High Court of KeralaSingle Judge2021-03-03Appeal partly allowed; enhanced compensation; i...

Shantomon Varghese v United India Insurance Co. Ltd.

Case / Petition Number:MACA.No.2503 OF 2014(C)

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: C.S. Dias
Judgment Date: 2021-03-03
Court Decision / Holding: Appeal allowed in part. Notional income re-fixed at Rs. 7,000 per month leading to revised calculations: Loss of earnings Rs. 21,000; clothing Rs. 1,000; bystander expenses Rs. 5,700; loss of amenities Rs. 20,000; loss due to disability Rs. 60,480; transport, extra nourishment, medical expenses, and pain and suffering kept as awarded by Tribunal. Overall enhanced compensation of Rs. 34,540, with interest at 7.5% per annum on the enhanced amount from the date of petition till realization, and costs. The respondent/insurer is directed to deposit the enhanced amount before the Tribunal within two months, and the Tribunal to disburse accordingly in accordance with law.
Final Disposition: Appeal partly allowed; enhanced compensation; insurer directed to deposit enhanced amount with interest and costs; Tribunal to disburse accordingly.

Parties to the Case

Appellants / Petitioners

Shantomon Varghese, S/o Varghese @ Charly Joseph

Respondents

The Manager, United India Insurance Co. Ltd., Daivasahayam Buildings, K.K. Road, Ponkanam, Kottayam District-686506

Legal Representation & Advocates

Counsels for Petitioners

• Sri. Thomas Abraham (Nilackappillil)
• Sri. Manu Tom

Counsels for Respondents

• Smt. Deepa George

Case Synopsis & Summary

Shantomon Varghese v United India Insurance Co. Ltd., MACA No.2503 of 2014 (C), High Court of Kerala at Ernakulam, delivered on 3 March 2021 by Justice C.S. Dias. The appeal arises from a Motor Accidents Claims Tribunal award under Section 166 of the Motor Vehicles Act, 1988, relating to a road accident on 26 February 2011 in which the appellant, riding pillion on a motorcycle, sustained an open fracture of the right leg and other injuries. The Tribunal, after hearing the matter, awarded Rs. 1,14,140 with interest at 7.5% per annum and costs, in partial relief of the claim for compensation of Rs. 3,00,000 sought by the petitioner, and disallowed several items. The appellant contends that the compensation is inadequate and challenges the Tribunal’s notional income assessment, arguing that at 23 years of age and employed as a painter, his notional income should be Rs. 7,000 per month. Relying on Supreme Court precedents Ramachandrappa and Syed Sadiq, the High Court fixes Rs. 7,000 as notional income, recalculates loss of earnings to Rs. 21,000, and enhances other heads: clothing Rs. 1,000; bystander expenses Rs. 5,700; loss of amenities Rs. 20,000; and loss due to disability Rs. 60,480. The court otherwise upholds the Tribunal’s findings on transport, nourishment, medical expenses, and pain and suffering. Consequently, the appeal is allowed in part, increasing total compensation by Rs. 34,540 with interest at 7.5% per annum from the petition date to realization, directing deposit of the enhanced amount before the Tribunal and its disbursement in accordance with law.

Provisions of Law Cited

Section 166 of the Motor Vehicles Act, 1988

Legal Doctrines & Maxims

Notional income principle for fixing income in MV Act cases (supported by Ramachandrappa and Syed Sadiq)
Loss of amenities is a compensable head in personal injury awards

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellant contends that the Tribunal erred in assessing notional income and several heads of compensation. He asserts he was a 23-year-old painter with a monthly income of Rs. 7,000, and that the Tribunal’s fixations were too low. He relies on established Supreme Court precedents to recalibrate notional income and corresponding damages, seeks higher awards for loss of earnings, loss of amenities, bystander expenses, and loss due to disability, and argues for appropriate compensation under heads including clothing, bystander expenses, and accessories of hospitalization.

Contentions of Respondents

The insurer defends the Tribunal’s award, attributing the accident to the rider of the motorcycle and contending the petition should be dismissed against the insurer’s liability; the evidence and records contradict the petitioner's claimed income, and the insurer maintains the award appropriation as proper.

Cited Precedents (2)

Case Name	Citation	Treatment	Explanation
Ramachandrappa vs. Manager, Royal Sundaram Alliance Insurance Company Ltd.	2011 (13) SCC 236	Positive	Cited for fixing notional income in MV Act cases; used to justify raising notional income to Rs. 7,000.
Syed Sadiq and Others vs. Divisional Manager, United India Insurance Company	2014 (2) SCC 735	Positive	Cited for notional income of a vegetable vendor; supports notional income of Rs. 7,000.

