High Court of KeralaSingle Judge2021-08-09Appeal allowed; enhanced compensation awarded; ...

Saji Jose v. Riyas.V.M. and The Manager, Oriental Insurance Co. Ltd.

Case / Petition Number:MACA No. 2904 of 2009

Neutral Citation:/null

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: C. S. Dias
Judgment Date: 2021-08-09
Court Decision / Holding: The appeal is allowed. The Court re-fixes the appellant’s notional income at Rs. 4,500 per month, computes loss of earnings at Rs. 13,500, increases other heads (including loss of amenities to Rs. 20,000 and loss due to disability to Rs. 36,720), and adjusts the total compensation to Rs. 1,48,920, an enhancement of Rs. 43,720 over the Tribunal’s award. Interest is awarded at 7% per annum on the enhanced amount from the date of petition till the date of deposit, after excluding 226 days for delay in filing the appeal, and costs of Rs. 3,000. The 2nd respondent is directed to deposit the enhanced compensation before the Tribunal within sixty days from receiving a certified copy of this judgment, and the Tribunal shall disburse the enhanced amount in accordance with law.
Final Disposition: Appeal allowed; enhanced compensation awarded; enhanced amount to be deposited before the Tribunal within 60 days; Tribunal to disburse in accordance with law; costs awarded.

Parties to the Case

Appellants / Petitioners

Saji Jose

Respondents

Riyas.V.M.
The Manager, Oriental Insurance Co. Ltd.

Legal Representation & Advocates

Counsels for Petitioners

• Sri. N. Krishnankutty Pillai

Counsels for Respondents

• Smt. R. Rajitha
• Sri. P. Jacob Mathew
• Sri. Mathews Jacob Sr.
• Sri. P. Santhosh Poduval

Case Synopsis & Summary

On 25.01.2004, while travelling in Car KL 08/X 1945 on the Ernakulam–Thrissur National Highway, the vehicle went out of control at Muringoor and collided with a tree. The driver died; the appellant, Saji Jose, sustained serious injuries including fractures and permanent disability, and was treated for 12 days. The car was owned by the 1st respondent and insured with the 2nd respondent. The appellant claimed Rs. 3,93,000 as compensation, while the insurer admitted coverage but contended that the driver did not hold a valid license and that the other passengers were gratuitous, so liability lay largely on the insured. A fellow passenger also filed a petition. The Tribunal consolidated and adjudicated the petitions, awarding Rs. 1,05,200 with interest and costs from the 2nd respondent. The appellant challenged the quantum. Noting the 2004 date, the High Court referred to Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Co. Ltd., (2011) 13 SCC 236, which fixed a notional income for a coolie at Rs. 4,500 per month. Re-fixing the notional income at Rs. 4,500, the Court recalculated loss of earnings, disability, and loss of amenities, resulting in a total enhanced compensation of Rs. 1,48,920, with a further addition of Rs. 43,720 over the Tribunal’s award and costs of Rs. 3,000. It directed deposit of the enhanced amount before the Tribunal within 60 days and disbursement in accordance with law.

Legal Doctrines & Maxims

Notional income principle from Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Co. Ltd., (2011) 13 SCC 236

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellant contends that the Tribunal’s quantum is inadequate. He asserts that his notional income for 2004 should be Rs. 4,500 per month (as supported by the Supreme Court’s Ramachandrappa decision) and that the losses for earnings, disability, loss of amenities, and other heads require higher reckoning to reflect the real impact of the accident and the period of medical treatment, professional status as a goldsmith, and the extent of injury. He seeks enhancement of compensation to reasonably reflect these factors.

Contentions of Respondents

The insurer contends that liability is contested on grounds including that the driver did not hold a valid driving license and that the passengers were gratuitous, thus challenging the insurer’s responsibility for compensation. It relies on these arguments to limit liability and disputes the Tribunal’s approach to calculating damages, including notional income and heads of compensation.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited	(2011) 13 SCC 236	Positive	Court followed the Ramachandrapppa ratio to determine the notional income for computing compensation.

