High Court of KeralaSingle Judge2021-08-04Appeal allowed in part; enhanced compensation; ...

P.K. Suresh v. K.T. Ummer and New India Insurance Co. Ltd.

Case / Petition Number:MACA No. 966 of 2009

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: C.S.DIAS
Judgment Date: 2021-08-04
Court Decision / Holding: The appeal is allowed, in part. The court enhances compensation by Rs.35,280 on top of the Tribunal’s award, calculates the notional income at Rs.4,500 per month, applies a 16-year multiplier, and awards a revised sum for loss of earnings (Rs.13,500) and disability (Rs.43,200), along with Rs.5,000 for loss of amenities. The total enhanced compensation is Rs.91,300, with interest at 6% per annum on the enhanced amount from the date of petition, less 155 days of delay, and proportionate costs. The 3rd respondent-insurer is ordered to deposit the enhanced compensation before the Tribunal within 60 days from receipt of a certified copy of the judgment, and the Tribunal is directed to disburse the enhanced amount accordingly, in accordance with law.
Final Disposition: Appeal allowed in part; enhanced compensation; costs. The insurer to deposit enhanced amount within 60 days and Tribunal to disburse accordingly.

Parties to the Case

Appellants / Petitioners

P.K. Suresh

Respondents

K.T. Ummer
New India Insurance Co. Ltd.

Legal Representation & Advocates

Counsels for Petitioners

• Sri Lalji P. Thomas

Counsels for Respondents

• Sri PMM. Najeeb Khan

Case Synopsis & Summary

This is a Motor Accident Claims Appeal (MACA No.966 of 2009) filed before the High Court of Kerala at Ernakulam by P.K. Suresh, the appellant-petitioner, challenging the quantum of compensation awarded by the Motor Accidents Claims Tribunal, Kalpetta, in OP(MV) No.147 of 2004. The motorcycle-rider collision occurred on 12 January 2004 near Nellakottai, involving a Jeep owned by the 1st respondent and insured by the 3rd respondent, with the 2nd respondent (the rider) later deleted from the party array by court order in 2021. The appellant, who earned about Rs.6,000 monthly as a Cable TV operator, sustained serious injuries including an open fracture and permanent disability, and was hospitalized for 30 days. The Tribunal awarded Rs.56,020 with 6% interest, directing the insurer to pay. On appeal, the sole issue is whether the quantum is just and reasonable. The court relies on precedents to fix notional income and multiplier: Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Co. Ltd. for a notional income notional Rs.4,500 per month in 2004, and Sarala Varma v. Delhi Transport Corporation for a multiplier of 16 (age 32). The court re-fixes the notional income at Rs.4,500, recalculates loss of earnings to Rs.13,500, and, with a 5% disability, awards Rs.43,200 for disability. It additionally grants Rs.5,000 for loss of amenities, maintaining other heads as reasonable. In total, enhanced compensation becomes Rs.91,300, with interest on the enhanced amount from the petition date, after deducting 155 days’ delay, and proportionate costs. The appeal is thus allowed in part, with deposit and disbursement duties laid on the insurer and Tribunal.

Legal Doctrines & Maxims

Notional income doctrine in motor accident claims
Multiplier principle (Sarala Varma v. Delhi Transport Corporation)

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellant contends that the Tribunal’s quantum is not just and requires enhancement. Relying on Ramachandrappa, the notional income for 2004 should be Rs.4,500 per month. With the appellant aged 32, the correct multiplier is 16 (Sarala Varma). Loss of earnings should be Rs.13,500; disability should be valued at Rs.43,200 (5% disability); the head of loss of amenities deserves Rs.5,000, and the overall compensation should be increased accordingly; the insurer remains liable for payment with lawful interest and costs.

Contentions of Respondents

The 3rd respondent-insurer admitted the Jeep’s insurance but argued that the accident occurred due to the rider’s negligence and that the petition was defective for non-joinder of necessary parties; the 2nd respondent was deleted meanwhile. The respondents did not contest the Quantum in detail, and liability rests with the insurer along with the owner as applicable; the petition’s propriety and the ownership/insurance nexus were central to defence.

Cited Precedents (2)

Case Name	Citation	Treatment	Explanation
Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited	(2011) 13 SCC 236	Positive	The court applies the Ramachandrappa principle to fix notional income for the year 2004.
Sarala Varma and others v. Delhi Transport Corporation and others	(2010) 2 KLT 802	Positive	The court adopts the multiplier of 16 as laid down in this decision.

