High Court of KeralaSingle Judge2022-06-17Appeal disposed of; enhanced compensation and s...

Periyasamy v. United India Insurance Co. Ltd.

Case / Petition Number:MACA 2642 of 2016

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: Justice Murali Purushothaman
Judgment Date: 2022-06-17
Court Decision / Holding: The appeal is disposed of accordingly; the Tribunal’s finding of contributory negligence is set aside, the notional income is fixed at Rs. 6,000 per month, disability at 25%, and loss of earning power recalculated to Rs. 3,06,000. The enhanced compensation total is Rs. 4,33,125, with the 3rd respondent directed to deposit this amount before the Tribunal with 9% interest per annum from the date of petition till realisation, within two months. The order also clarifies no interest for a period of 456 days as per order dated 05.01.2022 in CMA 1/2016.
Final Disposition: Appeal disposed of; enhanced compensation and setting aside contributory negligence finding.

Parties to the Case

Appellants / Petitioners

Periyasamy S/o Nattarayan

Respondents

Mini Varghese
Francis
United India Insurance Co. Ltd

Legal Representation & Advocates

Counsels for Petitioners

• Sri. Jacob Sebastian

Counsels for Respondents

• P.K. Manoj Kumar

Case Synopsis & Summary

Periyasamy, the appellant in MACA 2642/2016, challenges the Motor Accidents Claims Tribunal, Palakkad's award of Rs. 5,98,250 for injuries sustained in a motor-vehicle accident on 05.02.2007 involving his motorcycle and a car driven by the 2nd respondent, insured by United India Insurance Co. Ltd. The Tribunal held contributory negligence by both the petitioner and the 2nd respondent, deducting 50% from the compensation and directing the insurer to pay Rs. 2,99,125 with 9% interest. The appellant contends that the final report indicting either party was not produced and that the police charge and conviction (IPC Sections 279 and 338) against the 2nd respondent should establish greater culpability by him; he also seeks re-fixation of income and proper application of the law of damages. The High Court relies on notional income doctrine from Ramachandrappa and fixes the appellant's notional monthly income at Rs. 6,000, revises loss of earnings to Rs. 36,000; for loss of earning power, with age 26, multiplier 17 and 25% disability, the calculation yields Rs. 3,06,000, reduced by earlier award giving Rs. 1,14,000 extra. It increases bystander’s expenses by Rs. 1,000, nourishment by Rs. 3,000, and pain and sufferings by Rs. 10,000, leading to a total enhanced compensation of Rs. 4,33,125. The Tribunal’s 50% contributory negligence finding is set aside and the 3rd respondent is directed to deposit the enhanced amount with 9% interest within two months. The appeal is disposed of accordingly, with the judgment delivering enhanced relief to the appellant.

Provisions of Law Cited

Indian Penal Code, Sections 279 and 338

Legal Doctrines & Maxims

Notional income for self-employed persons (Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Co. Ltd.)
Multiplier principle for assessment of compensation (Sarla Verma v. Delhi Transport Corporation)
Contributory negligence doctrine in motor accident cases

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellant contends that the Tribunal erred in holding contributory negligence by both parties and in deducting 50% from the award. Annexures A1 and A2 show police charges under IPC 279 and 338 against the 2nd respondent, and a conviction in CC No.1316/2007, suggesting greater culpability of the 2nd respondent. The notional income of a self-employed person should be Rs. 6,000 per month (Ramachandrappa), and the disability should be taken at 25% (Sarla Verma). The court should re-calculate loss of earning and enhance other heads (nourishment, pain and suffering, bystander expenses) to achieve just compensation. The final order ought to reflect the liability of the insurer after excluding the earlier 50% deduction due to contributory negligence being erroneous.

Contentions of Respondents

The respondents contend that the Tribunal’s calculation and apportionment of negligence were appropriate and that the compensation awarded was within the established framework. They rely on the evidence on record and the policy (Ext. B1) to defend the insurer’s liability and the Tribunal’s assessment. The respondents maintain that the contributory negligence finding is a permissible inference from the material before the Tribunal and that the High Court should not overturn the Tribunal’s discretionary assessment without clear error.

Cited Precedents (2)

Case Name	Citation	Treatment	Explanation
Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited	2011 (13) SCC 236 : AIR 2011 SC 2951	Positive	Used to justify notional income for self-employed claimants.
Sarla Verma v. Delhi Transport Corporation	Delhi Transport Corporation (2010 (2) KLT 802 (SC))	Positive	Applied multiplier approach (17) and disability-based computation for loss of earning power.

