High Court of KeralaSingle Judge2022-08-23The appeal is allowed accordingly; enhanced com...

Mathew v. ABOOOBACKER P. S/O SAVANKUTTY and Abdul Salam and The National Insurance Company Ltd.

Case / Petition Number:MACA NO. 2060 OF 2014

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: Sophy Thomas
Judgment Date: 2022-08-23
Court Decision / Holding: The appeal is allowed. The enhanced compensation is Rs.86,450, computed as the difference across heads (loss of earnings, bystander expenses, loss of earning power, and loss of amenities, with adjustments for mental shock). The 3rd respondent-Insurance Company is directed to deposit the enhanced compensation in the appellant’s bank account with interest at 7.5% per annum from the date of petition till the date of deposit (excluding 123 days of delay in appeal) within two months, after deducting liabilities, if any, and in terms of Circular No.3 of 2019 and OM No.D1/62475/2016. The appeal is allowed; no order as to costs.
Final Disposition: The appeal is allowed accordingly; enhanced compensation to be deposited with interest within two months; no costs.

Parties to the Case

Appellants / Petitioners

MATHEW

Respondents

ABOOBACKER P. S/O SAVANKUTTY
ABDUL SALAM
THE NATIONAL INSURANCE COMPANY LTD.

Legal Representation & Advocates

Counsels for Petitioners

• Zubair Pulikool

Counsels for Respondents

• P. Jacob Mathew

Case Synopsis & Summary

The claimant Mathew challenged the Motor Accidents Claims Tribunal, Vatakara, award in MACT case OPMV 967/2009 for injuries sustained on 20 June 2009 when a car driven rashly by the 2nd respondent collided with the vehicle from which he was unloading goods on a public road at Avolam. The accident left him with a comminuted fracture of the right patella and fractures of the 6th and 7th ribs on the left side; he was hospitalized for periods including readmission due to a secondary infection. Although he was a retired CISF constable, at the relevant time he was employed as a manager earning about Rs.12,000 per month, a fact not proven by employer evidence. The Tribunal fixed his notional income at Rs.4,000 per month, and awarded Rs.3,03,685 in total under various heads, which the appellant challenged. He argued, relying on Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Co. Ltd. (AIR 2011 SC 2951), that his notional income should be Rs.7,000 per month for a 2009 accident year. He sought enhanced compensation for loss of earnings for 9 months (Rs.63,000), bystander expenses (Rs.13,250), greater pain and suffering (Rs.45,000), higher loss of earning power (Rs.1,09,200), and improved loss of amenities (Rs.20,000), while noting the mental shock head should be offset. The Kerala High Court allowed enhanced compensation, computing Rs.86,450 as the net enhancement and directing the insurer to deposit it with 7.5% interest within two months, after deductions for liabilities. The appeal was allowed with no costs.

Submissions & Arguments

Contentions of Appellants / Petitioners

Appellant contended that applying the Ramachandrappa principle to 2009 accident, notional income should be Rs.7,000 per month and that Tribunal’s fixation at Rs.4,000 was erroneous. He argued for enhanced compensation across heads: loss of earnings (9 months at Rs.7,000 = Rs.63,000, with Rs.36,000 already paid), bystander expenses Rs.13,250, pain and suffering Rs.45,000, loss of earning power Rs.1,09,200 (30% disability with proper multiplier), and loss of amenities Rs.20,000, while subtracting Rs.10,000 mental shock where double-counted. He urged the court to adopt higher notional income, recalibrate earnings loss and affronts to comfort.

Contentions of Respondents

3rd respondent insurer did not dispute the period of loss of earnings; no detailed submissions are recorded against the notional income argument beyond noting the insurer’s non-dispute on the earnings period.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited	AIR 2011 SC 2951	Positive	Cited by counsel to support a higher notional income; court adopts the principle to fix notional income at Rs.7,000 per month in the context of a 2009 accident.

