High Court of KeralaSingle Judge2022-03-03Appeal allowed in part

Sandhya Banerji @ Sandhyamol V.K. Parackal (H) v. Anilkumar Kayalvarathu Puthenveettill VadakkeKara, Thrukkoruva, Kottayam; Baby @ Thomas Pazhoor Kizhakkethil Veettil, Near Pallippuram, Perumbaikadu, Kottayam; The Oriental Insurance Co. Ltd. Kottayam

Case / Petition Number:MACA NO.1525 OF 2010

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: C.S. Dias
Judgment Date: 2022-03-03
Court Decision / Holding: Appeal allowed in part. The High Court enhanced compensation by Rs. 47,900, awarded 7% interest per annum from the petition date (till deposit) after deducting 90 days’ delay, and directed the third respondent insurer to deposit the enhanced amount with interest and costs before the Tribunal within 60 days from receipt of a copy of the judgment. Upon deposit, disbursement is to be made to the appellant as per law.
Final Disposition: Appeal allowed in part

Parties to the Case

Appellants / Petitioners

Sandhya Banerji @ Sandhyamol V.K. Parackal (H)

Respondents

Anilkumar Kayalvarathu Puthenveettill VadakkeKara, Thrukkoruva, Kottayam
Baby @ Thomas Pazhoor Kizhakkethil Veettil, Near Pallippuram, Perumbaikadu, Kottayam
The Oriental Insurance Co. Ltd. Kottayam

Legal Representation & Advocates

Counsels for Petitioners

• Sri. M.V. Thamban
• Sri. B. Bipin
• Sri. R. Reji
• Sri. Revathy P. Nair
• Sri. Thara Thamban

Counsels for Respondents

• Sri. P. Jacob Mathew
• Sri. Mathews Jacob Sr.
• Sri. I.V. Pramod

Case Synopsis & Summary

This is an appeal under MACA No.1525 of 2010 from a Motor Accidents Claims Tribunal, Kottayam, challenging an award in O.P.(MV) No.996/2006 arising from a road accident on 13.03.2006 in which the appellant, a motorist operating an autorickshaw, was injured when a lorry driven by the second respondent struck the vehicle. The Tribunal, while holding the lorry owner (first respondent) and insurer (third respondent) liable, awarded a modest sum of Rs.56,131 with costs to the appellant. The appellant sought higher compensation; the respondents did not contest liability, but the insurer disputed certain factual aspects and the deceased passenger’s claim. The High Court re-examines the quantum, accepting Exhibit A2 (police charge sheet) as proof of negligence by the second respondent and applying established legal benchmarks. Relying on Ramachandrappa for notional income of Rs.4,500, and Sarla Verma for the multiplier 17, the court re-fixates the appellant’s income and recalculates losses. The court also revisits disability evidence (Exhibit A12) under Raj Kumar’s doctrine, determining a 5% functional disability and computing loss of earning capacity at Rs.45,900. The revised totals amount to Rs.1,04,031, with an overall enhancement of Rs.47,900 plus 7% interest and costs, ordered to be deposited within 60 days. The appeal is allowed in part, with directions for disbursement in due course.

Provisions of Law Cited

Section 166 of the Motor Vehicles Act, 1988

Legal Doctrines & Maxims

Sarla Verma multiplier doctrine (multiplier 17)
Functional disability approach in injury claims (Raj Kumar v. Ajay Kumar)
Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Co. Ltd. — notional income benchmark (2004/2006 context)

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellant contends that the Tribunal erred in quantifying compensation, under-valuing losses of earnings and future earning capacity, and disregarding the appointing disability evidence. She argues liability is established by the charge sheet and the driver’s negligence; income should be fixed at Rs.4,500 per month per Ramachandrappa; the multiplier should be 17 per Sarla Verma; disability evidence (Exhibit A12) should be given due weight and functional disability should be considered, with Medical Board referral if necessary as per Raj Kumar. She seeks enhanced compensation, including loss of earning capacity, and interest from the petition date; health-care, transport, and other heads should be re-calculated, with a just and liberal interpretation of the evidence to ensure fair compensation to the injured claimant.

Contentions of Respondents

The respondents admit liability but contest the quantum. They argued that the loss of earnings and disability should be measured within the Tribunal’s assessment framework and that the evidence of income and disability required cautious treatment. The insurer asserted indemnity liability but challenged excessive enhancement without credible basis, and emphasized the need for due regard to the 90-day delay in filing the appeal. They maintained the higher quantum must be grounded in proven facts and accepted medical evidence; they urged the court to give substantial deference to Tribunal findings unless clear misapprehension is shown.

