High Court of KeralaSingle Judge2020-06-29Partly allowed; enhanced compensation of ₹1,61,...

Rajeev C.S. v. Manoj M.A. and Padmakumar N.P. and The Reliance General Insurance Co. Ltd.

Case / Petition Number:MACA No.6/2015(A)

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: N. Nagareesh
Judgment Date: 2020-06-29
Court Decision / Holding: The appeal is partly allowed. The court held that notional monthly income should be ₹8,000 (not ₹5,000) for 2011, and it remeasured the disability at least at 15% (for loss of earning capacity). It awarded additional compensation totaling ₹1,61,050 across heads including loss of earning capacity (₹134,400), bystander expenses (₹9,000), extra nourishment (₹1,900), and damage to clothing (₹750). The 3rd respondent-insurer is directed to pay the enhanced amount within one month, with interest at 8.5% per annum from the date of OP(MV). The appeal was partly allowed, and the insurer remains liable to compensate the appellant for enhanced losses.
Final Disposition: Partly allowed; enhanced compensation of ₹1,61,050 payable within one month, with interest at 8.5% from the date of OP(MV).

Parties to the Case

Appellants / Petitioners

Rajeev C.S., Chuzhanayil House, Nedumkunnam Post, Kottayam

Respondents

Manoj M.A., Manoj Bhavan, Veliyanadud S.N.D.P.BR. No. 2834, Alappuzha 688 001
Padmakumar N.P., Padma Nivas, Anaparamabal North Post, Thalavady, Alappuzha-688 001
The Reliance General Insurance Co. Ltd., Kottayam-686 001

Legal Representation & Advocates

Counsels for Petitioners

• Smt. Mathew John (K)
• Domson J. Vattukuzhy

Counsels for Respondents

• K.B. Ramanand

Case Synopsis & Summary

The appellant, Rajeev C.S., challenged the Motor Accident Claims Tribunal, Kottayam’s award in OP(MV) 486/2012 (dated 31.10.2014) under Section 173 of the Motor Vehicles Act, 1988. The accident occurred on 09.12.2011 when the car driven by the appellant collided with a lorry, allegedly due to the lorry driver’s rash driving. The Tribunal held the accident occurred solely due to the lorry driver’s negligence, but fixed the appellant’s monthly income at ₹5,000 for calculation, and awarded a total compensation of ₹2,30,500 (with a further note of ₹4,00,000 as the upper cap in the record). It also held the appellant’s disability at a lower rate and did not assess disability in line with Raj Kumar v. Ajay Kumar. The insurer disputed the appellant’s income and the disability, while arguing the appellant failed to prove occupation and earnings. On appeal, the Kerala High Court held that the notional income should be ₹8,000 per month in 2011 (per Syed Sadiq) and that disability should be fixed at least at 15% (per Raj Kumar). The court enhanced the compensation by ₹1,61,050 across heads like loss of earning capacity, bystander expenses, extra nourishment, clothing, etc., and directed payment of the enhanced amount with 8.5% interest from the date of OP(MV). The appeal was partly allowed.

Provisions of Law Cited

Section 173 of the Motor Vehicles Act, 1988

Legal Doctrines & Maxims

Notional income for manual labour/self-employed persons (notional income approach) as per Syed Sadiq v. Divisional Manager, United India Insurance Co. Ltd., (2014) 2 SCC 735
Disability assessment framework for loss of earning capacity (functional disability to be fixed at a percentage, per Raj Kumar v. Ajay Kumar and another, (2011) 1 SCC 343)
Notion that absence of evidence may justify following the standard notional income, while evidence may justify higher notional income (Kolavan v. Salim, 2018 (1) KLT 489)

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellant contends that the Tribunal erred in not rehabilitating or compensating adequately for the disability and loss of earning capacity. He contends that his notional income should be fixed at ₹8,000 per month in 2011 (instead of ₹5,000), based on Syed Sadiq, and that the disability ought to be recognized at least at 15% (per Raj Kumar) since his injuries impaired his ability to work as a driver. He urges enhancement of compensation under several heads (loss of earning, loss of earning capacity, bystander expenses, nourishment, clothing, etc.) and seeks a longer loss-of-earning period, arguing for proper computation of disability and notional income. He also requests higher bystander expenses. Finally, he seeks the application of 8.5% interest.

Contentions of Respondents

The insurer-defendant argues lack of evidence for the appellant’s claimed income (₹10,000/month) and occupation, contending the notional income should reflect evidence on record. It asserts the Tribunal rightly fixed disability and that no substantial evidence supports a higher earning capacity; it also defends the original award as just and fair and opposes enhancement, maintaining that the accident was not solely attributable to the lorry driver and that there is no basis to depart from the Tribunal’s assessment.

