of enjoyment, and loss of earnings.

Contentions of Respondents

The respondents contended that the driver’s badge/licence deficiency undermines liability and challenged the enhancement; they urged adherence to the Tribunal award or a more limited increase and objected to the expansive use of the notional-income approach and incremental enhancement.

Cited Precedents (3)

Case Name	Citation	Treatment	Explanation
Mukund Dewangan v. Oriental Insurance Company Limited	2017 (3) KLT 1000 (SC)	Positive	Cited to support the proposition that badge/vehicle-type requirements do not absolve liability and that the Insurance Company’s appeal fails where weight/licensing issues do not preclude liability.
Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited	(2011) 13 SCC 236	Positive	Cited to justify incremental income enhancement for self-employed/unorganized sector in determining compensation.
National Insurance Co. Ltd. v. Pranay Sethi	(2017) 16 SCC 680	Positive	Cited for the principle of incremental enhancement and notional income considerations in motor accident claims.

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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 K.VINOD CHANDRAN** **MONDAY, THE 17TH DAY OF AUGUST 2020 / 26TH SRAVANA, 1942** ## **MACA.No.2232 OF 2017(B)** **AGAINST THE AWARD IN OP[MV] NO.754/2015 DATED 27-04-2017 OF THE MOTOR ACCIDENT CLAIMS TRIBUNAL, OTTAPPALAM** ## **APPELLANT/PETITIONER:** **O.K.SAJI, AGED 34 YEARS, S/O.KUNUNNY, OLLUKKARA HOUSE, MUTHUVARA DESOM, PUZHAKKAL P.O., ADAT PANCHAYATH, THALAPPILLY TALUK, THRISSUR DISTRICT-680553.** **BY ADV. SRI.SHEJI P.ABRAHAM** ## **RESPONDENTS/RESPONDENTS:** |**1**|**WILLIAMS, AGE NOT KNOWN TO THE PETITIONER**| |---|---| ||**S/O.VARGHESE, VAZHAPPILLY HOUSE, PULLAZHI P.O.,**| ||**THRISSUR-680012.**| ||**(DRIVER OF THE LORRY REG.NO.KL-8 BA 153)**| |**2**|**M.SANDEEP, AGE NOT KNOWN TO THE PETITIONER**| ||**S/O.NARAYANANKUTTY, PROPRIETOR,**| ||**NANDANAM SANITARIES, NEAR SOBHA CITY , PUZHAKKAL,**| ||**THRISSUR-680553.**| ||**(OWNER OF THE LORRY REG.NO.KL-8-BA153)**| |**3**|**THE NEW INDIA ASSURANCE COMPANY LIMITED**| ||**BRANCH OFFICE, FAIZAL BUILDING, OTTAPALAM,**| ||**POLICY NO 7603013114030046434.**| ||**R1-2 BY ADV. SRI.C.A.CHACKO**| ||**R1, R3 BY ADV. SRI.P.JACOB MATHEW**| ||**R1 BY ADV. SRI.MATHEWS JACOB SR.**| **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 17.08.2020, ALONG WITH MACA NO.2751/2017(F), THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA.No.2232 & 2751 OF 2017 2 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **MONDAY, THE 17TH DAY OF AUGUST 2020 / 26TH SRAVANA, 1942** ## **MACA.No.2751 OF 2017** **AGAINST THE AWARD IN OP[MV] NO.754/2015 DATED 27-04-2017 OF THE MOTOR ACCIDENT CLAIMS TRIBUNAL, OTTAPPALAM** ## **APPELLANT/3RD RESPONDENT:** **THE NEW INDIA ASSURANCE COMPANY LIMITED OTTAPALAM NOW REP. BY ITS REGIONAL MANAGER, REGIONAL OFFICE, M.G. ROAD, KOCHI-11** **BY ADVS. SRI.MATHEWS JACOB (SR.) SRI.P.JACOB MATHEW** ## **RESPONDENTS/RESPONDENTS:** **1 WILLIAMS, S/O.VARGHESE, VAZHAPPILLY HOUSE, PULLAZHI P.O. THRISSUR, PIN- 680 012. 2 M.SANDEEP, S/O NARAYANANKUTTY, PROPRIETOR, NANDANAM SANITARIES, NEAR SOBHA CITY, PUZHAKKAL, THRISSUR- 680 553.** **R1-2 BY ADV. SRI.C.A.CHACKO** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 17.08.2020, ALONG WITH MACA NO.2232/2017(B), THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA.No.2232 & 2751 OF 2017 3 ## **JUDGMENT** **The appellants are the Insurer and claimants. The Insurance Company had filed the appeal [MACA No.2751 of 2017] on the ground that the driver of the goods vehicle, which was involved in the accident, did not have a badge and he did not have a licence to drive a transport vehicle.** _**Mukund Dewangan v. Oriental Insurance Company Limited [2017 (3) KLT 1000 (SC)**_ **categorically held that there is no requirement for a badge and the type of the vehicle does not absolve the Insurance Company, insofar as it is a vehicle with less than unladen weight of 7500 Kg; which is an LMV. The goods lorry though a Medium Goods Vehicle [MGV] had unladen weight below that prescribed and the driver had an LMV licence. In such circumstance, this Court does not find any reason to entertain the appeal of the Insurance Company. Hence, M.A.C.A.