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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 C.S.DIAS** **WEDNESDAY, THE 4[TH] DAY OF AUGUST 2021 / 13TH SRAVANA, 1943** ## **MACA NO. 966 OF 2009** **AGAINST THE AWARD IN OP(MV)NO. 147/2004 OF THE MOTOR ACCIDENT CLAIMS TRIBUNAL ,KALPETTA, WAYANAD** ## **APPELLANT/PETITIONER:** **P.K.SURESH, S/O.RAMANKUTTY, SANTHA NIVAS,M.M.QUARTERS,, NEAR DWARAKA TOURIST HOME,, SULTHAN BATHERY,WAYANAD.** ## **BY ADV SRI.LALJI P.THOMAS** ## **RESPONDENTS:** **1 K.T.UMMER, S/O.MOIDU, 12/100,ROACKOOD ESTATE, NELLAKOTTAI P.O.,, GUDALUR TALUK, NILGIRI,TAMIL NADU., (OWNER OF JEEP TN 43/6519)** ***2 M.SHIHABUDDIN, S/O.KUHAMMED (DELETED) 12/100,ROACKOOD ESTATE,, P.O.NELLAKOTTAI,GUDALUR TALUK,, NILGIRI,(OWNER OF JEEP TN 43/6519)** **(THE SECOND RESPONDENT DELETED FROM THE PARTY ARRAY AS PER ORDER DATED 22.06.2021 IN I.A.NO.1 OF 2021)** **3 MS.NEW INDIA INSURANCE CO.LTD. 2ND FLOOR,MOOSA SAIT COMPLEX,, COMMERCIAL ROAD,OOTTY,, (POLICY NO.721000/31/03/01853)** ## **BY ADV SRI.PMM.NAJEEB KHAN** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 04.08.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA No.966 of 2009 _2_ ## **C.S.DIAS,J** - - - - - - - - - - - - - - - - - - - - - - - - ## MACA No. 966 of 2009 - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 4[th] day of August, 2021 ## **JUDGMENT** The appellant was the petitioner in OP (MV) No.147 of 2004 on the file of the Motor Accidents Claims Tribunal, Kalpetta. The respondents in the appeal were the respondents before the Tribunal. Pursuant to the order dated 22.06.2021 in I.A.No. 1 of 2021, the 2[nd] respondent has been deleted from the party array. Hence, the parties are referred to as per their status in the claim petition. 2. The brief facts in the claim petition, relevant for the determination of the are: on appeal, 12.01.2004, while the petitioner was riding his motorcycle bearing TN 43 / 8624 from Gudalur to Ambalavayal, when he reached a place named MACA No.966 of 2009 _3_ Nellakottai, a Jeep bearing registration No.TN 43/ 6519, driven by the 2[nd] respondent in a rash and negligent manner came from the opposite direction and hit the motorcycle of the appellant. The petitioner sustained serious injuries and was treated as an inpatient at the Assumption Hospital, Sulthan Batheri, and thereafter, at the Medical College Hospital, Kozhikode for a period of 30 days. The petitioner sustained an open fracture cummunited right tibia, and an abrasion on the right leg. The petitioner also sustained permanent disability. The petitioner was a Cable TV operator and earning a monthly income of Rs.6,000/-. The Jeep was owned by the 1[st] respondent and insured with the 3[rd] respondent. Hence, the petitioner claimed a total compensation of Rs.3,00,000/- from the respondents. 3. The respondents 1 and 2 did not contest the proceedings and were set ex-parte. MACA No.966 of 2009 _4_ 4. The 3[rd] respondent filed a written statement admitting that the Jeep had a valid insurance coverage. However, it was contended that the accident occurred on account of the negligence of the rider of the motorcycle. The claim petition was bad for non-joinder of necessary parties. 5. The petitioner was examined as PW1 and Exts.A1 to A11 were marked in evidence. 6. The respondents did not let in any evidence. 7. The Tribunal, after analysing the pleadings and materials on record, allowed the claim petition, in part, by permitting the petitioner to realise an amount of Rs.56,020/- with interest at the rate of 6% per annum from the date of petition till the date of payment. The 3[rd] respondent was directed to pay the compensation amount . 8. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioner/appellant is in MACA No.966 of 2009 _5_ appeal. 9. Heard the learned counsel for the appellant/petitioner and the learned counsel appearing for the 3[rd] respondent - insurer 10. The sole question that emerges for consideration in the appeal is whether the quantum of compensation awarded by the Tribunal is reasonable and just? 11. Ext.A10 charge-sheet filed by the police after investigation proves that the accident occurred solely on account of the negligence of the 2[nd] respondent, who drove the Jeep in a negligent manner. Undisputedly, the 1[st] respondent was the owner and the 3[rd] respondent was the insurer of the Jeep. Therefore, it is the 3[rd] respondent who is to indemnify the 1[st] respondent of his liability. 