High Court of KeralaSingle Judge2021-07-02Appeal partly allowed; enhanced compensation to...

Remadevi v. New India Assurance Co. Ltd.

Case / Petition Number:MACA NO. 1279 OF 2010

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: C.S. Dias, J.
Judgment Date: 2021-07-02
Court Decision / Holding: The appeal is allowed in part. The compensation is enhanced by Rs 18,957 on the enhanced base, with interest at 7.5% per annum from the date of filing till realisation, along with proportionate costs. The 3rd respondent is directed to deposit the enhanced amount before the Tribunal within two months from receipt of a certified copy of the judgment, and the Tribunal shall disburse the enhanced compensation to the appellant in accordance with law.
Final Disposition: Appeal partly allowed; enhanced compensation to be deposited by insurer; Tribunal to disburse to claimant.

Parties to the Case

Appellants / Petitioners

Remadevi

Respondents

New India Assurance Co. Ltd.

Legal Representation & Advocates

Counsels for Petitioners

• S. Mohanan
• R. Reji
• M. V. Thamban

Counsels for Respondents

• P M M Najeeb Khan

Case Synopsis & Summary

Remadevi, a homemaker, was severely injured in a bus accident on 15 Sept 1999 near Kudassanad-Pathamkutty while traveling in bus KL-H-8067 owned by the first respondent and insured with the third respondent. She sustained a hangman’s fracture (C2) and required hospitalisation, with ongoing follow-up treatment. She claimed compensation of Rs 1,86,000, adducing a notional income of Rs 3,000 per month. The Motor Accidents Claims Tribunal allowed Rs 91,050 with simple interest at 7.5% from the date of filing until payment, and directed the third respondent to pay. The respondents 1 and 2 were ex parte; the insurer contested, contending lack of action against it, though it admitted the vehicle policy. On appeal, the High Court relied on the Supreme Court’s Pranay Sethi framework to reassess the award, noting the accident was caused by rash driving and relying on Ext.A11 (disability certificate) showing 17% disability, though the Tribunal had assessed 9%. Citing Rajendra Singh v. National Insurance Co. (2020 4 KLT 6), the court fixed the notional income at Rs 3,000 and recalculated heads: loss of earnings, transportation, loss of amenities, and loss due to disability, resulting in a total of Rs 1,09,107, and enhanced it by Rs 18,957. The insurer is ordered to deposit the enhanced amount with the Tribunal within two months, with proportionate costs. The appeal is allowed in part to secure just compensation under the principles of fairness and equitability.

Provisions of Law Cited

Section 168 of the Motor Vehicles Act, 1988

Legal Doctrines & Maxims

Just compensation doctrine
Fairness, reasonableness and equitability under the Motor Vehicles Act

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellant contends for higher compensation based on the extent of injuries (hangman’s fracture) and the evidence of 17% disability (Ext.A11). The Tribunal’s disability assessment of 9% is not supported by medical records or a board evaluation; the notional income should be Rs. 3,000 per month as per recent authority (Rajendra Singh v. National Insurance Co.). She asserts the Tribunal undervalued heads such as loss of earnings, transportation, loss of amenities and disability. The insurer’s liability to indemnify the owner is acknowledged, and the claim petition should be treated consistently with Pranay Sethi’s just compensation framework, ensuring fairness, reasonableness and equitability.

Contentions of Respondents

The insurer contends there is no independent cause of action against it against the insured vehicle and that liability should be limited to the defined coverage; however, it admits the policy and its obligation to indemnify the insured to the extent of liability determined by the Tribunal/Judgment. The respondents submit that the award should reflect a careful appraisal of evidence and applicable law, and oppose excessive enhancement.

Cited Precedents (2)

Case Name	Citation	Treatment	Explanation
National Insurance Company Ltd. v. Pranay Sethi	(2017) 16 SCC 680	Positive	Cited for the standard of 'just compensation' based on fairness, reasonableness and equitability.
Rajendra Singh v. National Insurance Company	(2020 4 KLT 6)	Positive	Cited for fixing notional income at Rs.3,000 per month.