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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** **MONDAY, THE 9[TH] DAY OF AUGUST 2021 / 18TH SRAVANA, 1943** **MACA NO. 2904 OF 2009** **AGAINST THE AWARD IN OP(MV)NO. 499/2004 OF MOTOR ACCIDENT CLAIMS TRIBUNAL , IRINJALAKUDA, THRISSUR** ## **APPELLANT/PETITIONER:** **SAJI JOSE, S/O.JOSE, MAZHUVANCHERY HOUSE, THIROOR P.O., KOLAZHY, THRISSUR DISTRICT** **BY ADV SRI.N.KRISHNANKUTTY PILLAI** ## **RESPONDENTS/DEFENDANTS** **1 RIYAS.V.M., MOTHER VILLA, HINDUSTAN BOUNDARY LANE, POOTHOLE, THRISSUR** **2 THE MANAGER, ORIENTAL INSURANCE CO. LTD., 'U' BROTHERS BUILDING, GURUVAYOOR ROAD, KUNNAMKULAM, THRISSUR** **BY ADVS. SMT.R.RAJITHA SRI.P.JACOB MATHEW SRI.MATHEWS JACOB SR. SRI.P.SANTHOSH PODUVAL** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 09.08.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA No. 2904 of 2009 _2_ ## **C.S.DIAS,J** - - - - - - - - - - - - - - - - - - - - - - - - ## MACA No. 2904 of 2009 - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 9[th] day of August, 2021 ## **JUDGMENT** The appellant was the petitioner in OP(MV)No.499 of 2004 on the file of the Motor Accidents Claims Tribunal, Irinjalakkuda. The respondents in the appeal were the respondents before the Tribunal. 2. The facts in brief, relevant for the determination of the appeal, are : on 25.01.2004 while the appellant was travelling in a Car bearing registration No.KL 08/X 1945 along the Ernakulam – Thrissur National Highway, when the vehicle reached Muringoor, the driver of the Car lost control of the vehicle and dashed against a tree. In the impact the appellant sustained serious injures and was treated at the Elite Mission Hospital, Thrissur for a period of 12 days. The driver of the Car named Reeson, lost his life MACA No. 2904 of 2009 _3_ in the accident. The Car was owned by the 1[st] respondent and insured with the 2[nd] respondent. The appellant was a Goldsmith by profession and earning a monthly income of Rs.4,500/- per month. The appellant sustained serious injuries, including fractures and sustained permanent disability. Hence, the appellant claimed a total compensation of Rs.3,93,000/- from the respondents, which was limited to Rs.3,00,000/-. 3. The 1[st] respondent did not contest the proceedings and was set ex-parte. 4. The 2[nd] respondent filed a written statement admitting that the Car had a valid insurance coverage. Nevertheless, it was contended that the deceased - driver of the Car did not hold a valid driving license. It was also contended that the appellant and the fellow passengers were only gratuitous passengers, Hence, the 2[nd] respondent was not liable to pay any amount as compensation MACA No. 2904 of 2009 _4_ 5. A fellow passenger in the Car named Danish Daniel, who also sustained serious injuries in the accident, also filed OP(MV)No. 438 of 2004 before the same Tribunal. 6. The Tribunal, consolidated and jointly tried the original petitions. 7. The petitioners in the two original petitions examined themselves as PW1 and PW2 and marked Exts.A1 to A19 in evidence. The 2[nd] respondent produced and marked Exts.B1 and B2 in evidence. 8. The Tribunal, after analysing the pleadings and materials on record, by its common award allowed the captioned claim petition filed by the appellant, by permitting him to realise an amount of Rs,1,05,200/with interest and proportionate costs from the 2[nd] respondent. 9. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioner MACA No. 2904 of 2009 _5_ is in appeal. 10. Heard Sri.N.Krishnankuty Pillai, the learned counsel appearing for the appellant and Sri. P. Jacob Mathew, the learned Counsel appearing for the 2[nd] respondent – insurer. 