P. Suresh Babu v. Shafeen K.V. and Others

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: C. S. Dias
Judgment Date: 2021-08-05
Court Decision / Holding: Appeal allowed in part. The High Court recalculated compensation: fixed notional income at Rs.6,000 per month, accepted 12% disability (Ext.C1) and applied a multiplier of 11. It awarded Disability loss of Rs.95,040 (instead of Rs.10,000) and enhanced the overall compensation by Rs.85,040, at 7.5% interest from the petition date, plus Rs.2,500 costs. The 3rd respondent (insurer) is to deposit the enhanced amount before the Tribunal within two months, for distribution in accordance with law.
Final Disposition: Appeal allowed in part

Parties to the Case

Appellants / Petitioners

P. Suresh Babu

Respondents

Shafeen K.V.
Malabar Textile and Proofing Co.
National Insurance Co. Ltd.

Legal Representation & Advocates

Counsels for Petitioners

• C. M. Mohammed Iqubal

Counsels for Respondents

• P. Jacob Mathew
• Mathews Jacob Sr.
• Shaijan C. George

Case Synopsis & Summary

This is a Motor Accidents Claims Appeal (MACA No. 764 of 2011) before the Kerala High Court, arising from a claim under OP(MV) 627/2008 filed in the Motor Accidents Claims Tribunal, Tirur, Malappuram. On 14 July 2007, the appellant, a Medical Representative, riding a motorcycle KL-10/J-4987, was struck by a car KL-7/AA-4923 driven rashly by the 1st respondent, owned by the 2nd respondent and insured by the 3rd respondent. The appellant sustained multiple injuries, with a permanent disability diagnosed as cervical intervertebral disc involvement. The Tribunal awarded compensation, allowing Rs.51,000 with 7.5% interest and Rs.1,500 costs, against the insurer. The appellant argued the notional income should be higher (claimed Rs.16,000 monthly) and that disability compensation should be awarded based on the 12% disability certified by the Standing Disability Assessment Board (Ext.C1), which the Tribunal had declined to grant. The High Court allowed the appeal in part, re-assessing quantum: fixing notional income at Rs.6,000 per month, recognizing 12% disability, and adopting a multiplier of 11 (Sarala Verma), following Ramachandrappa and Rajkumar decisions. Consequently, disability loss was recalculated to Rs.95,040, and the court enhanced overall compensation by Rs.85,040 (total enhanced sum along with interest at 7.5% and costs). The insurer is to deposit the enhanced amount within two months for distribution by the Tribunal.

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellant contends that the Tribunal erred in not accepting the higher notional income claimed (Rs.16,000) for a Medical Representative and in refusing to award disability compensation for 12% disability certified by Ext. C1. Relying on Ramachandrappa, the appellant argues for a higher notional income and enhancement for loss due to disability, supported by the three-member Medical Board’s assessment (Rajkumar). He also seeks proper interest and costs.

Contentions of Respondents

The first respondent contends there was no negligence attributable to him and that the accident occurred due to the appellant’s own negligence; the 2nd respondent is ex parte; the 3rd respondent admits the policy but contends the disability assessment should be reconsidered and argues against enhancement of disability compensation; the defence disputes the age/income details relied upon for calculating compensation.

Cited Precedents (3)

Case Name	Citation	Treatment	Explanation
Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited	[(2011) 13 SCC 236]	Positive	Court followed the ratio on notional income for calculating compensation, applying it to fix the appellant’s monthly income at Rs.6,000.
Rajkumar v. Ajaykumar	2011 (1) KLT 620 SC	Positive	Disability can be assessed by the doctor who issued the certificate or by a Medical Board; Tribunal should rely on such assessment as laid down in Rajkumar.
Sarala Verma v Delhi Transport Corporation	2010(2) KLT 802 (SC)	Positive	Used to determine the multiplier (11) for the age at the date of accident.

