High Court of KeralaSingle Judge2020-06-11Partly allowed

Salim S/o Sulaimankunju v. Abdul Salim, Shimna K.T. and The Oriental Insurance Co. Ltd.

Case / Petition Number:MACA.No.1048 OF 2016(C)

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: N. Nagareesh
Judgment Date: 2020-06-11
Court Decision / Holding: The appeal is partly allowed. The appellant is entitled to an additional compensation of ₹1,57,439 across heads including disability, medical expenses, bystander expenses, and pain and suffering, with 9% interest per annum from the date of OP(MV), payable within 30 days. The 3rd respondent (insurer) is directed to pay the enhanced amount within the specified period.
Final Disposition: Partly allowed

Parties to the Case

Appellants / Petitioners

Salim, S/O. Sulaimankunju, Kuruttuparambu Veedu, Karoork, Purakkadu

Respondents

Abdul Salim, S/O. Moosakoya, Palarkkotta Veedu, Ward-V, Nallalam P.O, Cheruvannur, Kozhikode-673 027
Shimna K.T., W/O. Santhosh, Kaipamthodi House, Erannikkal, Kozhikode-673 001
The Oriental Insurance Co. Ltd., Rep. by its Divisional Manager, Divisional Office, Thiruvalla-689 111

Legal Representation & Advocates

Counsels for Petitioners

• Sri George Varghese (Perumpallikuttiyil)
• Sri A.R. Dileep
• Sri P.J. Paul
• Sri Manu Sebastian

Counsels for Respondents

• Sri M. Jacob Murickan
• Sri John Daniel Olappura
• Sri K.S. Santhi

Case Synopsis & Summary

This appeal arises from a Motor Accidents Claims Tribunal award under Section 173 of the Motor Vehicles Act, 1988, in respect of injuries sustained by the appellant on 7 August 2011 when a van struck the two-wheeler on which he was a pillion rider. The appellant, a self-employed chapati maker, suffered injuries resulting in 70 days of hospitalisation and a medical assessment of 25% physical disability. The Tribunal assessed the appellant’s monthly income at ₹4,000 and fixed functional disability at 20%, despite the higher physical disability, ultimately awarding ₹7,17,375. The appellant challenged the award, arguing that his income and disability were undervalued and that he was entitled to additional medical expenses, bystander costs, and enhanced compensation for pain and suffering. The insurer contested the claim, maintaining that the driver’s negligence caused the accident, that the appellant’s income should stand at ₹4,000, and that the 20% functional disability was justified, citing Raj Kumar v. Ajay Kumar and another to limit compensation. The Kerala High Court partially allowed the appeal, adopting a notional monthly income of ₹6,000 for a self-employed person and granting additional compensation (₹1,57,439) across several heads, including medical expenses and pain and suffering, with 9% interest. The order directs payment within 30 days.

Provisions of Law Cited

Section 173 of the Motor Vehicles Act, 1988

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellant contends that the Tribunal erred in fixing the income at ₹4,000 and in adopting 20% functional disability despite 25% physical disability. He argues for a higher notional income (₹6,000) for a self-employed person and for enhanced compensation including medical expenses, bystander costs, and higher pain and suffering, supported by subsequent medical bills for a post-2015 hospitalization.

Contentions of Respondents

The insurer argues that the appellant’s income should be ₹4,000 as fixed by the Tribunal and that the 20% functional disability is supported by case law (Raj Kumar v. Ajay Kumar). It asserts that there should be no windfall enhancements beyond the Tribunal’s award and relies on the insurer’s liability framework under the Motor Vehicles Act.

Cited Precedents (2)

Case Name	Citation	Treatment	Explanation
Raj Kumar v. Ajay Kumar and another	(2011) 1 SCC 343	Positive	Used to justify that the appellant is not entitled to any further compensation beyond the Tribunal’s award, aligning with the principle that the awarded sum may reflect proper assessment under the circumstances.
Syed Sadiq and others v. Divisional Manager, United India Insurance Co. Ltd.	(2014) 2 SCC 735	Partly Overruled / Limited	The court notes the principle that a self-employed claimant’s income should be presumed (6,500/month) in the absence of evidence; it departs from that presumption by accepting ₹6,000/month, indicating a limited or modified application of the principle.

