High Court of KeralaSingle Judge2022-10-14Appeal allowed; enhanced compensation awarded; ...

Robin Thomas v. Peter; Sampathkumar D.N.; The Divisional Officer, New India Assurance Company Limited

Case / Petition Number:MACA NO. 555 OF 2014

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Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: Basant Balaji
Judgment Date: 2022-10-14
Court Decision / Holding: The appeal is allowed. The appellant is awarded a total enhanced compensation of Rs. 1,01,080. The insurer shall pay interest on the amounts awarded by the Tribunal at the rate directed in the impugned award and on the enhanced amounts at 8% from the date of petition. All Tribunal findings remain, and any amounts already paid shall be set off. The claimants must furnish bank account details within one month, and payment shall be transferred via NEFT/RTGS within a further month. If the bank details are not provided in time, no interest will accrue on the enhanced amount after that period. If the insurer fails to deposit the enhanced amount as directed, interest will accrue at the Tribunal’s rate from the petition date.
Final Disposition: Appeal allowed; enhanced compensation awarded; Tribunal findings upheld on other heads; payment directions issued; set-off and banking details to be furnished; interest provisions as stated.

Parties to the Case

Appellants / Petitioners

Robin Thomas

Respondents

Peter
Sampathkumar D.N.
The Divisional Officer, New India Assurance Company Limited

Legal Representation & Advocates

Counsels for Petitioners

• Sri. P. M. Joshi
• Smt. Siji K. Paul

Counsels for Respondents

• Sri. M. Rajagopalan

Case Synopsis & Summary

Robin Thomas, the appellant, sustained serious injuries in a road motor accident on 18 May 2011 while riding a motorcycle (KL 37/3407). The other vehicle, TN 20/J-4516, was driven rashly, allegedly by the first respondent, causing him to be tossed into Periyar Government Hospital and subsequently to Medical College Hospital, Kottayam. A Motor Accident Claims Tribunal award of Rs 1,67,000 with 8.5% interest from the petition date was challenged in this MACA. The appellant, then 26 years old and employed as a Fire Guard with Technip India Limited, claimed monthly earnings of Rs 10,000, but the Tribunal adopted a notional income of Rs 5,000 due to lack of documentary proof. The insurer contended that the accident was partly the petitioner’s fault and that the driver held no valid license, absolving liability from the insurer. On appeal, the court relied on Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Co. Ltd (2011) 13 SCC 236 to adopt a higher notional income of Rs 8,000, given the year of the accident (2011). With age 26, the proper multiplier of 17 was applied. The Tribunal’s awards on pain and suffering and loss of amenities were enhanced after considering the injuries (fractures, contusions, pneumocephalus) and 19 days of inpatient care, resulting in a total enhanced compensation of Rs 1,01,080. The insurer was directed to pay with specified interest and bank payment procedures. The first respondent’s license issue remains noted, with liability arguments addressed.

Legal Doctrines & Maxims

Notional income principle (Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Co. Ltd., (2011) 13 SCC 236)
Multiplier principle for computation of loss of earning capacity (as applied in personal injury cases)
Loss of earning capacity concept in awarding compensation

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellant contended that his actual salary was Rs.10,000 per month as a Fire Guard with Technip India Limited, but the Tribunal adopted a notional income of Rs.5,000 per month due to lack of documentary proof. He argued for higher compensation on the heads of loss of earning capacity, loss of earnings, pain and suffering, and loss of amenities, supported by the injury details and hospitalization. He claimed the insurer should be liable and sought enhancement by applying appropriate income and multiplier to reflect his actual earnings and the impact of disability.