Cited Precedents (4)

Case Name	Citation	Treatment	Explanation
Raj Kumar v. Ajay Kumar and another	(2011) 1 SCC 343	Positive	Used to support fixing a higher minimum disability percentage (15%) for calculation of loss of earning capacity.
Syed Sadiq and others v. Divisional Manager, United India Insurance Co. Ltd.	(2014) 2 SCC 735	Positive	Notional income approach for manual labour/self-employed persons; supports raising notional income to ₹8,000/month in 2011.
Kolavan v. Salim	2018 (1) KLT 489	Mentioned Only	Cited to illustrate that notional income may differ with evidence; court states there is no justification to depart from the Syed Sadiq framework given lack of evidence in the present case.
MACA 1387/2016 (unreported)	MACA 1387/2016 (unreported)	Mentioned Only	Unreported judgement cited by the appellant counsel in support of higher notional income; not binding in the present case.

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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 N.NAGARESH** **MONDAY, THE 29TH DAY OF JUNE 2020/8TH ASHADHA, 1942** ## **MACA.No.6 OF 2015(A)** **AGAINST THE AWARD DATED 31.10.2014 IN OP(MV) 486/2012 OF** **MOTOR ACCIDENT CLAIMS TRIBUNAL,KOTTAYAM** ## **APPELLANT/PETITIONER:** **RAJEEV C.S.,CHUZHANAYIL HOUSE, NEDUMKUNNAM POST, KOTTAYAM.** **BY ADVS. SRI.MATHEW JOHN (K) SRI.DOMSON J.VATTAKUZHY** ## **RESPONDENTS/RESPONDENTS:** - **1 MANOJ M.A.,MANOJ BHAVAN, VELIYANADU S.N.D.P.BR.NO 2834, ALAPPUZHA 688 001.** - **2 PADMAKUMAR N.P.,PADMA NIVAS, ANAPARAMBAL NORTH POST,THALAVADY, ALAPPUZHA-688 001.** - **3 THE RELIANCE GENERAL INSURANCE CO.LTD., KOTTAYAM-686 001.** **R3 BY ADV. SRI.K.B.RAMANAND** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 29-06-2020 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA No.6/2015 : 2 : ## **J U D G M E N T** ~ ~ ~ ~ ~ ~ ~ ~ ~ ## _**Dated this the 29[th] day of June, 2020**_ Aggrieved by the Award in OP(MV) No.486/2012 dated 31.10.2014 of the Motor Accidents Claims Tribunal, Kottayam, the appellant who is the petitioner in the OP(MV), has filed this appeal invoking Section 173 of the Motor Vehicles Act, 1988. 2. In the OP(MV), the appellant stated that on 09.12.2011, while the appellant was driving a car, a lorry driven by the 1[st] respondent from the opposite direction hit on the car and the appellant sustained serious injuries. The appellant was taken to MGDM Hospital, Kangazha, from where he was referred to the Medical College Hospital, Kottayam. The appellant had to be treated there as an MACA No.6/2015 : 3 : in-patient from 09.12.2011 to 30.12.2011. The accident occurred solely due to the rash and negligent driving by the 1[st] respondent. The appellant was aged 32 years and was earning ₹10,000/- per month as a driver. The appellant claimed the compensation of ₹4 lakhs. 3. The 3[rd] respondent-insurer contested the OP(MV). The insurance policy of the lorry was admitted. The 3[rd] respondent stated that the accident occurred due to the rashness and negligence of the appellant himself in driving his car. The statements of the appellant regarding his occupation, income, nature of the injuries and the period of treatment, were denied by the 3[rd] respondent. 4. The appellant produced Exts.A1 to A6 documents. Ext.X1, disability certificated dated 27.11.2013 was also marked as a Court Exhibit. The Tribunal, on appreciation of evidence, concluded that the accident occurred solely due to the rash and negligent driving of the lorry by the 1[st] respondent. The Tribunal found that as there MACA No.6/2015 : 4 : is no evidence to substantiate the assertion of the appellant on his occupation and income, the monthly income of the appellant is to be notionally fixed as ₹5,000/- per month. 5. The Tribunal passed an Award holding that the appellant is entitled to a compensation of ₹2,30,500/- under the following heads:- |Sl. No.|Head of claim|Amount claimed (`)|Amount awarded (`)|Basis-vitals detail in nut shell| |---|---|---|---|---| |1|Loss of earnings|60,000|25,000|`5,000 x 5| |2|Transport to hospital|5,000|4,000|In view of the visits to hospitals several occasions| |3|Extra nourishment|5,000|2,500|In view of the IP treatment and nature of the injuries| |4|Damage to clothings|1,000|500|Nominal amount| |5|Bystander expenses|18,000|6,000|In view of the IP treatment and nature of the injuries| |6|Medical expenses|50,000|36,500|Admissible bills (Ext.A6)| |7|Pain and sufferings|50,000|35,000|In view of the nature of the injuries| |8|Loss of amenities and inconvenience in life|50,000|25,000|--do--| |9|Loss of earning capacity|2,00,000|96,000|Taking the multiplier as '16' and loss of earning capacity as 10%| |10|Permanent disability|3,00,000|Nil|Compensation for loss of earning capacity and amenities allowed| ||Total|7,39,000 limited to `4,00,000|2,30,50**0** ========|| MACA No.6/2015 : 5 : Interest at the rate of 8.5% per annum from the date of the OP(MV) is also awarded. Aggrieved by the amount of compensation, the appellant has preferred this MACA. 6. The learned counsel for the appellant argued that the appellant incurred a disability of 90% due to the accident. However, the Tribunal took 10% as disability for awarding disability benefits. The appellant being a driver and since injuries are to the leg, he is not in a position to continue his avocation and in the circumstances, the Tribunal ought not have limited appellant's functional disability at 10%. The Tribunal, in fact, has not assessed appellant's disability in the manner provided in _**Raj Kumar v. Ajay Kumar and another** [(2011) 1 SCC 343]._ 7. The learned counsel for the appellant also stated that the compensation towards loss of earnings awarded by the Tribunal is too meager and the Tribunal should not have limited the period of loss of earning to five months. The appellant is also entitled to a higher amount of MACA No.6/2015 : 6 : compensation towards bystander's expenses. In the circumstances, the amount of compensation is to be increased, contended the learned counsel for the appellant. 8. The learned Standing Counsel for the 3[rd] respondent pointed out that the appellant has not given any oral evidence in the matter. There is no evidence on record to show that the appellant had monthly income of ₹10,000/-. The percentage of disability fixed by the Tribunal is just and proper, and requires no interference. The appellant has been granted just and fair compensation by the Tribunal and hence, the MACA is only to be dismissed, it was contended. 9. I have heard the learned counsel for the appellant and the learned Standing Counsel for the 3[rd] respondent. 10. As regards the monthly income of the appellant, to be computed for awarding compensation, it is to be noted that the appellant has not adduced any evidence to prove that he was a driver by occupation. It is for that reason the Tribunal did not agree with the appellant's claimed income MACA No.6/2015 : 7 : of ₹10,000/- per month. But, it is to be noted that fixation of ₹5,000/- as notional income of the appellant is on the lower side. The Hon'ble Apex Court in its judgment in _**Syed Sadiq and others v. Divisional Manager, United India Insurance Co. Ltd.** [(2014) 2 SCC 735]_ , held that a person without any proof of income, doing manual work or engaged in self occupation, should be treated as earning ₹4,500/- in the year 2004. Giving appropriate yearwise increase to the said standardised notional income, it has to be held that the notional income of a manual labour/self-employed person in the year 2011 will be ₹8,000/-. In the circumstances, there is no reason for not assessing the notional monthly income of the appellant as ₹8,000/- per month. 11. The learned counsel for the appellant brought to the attention of this Court a Division Bench judgment in _**Kolavan v. Salim** [2018 (1) KLT 489]_ and an unreported judgment dated 18.07.2018 of a learned Single Judge in MACA No.1387/2016 and contended that under similar MACA No.6/2015 : 8 : circumstances, this Court has fixed the notional monthly income of the claimants at ₹10,000/- per month. The judgment in _**Kolavan** (supra)_ was a case where this Court found that there is evidence to show that the deceased was a Commission Agent. The accident was in the year 2006 and still, this Court fixed the monthly income of the deceased at ₹8,000/- notionally. That was a case where there was some evidence relating to the avocation of the claimant. In the judgment in MACA. No.1387/2016, the accident was in the year 2011 and the claimants asserted that the deceased was a Rubber Tapper and Agriculturist and claimed monthly income of ₹18,000/-. The Tribunal fixed the notional income as ₹10,000/-. This Court noted that even if a daily wage of ₹800/- is fixed, the monthly income would come to ₹16,000/- with a reasonable presumption of employment for 20 days. On that ground, this Court found that there is no reason to interfere with the finding on notional income. In both the afore cases, there MACA No.6/2015 : 9 : was some evidence relating to the avocation of the claimants, in order to fix notional income at an appropriate level. In the case on hand, though the appellant claimed that he is a Driver having 10,000/- monthly income, no evidence was adduced not only in respect of income, but also of avocation. The appellant did not even produce a copy of his driving licence before the Tribunal. In the circumstances, this Court finds no justification to depart from the structured notional income being followed by this Court pursuant to the judgment in _**Syed Sadiq and others v. Divisional Manager, United India Insurance Co. Ltd.