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Extracted Judgment Text

Exact text extracted from official judgment records.

**MACA NO. 2642 OF 2016 ..1..** # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN** **FRIDAY, THE 17[TH] DAY OF JUNE 2022 / 27TH JYAISHTA, 1944 MACA NO. 2642 OF 2016** **AGAINST THE AWARD DATED 12.11.2014 IN OPMV 1173/2007 OF** **MOTOR ACCIDENT CLAIMS TRIBUNAL , PALAKKAD** **APPELLANT/PETITIONER:** **PERIYASAMY, S/O NATTARAYAN, AGED 34 YEARS, 1/101, AMBADI HOUSE, MUNDAKODU, CHANDRANAGAR, PALAKKAD.** **BY ADV SRI.JACOB SEBASTIAN** ## **RESPONDENT/RESPONDENTS:** ***1 MINI VARGHESE AGE AND FATHERS NAME NOT KNOWN, MENACHERRY HOUSE, MADAIKONAM P.O, THALAPILLY, THRISSUR 680 712.** ***DELETED* *RESPONDENTS 1 AND 2 ARE DELETED FROM THE PARTY ARRAY AT THE RISK OF THE APPELLANT, AS PER ORDER DATED 5/1/2022 IN IA 1/2021 IN MACA 2642/2021*** **2 FRANCIS, AGED 28 YEARS S/O JOSE, CHAKKOREE HOUSE, PORATHUSSERY VILLAGE, MOORKANADU DESOM, THRISSUR 680 712.** ***DELETED* *RESPONDENTS 1 AND 2 ARE DELETED FROM THE PARTY ARRAY AT THE RISK OF THE APPELLANT, AS PER ORDER DATED 5/1/2022 IN IA 1/2021 IN MACA 2642/2021*** - **3 UNITED INDIA INSURANCE CO. LTD 4TH FLOOR, PATHAN BUILDING, ROUND SOUTH, THRISSUR PIN 680 020.** ## **R3 BY ADV P.K.MANOJ KUMAR** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY ON 17.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA NO. 2642 OF 2016 ..2..** ## **JUDGMENT** The petitioner in O.P.(MV)No.1173/2007 on the files of the Motor Accidents Claims Tribunal, Palakkad has preferred this appeal aggrieved by the amount of compensation awarded by the Tribunal for the injuries sustained by him in a motor vehicle accident. The parties are referred to as per their status in the claim petition. 2. The grievance of the petitioner is that, on 05.02.2007, while he was riding a motor cycle, a car bearing Reg. No.KL-8K/9378 driven by the 2[nd] respondent rashly and negligently, dashed against his motor cycle and the petitioner sustained injuries. The 1[st] respondent is the owner of the car and the 3[rd] respondent is its insurer. The petitioner claimed an amount of Rs.6,20,000/- as compensation for the injuries sustained in the accident. 3. Before the Tribunal, Exts.A1 to A19 were marked on the side of the petitioner and the Doctor who treated **MACA NO. 2642 OF 2016 ..3..** the petitioner was examined as PW1. Respondents produced Ext.B1 policy. The Tribunal found that the accident happened due to the negligence of the petitioner as well the 2[nd] respondent-driver and awarded an amount of Rs.5,98,250/- as compensation for the injuries sustained in the accident. However, the Tribunal ordered a deduction of 50% of the compensation on account of the contributory negligence on the part of the petitioner and directed the insurance company to pay an amount of Rs.2,99,125/- along with 9% interest per annum and proportionate costs. Aggrieved by the quantum of compensation awarded, the petitioner has preferred this appeal. 4. While finding contributory negligence on the part of the petitioner, the Tribunal observed that final report either indicting the petitioner or the 2[nd] respondent was not produced before the Tribunal. Accordingly, the Tribunal came to a conclusion that both the petitioner and **MACA NO. 2642 OF 2016 ..4..** the 2[nd] respondent were equally rash and negligent. 5. The petitioner has filed I.A.No.1 of 2022 in this appeal producing the certified copy of the charge in Crime No.94/2007 of the Irinjalakuda Police Station dated 30.03.2007 and certified copy of the judgment dated 30.12.2007 in C.C.No.1316/2007 of the Judicial First Class Magistrate Court, Irinjalakuda. The said documents are marked as Annexures-A1 and A2. A perusal of the said documents would reveal that the Police had registered Crime No.94/2007 of Irinjalakuda Police Station against the 2[nd] respondent under Sections 279 and 338 of the Indian Penal Code and that the Police had laid charge against the 2[nd] respondent before the Judicial First Class Magistrate Court, Irinjalakuda in C.C.No.1316/2007, wherein, the 2[nd] respondent was found guilty of the charges levelled against him. The petitioner has also shown sufficient reason for not producing the said **MACA NO. 2642 OF 2016 ..5..