12. The petitioner had claimed that he was a Cable TV operator by profession and earning a MACA No.966 of 2009 _6_ monthly income of Rs.6,000/-. The Tribunal fixed the notional income of the appellant at Rs.2,100/- per month. 13. 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. ## **Notional income** 14. Following the ratio in the afore-cited decision and taking into account the fact that the accident occurred in the year 2004, I re-fix the notional income of the petitioner at Rs.4,500/- per month. ## **Loss of earnings** 15. It is on record that the petitioner was indisposed for a period of three months due to the fracture that he sustained. 16. In view of the re-fixation of the notional MACA No.966 of 2009 _7_ income of the petitioner at Rs.4,500/-, I re-fix the compensation for 'loss of earnings' at Rs.13,500/, instead of Rs.5,000/- awarded by the Tribunal. ## **Multiplier** 17. As the petitioner was aged 32 years at the time of accident, the relevant multiplier is '16' as laid down in **Sarala Varma and others v. Delhi Transport Corporation and others** [(2010) 2 KLT 802]. ## **Loss due to disability** 18. In view of the afore-stated factors namely, the fixation of the notional income of the petitioner at Rs.4,500/- per month, the multiplier at ‘16’ and the disability at 5%, I re-fix the compensation for ‘loss due to disability’ at Rs.43,200/- instead of Rs.21,420/awarded by the Tribunal. ## **Loss of amenities** ## 19. The petitioner had claimed an amount of MACA No.966 of 2009 **==> picture [8 x 9] intentionally omitted <==** Rs.5,000/- towards 'loss of amenities'. The Tribunal did not award any amount under the said head. 20. Taking into account the fact that the petitioner was indisposed for a period of three months, he was hospitalized for a period of 30 days and that he had suffered fractured on his leg and that he had suffered a permanent disability at 5%, I am of opinion that the petitioner is entitled for compensation for 'loss of amenities' at Rs.5,000/-. ## **Other heads of claim** 21. With respect to the other heads of compensation, I find that the Tribunal has awarded reasonable and just compensation. 22. On an overall re-appreciation of the pleadings, materials on record and the law referred to in the afore-cited decision, I am of the definite opinion that the appellant/petitioner is entitled for enhancement of compensation as modified and MACA No.966 of 2009 _9_ recalculated above and given in the table below for easy reference. |Sl. No|Heads of claim|Amount awarded by the Tribunal (in rupees)|Amounts modified and recalculated by this Court| |---|---|---|---| |1|Loss of earning|5000|13,500/-| |2|Transport|500/-|500/-| |3|Damages to clothing|250/-|250/-| |4|Bye-stander expenses|500/-|500/-| |5|Expenses for extra nourishment|500/-|500/-| |6|Medical expenses|22,850/-|22,850/-| |7|Compensation for pain and sufferings|5,000/-|5,000/-| |8|Compensation for loss of amenities|nil|5,000/-| |9|Loss due to disability|21,420/-|43,200/-| |||56020/-|91300/-| In the result, the appeal is allowed, in part, by enhancing the compensation by a further amount of Rs.35,280/- with interest at the rate of 6% per annum on the enhanced compensation, from the date of petition till the date of deposit, after deducting 155 days, i.e. the period of delay in preferring the appeal and as ordered by this Court on 22.06.2021 in MACA No.966 of 2009 _10_ C.M.Appl.No.1144 of 2009, and proportionate costs. The 3[rd] respondent is ordered to deposit the enhanced compensation awarded in the appeal before the Tribunal with interest and proportionate costs within a period of sixty days from the date of receipt of a certified copy of the judgment. The Tribunal shall disburse the enhanced compensation to the appellant/petitioner, in accordance with law. **Sd/- C.S.DIAS,JUDGE** **dlk 4.8.2021**