National Insurance Co. Ltd. v. Rajesh and Daneesh Balachandran

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: MURALI PURUSHOTHAMAN
Judgment Date: 2022-07-05
Court Decision / Holding: Appeal dismissed. The High Court upheld the Tribunal’s award, affirmed the 46% disability for loss of earning capacity, and declined to interfere with the compensation under all heads. The appellant was directed to deposit the balance amount with interest and costs within two months.
Final Disposition: Appeal dismissed

Parties to the Case

Appellants / Petitioners

National Insurance Co. Ltd.

Respondents

Rajesh
Daneesh Balachandran

Legal Representation & Advocates

Counsels for Petitioners

• Sri.E.M.Joseph

Counsels for Respondents

• Sri.P.C.Haridas

Case Synopsis & Summary

This High Court of Kerala appeal arises from a Motor Accidents Claims Tribunal award in O.P.(M.V) No.792 of 2013, Pala. On 24.11.2012, Rajesh (1st respondent) and Daneesh Balachandran (2nd respondent) suffered injuries when a motorcycle ridden by Rajesh collided with the petitioner. The Tribunal found the rider negligent and awarded Rs.12,53,200 as compensation in various heads (loss of earnings, transport, treatment, pain and suffering, permanent disability, loss of amenities, etc.) with 9% interest and costs. The insurer challenged the quantum, arguing that the Tribunal erred in adopting Rs.9,000 as notional monthly income and that the 46% whole-body disability certificate Ext.X1 was overly high and relied upon inappropriately; it also contended that awards for pain and suffering and loss of amenities were excessive. The appellant cited Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Co. Ltd. to justify notional income, while the respondents’ position, as reflected in the Tribunal’s reasoning, supported the disability assessment and the compensation awarded. The High Court, examining Ext.X1, affirmed the Tribunal’s approach, holding that the disability of 46% for loss of earning capacity was proper and that the Tribunal’s compensation under the heads was just and reasonable. The appeal is dismissed with directions to deposit the remaining amount with interest and costs within two months of the judgment.

Legal Doctrines & Maxims

Notional income rule for calculating compensation (as per Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited)
Disability assessment for loss of earning capacity using whole-body disability percentage (46% per Ext.X1)

Submissions & Arguments

Contentions of Appellants / Petitioners

The insurer contends that the Tribunal erred in taking Rs.9,000 as the notional monthly income and that the 46% disability certificate Ext.X1 is too high and was relied upon improperly. It also challenges the awards under pain and suffering and loss of amenities as excessive, urging that the compensation should be recalibrated to reflect a lower income and different disability assessment.

Contentions of Respondents

The respondents support the Tribunal’s award as just, noting the injuries and the resulting disability; they rely on the Tribunal’s computation of losses including medical expenses, loss of earning capacity, and other heads and contend that the compensation awarded should be maintained.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited	2011 (13) SCC 236	Positive	Cited to justify notional income approach; the court uses the Ramachandrappa principle to determine a reasonable notional income for 2012, validating the Tribunal's figure of Rs.9,000 per month as just and reasonable.

