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High Court of KeralaSingle JudgePartial relief granted: MACA allowed in part; C...

New India Assurance Company Ltd. v. Kochumol K, The Managing Director KSRTC & Omanakkuttan M.S. (MACA No. 1683 of 2016; CO No. 111 of 2016), High Court of Kerala

Case / Petition Number:MACA No.1683 of 2016; CO No.111 of 2016
Neutral Citation:/

Case Details & Bench

Court
High Court of Kerala
Hon'ble Judges
  • P. V. Kunhikrishnan
Judgment Date
2022-11-21
Court Decision / Holding
MACA No.1683/2016 allowed in part; CO No.111/2016 allowed in part. The petitioner/cross objector is entitled to an additional Rs.6,09,700 with interest at 9% p.a. from the date of petition till realisation. The notional income was re-fixed at Rs.8,500 per month; 25% future prospects applied; loss of earnings recalculated; pain and suffering increased; future treatment awarded; functional disability head set aside in light of Anoopkumar; permanent disability re-calculated to Rs.13,03,050 with the balance payable as Rs.5,67,200 (to be included in the final tally).
Final Disposition
Partial relief granted: MACA allowed in part; CO allowed in part; enhanced compensation awarded to cross objector with 9% interest; functional disability head set aside in light of Anoopkumar; total additional compensation Rs.6,09,700.

Parties to the Case

Appellants / Petitioners

  • New India Assurance Company Ltd.

Respondents

  • Kochumol K
  • The Managing Director, Kerala State Road Transport Corporation
  • Omanakkuttan M.S.

Legal Representation & Advocates

Counsels for Petitioners

  • • Sri M. Jacob Murickan

Counsels for Respondents

  • • Sri Mathew John (K)
  • • Sri Domson J. Vattakuzhy
  • • Sri P. C. Chacko, SC, KSRTC
  • • Alex Antony Sebastian, P.A.

Case Synopsis & Summary

This judgment of a Single Judge of the Kerala High Court deals with cross-appeal and cross-objection arising from a Motor Accident Claim petition (OPMV No.256 of 2013) before the Motor Accidents Claims Tribunal, Kottayam. The claimant (Kochumol K) sustained grievous injuries in a road accident on 6 October 2012 when a KSRTC bus overtook an autorickshaw, causing the autorickshaw to capsize and strike a stationary lorry. The Tribunal awarded Rs. 18,45,200 with interest at 9% per annum, against which the New India Assurance Company Ltd. challenged via MACA No.1683 of 2016, while Kochumol K filed CO No.111/2016 seeking enhanced compensation. The central issues included the proper fixation of the claimant’s notional income (the Tribunal had fixed Rs.6,000 per month); the applicability of Ramachandrappa (2011) to determine notional income and the 25% future-prospects uplift, and whether compensation for permanent disability should be separate from functional disability in light of Anoopkumar. The High Court re-evaluated notional income, holding Rs.8,500 per month and applying 25% future prospects, calculating additional losses in earnings, pain and suffering, and future treatment. It held that compensation for functional disability should not stand separately in light of Anoopkumar, and recalculated permanent disability to Rs.13,03,050, with the resulting net additional amount of Rs.6,09,700 payable with 9% interest from the petition date. MACA and CO were disposed of in part with an enhanced award to the cross-objector/claimant.

Legal Doctrines & Maxims

  • Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited, (2011) 13 SCC 236 (notional income and future prospects)
  • National Insurance Co. Ltd. v. Anoopkumar, 2014 (1) KLT 266 (principles governing disability compensation)
  • Anoopkumar principle (functional vs permanent disability)

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellant insurer contended that the Tribunal erred in awarding compensation for permanent disability and functional disability as separate heads and that the notional income fixed by the Tribunal (Rs.6,000 per month) was inappropriately low. Relying on National Insurance Co. Ltd. v. Anoopkumar and Ramachandrappa, the insurer urged revising the notional income and reducing others heads of compensation. It argued that the overall quantum was inflated and that the award should reflect a more conservative approach to income and disability calculations.

Contentions of Respondents

The claimant (Kochumol K) argued that the driver’s occupation as an autorickshaw operator warranted a higher notional income, citing Ramachandrappa for calculation with future prospects (25%). The claimant contended for enhanced compensation including higher pain and suffering, future treatment, and loss of earnings. She urged the Tribunal’s notional income to be increased, and for separate compensation for permanent disability in light of the injuries suffered (including arm amputation). The cross-objector also pressed for additional relief and cited Anoopakumar (Anoopkumar) for limiting double-counting of disability heads.

