High Court of KeralaSingle Judge2020-07-21Appeals disposed of with modifications. No orde...

SHRIRAM GENERAL INSURANCE COMPANY LIMITED v. SABEER S/O IBRAHIM

Case / Petition Number:MACA No.2467/2016(A) & MACA No.2754/2016

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: K. Vinod Chandran
Judgment Date: 2020-07-21
Court Decision / Holding: Appeals disposed of with modifications. No order as to costs. The Tribunal’s award is revised: notional income fixed at Rs.10,000 with 70% future prospects; loss of marriage prospects deleted; total compensation revised to Rs.3,065,066; insurance company to deposit the balance amounts with 9% interest from the date of application, except Rs.100,000 for which no interest will run. The injured-applicant must provide bank details and ID for NEFT/RTGS transfer.
Final Disposition: Appeals disposed of with modifications. No order as to costs.

Parties to the Case

Appellants / Petitioners

SHRIRAM GENERAL INSURANCE COMPANY LIMITED
SABEER

Respondents

SABEER S/O IBRAHIM
GOPAL A
M. THANGARAJ
SHREERAM GENERAL INSURANCE COMPANY
SAJID
HDFC ERGO GENERAL INSURANCE COMPANY LIMITED

Legal Representation & Advocates

Counsels for Petitioners

• Sri Mathews Jacob (Sr.)
• Sri P. Jacob Mathew
• Sri K. Rakesh

Counsels for Respondents

• Sri K. Rakesh
• Sri K. M. Firoz
• Sri P. Jacob Mathew
• Sri S. Kannan
• Sri Mathews Jacob (Sr.)
• Sri K. B. Ramanand
• Sri K. Rajesh Sukumaran
• Sri M. Shajna

Case Synopsis & Summary

Two MACA appeals (MACA No.2467/2016(A) and MACA No.2754/2016) were heard together by the Kerala High Court, challenging and defending the Motor Accident Claims Tribunal, Manjeri award dated 05-12-2015 in OA MV No.981/2011. The accident occurred on 15-10-2009 when Sabeer S/o Ibrahim, a goods auto driver, sustained severe injuries including amputation of the right leg. The insurer ShrIRAM General Insurance Company Limited contends contributory negligence, disputed the Tribunal’s disability assessment (90% vs. the doctor’s 70%), and challenged reliance on prior decisions to enhance the award; it also relies on the principle that future prospects for a non-regular employee should be limited (citing Pranay Sethi) and that there should be no compensation for loss of marriage prospects. The respondent-injured claims higher earning capacity and supports the Tribunal’s approach, arguing the income certificate shows regular earnings and should be accepted. The High Court examined the notional income approach (citing Ramachandrappa) and the issue of future prospects; it held that the Tribunal’s approach to enhancement could not be supported by Syed Sadiq, Distinguished; the court accepted an income of Rs. 10,000 per month with 70 percent future prospects and recalculated the heads of loss of earnings, transport, nourishment, medical expenses, etc. It deleted the marriage-prospects head and modified the total to Rs. 3,065,066. The appeals were disposed of with modifications, no costs, and a direction to deposit the award with interest, subject to the prescribed exceptions, and no costs.

Legal Doctrines & Maxims

Notional income principle for determining compensation (as discussed in Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Co. Ltd)
Future prospects in the assessment of earning capacity (as discussed in Pranay Sethi and Others)
Fixed notional income for certain classes of workers (e.g., coolies) as per Ramachandrappa

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellant-insurer contends contributory negligence by the injured and challenges the Tribunal’s enhancement of disability (90% vs doctor’s 70%), and the reliance on a precedential basis for increasing the award. It argues future prospects for a non-regular employee should be limited (per Pranay Sethi) and that there is no justification for damages on loss of marriage prospects, and that the employer’s income certificate was not established as properly proved. It also challenges the notional income adopted and seeks a stricter approach to compensation.

Contentions of Respondents

The respondent-injured contends the injury, including amputation, justifies high disability; it argues income should reflect regular earnings and that the Tribunal correctly considered future prospects and earning capacity; it emphasizes long hospitalisation and associated costs and supports substantial enhances in several heads, while contesting the suitability of the employer’s certificate. It supports maintaining the higher amount where justified and disputes the reductions proposed by the insurer.

Cited Precedents (3)

Case Name	Citation	Treatment	Explanation
Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited	[(2011) 13 SCC 236]	Positive	Cited to support the notional income approach and calculation of compensation for loss of earning capacity evident in decisions involving fixed notional incomes.
Syed Sadiq and others v. Divisional Manager, United India Insurance Company	(2014 KHC 4027)	Distinguished	The court rejected reliance on this decision to justify enhancement of disability; finds it not applicable to the present circumstances.
National Insurance Company Ltd. v. Pranay Sethi and Others	[2017 (5) KHC 350]	Mentioned Only	Cited to illustrate the proposition of future prospects for not regularly employed individuals; not adopted as the sole basis for computation in this judgment.