** MACA.No.2232 & 2751 OF 2017 4 **No.2751 of 2017 is rejected.** **2. The injured had filed M.A.C.A. No.2232 of 2017 for enhancement. The accident occurred on 02.05.2015, when the injured was driving a motor bike. The goods vehicle hit the motor bike, thus causing the accident. The negligence was found on the driver of the goods vehicle, which was also covered by a valid policy.** **3. The appellant claimed that he was the Division Manager in a Private Company earning Rs.15,000/- monthly income. The appellant did not produce anything to indicate the employment or the salary drawn by him. The Tribunal fixed it at Rs.6,000/-. A coolie was fixed with a notional income of Rs.4,500/- per month in the year 2004, in** _**Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited**_ **[** _**(2011) 13 SCC 236**_ **]. The Hon'ble Supreme Court has also recognised the principle that there would be incremental** MACA.No.2232 & 2751 OF 2017 5 **enhancement in the case of even self-employed individuals in the un-organised sector (** _**National Insurance Co. Ltd. vs. Pranay Sethi (2017)16 SCC 680**_ **). With respect to an unspecified job of a coolie considering the increase in cost of living and economic advancements over the years, it can be safely assumed that even a coolie would be eligible for incremental addition of at least Rs.500/- in every subsequent year. Hence, even a coolie is entitled to Rs.9,500/- per month, this Court is of the opinion that a notional income of Rs.10,000/can be adopted in the case of the appellant in the year 2015.** **4. The injuries caused to the appellant in the accident are the following:** - **i. Abrasion right leg.** **ii. Avulsion injury right foot.** **iii. Crush injury right foot.** **iv. Fracture both bone right leg.** MACA.No.2232 & 2751 OF 2017 6 ## **v. Fracture Rt.tibia, fracture 5[th] metatarsal.** **The disability was assessed at 30% by a Doctor's Certificate, which was adopted by the Tribunal. The multiplicand is correct and so is the computation for dependency. The enhancement has to be, insofar as, the notional income adopted.** **5. Accordingly, the following enhancements are made to the award passed by the Tribunal:** |**Sl.** **No.**|**Head of Claim**|**Amount** **awarded by** **the Tribunal** `|**Total amount** **after** **enhancement** **in appeal** `| |---|---|---|---| |**1**|**Loss of earning**|**48,000**|**80,000** **[10000x8]**| |**2**|**Transportation expenses**|**8,000**|**8,000**| |**3**|**Extra nourishment**|**11,800**|**11,800**| |**4**|**Damage to clothing**|**1,000**|**1,000**| |**5**|**Medical and** **miscellaneous expenses**|**4,69,660**|**4,69,660**| |**6**|**Future medical expenses**|**10,000**|**10,000**| MACA.No.2232 & 2751 OF 2017 7 |**7**|**Bystander's expenses**|**11,800**|**11,800**| |---|---|---|---| |**8**|**Pain and suffering**|**50,000**|**50,000**| |**9**|**Compensation for** **continuing permanent** **disability**|**3,45,600**|**5,76,000** **[10000*12*16*30%]**| |**10**|**Loss of enjoyment and** **amenities of life**|**25,000**|**25,000**| ||**Total**|**9,80,860**|**12,43,260**| **M.A.C.A. No.2232 of 2017 would stand allowed. The payment as per the award and the modification made herein shall be made within three months with interest as directed by the Tribunal @ 9%, after deducting the amounts already paid or deposited. The appellant shall produce a copy of a cancelled cheque of the Bank Account in a Nationalized Bank in his name, with copy of AADHAAR or acceptable identification, before the Tribunal within one month, with copy to the Insurance Company. The Insurance Company shall credit the amounts through NEFT/RTGS mode to the said account, failing which the Tribunal shall proceed with the** MACA.No.2232 & 2751 OF 2017 8 **recovery in accordance with law. The Insurance Company shall ensure that the Court Fees for the amounts awarded in excess of that claimed in the claim application, shall be remitted directly to the Tribunal from the amounts due for payment to the claimants.** **Sd/-** **K. VINOD CHANDRAN, Judge.** **sp/17/08/2020** **//True Copy//** **P.A. To Judge**