Contentions of Respondents

The respondents argued that the Tribunal’s compensation is just and reasonable on all heads. They contended the appellant failed to furnish documents proving a monthly income of Rs.10,000, justifying the use of Rs.5,000 as notional income. They also challenged the assertion of the first respondent’s license validity, noting the insurer’s liability to indemnify rests on the driver’s license status unless proven otherwise and emphasized that the existing award was fair and correctly calculated under established principles.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Co. Ltd.	(2011) 13 SCC 236	Positive	Used to justify adopting a higher notional income (Rs. 8,000) in the absence of proof of actual earnings, aligning with the Supreme Court’s stance on notional income in personal injury claims.

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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 BASANT BALAJI** **FRIDAY, THE 14[TH] DAY OF OCTOBER 2022 / 22ND ASWINA, 1944** **MACA NO. 555 OF 2014** **OPMV 1008/2011 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,KOTTAYAM APPELLANT/S:** ROBIN THOMAS AGED 26 YEARS S/O. THOMAS, NARIPARAYIL HOUSE, VALLAKADAVU.P.O., VANDIPERYAR, ATTAPALLAM KARA, KUMILI VILLAGE, IDUKKI DISTRICT. BY ADVS. SRI.P.M.JOSHI SMT.SIJI K.PAUL ## **RESPONDENT/S:** 1 PETER,AGED 35 YEARS,S/O. JOSEPH, KOCHUPARAMBILHOUSE, VALIYAKANDAM.P.O.,KUMILI VILLAGE, IDUKKI DISTRICT-685503. 2 SAMPATHKUMAR.D.N.,AGED 35 YEARS S/O. NARAYANAN, NO.1/2, L.I.C. COLONY, GANGA NAGAR, CHENNAI-600001. 3 THE DIVISIONAL OFFICER NEW INDIA ASSURANCE COMPANY LIMITED, KOTTAYAM686001. BY ADV SRI.M.RAJAGOPALAN THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 14.10.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **MACA NO. 555 OF 2014** -2- ## **JUDGMENT** (Dated this the 14[th] day of October 2022) The petitioner in O.P.(M.V) No.1008 of 2011 is the appellant. He claimed compensation for the injuries sustained by him in a road motor accident. 2. The brief facts of the case are as follows: The petitioner was riding a motor bike bearing KL 37/3407 through chelimada - Lakshamveedu colony on 18.5.2011, while so a motor bike bearing registration No.TN 20/J4516 ridden by the first respondent in a rash and negligent manner from lakshamveedu colony to Chelimada lost its control and hit on the petitioner and he sustained serious injuries. He was immediately taken to Periyar government hospital and from there he was referred to Medical College hospital, Kottayam. He underwent treatment from 18.5.2011 to 6.6.2011 and continued his treatment as outpatient thereafter. 3. The petitioner was aged 26 years and employed as Fire Guard in Technip India limited drawing a monthly **MACA NO. 555 OF 2014** salary of Rs.10,000/-. The accident happened on account of the rash and negligent driving of the first respondent and hence he is entitled to compensation from respondent Nos.1 to 3. 4. The 3[rd] respondent filed a written statement admitting the policy of the motor bike TN 20/J-4516 and contended that the accident happened solely due to the rash and negligent driving on the part of the petitioner himself. The first respondent who was riding the motor bike was not having valid and effective license and hence, the insurer is not liable to indemnify. The first respondent remained exparte. 5. The Tribunal on an appreciation of the facts and circumstances of the case and Exts.A1 to 9, B1 and X1 awarded a total compensation of Rs.1,67,000/- with interest at 8.5% per annum from the date of petition till realisation. 6. Aggrieved by the compensation awarded by the tribunal, this appeal is filed by the appellant. 7. The counsel for the appellant contends that though **MACA NO. 555 OF 2014** -4- he had claimed that the appellant was having a salary of Rs.10,000/- per month, the Tribunal took the notional income only as Rs.5,000/- per month. He has also argued that the compensation in respect of the loss of earnings, pain and suffering and loss of amenities awarded are on the lower side and requires enhancement. 