**_ . _[(2014) 2 SCC 735]_ 12. As regards the disability of the appellant, the Medical Board fixed the disability as 19%. The appellant is declared to be Orthopaedically handicapped. The appellant had suffered fracture femoral condyle left side, fracture fibula right side, abrasion on forehead left side, abrasion on forehead right side, lacerated wound 4 x 1 cm. As the MACA No.6/2015 : 10 : injuries are to the legs, it will indeed affect the appellant's alleged avocation as a driver. Even for doing any other manual work, the disability incurred by the appellant, which is of a permanent nature, would be an impediment. In the circumstances, the Tribunal ought to have fixed the functional disability of the appellant at least as 15%, for the purpose of calculating the loss of earning capacity. Therefore, it has to be held that the appellant will be entitled to an enhanced compensation of ₹2,30,400/- (₹8,000 x 12 x 16 x 15/100). The Tribunal has already awarded ₹96,000/for loss of earning capacity. The appellant will be entitled to an additional compensation of **₹1,34,400/-** under this head. 13. Regarding the compensation of ₹25,000/awarded by the Tribunal towards loss of earning, it has to be noted that though the appellant was an in-patient for a period of less than two months, the Tribunal has calculated the compensation towards loss of earning, treating five months as the period of loss of earning. Considering the MACA No.6/2015 : 11 : injuries sustained by the appellant, this Court is of the opinion that the period of loss of earnings of five months fixed by the Tribunal is just and proper. However, in view of the notional income of the appellant being increased in this appeal, the appellant will be entitled to ₹40,000/- (₹8,000 x 5) towards loss of earning. The Tribunal has already awarded ₹25,000/- under this head. In the circumstances, the appellant will be eligible for an additional compensation of **₹15,000/-** under the head loss of earning. 14. The learned counsel for the appellant urged that there should be substantial increase in the compensation towards bystander's expenses. As against the claim of the appellant for ₹18,000/-, the Tribunal has awarded ₹6,000/as bystander's expenses. Considering the nature of injuries and also considering the nature of treatment of the appellant, I find that there is considerable force in the argument of the counsel for the appellant that the appellant would have required the assistance of a bystander at least MACA No.6/2015 : 12 : for a period of 60 days. Therefore, it is declared that the appellant will be entitled to a total compensation of ₹15,000/- (₹250 x 60 days) towards bystander's expenses. The appellant has been granted ₹6,000/- under this head. Accordingly, the appellant will be entitled to an amount of **₹9,000/-** towards additional compensation for bystander's expenses. 15. The appellant was hospitalised for a period of 22 days. Therefore, the amount of ₹2,500/- awarded by the Tribunal towards extra nourishment is on a lower side. The appellant will be entitled to ₹4,400/- (₹200 x 22 days) towards compensation for extra nourishment. The additional compensation under this head will be **₹1,900/-** . 16. The compensation granted towards damage to clothing is ₹500/-. Going by the standardised rates, the appellant will be entitled to a total compensation of ₹1,250/towards damage to clothing. The appellant will hence be entitled to an additional compensation of **₹750/-** under this MACA No.6/2015 : 13 : ## head. 17. In the circumstances, it is held that the appellant will be entitled to additional compensation of **₹1,61,050/-** under the following heads: |(i)|Additional compensation towards loss of|₹1,34,400/-| |---|---|---| ||earning capacity ((₹8,000 x 12 x 16 x 15/100)|| ||minus ₹96,000/- already awarded by the|| ||Tribunal)|| |(ii)|Additional compensation towards loss of|₹15,000/-| ||earning (₹40,000/- minus ₹25,000/- already|| ||awarded by the Tribunal)|| |(iii)|Additional compensation towards bystander's|₹9,000/-| ||expenses (₹15,000/- minus ₹6,000/- already|| ||awarded by the Tribunal)|| |(iv)|Additional compensation towards extra|₹1,900/-| ||nourishment (₹4,400/- minus ₹2,500/- already|| ||awarded by the Tribunal)|| |(v)|Additional compensation towards damage to|₹750/-| ||clothing (₹1,250/- minus ₹500/- already|| ||awarded by the Tribunal)|| ||**Total**|**₹1,61,050/-**| The additional compensation will also carry interest at the MACA No.6/2015 : 14 : rate of 8.5% from the date of the OP(MV). The 3[rd] respondent is directed to pay the additional compensation of **₹1,61,050/-** to the appellant within a period of one month. The appeal is partly allowed. Sd/- **N. NAGARESH, JUDGE** aks/26/06/2020