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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 MRS. JUSTICE SOPHY THOMAS TUESDAY, THE 23[RD] DAY OF AUGUST 2022 / 1ST BHADRA, 1944`** ``` MACA NO. 2060 OF 2014 ``` ``` OPMV 967/2009 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, VATAKARA ``` ## **`APPELLANT/PETITIONER:`** ``` MATHEW, AGED 46 YEARS, S/ MATHAYEE, KAVI PURAYIDATHIL HOUSE, KAVILUMPARA PO, KUNDUTHODU, MARUTHONKARA AMSOM, DESOM, VATAKARA THALUK, KOZHIKODE DISTRICT. ``` ## **`BY ADV SRI.ZUBAIR PULIKKOOL`** ## **`RESPONDENTS/RESPONDENTS:`** - **`1 ABOOBACKER P. S/O SAVANKUTTY, NELLOTH HOUSE, THIURUVANGADU (PO), THALASSERY, KANNUR DISTRICT, PIN - 670 101.`** - **`2 ABDUL SALAM, AGED 20 YEARS,`** ``` RAMSHEEN MANZIL HOUSE, THIRUVANGADU (PO), THALASSERY, CHOKLI, KANNUR DISTRICT, PIN - 670 101. ``` - **`3 THE NATIONAL INSURANCE COMPANY LTD., DIV NO.FLAT NO.101-106, N-1 BMC HOUSE, CONNAUGHT PLACE, NEW DELHI - 110 001.`** ## **`R3 BY ADV SRI.P.JACOB MATHEW`** ``` THISMOTORACCIDENTCLAIMSAPPEALHAVINGBEENFINALLYHEARD ON 19.08.2022, THE COURT ON 23.08.2022 DELIVERED THE FOLLOWING: ``` MACA 2060 OF 2014 2 ## **J U D G M E N T** The claimant in OP(MV)No.967 of 2009 on the file of Motor Accidents Claims Tribunal, Vatakara is the appellant herein. He is disputing the quantum of compensation awarded by the Tribunal under various heads. 2. On 20.06.2009, at about 11.15 a.m., while the appellant was unloading goods from a goods carriage at the public road at Avolam, KL-13/M-2684 car driven by the 2[nd] respondent in a rash and negligent manner dashed against the goods carriage, which in turn hit the appellant and he sustained serious injuries. 3. The 1[st] respondent was the owner, the 2[nd] respondent was the driver and the 3[rd] respondent was the Insurer of the offending car. 4. The incident as well as the insurance policy is admitted by the 3[rd] respondent. 5. The appellant approached the Tribunal claiming MACA 2060 OF 2014 3 compensation of Rs.10,00,000/-. But the Tribunal awarded only Rs.3,03,685/- which is under challenge in this appeal. 6. According to the appellant, he had suffered comminuted fracture right patella and fracture of 6th and 7th ribs on left side. Though he was initially admitted for three days, after discharge, he was readmitted due to secondary infection. It is true that he was a retired Constable from CISF. But at the relevant time, he was working as Manager of Maharani Shutters, a Private Firm, earning monthly income of Rs.12,000/-. But the employer was not examined to prove that document. Finding that the appellant could not prove his income, with supporting evidence, the Tribunal fixed his notional income at Rs.4,000/-. 7. Learned counsel Sri.Zubair Pulikool appearing for the appellant contended that even going by the decision **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited [AIR 2011 SC** MACA 2060 OF 2014 4 **2951]** , since the accident was in the year 2009, he was eligible to get his notional income fixed @ Rs.7,000/-. The Tribunal assessed loss of earning for 9 months. The 3[rd] respondent is not disputing the period during which the appellant had suffered loss of earning. So, for 9 months period @ Rs.7,000/- per month, he was eligible to get Rs.63,000/-. He was already paid Rs.36,000/- under the head loss of earning. So he is eligible to get the balance Rs.27,000/- under the head loss of earning. 