Cited Precedents (3)

Case Name	Citation	Treatment	Explanation
Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited	[(2011) 13 SCC 236]	Positive	Notional income benchmark used to justify higher notional earnings in injury computations.
Sarla Verma and Others v. Delhi Transport Corporation and another	[(2009) 6 SCC 121]	Positive	Provides multiplier rule adopted by the High Court (17-year multiplier) in this case.
Raj Kumar v. Ajay Kumar	[2011 (1) KLT 620 SC]	Positive	Functional disability principle; if disability proof is unsatisfactory, refer to Medical Board; applied to assess disability in this matter.

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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** **THURSDAY, THE 3[RD] DAY OF MARCH 2022 / 12TH PHALGUNA, 1943** ## **MACA NO. 1525 OF 2010** **AGAINST THE AWARD DATED 11.02.2010 IN OPMV 996/2006 OF MOTOR** ## **ACCIDENT CLAIMS TRIBUNAL,KOTTAYAM** ## **APPELLANT/PETITIONER:** SANDHYA BANERJI @ SANDHYAMOL V.K. PARACKAL (H), KAIPUZHA P.O., KOTTAYAM. BY ADVS. SRI.M.V.THAMBAN SRI.B.BIPIN SRI.R.REJI SMT.REVATHY P.NAIR SMT.THARA THAMBAN ## **RESPONDENTS/RESPONDENTS:** - 1 ANILKUMAR,KAYALVARATHU PUTHENVEETTIL VADAKKEKARA, THRUKKORUVA, KOTTAYAM. - 2 BABY @ THOMAS PAZHOOR KIZHAKKETHIL VEETTIL, NEAR PALLIPPURAM, PERUMBAIKADU, KOTTAYAM. 3 THE ORIENTAL INSURANCE CO.LTD. KOTTAYAM. BY ADVS. SRI.P.JACOB MATHEW SRI.MATHEWS JACOB SR. SRI.I.V.PRAMOD **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 03.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA NO.1525 OF 2010 2** ## **JUDGMENT** **Dated this the 3[rd] day of March, 2022** The appellant was the petitioner in O.P (MV) No.996/2006 on the file of the Motor Accidents Claims Tribunal, Kottayam. The respondents in the appeal were the respondents before the Tribunal. 2. The appellant had filed the claim petition under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of the injuries sustained to her in an accident on 13.03.2006. It was her case that, while she was riding her own autorickshaw through the Kaipuzha Viloonni road, a lorry bearing registration No. KL 2/U 277, driven by the second respondent in a negligent manner, hit the autorickshaw. The appellant had sustained multiple injuries and was treated as an inpatient at the Medical College Hospital, Kottayam, for ## **MACA NO.1525 OF 2010 3** a period of 10 days. The appellant suffered a fracture of both bones of her right leg and a fracture of left clavicle. The lorry was owned by the first respondent and insured with the third respondent. The appellant was a an autorickshaw driver by profession and was earning a monthly income of Rs.4500/-. Hence, the appellant claimed a compensation of Rs.2,19,000/- from the respondents, which claim was limited to Rs.2,00,000/-. 3. The passenger, who was travelling in the autorickshaw succumbed to the injuries. His legal representatives had filed O.P(M.V) No.975/2006 before the same Tribunal, against the respondents, seeking compensation. 4. The respondents 1 and 2 did not contest both the claim petitions. 5. The third respondent had filed separate written statements in both the claim petitions, contending that the accident occurred due to the negligence of the ## **MACA NO.1525 OF 2010 4** appellant. The third respondent also disputed the age, income and occupation of the appellant and the deceased. 6. The Tribunal consolidated and jointly tried the two claim petitions. 7. The appellant was examined as PW1 and Exhibits A1 to A20 (series) were produced and marked in evidence. The respondents did not let in any evidence. 8. The Tribunal, after analyzing the pleadings and materials on record, by its common award, allowed the captioned claim petition in part, by permitting the appellant to recover from the third respondent an amount of Rs.56,131/- with interest and a cost of Rs.2000/- 9. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioner is in appeal. 10. Heard; Sri.M.V.Thamban the learned counsel appearing for the appellant/petitioner and Sri.P. Jacob ## **MACA NO.1525 OF 2010 5** Mathew, the learned counsel appearing for the third respondent-insurer. 11. The point that emerges for consideration in this appeal is whether the quantum of compensation awarded by the Tribunal is reasonable and just. ## **Negligence and liability** 12. Exhibit A2 charge sheet filed by the Changanacherry Police in Crime No.136/2006 proves that the accident occurred due to the negligence of the second respondent. Indisputably, the first respondent was the owner, the third respondent was the insurer of the lorry. The respondents have not let in any evidence to discredit Exhibit A2 charge sheet. The third respondent has also not proved that the first respondent had violated the insurance policy conditions. Therefore, the third respondent is to indemnify the liability of the first respondent arising out of the accident. ## **MACA NO.1525 OF 2010 6** ## **Income** 13. The appellant had claimed that she was an autorickshaw driver by profession and earning a monthly income of Rs.4500/-. For the want of materials, the Tribunal fixed the notional monthly income of the appellant at Rs.4000/-. 