** documents before the Tribunal. In view of Annexures – A1 and A2, the finding of the Tribunal as regards contributory negligence on the part of the petitioner is set aside. 6. According to the petitioner, he was doing business and earning Rs.7,000/- per month. It is contended that the Tribunal should have fixed his income as Rs.7,000/- as claimed. Going by the dictum laid down in **Ramachandrappa** _**v**_ **. Manager, Royal Sundaram Alliance Insurance Company Limited** [2011 (13) SCC 236 : AIR 2011 SC 2951], the notional income of a self employed person in the year 2007 can be taken as Rs.6,000/- per month. Therefore, I re-fix the notional monthly income of the petitioner as Rs.6,000/-. Accordingly, the compensation for loss of earning is recalculated as Rs.36,000/- [6,000x6]. Since the petitioner was awarded an amount of Rs.30,000/-, the enhanced amount of compensation under the said head comes to **Rs.6,000/-** [36,000-30,000]. **MACA NO. 2642 OF 2016 ..6..** 7. Towards compensation for loss of earning power, the Tribunal has awarded an amount of Rs.1,92,000/-. The petitioner was aged 26 years at the time of the accident **Sarla Verma** _**v**_ **.** and the multiplier applicable is '17' [ **Delhi Transport Corporation (2010 (2) KLT 802 (SC)]** . Though PW1 doctor has assessed the disability of the petitioner as 25% as evident from Ext.A9, the Tribunal scaled down the same to 20%. The Tribunal is not justified in scaling down the percentage of disability and ought to have taken the percentage of disability as 25%. Accordingly, the compensation for loss of earning power is re-assessed as Rs.3,06,000/-[6,000x12x17x25/100]. After deducting the amount already awarded by the Tribunal, the petitioner is entitled for an enhanced amount of **Rs.1,14,000/** -[3,06,000-1,92,000] under the said head. 8. The Tribunal has awarded an amount of Rs.6,250/towards bystander's expenses. I find that Rs.7,250/- is just and reasonable compensation and the petitioner is entitled **MACA NO. 2642 OF 2016 ..7..** for an enhanced amount of **Rs.1,000/-** [7,250-6,250] towards bystander's expenses. 9. No amount has been awarded by the Tribunal towards extra nourishment. Considering the nature of injuries sustained and the period of hospitalisation, the petitioner is entitled for an amount of **Rs.3,000/-** under the said head. 10. An amount of Rs.20,000/- has been awarded under the head pain and sufferings. Taking note of the gravity of the injuries sustained, the petitioner is entitled for an amount of Rs.30,000/- and an enhanced amount of **Rs.10,000/-** [30,000-20,000] is awarded. 11. Accordingly, the petitioner is entitled for an amount of Rs.1,34,000/- [Rs.2,99,125 + 1,14,000 + 6,000 + 1,000 + 3,000 + 10,000] as enhanced compensation. The Tribunal has awarded an amount of Rs.2,29,125/- after deducting 50% towards contributory negligence. Since the finding regarding contributory negligence is set aside, **MACA NO. 2642 OF 2016 ..8..** the petitioner is entitled for a total enhanced compensation of **Rs.4,33,125/-** [1,34,000+2,29,125]. The 3[rd] respondent shall deposit the said amount before the Tribunal with 9% interest per annum from the date of petition till realisation with proportionate costs, within a period of two months from the date of receipt of a copy of this judgment. While calculating interest on enhanced compensation, the petitioner will not be entitled for interest for a period of 456 days in filing the appeal as per order dated 05.01.2022 in C.M.Application No.1/2016. The appeal is disposed of accordingly. **Sd/MURALI PURUSHOTHAMAN JUDGE** SB/18/06/2022 **MACA NO. 2642 OF 2016 ..9..** ## **APPENDIX** ## **PETITIONERS EXHIBITS:** |**ANNEXURE A1**|**CERTIFIED COPY OF THE CHARGE IN CRIME**| |---|---| ||**NO.94/2007 OF THE IRINJALAKUDA POLICE STATION**| ||**DATED 30.03.2007**| |**ANNEXURE A2**|**CERTIFIED COPY OF THE JUDGMENT DATED**| ||**30.12.2007 IN C.C.NO.1316/07 OF THE JUDICIAL**| ||**FIRST CLASS MAGISTRATE COURT, IRINJALAKUDA**|