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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 K.VINOD CHANDRAN** **TUESDAY, THE 21ST DAY OF JULY 2020 / 30TH ASHADHA, 1942** **MACA.No.2467 OF 2016(A)** **AGAINST THE AWARD IN OPMV 981/2011 DATED 05-12-2015 OF MOTOR ACCIDENT CLAIMS TRIBUNAL , MANJERI** ## **APPELLANT:** **SHRIRAM GENERALA INSURANCE COMPANY LIMITED JAIPUR, NOW REPRESENTED BY ITS LEGAL OFFICER, AZAD TOWER, AMMANCOIL CROSS ROAD, KOCHI-35.** **BY ADVS. SRI.MATHEWS JACOB (SR.) SRI.P.JACOB MATHEW** ## **RESPONDENT:** **SABEER S/O. IBRAHIM, ALUVAYI HOUSE, PATTIKKAD P.O., PATHANAMTHITTA TALUK, PIN-676519.** **R1 BY ADV. SRI.K.RAKESH** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 21.07.2020, ALONG WITH MACA.2754/2016(F), THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA No.2467/2016 & MACA No.2754/2016 2 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **TUESDAY, THE 21ST DAY OF JULY 2020 / 30TH ASHADHA, 1942** **MACA.No.2754 OF 2016** **AGAINST THE AWARD IN OPMV 981/2011 DATED 05-12-2015 OF MOTOR** **ACCIDENT CLAIMS TRIBUNAL , MANJERI** ## **APPELLANT:** ## **SABEER** **AGED 25 YEARS, S/O. IBRAHIM, ALUVAYIL HOUSE, POST PATTIKKAD, PERINTHALMANNA TALUK, MALAPPURAM DISTRICT.** **BY ADV. SRI.K.RAKESH** ## **RESPONDENTS:** |**1**|**GOPAL.A, S/O. ALAGIRI CHETTIYAR, MADHURAVEENDRAN,**| |---|---| ||**KOILEZHUTHUKULI, POLLACHI, TAMIL NADU, PIN-642**| ||**001.**| |**2**|**M.THANGARAJ, S/O. MYL SAMY, I/22, THIPPAMPATTY,**| ||**POLLACHI TALUK, TAMIL NADU-642 001.**| |**3**|**SHREERAM GENERAL INSURANCE COMPANY**| ||**HEAD OFFICE III E-8 RIICO, INDUSTRIAL AREA,**| ||**SITAPURA, JAIPUR, RAJASTHAN-302 022.**| |**4**|**SAJID, S/O. POKKU, THAMARATH HOUSE, POOPALAM POST,**| ||**VALAMBOOR, PERINTHALMANNA TALUK, MALAPPURAM**| ||**DISTRICT-679 325.**| |**5**|**HDFC ERGO GENERAL INSURANCE COMPANY LIMITED**| ||**BRANCH OFFICE, CALICUT-673 001.**| ||**R1 BY ADV. SRI.K.M.FIROZ**| ||**R1, R3 BY ADV. SRI.P.JACOB MATHEW**| ||**R1 BY ADV. SRI.S.KANNAN**| ||**R1 BY ADV. SRI.MATHEWS JACOB SR.**| ||**R1, R5 BY ADV. SRI.K.B.RAMANAND**| ||**R1, R4 BY ADV. SRI.K.RAJESH SUKUMARAN**| ||**R1 BY ADV. SMT.M.SHAJNA**| **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 21.07.2020, ALONG WITH MACA.2467/2016(A), THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA No.2467/2016 & MACA No.2754/2016 3 ## **JUDGMENT Dated this the 21[st] day of July, 2020** Both the Insurance Company and the injured have filed appeals. The former challenge the quantum and the latter seeking enhancement. Comprehensive consideration can be made with respect to the various counts on which the award has been passed. 2. The injured was riding a goods auto when it collided with a mini lorry on 15.10.2009. The learned Standing Counsel for the Insurance Company at the outset would submit that there is contributory negligence on the part of the injured-goods auto driver since there was a charge filed against him, the injured, as was done in the case of the lorry driver. Further it is argued that the disability was taken at 90% when the expert Doctor had assessed it at 70%. The Tribunal had relied on a judgment of the Hon'ble Supreme Court reported in _**Syed Sadiq and others v.**_ ## _**Divisional Manager, United India Insurance Company**_ _**( 2014 KHC 4027)**_ to enhance the disability from that assessed by the expert doctor. In fact, no such enhancement could have been granted going by the MACA No.2467/2016 & MACA No.2754/2016 4 principles laid down in the decision. Relying on _**National Insurance Company Ltd. v. Pranay Sethi and**_ _**Others**_ **[2017 (5) KHC 350]** it was contended that future prospects with respect to a person who was not regularly employed could be only at the rate of 40%. There could also be no compensation awarded for loss of marriage prospects. The learned Standing Counsel also points out that there was a loss of earnings awarded for five years which is excessive by any count. The Tribunal had also adopted the notional income plus future prospects for awarding the compensation for loss of earning capacity. 3. The learned Counsel for the respondent however, submits that since the petitioner had suffered serious injury of amputation of right leg, he could not have carried on his avocation as a driver and in such circumstances the assessment of disability of 90% is perfectly proper. It is also argued that the future prospects had to be assessed at 10% for reason of production of a certificate showing regular employment in a timber mill. It is also contended that loss of earning has to be sustained for reason of the serious MACA No.2467/2016 & MACA No.2754/2016 5 injuries suffered by the injured. The learned Counsel for the injured also argued that the income fixed by the Tribunal is very low, especially going by the certificate produced. The learned Standing Counsel for the Insurance Company would alertly point out that though the certificate of income was produced it was never proved through the employer. 