Extracted Judgment Text

Exact text extracted from official judgment records.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **THURSDAY, THE 5[TH] DAY OF AUGUST 2021 / 14TH SRAVANA, 1943** **MACA NO. 764 OF 2011** **AGAINST THE JUDGMENT IN OP(MV) 627/2008 OF MOTOR ACCIDENT CLAIMS TRIBUNAL TIRUR, MALAPPURAM** ## **APPELLANT/PETITIONER:** P.SURESH BABU, AGED 37 YEARS S/O.PADMANABHAN, PALAKKOTTIL HOUSE, PAINKANNUR P.O., VIS.KUTTIPPURAM,, MALAPPURAM DISTRICT. BY ADV SRI.C.M.MOHAMMED IQUABAL ## **RESPONDENTS/RESPONDENTS:** 1 SHAFEEN.K.V. AND 2 OTHERS MALABAR TEXTILE AND PROOFING CO., SOUTH BEACH ROAD, KOZHIKODE – 682 104. 2 K.H.LATHEEF S/O.HASSAINAR 3/59 ERAVELI, COCHIN - 682 001. 3 NATIONAL INSURANCE CO.LTD. 2ND FLOOR NOOR COMPLEX, MAVOOR ROAD, KOZHIKODE - 4. BY ADVS. SRI.P.JACOB MATHEW SRI.MATHEWS JACOB SR. SRI.SHAIJAN C.GEORGE THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 05.08.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **MACA NO. 764 OF 2011** **2** ## **JUDGMENT** The appellant was the petitioner in O.P.(MV) No.627/2008 on the file of the Motor Accidents Claims Tribunal, Tirur. The respondents in the appeal were the respondents before the Tribunal. 2. The facts in brief, relevant for the determination of the appeal, are: on 14.07.2007 while the appellant was riding his motorcycle bearing Reg. NoKL-10/J—4987 from Kottakkal to his house at Painkannur, when he reached a place named Vettichira Chungam, a car bearing Reg.No.KL-7/AA-4923 (car) driven by the 1[st] respondent in a rash and negligent manner hit the motorcycle of the appellant. The car was owned by the 2[nd] respondent and insured with the 3[rd] respondent. The appellant was a Medical Representative by profession and earning a monthly **MACA NO. 764 OF 2011** **3** income of Rs.16,000/-. The petitioner sustained injuries including fractures. The appellant claimed a compensation of Rs.2,00,000/- from the respondents. 3. The 1[st] respondent filed a written statement contending that he was not negligent in causing the accident. According to him, the accident occurred due to the negligence of the appellant. The 2[nd] respondent did not contest the proceedings and was set ex parte. 4. The 3[rd] respondent filed a written statement admitting that the car had a valid insurance policy. However, it was contended that the accident occurred due to the collision between the two vehicles and that there was negligence on the part of the appellant. The 3[rd] respondent also disputed the age, occupation and income of the appellant. 5. The appellant examined himself and a witness as PW1 and PW2 and marked Exts.A1 to A7 in **MACA NO. 764 OF 2011** **4** evidence. The permanent disability certificate issued by the Standing Disability Assessment Board, Tirur was marked as Ext.C1. The copy of the driving licence of the 1[st] respondent was marked as Ext.B1. 6. The Tribunal, after analysing the pleadings and materials on record, by the impugned award allowed the claim petition, in part, by permitting the appellant to realise an amount of Rs.51,000/- with interest at the rate of 7.5% per annum from the date of petition till the date of realisation along with costs of Rs.1,500/-. The 3[rd] respondent was directed to pay the compensation amount. 7. Dissatisfied with the quantum of compensation, the petitioner is in appeal. 8. Heard the learned counsel appearing for the appellant/petitioner and the learned counsel appearing for the 3rd respondent/Insurance Company. 9. The sole question that emerges for **MACA NO. 764 OF 2011** **5** consideration in the appeal is whether the quantum of compensation awarded by the Tribunal is reasonable and just? 10. Ext.A4 charge-sheet filed by the Kalpakanchery Police in Crime No.285/2007 proves that the accident occurred due to the negligence of the 1[st] respondent. Undisputedly, the 2[nd] respondent was the owner and the 3[rd] respondent was the insurer of the car. Therefore, the 3[rd] respondent is liable to indemnify the liability of the 1[st] respondent arisen due to the accident. ## **Notional income** 11. The appellant had claimed that he was a Medical Representative by profession and earning a monthly income of Rs.16,000/-. Nevertheless, the Tribunal fixed the notional income of the appellant at Rs.6,000/- per month and his loss of incentives at Rs.6,000/-, based on the oral testimony of PW2. **MACA NO. 764 OF 2011** **6** 12. In **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited** [(2011) 13 SCC 236], the Hon'ble Supreme Court has fixed the notional income of a coolie worker in the year 2004, at Rs.4,500/- per month. 