8. Towards bystander expenses, he was paid only Rs.10,600/- though he was hospitalised for 53 days. Fixing bystander expenses at the @ Rs.250/- per day as the accident was in the year 2009, he was eligible to get Rs.13,250/-. After deducting Rs.10,600/- already paid, he is eligible to get Rs.2,650/as enhanced compensation towards bystander expenses. 9. Towards pain and suffering, he was paid Rs.35,000/-. Considering the nature of injuries suffered and MACA 2060 OF 2014 5 the period of hospitalisation, this Court is inclined to award Rs.10,000/- more under the head ‘pain and sufferings’. 10. Towards loss of earning power, the Tribunal awarded Rs.62,400/- assessing his disability as 10%. As per Ext.A16 Disability Certificate, the disability was 30%. Learned Tribunal found that the Doctor, who issued Ext.A16 Certificate, was not examined. Moreover, there was no reference in the Certificate, that the disability noted was for the whole body. 11. So the Tribunal is justified in assessing the whole body disability of the appellant as 10% as there was no specific mention in Ext.A16 Certificate that the disability noted was with respect to the whole body. 12. We have fixed the notional income of the appellant @ Rs.7,000/-. Since he was aged only 47, the multiplier applicable was 13. So, compensation for permanent disability could have been assessed as Rs.1,09,200/- (7,000 X 12 X 13 X 10 / 100). As he was already paid Rs.62,400/-, MACA 2060 OF 2014 6 he is eligible to get the balance amount of Rs.46,800/under the head loss of earning power due to permanent disablement. 13. Towards loss of amenities, he was paid only Rs.10,000/-. Considering the nature of injuries and disabilities suffered by the appellant, this Court is inclined to award Rs.10,000/- more towards loss of amenities. 14. The compensation of Rs.10,000/- awarded towards mental shock and agony is liable to be deducted, as he was already compensated under the head ‘pain and suffering’ and ‘loss of amenities’. 15. Under all other heads, the compensation awarded seems to be just and proper and it need not be interfered with. |with.||||| |---|---|---|---|---| |Head of claim|Amount awarded by the Tribunal|Amount awarded in appeal|Amounts deducted in appeal|Difference to be drawn as enhanced compensation| |Loss of earning|Rs.36,000/-|Rs.63,000/-||Rs.27,000 /-| MACA 2060 OF 2014 7 |Bystander expenses|Rs.10,600/-|Rs.13,250/-||Rs.2,650/-| |---|---|---|---|---| |Pain and suffering|Rs.35,000/-|Rs.45,000/-||Rs.10,000/-| |Loss of earning power|Rs.62,400/-|Rs.1,09,200/-||Rs.46,800/-| |Loss of amenities|Rs.10,000/-|Rs.20,000/-||Rs.10,000/-| |Mental shock and agony|Rs.10,000/-||Rs.10,000/-|| |Total|||Rs.10,000/-|Rs.96,450/-| |Enhanced compensation (96,450 – 10,000)||||Rs.86,450/-| 16. In the result, the appellant is entitled to get enhanced compensation of Rs. 86,450/- [(27,000 + 2,650 + - 10,000 + 46,800 + 10,000) 10000]. (Rupees Eighty Six Thousand Four Hundred and Fifty only). 17. The 3[rd] respondent-Insurance Company is directed to deposit the enhanced compensation in the Bank account of the appellant with interest at the rate of 7.5% per annum from the date of petition till the date of deposit (except for 123 days of delay in appeal) within a period of two months 8 MACA 2060 OF 2014 from the date of receipt of a copy of this judgment. The deposit must be in terms of the directives issued by this Court in Circular No.3 of 2019 dated 06/09/2019 and clarified in O.M.No.D1/62475/2016 dated 07/11/2019 after deducting the liabilities, if any, of the appellant towards Tax, balance court fee and legal benefit fund. The appeal is allowed accordingly. No order as to costs. Sd/- **SOPHY THOMAS, JUDGE** DSV/20.08.2022