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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** **FRIDAY, THE 2[ND] DAY OF JULY 2021 / 11TH ASHADHA, 1943** **MACA NO. 1279 OF 2010** **AGAINST THE ORDER/JUDGMENT IN OP(MV) 611/2000 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL , MAVELIKKARA, ALAPPUZHA** ## **APPELLANT/PETITIONER:** REMADEVI, AGED 33 YEARS,VADAKKEVELIYIL VEEDU,ULAVUKAD MURI,PALAMEL VILLAGE,NOORANADU PO, MAVELIKKARA TALUK. BY ADVS. SRI.S.MOHANAN SRI.R.REJI SRI.M.V.THAMBAN ## **RESPONDENTS/RESPONDENTS:** 1 J.VASANTHASENAN, DWARAKA HOUSE, CHIRAKKADAVAM PO,KAYAMKULAM.(DELETED) 2 SREEKUMAR, S/O.KUTTAPPA KURUP, SOMA SADANAM,VETTUVENI MURI, HARIPAD VILLAGE, PO HARIPAD. (DELETED) R1 AND R2 ARE DELETED FROM THE PARTY ARRAY AT THE RISK OF THE APPELLANT VIDE ORDER DATED 22.3.2021 IN I.A.NO.1 OF 2021. 3 THE NEW INDIA ASSURANCE CO.LTD., KAYAMKULAM BRANCH, REPRESENTED BY THE DIVISIONAL MANAGER, NEW INDIA ASSURANCE CI.LTD., ERNAKULAM DIVISION, KOTTAKKAL ARYAVAIDYASALA BUILDING, OPP. HOTEL DWARAKA, M.G.ROAD, ERNAKULAM. **MACA NO. 1279 OF 2010 2** BY ADV SRI.PMM.NAJEEB KHAN THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 02.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **MACA NO. 1279 OF 2010 3** ## **JUDGMENT** The appellant was the petitioner in OP(MV) No.611 of 2000 on the file of the Motor Accidents Claims Tribunal, Mavelikara. The respondents in the appeal were the respondents before the Tribunal. 2. The concise facts in the claim petition, relevant for the determination of the appeal are: on 15.9.1999, while the appellant was travelling in a bus bearing Reg.No.KL-H-8067, when the vehicle reached the Sivananda Asramam in Kudassanad-Pathamkutty road, the vehicle overturned and hit a boundary wall which was only due to the rash and negligent driving of the vehicle by the 2[nd] respondent. The bus was owned by the 1[st] respondent and insured with the 3[rd] respondent. The appellant was a home maker. She sustained serious injuries including a hang mans fracture C2. She was treated as an inpatient at the NSS Medical Mission Hospital, Pandalam from 15.9.1999 to 29.9.1999. Later she was ## **MACA NO. 1279 OF 2010 4** treated as an out patient at the Medical College Hospital, Kottayam. The appellant fixed her notional income of Rs.3,000/-. She claimed compensation from the respondents, which was quantified at Rs.1,86,000/-. 3. The respondents 1 and 2 did not contest the proceedings and were set ex parte. 4. The 3[rd] respondent filed a written statement, admitting that the vehicle had a valid insurance policy. It was contended that the appellant had no cause of action to file the claim petition against the respondents. Hence, the claim petition may be dismissed. 5. The appellant got herself examined as PW1 and Exts.A1 to A17 in evidence. 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.91,050/- with interest @ 7.5 % per annum from the date of filing of the claim petition till the date of ## **MACA NO. 1279 OF 2010 5** realization from the respondents. The 3rd respondent was directed to pay the compensation amount. 7. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioner is in appeal. 8. Heard, the learned counsel appearing for the appellant/petitioner and the learned counsel appearing for the 3[rd] respondent. 9. The sole question that emanates for consideration in this appeal is whether the quantum of compensation awarded by the Tribunal is reasonable and just. 10. A constitution Bench of the Hon'ble Supreme Court in _**National Insurance Company Ltd. v. Pranay Sethi [(2017) 16 SCC 680)**_ , has held that Section 168 of the Motor Vehicles Act, 1988, deals with the concept of 'just compensation' and the same has to be determined on the foundation of fairness, reasonableness and equitability on acceptable legal standards. The conception of 'just compensation' has to be viewed through the prism of ## **MACA NO. 1279 OF 2010 6** fairness, reasonableness and non-violation of the principle of equitability. 11. Ext.A3 charge sheet filed by the Nooranad Police after investigation substantiates that the accident occurred solely due to the rashness on the part of the 2[nd] respondent. Admittedly, the 1[st] respondent, was the owner of the vehicle, which was insured with the 3[rd] respondent. Therefore, the 3[rd] respondent is liable to indemnify the 1[st] respondent for his liability to pay the compensation. 