Cited Precedents (2)

Case NameCitationTreatmentExplanation
Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited(2011) 13 SCC 236PositiveUsed to fix notional income for the petitioner (notional income approach) and to justify a 25% uplift for future prospects.
National Insurance Co. Ltd. v. Anoopkumar2014 (1) KLT 266PositiveCited for principles governing disability compensation and the Anoopkumar approach; applied to modify the disability head in light of overall 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 P.V.KUNHIKRISHNAN MONDAY, THE 21[ST] DAY OF NOVEMBER 2022 / 30TH KARTHIKA, 1944 MACA NO. 1683 OF 2016 ``` ``` AGAINST THE AWARD IN OPMV 256/2013 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,KOTTAYAM ``` ## **`APPELLANT/3RD RESPONDENT IN OPMV:`** ``` THE NEW INDIA ASSURANCE COMPANY LTD. KOTTAYAM, REPRESENTED BY THE DULY CONSTITUTED ATTORNEY,SARASWATHY BALACHANDRAN (MANAGER),REGIONAL OFFICE, KANDAMKULATHY TOWERS, M.G.ROAD, KOCHI-682011. ``` ``` BY ADV SRI.M.JACOB MURICKAN ``` ## **`RESPONDENTS/PETITIONER & RESPONDENTS 1 & 2 IN OPMV:`** ``` 1KOCHUMOL K AGED 46 YEARS, W/O. VIJAYAN, ANU BHAVAN @ NADUVELIKKAKATHUCHIRAYIL HOUSE, MEMURY P.O., KOTTAYAM, PIN-686617. 2THE MANAGING DIRECTOR KERALA STATE ROAD TRANSPORT CORPORATION, THIRUVANANTHAPURAM, TRANSPORT BHAVAN, EAST FORT, THIRUVANANTHAPURAM-695014. 3OMANAKUTTAN M.S., AGE AND FATHER’S NAME NOT KNOWN, MANAYAKKUZHY HOUSE, VAIKAPRAYAR P.O., VAIKOM, PIN-686146. BY ADVS. DOMSON J.VATTAKUZHY SRI.P.C.CHACKO, SC, KSRTC ALEX ANTONY SEBASTIAN P.A. ``` ``` THIS CROSS OBJECTION/CROSS APPEAL HAVING COME UP FOR ADMISSION ON 21.11.2022, ALONG WITH CO.111/2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` MACA No.1683 of 2016 & co 111 of 2016 **2** # **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** # **`THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN MONDAY,THE 21[ST] DAY OF NOVEMBER 2022 / 30TH KARTHIKA, 1944`** ``` CO NO. 111 OF 2016 AGAINST THE AWARD IN OPMV 256/2013 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,KOTTAYAM ``` ## **`CROSS OBJECTIONER/1ST RESPONDENT:`** 1 `KOCHUMOL K AGED 46 YEARS, W/O. VIJAYAN, ANU BHAVAN @ NADUVELIKKAKATHUCHIRAYIL HOUSE, MEMURY P.O., KOTTAYAM, PIN-686617. BY ADVS.SRI.MATHEW JOHN (K) SRI.DOMSON J.VATTAKUZHY` ## **`RESPONDENTS/APPELLANT & R2 AND R3:`** 1 `THE NEW INDIA ASSURANCE COMPANY LTD. KOTTAYAM, REPRESENTED BY THE DULY CONSTITUTED ATTORNEY,SARASWATHY BALACHANDRAN (MANAGER),REGIONAL OFFICE, KANDAMKULATHY TOWERS, M.G.ROAD, KOCHI-682011. THE MANAGING DIRECTOR KERALA STATE ROAD TRANSPORT CORPORATION, 2 THIRUVANANTHAPURAM, TRANSPORT BHAVAN, EAST FORT, THIRUVANANTHAPURAM-695014. OMANAKUTTAN M.S., AGE AND FATHER’S NAME NOT KNOWN, 3 MANAYAKKUZHY HOUSE, VAIKAPRAYAR P.O., VAIKOM, PIN-686146. BY ADV SRI.M.JACOB MURICKAN SRI.P.C.CHACKO, SC, KSRTC ALEX ANTONY SEBASTIAN P.A.` ``` THIS CROSS OBJECTION/CROSS APPEAL HAVING COME UP FOR ADMISSION ON 21.11.2022, ALONG WITH MACA.1683/2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` MACA No.1683 of 2016 & co 111 of 2016 **3** **P.V.KUNHIKRISHNAN, J. -------------------------------M.A.C.A.No.1683 of 2016 & C.O.No.111 of 2016 ---------------------------------------------Dated this the 21[st] day of November, 2022** ## **JUDGMENT** The 3[rd] respondent in O.P.(MV) No.256 of 2013 on the file of the Motor Accidents Claims Tribunal, Kottayam, filed the above appeal, and the petitioner in the claim petition, who is the 1[st] respondent herein, filed cross objection for enhancement of compensation. (Parties are hereinafter mentioned in accordance to their rank before the Tribunal.) 2. Brief facts are like this: The petitioner sustained grievous injuries in a motor traffic accident which took place on 06.10.2012. While the petitioner was driving an autorickshaw, a KSRTC bus came from behind and hit against the autorickshaw while overtaking. Thus the autorickshaw capsized and hit on a stationary lorry. The petitioner was taken to hospital and MACA No.1683 of 2016 & co 111 of 2016 **4** treated. The accident happened, according to the petitioner, due to the rash and negligent driving of the KSRTC bus. The petitioner claimed an amount of Rs.30 lakhs as compensation. 