13. Following the ratio in the aforecited decision and considering the fact that the accident occurred in the year 2007 and taking note of the oral testimony of PW2, I fix the notional income of the appellant at Rs.6,000/- per month. ## **Compensation for loss due to disability** 14. The Tribunal referred the appellant to the Standing Disability Assessment Board, Tirur to assess the disability of the appellant. The Board by Ext.C1 assessed the disability of the appellant at 12%. The Tribunal for the reason that the appellant had not produced any records to prove that he has sustained any loss in his business, declined to award **MACA NO. 764 OF 2011** **7** any amount as compensation for loss due to disability. 15. In **Rajkumar v. Ajaykumar** [2011 (1) KLT 620 SC] the Hon'ble Supreme Court has held that the disability of a person can be assessed by examining the Doctor who issued the disability certificate or getting the disability assessed by a duly constituted Medical Board. 16. In the instant case, on the basis of the directions of the Tribunal, the appellant was referred to a duly constituted three member Medical Board who after seeing the appellant and finding that he has suffered a cervical intervertibral disc prolapse of C6 and C7 with cervical spinal cord contusion of C6 and C7 as shown in the MRI Scan and has weakness of both his lower limbs, fixed the disability of the appellant at 12%. The Tribunal ought to have accepted the said assessment and awarded compensation as laid down in **Rajkumar** (supra). **8** ## **MACA NO. 764 OF 2011** The finding of the Tribunal in this regard is totally unwarranted and perverse. Hence, I set aside the said finding and fix the disability of the appellant at 12% as certified in Ext.C1. ## **Multiplier** 17. The appellant was aged 54 years on the date of the accident. The relevant multiplier as laid down in **Sarala Verma v Delhi Transport Corporation** [2010(2) KLT 802 (SC)] is ‘11’. ## **Loss due to disability.** 18. In view of the aforementioned factors namely, the notional income of the appellant fixed at Rs.6,000/-, the disability fixed at 12% and the multiplier at ‘11’, I hold that the appellant is entitled to compensation for loss due to disability at 95,040/-, instead of Rs.10,000/- awarded by the Tribunal. ## **Other heads of claim** 19. With respect to the other heads of **MACA NO. 764 OF 2011** **9** compensation, I find that the Tribunal has awarded reasonable and just compensation. 20. On a comprehensive re-appreciation of the pleadings and the materials on record and the law referred to in the afore-cited decisions, I am of the firm opinion that the appellant/petitioner is entitled for enhancement of compensation as modified and re-calculated above i.e, an enhancement by a further amount of Rs.84,040 under the head ‘loss due to disability’. In the result, the appeal is allowed, in part, by enhancing the compensation by a further amount of Rs.85,040/- with interest at the rate of 7.5% per annum on the enhanced compensation from the date of petition till the date of deposit and a cost of Rs.2,500/-. The 3[rd] respondent is ordered to deposit the enhanced compensation awarded in the appeal before the Tribunal with interest and costs **MACA NO. 764 OF 2011** **10** within a period of two months from the date of receipt of a certified copy of the judgment. The Tribunal shall disburse the enhanced compensation to the appellant,in accordance with law. ma/06.08.2021 Sd/- **C.S.DIAS, JUDGE**