Extracted Judgment Text

Exact text extracted from official judgment records.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN TUESDAY, THE 5[TH] DAY OF JULY 2022 / 14TH ASHADHA, 1944** **MACA NO. 3451 OF 2015** **AGAINST THE AWARD DATED 30.04.2015 IN OPMV 792/2013 ON THE FILE OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, PALA** ## **APPELLANT/2ND RESPONDENT:** **NATIONAL INSURANCE CO. LTD., PALA, REPRESENTED BY THE MANAGER, KOCHI REGIONAL OFFICE, M.G. ROAD, ERNAKULAM, COCHIN – 682 035.** **BY ADV SRI.E.M.JOSEPH** ## **RESPONDENTS/CLAIMANT & 1ST RESPONDENT:** **1 RAJESH AGED 39 YEARS S/O. SEBASTIAN, ELAMPACHAMVEETTIL HOUSE, KURUVINAL, MUTHOLY P. O., PALA – 686 573. 2 DANEESH BALACHANDRAN AGED 30 YEARS S/O. BALACHANDRAN, MUTHOLIKUNNU HOUSE, PONADU, KAROOR P. O., PALA – 686 590. BY ADV SRI.P.C.HARIDAS** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 05.07.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA No.3451 OF 2015** **2** ## **JUDGMENT** The insurer, the 2[nd] respondent in O.P.(M.V) No.792 of 2013 on the file of the Motor Accidents Claims Tribunal, Pala, has preferred this appeal aggrieved by the quantum of compensation awarded to the claimant, the 1[st] respondent herein. The parties in this appeal are referred to as per their status in the claim petition. 2. On 24.11.2012, while the petitioner was walking through Pala - Ettumanoor road, he was hit by a motor cycle bearing Reg. No.KL-35/C-4556 ridden by the 1[st] respondent and the petitioner sustained serious injuries. He filed the claim petition claiming a total compensation of Rs.15,00,000/- for the injuries sustained in the accident. In the claim petition, it was contended that the accident happened due to the rash and negligent riding of the motor cycle by the 1[st] respondent, who is none other than its owner. **MACA No.3451 OF 2015** **3** 3. Before the Tribunal, the 1[st ] respondent remained ex-parte. The petitioner was examined as PW1 and Exts.A1 to A11 documents were marked on his side. Ext.X1 is the disability certificate. From the side of the respondents, Ext.B1 was marked. The 2[nd] respondent Insurance Company filed a written statement admitting the valid insurance policy of the motor cycle. However, it was contended that the accident happened due to the negligence of the petitioner and that the amount claimed as compensation is excessive. 4. The Tribunal found that the accident happened due to the negligence of the 1[st] respondent, the rider of the motor cycle and awarded an amount of Rs.12,53,200/- as compensation to the petitioner with 9% interest per annum from the date of petition till realisation and proportionate costs. 5. The compensation awarded by the Tribunal under various heads is as follows:- **Part I Amount Amount Awarded Claimed (in Rs.)** **MACA No.3451 OF 2015** **4** **==> picture [423 x 359] intentionally omitted <==** **----- Start of picture text -----** (in Rupees) Loss of earnings 1,00,000 81,000 (9000x9 months) Transport to hospital 25,000 16,500 Extra nourishment 2,000 5,000 Damages to clothing 2,000 Not entitled Treatment Expenses 3,00,000 1,98,500 Bystander Expenses 25,000 7,000 (250x28 days) Part II Pain and suffering 75,000 75,000 Permanent disability 9,45,000 7,45,200 (9000x12x15x46/ 100) Loss of amenities 1,25,000 1,25,000 Total Claim is limited to 15,99,000 12,53,200 15,00,000 **----- End of picture text -----** 6. Challenging the award passed by the Tribunal, the 2[nd] respondent insurer has filed this appeal. 7. The learned counsel for the insurance company contends that the Tribunal has erred in taking Rs.9,000/as the notional monthly income of the petitioner for assessment of compensation and that the percentage of disability assessed by the Medical Board in Ext.X1 certificate is too high and the Tribunal went wrong in **MACA No.3451 OF 2015** **5** relying on Ext.X1 for assessment. It is also contended that the amounts awarded under the head pain and suffering and loss of amenities are excessive. 8. The petitioner was aged 39 years at the time of the accident. He was a freelance Accountant working in different shops in Paika. According to the petitioner, his monthly income was Rs.14,000/-. Though he claimed only Rs.10,000/- as his monthly in the claim petition, the Tribunal took took the same as Rs.9,000/-. Even in respect of a casual worker, the Apex Court in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited** [2011 (13) SCC 236] has taken a notional income of Rs.4,500/- in 2004. Therefore, going by the dictum laid down in **Ramachandrappa's case** (supra), the income of a manual worker in 2012 can be taken as Rs.8,500/-. Since the petitioner was an Accountant, I find that the income fixed as Rs.9,000/- by the Tribunal is just and reasonable. **MACA No.3451 OF 2015** **6** ## 9. Going by Ext.A4 wound certificate and Ext.A7 discharge card, it is seen that the petitioner has sustained the following injuries:- _“i) Fracture of the left forearm, pupil dilated, mild reaction, abrasion 1x2 cm left forearm._ _ii) The petitioner had sustained segmental fracture of the left radius with mid 1/3rd fracture ulna, segmental fracture of both bones of the left leg._ _iii) X-ray of the pelvis showed fracture of the ilium, malunited fracture of the clavicle, segmental fracture of the left radius with mid 1/3rd fracture ulna. He was admitted on 25.11.2012 and was discharged on 17.12.2012. He was again admitted on 24.07.2013 and was discharged on 26.07.2013. There was a third admission on 03.07.2014 and was discharged on 06.07.2014.”_ 10. The Medical Board has issued Ext.X1 disability certificate assessing the whole body total disability of the petitioner as 45.6%, as follows:- _“ Neuro Surgery – 20% Orthopaedic disability – 5.6% Ophthalmology – 20%_ _Total – 45.6% (rounded of as 46%)”_ The said disability certificate was accepted by the **MACA No.3451 OF 2015** **7** Tribunal with objection from the side of the Insurance Company. The Tribunal has taken the disability of the petitioner for the purpose of assessment of loss of earning capacity as 46%. According to the learned counsel for the Insurance Company, the Tribunal ought not have relied on Ext.X1 certificate as the same does not reflect the functional disability of the petitioner. The petitioner had deposed before the Tribunal that he was working as an Accountant in various firms in Paika and after the accident, he has confined his job to one particular firm. Going by Ext..X1 certificate, I find that the Tribunal has correctly assessed the disability of the petitioner as 46% for the purpose of assessment of loss of earning capacity. Therefore, I do not find any reason to interfere with the compensation awarded under the head permanent disability. 11. Under the head loss of amenities, the petitioner claimed an amount of Rs.1,25,000/- and the said amount has been awarded by the Tribunal. Taking note of the **MACA No.3451 OF 2015** **8** injuries sustained by the petitioner and the disability assessed by the Medical Board, I find that the amount of compensation awarded under the head loss of amenities is just and reasonable. 12. For pain and suffering, the petitioner claimed an amount of Rs.75,000/- and the said amount is seen awarded by the Tribunal. I find the said amount also just and reasonable under that head. 13. I do not find any reason to interfere with the compensation awarded by the Tribunal under other heads also. At the time of the admission of the appeal, this Court has granted stay of the operation of the award on condition that the appellant deposits an amount of Rs.8,00,000/- out of the compensation awarded with interest upto date. The learned counsel for the appellant submits that the said amount has already been deposited and the petitioner has withdrawn the same. The appellant shall deposit the balance amount with interest **MACA No.3451 OF 2015** **9** and costs within a period of two months from the date of receipt of a copy of this judgment. Accordingly, the appeal is dismissed. **Sd/-** **MURALI PURUSHOTHAMAN JUDGE** SPR