3. To substantiate the case before the Tribunal, Exts.A1 to A19 were produced by the petitioner and Ext.X1 is the disability certificate. Based on the pleadings and documents, the Tribunal found that the petitioner is entitled for a total amount of Rs.18,45,200/- with interest a the rate of 9% per annum from the date of petition. The 3[rd] respondent was directed to pay the compensation. Aggrieved by the quantum of compensation, the 3[rd] respondent insurance company filed M.A.C.A.No.1683 of 2016 and the petitioner/claimant filed C.O.No.111 of 2016. 4. Heard both sides. 5. The counsel for the 3[rd] respondent insurance company submitted that in the light of the judgment of this Court in **National Insurance Co. Ltd. V. Anoopkumar [2014 (1) KLT 266]** , the Tribunal erred in granting compensation for permanent disability and functional MACA No.1683 of 2016 & co 111 of 2016 **5** disability separately. The counsel also submitted that the amount awarded on the other heads also is on a higher side. 6. The counsel for the petitioner/claimant submitted that admittedly the petitioner was an autorikshaw driver. In the light of the decision of the Apex Court in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited [(2011) 13 SCC 236]** , the Tribunal ought to have fixed the notional income of the petitioner as Rs.8,500/-. The counsel further submitted that while fixing the monthly income, 25% is to be added towards future prospects. The counsel also argued that the compensation for loss of earnings is also on a lower side. It is the submission of the petitioner that there is amputation of the left arm and no amount is granted towards future treatment. It is also submitted by the petitioner that towards pain and sufferings also, only a small amount is granted. 7. This Court considered the contentions of the petitioner/claimant and the counsel for the insurance MACA No.1683 of 2016 & co 111 of 2016 **6** company. It is an admitted fact that the accident happened while the petitioner was driving an autorikshaw. That itself shows that he is an autorikshaw driver. The Tribunal fixed the notional income as Rs.6,000/-. The accident happened in the year 2012. Taking note of the principle laid down by the Apex Court in **Ramachandrappa’s case** (supra), the notional income of the petitioner ought to have been fixed as Rs.8,500/-. Moreover, 25% of the monthly income of the petitioner is to be added to that towards loss of future prospects. If that is the case, the monthly income of the petitioner can be safely fixed as Rs.10,625/- (8500+ 8500 x 25/100). Since the notional income of the petitioner is refixed as Rs.8,500/-, loss of earnings can be recalculated for 5 months, which comes to Rs.42,500/- (8,500 x 5). Therefore the petitioner is entitled for an additional compensation of **Rs.12,500/-** (42,500 – 30,000) towards compensation for loss of earnings. 8. As compensation towards pain and suffering, the Tribunal awarded a sum of Rs.30,000/-. Admittedly the MACA No.1683 of 2016 & co 111 of 2016 **7** petitioner suffered serious injuries and there is amputation of his left arm. Considering the nature of injuries sustained and the treatment the petitioner had undergone, an amount of Rs.50,000/- can be granted under this head. Therefore the petitioner is entitled for an additional compensation of **Rs.20,000/-** (50000 -30000) under this head. Similarly, for future treatment,also **Rs.10,000/-** can be allowed. 9. As far as functional disability is concerned, in the light of compensation awarded towards permanent disability, I think the same is not justified in the light of the decision reported in **Anoopkumar’s case** (supra). Since the notional monthly income of the petitioner is re-fixed as Rs.10,625/- , the compensation for permanent disability is re-fixed as Rs.13,03,050/- (10,625 x 12 x 73 x 14/100). The amount already awarded under this head is to be deducted and the balance additional compensation payable is **Rs.5,67,200/-** (13,03,050 – 7,35,850). 10. In such circumstances, the additional compensation amount entitled by the petitioner can be MACA No.1683 of 2016 & co 111 of 2016 **8** summarized as follows: Loss of earnings : 12,500/Pain and suffering : 20,000/Future treatment : 10,000/Permanent disability : 5,67,200/------------------------ **6,09,700/-** ========== In the result, M.A.C.A.No.1683/2016 is allowed in part and the compensation awarded for functional disability (Rs.9,56,600/-) is set aside. C.O.No.111/2016 is also allowed in part. The petitioner/cross objectioner is entitled for an additional amount of Rs.6,09,700/-, which will carry interest at the rate of 9% per annum from the date of petition till realisation. sd/- **P.V.KUNHIKRISHNAN JUDGE** JV