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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** **THURSDAY, THE 11TH DAY OF JUNE 2020 / 21ST JYAISHTA, 1942** ## **MACA.No.1048 OF 2016(C)** **AGAINST THE AWARD IN OP(MV) 261/2012 DATED 31-03-2015 OF THE ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL, ALAPPUZHA** ## **APPELLANT:** **SALIM,S/O. SULAIMANKUNJU, KURUTTUPARAMBU VEEDU, KAROOR,PURAKKADU** **BY ADVS. SRI.GEORGE VARGHESE(PERUMPALLIKUTTIYIL) SRI.A.R.DILEEP SRI.P.J.JOE PAUL SRI.MANU SEBASTIAN** ## **RESPONDENTS/RESPONDENTS:** **1 ABDUL SALIM,S/O. MOOSAKOYA, PALARKKOTTA VEEDU, WARD-V, NALLALAM P.O,CHERUVANNUR, KOZHIKODE-673 027** - **2 SHIMNA K.T.,W/O. SANTHOSH, KAIPAMTHODI HOUSE, ERANNIKKAL, KOZHIKODE-673 001** - **3 THE ORIENTAL INSURANCE CO.LTD., REP. BY ITS DIVISIONAL MANAGER, DIVISIONAL OFFICE, THIRUVALLA-689 111** **BY ADV. SRI.M.JACOB MURICKAN BY ADV. SRI.JOHN DANIEL OLAPPURA BY ADV. SMT.K.S.SANTHI** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 11.06.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA.No.1048 OF 2016(C)** **:2:** ## **J U D G M E N T** ~ ~ ~ ~ ~ ~ ~ ~ ~ ## _**Dated this the 11[th] day of June, 2020**_ The petitioner in OP(MV) No.261/2012 of the Motor Accidents Claims Tribunal, Alappuzha is in appeal against Award dated 31.03.2015 of the Tribunal, invoking Section 173 of the Motor Vehicles Act, 1988. 2. The appellant sustained injuries when a van driven by the 1[st] respondent caused an accident on 07.08.2011 by hitting a two wheeler on which the appellant was a pillion rider. The appellant had to be treated at Medical College Hospital, Alappuzha. The appellant was partially disabled, due to the injuries. He was treated as an in-patient in the hospital for about 70 days. PW1 Doctor certified that the appellant had suffered 25% disability. The appellant limited his claim before the Tribunal to 4,50,000/-.₹ **MACA.No.1048 OF 2016(C)** **==> picture [23 x 9] intentionally omitted <==** 3. The 3[rd] respondent-insurer contested the claim, filing written statement. The insurance policy was admitted. The accident occurred due to the negligence of the driver of the two wheeler, contended the 3[rd] respondent. The injuries sustained by the appellant, his disability and other claims were refuted. 4. The appellant produced Exts.A1 to A14 documents and examined PW1-Dr.V.A.Bindulal. The respondents did not adduce any oral or documentary evidence. The Tribunal, after appreciation of evidence, passed the impugned Award holding that the appellant is entitled to 7,17,375/-. Dissatisfied by the₹ amount awarded, the appellant has preferred this appeal. 5. The learned counsel for the appellant argued that the appellant was a businessman having a monthly income of ₹6,000/-. The Tribunal arbitrarily assessed his income as ₹4,000/-. Though the evidence given by PW1 and Ext.A8 proved that the appellant has incurred 25% physical disability, the Tribunal assessed functional disability only at 20%, which **MACA.No.1048 OF 2016(C)** **==> picture [23 x 9] intentionally omitted <==** is highly arbitrary. The counsel for the appellant stated that after the Award, the appellant had to incur further medical expenses to the tune of 72,439/-, which is evident from₹ Annexures-A1 to A4 documents. As the appellant had to be admitted in hospital nearly for 10 days during 2018, the appellant is entitled to additional compensation towards bystander expenses for that period also. The amount of ₹20,000/- awarded by the Tribunal for compensation towards pain and suffering is much on a lower side, contended the learned counsel for the appellant. The compensation amount is therefore liable to be revised upward. 6. The learned Standing Counsel appearing for the respondent pointed out that the appellant is only a Chapati maker and hence the Tribunal rightly fixed his income as ₹4,000/- per month. The Tribunal has assessed the functional disability of the appellant at 20%, as against the physical disability of 25% assessed by the Doctor. Such assessment by the Tribunal is perfectly justified in view of the **MACA.No.1048 OF 2016(C)** **==> picture [23 x 9] intentionally omitted <==** judgment of the Apex Court in _**Raj Kumar v. Ajay Kumar and another** [(2011) 1 SCC 343]_ . The appellant is therefore not entitled to any additional compensation than the one awarded by the Tribunal. 