8. The counsel for the respondent Insurance company submits that just and reasonable compensation are awarded on all heads. The Tribunal has taken Rs.5,000/- as notional income in the absence of any document to prove that he was employed and earning Rs.10,000/- per month. 9. It is true that no documents were produced from the side of the appellant to prove that he was earning monthly income of Rs.10,000/- as Fire Guard in Technip India limited. In the absence of any document relying on the in **v.** judgment **Ramachandrappa Manager, Royal Sundaram Alliance Insurance Co. Ltd [(2011) 13 SCC 236],** I am inclined to take the monthly income as Rs.8,000/- since the accident happened in the year **MACA NO. 555 OF 2014** 2011. The appellant was aged 26 years at the time of accident. The proper multiplier to be adopted is 17 which the Tribunal took correctly. 10. Ext.X1 is the disability certificate which shows that the petitioner is having a permanent disability of 9% due to the injuries happened in the accident. The Tribunal, taking note of the percentage of disability, calculated loss of earning capacity taking the income as Rs.5000/-. As held earlier, by taking income as Rs.8,000/-, the multiplier as 17 and with permanent disability of 9%, the loss of earning capacity can be reworked as 8,000x12x17x9/100 = Rs.1,46,880/-, less the amount awarded by the Tribunal. 10. The Tribunal awarded loss of earning for two months. When the monthly income is taken as Rs.8,000/-, loss of earning for two months would come to Rs.8,000x2 = Rs.16,000/- less the amount awarded by the Tribunal. 11. For pain and suffering, the Tribunal awarded Rs.30,000/- as against the claim of 3 lakhs. From Ext Nos.A2, A4 and A6, it is seen that the appellant sustained **MACA NO. 555 OF 2014** -6- fracture of zygomatic complex, fracture of frontal bone, bifrontal contusion, right frontal and temporal hemorrhagic contusion and pneumocephalus and had undergone surgery. Taking note of the above injuries and the fact that he had undergone treatment as inpatient for 19 days the amount awarded under pain and suffering needs slight enhancement. A sum of Rs.25,000/- more is awarded under pain and suffering. 12. As regards the loss of amenities is concerned, the Tribunal awarded Rs.15,000/- against claim of one lakh. Taking note of the injuries sustained and disability at the rate of 9%, an amount of Rs.15,000/- more is awarded under the head. Accordingly, the following enhancements are made to the award passed by the Tribunal: |Sl. No.|Head of Claim|Amt. Awarded by Tribunal (Rs.)|Amt. Enhanced in appeal (Rs.)| |---|---|---|---| **MACA NO. 555 OF 2014** -7- |1|Loss of earning capacity|91,800|1,46,880| |---|---|---|---| |2.|Loss of earnings|10,000|16,000| |3|Pain and suffering|30,000|55,000| |4|Loss of amenities|15,000|30,000| ||Total|1,46,800|2,47,880| ||Amount enhanced Rs.2,47,880-1,46,800**=** Rs.**1,01,080/**-||| In the result, the appeal is allowed and the appellants are entitled to an amount of Rs.1,01,080/(Rupees one lakh one thousand and eighty only). The Insurance Company shall pay interest for the amounts awarded by the Tribunal at the rate directed in the impugned award and for the enhanced amounts at the rate of 8% from the date of petition. All other findings entered by the Tribunal stand confirmed. If any amounts have already been paid, the same shall be granted set off. The claimants shall produce the details of the Bank account before the Insurance Company/Tribunal within one month **MACA NO. 555 OF 2014** -8- from the date of receipt of a certified copy of this judgment and amount shall be transferred to the Bank account directly through NEFT/RTGS mode, within a period of one month thereafter. If the Bank account is not furnished within the time stipulated, it is made clear that no interest shall run on the enhanced amount after the period stipulated by this Court. However, if the Insurance Company fails to deposit the amount as directed, interest shall run at the rate ordered by the Tribunal from the date of petition. sd **BASANT BALAJI, JUDGE** _dl/_