14. In **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited** [(2011) 13 SCC 236], the Honourable Supreme Court has fixed the notional income of a coolie worker in the year 2004 at Rs. 4500/- per month. 15. Following the yardstick in the afore-cited decision and considering the fact that the accident occurred in the year 2006, I re-fix the notional monthly income of the appellant at Rs.4500/- as claimed in the claim petition. **MACA NO.1525 OF 2010 7** ## **Loss of earnings** 16. The Tribunal has found that the appellant was indisposed for a period of four months. I confirm the said finding. 17. Nonetheless, in view of the re-fixation of the notional monthly income of the appellant at Rs.4500/-, I award her an amount of Rs.18,000/- under the head ‘loss of earnings’, instead of Rs.16,000/- awarded by the Tribunal. ## **Disability** 18. The appellant had produced Exhibit A12 disability certificate issued by the Assistant Professor of Orthopedic, Medical College Hospital, Kottayam, to substantiate that she has a permanent partial functional disability of 12%. However, the Tribunal for the reason that the appellant had not examined the Doctor who ## **MACA NO.1525 OF 2010 8** issued Exhibit A12, declined to award any compensation for loss of earning capacity. 19. In **Raj Kumar v. Ajay Kumar** [2011 (1) KLT 620 SC], the Honourable Supreme Court has categorically held that what needs to be looked into in a injury claim is the functional disability of the injured-claimant. It is also held that, if the Tribunal is not satisfied with the disability certificate produced before it, it is the duty of the Tribunal to refer the injured-claimant to a duly constituted Medical Board. 20. In the instant case, even though the Tribunal was not satisfied with Exhibit A12 disability certificate, the Tribunal declined to refer the appellant to a Medical Board. Moreover, Exhibit A12 was marked in evidence without any objection or protest from the respondents. Therefore, I am inclined to re-appreciate Exhibit A12. 21. On going through Exhibit A12, it is seen that the appellant has a deformity of her right leg with ## **MACA NO.1525 OF 2010 9** minimal shortening and she has a malunited fracture of her leg with 15% anterior bowing. As the appellant was an autorickshaw driver by profession, I fix her functional disability at 5%. ## **Multiplier** 22. The appellant was aged 27 years at the time of the accident. In the light of the law laid down in **Sarla Verma and Others v. Delhi Transport Corporation and another[(2009) 6 SCC 121],** the relevant multiplier to be adopted is ‘17’. ## **Loss of earning capacity** 23. Taking into account the above mentioned factors, namely, the notional monthly income of the appellant at Rs.4500/-, her functional disability at 5% and the multiplier at ‘17’, I award her an amount of Rs.45,900/towards ‘loss of earning capacity’. ## **MACA NO.1525 OF 2010 10** 24. With respect to the other heads of compensation, I find the Tribunal has awarded reasonable and just compensation. 25. On an overall re-appreciation of the pleadings and materials on record and the law referred to in the afore-cited precedents, I hold that the appellant/petitioner is entitled for enhancement of compensation as modified and re-calculated above, and given in the table below for easy reference. |Sl No.|Head of Claim|Amount awarded by the Tribunal (in rupees)|Amounts modified and recalculated by this Court| |---|---|---|---| |1|Loss of earnings|16000|18000| |2|Transport expenses|750|750| |3|Clothing|500|500| |4|By-stander expenses|1000|1000| |5|Extra nourishment|1000|1000| |6|Medical|4881|4881| ## **MACA NO.1525 OF 2010 11** ||expenses||| |---|---|---|---| |7|Pain and sufferings|17000|17000| |8|Loss of amenities|15000|15000| |9|Loss of earning capacity|0|45900| |||56131|104031| In the result, the appeal is allowed in part, by enhancing the compensation by an amount of **Rs.47,900/-** with interest at the rate of 7% per annum from the date of petition till the date of deposit, after deducting interest for a period of 90 days i.e, the period of delay in filing the appeal and as ordered by this Court on 29.10.2021 in C.M.Application No.1 of 2010, and a cost of Rs.5,000/-. The third respondent- insurer is ordered to deposit the enhanced compensation with interest and cost before the Tribunal within sixty days from the date of receipt of a copy of this judgment. Immediately, on the compensation amount being **MACA NO.1525 OF 2010 12** deposited, the same shall be disbursed to the appellant/petitioner in accordance with law. Sd/- **C.S.DIAS JUDGE** rmm/03/02/2022