4. There could be no reliance placed on the certificate of employment, as rightly pointed out by the learned Standing Counsel since it has not been proved. The employer who issued the certificate was never examined. However, this Court finds that the Hon'ble Supreme Court in _**Ramachandrappa v. Manager,**_ ## _**Royal Sundaram Alliance Insurance Company Limited**_ _**[(2011) 13 SCC 236]**_ **-** held that a coolie would be entitled to be fixed a notional income of Rs.4500/- in the year 2004; with an addition of Rs.500/- every consecutive year. Hence in 2009 when the accident occurred a coolie would have been entitled to an income of Rs.7000/-. In such circumstances the assessment of income made by the Tribunal is very low. Considering the fact that the injured was a goods auto driver, MACA No.2467/2016 & MACA No.2754/2016 6 definitely the income asserted by the injured at Rs.10000/- can be accepted. 5. As far as the loss of earning & earning capacity and compensation for the other heads following injuries were suffered: “1. Head Injury 2.Open Fracture right lower limb 3. Multiple fracture both femur 4. Open fracture left pilan 5. Open grade III borne near tibia 6. Fracture of right L-3 leg 7. Amputation of right leg” The injured had also been referred to intermittent hospitalisation for almost 65 days. The loss of earning capacity would be confined to six months at the rate of Rs.10000/-. Since the hospitalisation was intermittent and extended over a long period of time, the amounts awarded as transport to hospital and for the assistance of a helper at Rs.118000/- and 100000/are sustained. For extra nourishment only an amount of Rs.9750/- has been granted. This shall stand enhanced to 25000/-. The medical costs and expenses and damage MACA No.2467/2016 & MACA No.2754/2016 7 to clothing shall not be interfered with nor is there any ground to interfere with the future medical expenses for which compensation has been granted at Rs.100000/-. However it is made clear that no interest will be charged on that amount. 6. This Court has to accept the contention of the Insurance Company that no amounts can be granted for the loss of marriage prospects. However, in the table listing out the various heads and amounts awarded, the Tribunal has awarded Rs.100000/- for loss of amenities which can be sustained. For pain and suffering an amount of Rs.1 lakh has been awarded, which is proper. Compensation for loss of marriage prospects of Rs.2 lakhs will have to be deleted. 7. As far as the compensation for permanent disability, the notional income adopted is Rs.10000/- to which 40% has to be added for future prospects. The monthly income for assessing future earning capacity would be Rs.14000/-. The multiplier adopted at 18 is correct. Thus the total would be 14000*18*12*70/100=2116800/-. The following modification is made on the award. MACA No.2467/2016 & MACA No.2754/2016 8 |**Sl.** **No.**|**Head of Claim**|**Amount** **awarded by** **the Tribunal** `|**Total amount** **after** **enhancement** **in appeal** `| |---|---|---|---| |**1**|**Loss of earning**|**540000**|**60000**| |**2**|**Transportation Expenses**|**118000**|**118000**| |**3**|**Extra nourishment**|**9750**|**25000**| |**4**|**Damage to clothing**|**1000**|**1000**| |**5**|**Helper/Assistant**|**100000**|**100000**| |**6**|**Medical Expenses**|**344266**|**344266**| |**7**|**Medical costs and** **incidental expense to** **include future medical** **costs**|**100000**|**100000**| |**8**|**Pain and suffering**|**100000**|**100000**| |**9**|**Loss of amenities**|**100000**|**100000**| |**10**|**Disability**|**1749600**|**2116800** (14000*18*12*70/100)| |**11**|**Compensation for loss of** **marriage prospects,** **enjoyment of life and** **disfigurement**|**200000**|**Deleted**| ||**Total**|**3362616**|**3065066**| ## 8. The Insurance Company shall deposit the balance amounts with 9% interest from the date of application for the amounts awarded except for Rs.100000/- for which no interest will run. The appellant/injured shall produce a copy of a cancelled cheque of the Bank account in a Nationalised Bank, in his name, with copy of MACA No.2467/2016 & MACA No.2754/2016 9 AADHAAR or acceptable identification, before the Tribunal within one month, with copy to the Insurance Company. The Insurance Company shall credit the amount through NEFT/RTGS mode to the said account/accounts. Appeals are disposed of with the above modifications. No order as to costs. Sd/- **K. VINOD CHANDRAN, JUDGE.** **Jma/**