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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** **WEDNESDAY, THE 03RD DAY OF MARCH 2021 / 12TH PHALGUNA, 1942** ## **MACA.No.2503 OF 2014(C)** **(AGAINST THE AWARD DATED 11-04-2014 IN OP(MV) NO.1090/2011 ON THE FILE OF THE MOTOR ACCIDENT CLAIMS TRIBUNAL, PALA)** ## **APPELLANT/PETITIONER:** **SHANTOMON VARGHESE, S/O VARGHESE @ CHARLY JOSEPH,PUTHENPRACKAL HOUSE,KUNNAMMURY @ KURUMBANMOOZHI KARA,KOLLAMULA VILLAGE,KOTTAYAM DISTRICT.** **BY ADVS. SRI.THOMAS ABRAHAM (NILACKAPPILLIL) SRI.MANU TOM** ## **RESPONDENT/2ND RESPONDENT:** **THE MANAGER,** **THE UNITED INDIA INSURANCE CO.LTD, DAIVASAHAYAM BUILDINGS, K.K.ROAD, PONKUNNAM, KOTTAYAM DISTRICT-686506.** ## **R1 BY ADV. SMT.DEEPA GEORGE** ## **OTHER PRESENT:** **SMT DEEPA GEORGE .** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 03.03.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **MACA.No.2503 OF 2014(C) 2** ## **JUDGMENT** The petitioner in OP(MV) No.1090 of 2011 on the file of the Motor Accident Claims Tribunal, Pala is the appellant. The 2[nd] respondent in the claim petition is the respondent in the appeal. The parties are, for the sake of convenience, referred to as per their litigate status in the claim petition. 2. The petitioner had filed the claim petition under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of the injuries that he sustained in a road accident on 26.02.2011. The concise case of the petitioner in the claim petition is that, on 26.2.2011 while he was driving riding pillion on the motorcycle bearing registration No.KL-3/R-5902, a jeep bearing registration No.KL-06/3875, owned and driven by the first respondent in a rash and negligent manner, hit the motorcycle. The petitioner fell down and sustained serious injuries. He sustained an open fracture on his right leg and other wounds. He was hospitalized for the period from 26.2.2011 **MACA.No.2503 OF 2014(C) 3** to 16.3.2011 i.e., for a period of 19 days. He was a painter by profession and earning an income of Rs.7,000/- per month. Hence, the petitioner is entitled for a compensation of Rs.3 lakhs. 3. The first respondent was set at ex parte. The second respondent filed written objection refuting the allegations in the claim petition. According to the second respondent, the accident occurred due to the rashness and negligence on the part of the driver of the motorcycle, on which the petitioner was driving pillion. Hence, the 2[nd] respondent prayed that the claim petition be dismissed. 4. The Tribunal, after considering the pleadings and materials on record, by the impugned award allowed the claim petition, in part, by directing the 2[nd] respondent to pay the petitioner a compensation of Rs.1,14,140/- along with interest at the rate of Rs.7.5% per annum from the date of petition till the date of realization along with proportionate cost. 5. The comparative table of compensation that was sought by the petitioner that was awarded by the Tribunal is ## **MACA.No.2503 OF 2014(C) 4** ## as follows: ## Part I ||Amount claimed (in Rs.)|Amount Awarded (in Rs.)| |---|---|---| |Loss of earnings|42,000/-|18,000/- (6000 X 3 months| |Transport to Hospital|10,000/-|2,000/-| |Extra-nourishment|5,000/-|1,000/-| |Damages to clothing|1,000/-|Not entitled| |Treatment Expenses|50,000/-|7,500/-| |Bystander Expenses|10,000/-|3,800/ (200 X 19 days)| ## Part II |Part II||| |---|---|---| |Pain and suffering|50,000/-|30,000/-| |Permanent Disability|2,00,000/-|Not entitled| |Loss of earning capacity|50,000/-|51,840/- (6,000 x 12 x 18 x 4/100| |Total Claim is limited to|4,18,000/- 3,00,000/-|1,14,140/-| 6. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioner has preferred this appeal. 7. Heard the learned counsel appearing for the **MACA.No.2503 OF 2014(C) 5** appellant/petitioner and the learned counsel appearing for the respondent/second respondent. 8. From Exts.A1 to A6, it is discernible that the accident occurred due to the negligence on the part of the jeep bearing Reg. No.KL-6/3875 owned and driven by the first respondent. Admittedly, the 2[nd] respondent is the insured of the offending vehicle. Exts.A8 and A16 discharge card and discharge summary substantiate the petitioner was hospitalized as an inpatient for a period of 19 days. Exts.A14 and A17 medical bills also prove that the petitioner had spent money for his medical treatment. Ext.X1 disability certificate issued by the Medical College Hospital substantiates that the petitioner had sustained disability @ 4% due to the accident. 