11. The sole question that emerges for consideration in this appeal whether the quantum of compensation awarded by the Tribunal is reasonable and just? 12. Ext.A2 charge-sheet filed by the Koratty police in Crime No.36 of 2004 proves that the accident occurred on the account of the negligence of the driver of the Car. Admittedly, the 1[st] respondent was the owner and the 2[nd] respondent was the insurer of the Car. Therefore, the 2[nd] respondent is to indemnify the 1[st] respondent of his liability that has arisen out of the accident. 13. The appellant had claimed that he was a MACA No. 2904 of 2009 _6_ Goldsmith by profession and earning a monthly income of Rs.4,500/-. However, the Tribunal fixed the notional income of the appellant at Rs.1,500/- per month. 14. The Hon'ble Supreme Court in _**Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited**_ [ _(2011) 13 SCC 236_ ] has fixed the notional income of a Coolie worker in the year 2004, at Rs.4,500/- per month. ## **Notional income** 15. Following the ratio in the afore-cited decision and considering the fact that the accident took place in the year 2004, I re-fix the appellant's notional income at Rs.4,500/- per month. ## **Loss of earnings** 16. The Tribunal held that the appellant was indisposed for a period of three months, which I accept and confirm. 17. In view of the re-fixation of the notional MACA No. 2904 of 2009 _7_ income of the appellant at Rs.4,500/- per month, I refix his 'loss of earnings' at Rs.13,500/- instead of Rs.6,000/- awarded by the Tribunal. ## **Disability** 18. Although the appellant had produced and marked Exts.A15 and A17 to prove his disability, he did not examine the Doctors who issued the above certificates. The Tribunal for the aforesaid reason declined to accept the disability certificates. However, the Tribunal, after seeing the appellant fixed his whole-body disability at 4%. The said assessment is found to be reasonable, which I confirm. ## **Loss due to disability** 19. In view of the re-fixation of the notional income at Rs.4,500/- per month, taking the multiplier at '17', and the appellant's disability at 4%, I re-fix the compensation for 'loss due to disability' at Rs.36,720/-. MACA No. 2904 of 2009 _8_ ## **Loss of amenities** 20. The appellant had claimed an amount of Rs.20,000/- as compensation for 'loss of amenities'. The Tribunal only awarded an amount of Rs.10,000/-. Taking into account the injuries sustained by the appellant, particularly, the disfiguration that happened due to the accident and the fact that he was hospitalised for a period of 12 days and was indisposed for a period of three months, I am of the opinion that the compensation for 'loss of amenities' has to be enhanced as claimed for in the claim petition at Rs.20,000/-. ## **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 laid down MACA No. 2904 of 2009 _9_ in the afore-cited decisions, I am of the definite 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. |Sl.<br>No|Heads of claim|Amount awarded by the<br>Tribunal (in rupees)|Amounts modified<br>and recalculated<br>by this Court| |---|---|---|---| |1|Loss of earnings|6,000/-|13,500/-| |2|Bye-stander expenses|1,200/-|1,200/-| |3|Extra nourishment|nil|2,500/-| |4|Medical expenses|54,000/-|54,000/-| |5|Pain and sufferings|20,000/-|20,000/-| |6|Loss of amenities|10,000/-|20,000/-| |7|Loss due to disability|13,000/-|36,720/-| |8|Transportation expenses|1,000/-|1,000/-| |||1,05,200/-|1,48,920/-| In the result, the appeal is allowed by enhancing the compensation by a further amount of Rs.43,720/with interest on the enhanced compensation at the rate of 7% per annum from the date of petition till the date of deposit, after deducting 226 days, i.e. the period of delay in preferring the appeal, and as MACA No. 2904 of 2009 _10_ ordered by this Court on 31.03.2021 in C.M.Appl. No.3439 of 2009, and a cost of Rs.3,000/-. The 2[nd] respondent is ordered to deposit the enhanced compensation before the Tribunal with interest and costs within a period of sixty days from the date of receipt of a certified copy of this judgment. The Tribunal shall disburse the enhanced compensation to the appellant in accordance with law. **Sd/- C.S.DIAS,JUDGE** dlK 09.08.2021