7. I have heard the learned counsel for the appellant and the learned Standing Counsel for the 3[rd] respondent. 8. The appellant was aged 39 years at the time of the accident. Assuming that the appellant is in the business of Chapati making, even then, he is a self-employed person. In the judgment of the Apex Court in _**Syed Sadiq and others v.**_ _**Divisional Manager, United India Insurance Co. Ltd.** [(2014) 2 SCC 735],_ it has been held that a self-employed person, in the absence of any evidence of his income, should be presumed to be earning 6,500/- per month. The appellant₹ has stated that he is earning only 6,000/- per month. In such₹ circumstances, I am of the opinion that the Tribunal ought to have accepted the version of the appellant towards his monthly income, in order to arrive at compensation amount. **MACA.No.1048 OF 2016(C)** **==> picture [23 x 9] intentionally omitted <==** The Tribunal has assessed appellant's disability as ₹1,44,000/-. As this Court is inclined to take 6000 as the notional monthly income of the appellant, the appellant is entitled to an enhanced compensation of ₹2,16,000/-. Consequently, the appellant will be entitled to additional compensation of 72,000/- (₹ ₹6,000/- x 12 x 15 x 20/100 minus ₹1,44,000/- already awarded by the Tribunal) under the head disability. 9. The learned counsel for the appellant stated that the Tribunal ought to have taken 25% as disability for assessment of loss of earning capacity. The Apex Court has held that even if there is medical evidence regarding the physical disability of an injured, the Tribunal has to arrive at its own conclusions as regards functional disability of the injured for the purpose of grant of compensation towards disability. The Tribunal has considered all aspects of the case including Ext.A8 disability certificate before arriving at the conclusion of 20% functional disability. This Court find no reason to depart from the findings **MACA.No.1048 OF 2016(C)** **:7:** of the Tribunal. 10. The appellant, during the pendency of this appeal, produced Annexures-A1 to A4 documents, which are medical bills and treatment records in respect of the appellant. Going through the documents produced, this Court is of the opinion that the said treatment was made as follow-up case of supracontilar fracture comminuted resulting from the injuries sustained in the motor accident. In the circumstances, there is no reason to disregard the veracity of Annexures-A1 to A4. Consequently, it is held that the appellant will be entitled to an additional compensation of ₹72,439/towards additional medical expenses. The appellant will also be entitled to an additional amount of 3,000/- (₹ ₹300/- x 10) towards bystander expenses incurred in the year 2018. Going through the amounts awarded by the Tribunal under various heads, it has to be noted that the Tribunal has granted only 20,000/-₹ towards compensation for pain and suffering. The appellant had to be under inpatient treatment for 70 days and had to **MACA.No.1048 OF 2016(C)** **:8:** remain under treatment initially for four months. Therefore, this Court is of the opinion that the appellant should be made entitled to an additional compensation of 10,000/- towards₹ pain and suffering, over and above 20,000/- already granted₹ by the Tribunal. Compensation granted by the Tribunal in the other heads warrants no interference. 11. Accordingly, the appeal is partly allowed. The appellant will be entitled to additional compensation of ₹1,57,439/- under the following heads:- |1|Additional|compensation for disability ( 6,000 x ₹|72,000/- ₹| |---|---|---|---| ||12 x 15|x 20/100 minus 1,44,000 already ₹|| ||awarded by the Tribunal)||| |2|Additional|compensation for medical expenses|72,439/- ₹| |3|Additional|compensation towards bystander|3,000/- ₹| ||expenses||| |4|Additional|compensation towards pain and|10,000 ₹| ||suffering (|30,000 – 20,000 already granted by ₹|| ||the Tribunal)||| |||Total|1,57,439/- ₹| **MACA.No.1048 OF 2016(C)** **==> picture [23 x 9] intentionally omitted <==** The 3[rd] respondent is directed to pay the additional compensation of 1,57,439/- awarded along with 9% interest₹ per annum from the date of the OP(MV) within 30 days. Sd/- **N. NAGARESH, JUDGE** aks/08/06/2020