12. Ext.A4 wound certificate and Ext.A11 disability certificate proves that the appellant sustained injuries due to the accident and she had a hang mans fracture (fracture of the lamina of the second servicle vertebra). As per Ext.A11, the appellant was found to be having a disability at 17%. However, the Tribunal fixed the disability at 9%. Admittedly, the appellant did not examine the doctor who issued Ext.A11 disability certificate nor got herself disability assessed by a medical board. In such ## **MACA NO. 1279 OF 2010 7** circumstances, I do not find any error in the disability assessed by the Tribunal at 9%, which I confirm. 13. The appellant had claimed that she was a home maker and had a notional monthly income of Rs.3,000/-. Nonetheless, the Tribunal fixed the notional income at Rs.2,500/-. In light of the law laid down in _**Rajendra Singh**_ _**v. National Insurance Company (2020 4 KLT 6)**_ , by the Hon'ble Supreme Court, I fix the notional income of the appellant at Rs.3,000/- per month. ## **Loss of earnings** 14. Based on the injury sustained by the appellant, the Tribunal held that she was incapacitated for a period of 4 months, which also I hold to be justifiable and proper. In view of the refixation of the notional income of the appellant at Rs.3,000/-, I enhance the compensation under the head 'loss of earnings' at Rs.12,000/- instead of Rs.10,000/- fixed by the Tribunal. ## **Transportation expenses** ## **MACA NO. 1279 OF 2010 8** 15. The appellant had produced Ext.A14 series taxi bills totaling to an amount of Rs.4777/- to prove the transportation expenses. However, the Tribunal without any justifiable reason fixed the transportation expenses at Rs. 2,000/-, which according to me is unreasonable and erroneous. In view of the actual expenses incurred by the appellant towards a transportation charges as reflected in Ext.A14 series bills, I fix the transport expenses at Rs.4,777/-. ## **Loss of amenities** 16. The appellant had claimed an amount of Rs.25,000/- towards loss of amenities. Taking into account that the appellant was hospitalized for a period from 15.9.1999 to 21.9.1999 and that she has a permanent disability of 9% and also that she has still continuing her follow up treatment, I hold that the appellant is entitled for compensation under the head 'loss of amenities' at Rs.10,000/- instead of Rs.5,000/- fixed by the Tribunal. ## **MACA NO. 1279 OF 2010 9** ## **Loss due to disability** 17. In view of the refixation of the notional income of the appellant at Rs.3,000/-, the disability at 9% and the relevant multiplier being '17', I refix the compensation under the head loss due to disability at Rs.55,080/-. 18. With respect to the other heads of compensation, I find that the Tribunal has awarded reasonable and just compensation. 19. On an over all re-appreciation of the pleadings and materials on record, the law laid down in the aforecited decisions, I am of the firm opinion that the appellant/petitioner is entitled for enhancement of compensation as modified and recalculated above and given in the table below for easy reference. |Head of claim|Amount Awarded by the Tribunal (in Rs.)|Amounts modified and recalculated by this Court| |---|---|---| ## **MACA NO. 1279 OF 2010 10** |Loss of earnings|10,000/-|12,000/-| |---|---|---| |Transportation|2,000/-|4,777/-| |Clothing|250/-|250/-| |Bystander expenses|1,000/-|1000/-| |Extra nourishment|1,000/-|1000/-| |Medical expenses|10,000/-|10,000/-| |Pain and sufferings|15,000/-|15,000/-| |Loss of amenities|5,000/-|10,000/-| |Loss due to disability|45,900/-|55,080/-| |Total|90,150/-|1,09,107/-| In the result, the appeal is allowed in part, by enhancing the compensation by a further amount of Rs.18,957/- with interest at the rate of Rs.7.5% per annum on the enhanced compensation from the date of petition till the date of realisation along with proportionate costs. The 3[rd] respondent shall deposit the enhanced compensation amount awarded in the appeal before the Tribunal with interest **MACA NO. 1279 OF 2010 11** and proportionate costs within a period of two months from the date of receipt of a certified copy of this judgment. The Tribunal shall disburse the enhanced compensation to the appellant/petitioner in accordance with law. Sd/- **C.S.DIAS, JUDGE** pm