9. The main area of dispute in the appeal is the notional income of the petitioner. The petitioner claimed that he was a painter by profession and getting a monthly income of Rs.7,000/-. The Tribunal, after considering the materials on record, fixed the notional income of the petitioner @ Rs.6,000/-. **MACA.No.2503 OF 2014(C) 6** 10. _**In Ramachandrappa vs. Manager, Royal Sundaram Alliance Insurance Company Ltd., (2011 (13) SCC 236)**_ the Hon'ble Supreme Court has fixed notional income of a Coolie Worker in the year 2004 at Rs.4,500/-. Similarly, in _**Syed Sadiq and Others vs. Divisional Manager, United India Insurance Company (2014 (2) SCC 735)**_ the Hon'ble Supreme Court has fixed notional income of a Vegetable Vendor in the year 2006 at Rs.6.500/-. 11. Following the above parameters and taking into consideration the petitioner was only 23 years of age and claimed to be a painter by profession in the year 2011, i.e., on the date of accident, the petitioner's notional income can safely be fixed at Rs.7,000/- as claimed in the claim petition. 12. In light of the re-fixation of the notional income of the petitioner, his loss of earnings has to be re-fixed at Rs.21,000/- instead of Rs.8,000/- as fixed by the Tribunal. 13. On a perusal of the impugned award, it is seen that the Tribunal had not awarded any amount towards loss of clothing of the petitioner, which I fix at Rs.1,000/-. ## **MACA.No.2503 OF 2014(C) 7** Similarly, it is seen that the petitioner had undergone hospitalization for 19 days, but the Tribunal only awarded an amount of Rs.200/- per day towards bystander expenses, which I feel is very low. I accordingly enhance the bystander expenses to Rs.5,700/- i.e., Rs.300/- per day. 14. Even though the petitioner had not claimed any amount under loss of amenities, it is settled law that a person sustains injuries in an accident, he is entitled for a reasonable amount towards loss of amenities. In the said circumstances, I fix compensation under the head 'loss of amenities' at Rs.20,000/-. 15. In the light of the re-fixation of the notional income of the petitioner, the petitioner is also entitled for enhancement of compensation under the head 'loss of disability' at Rs.60480/-. 16. With respect to the other heads of claim, namely, transport, extra nourishment, medical expenses and pain and sufferings, I find that the Tribunal has fixed as reasonable and just compensation . 17. Therefore, on an overall appreciation of the ## **MACA.No.2503 OF 2014(C) 8** pleadings, materials on record and the law laid down by the Hon'ble Supreme Court in the aforecited decisions, I am of the firm opinion that the petitioner is entitled for enhancement of the amounts as modified and recalculated above and given in the table below for easy reference. |Sl. No.|Head of claim|Amount claimed(in rupees)|Amount awarded by the Tribunal (in rupees)|Amounts modified and recalculated bythis Court| |---|---|---|---|---| |1|Loss of earnings|42,000/-|18,000/-(6000 x 3 months)|21,000/-| |2|Transport to Hospital|10,000/-|2,000/-|2,000/-| |3|Damages to clothing|1,000/-|Not entitled|1,000/-| |4|Bystander Expenses|10,000/-|3,800/-(200 x 19 days)|5,700/-| |5|Extra nourishme nt|5,000/-|1,000/-|1,000/-| |6|Medical expenses|50,000/-|7,500/-|7,500/-| |7|Pain and suffering|50,000/-|30,000/-|30,000/-| |8|Loss of amenities|---|----|20,000/-| |9|Loss due to disability|2,00,000/-|Not entitled|60,480/-| ||Total|||1,48,680/-| **MACA.No.2503 OF 2014(C) 9** In the result, the appeal is allowed in part by enhancing the compensation by a further amount of Rs.34540/- 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. The respondent/second respondent shall deposit the additional compensation granted in this appeal before the Tribunal with interest and proportionate costs within a period of two moths from the date of receipt of a copy of this judgment. The Tribunal shall disburse the additional compensation to the petitioner in accordance with law. Sd/- **C.S.DIAS, JUDGE** pm