High Court of KeralaSingle JudgeAppeal allowed in part; enhanced compensation a...
Sivasankaran Nair v. New India Insurance Co. Ltd.
Case / Petition Number:MACA No.1833 of 2010
Case Details & Bench
- Court
- High Court of Kerala
- Hon'ble Judges
- C. S. Dias
- Judgment Date
- 2022-03-29
- Court Decision / Holding
- Appeal allowed in part. Enhanced compensation computed by the High Court amounts to Rs. 1,77,200 with interest at 6% per annum on the enhanced sum from the date of the claim petition until realisation, less 39 days of delay, and costs of Rs. 5,000. The insurer is ordered to deposit the enhanced compensation with interest and costs before the Tribunal within 60 days from receipt of a certified copy of the judgment, and upon deposit, the Tribunal shall disburse the enhanced amount to the appellant in accordance with law.
- Final Disposition
- Appeal allowed in part; enhanced compensation and procedural orders as stated above.
Parties to the Case
Appellants / Petitioners
- Sivasankaran Nair
Respondents
- New India Insurance Co. Ltd.
Legal Representation & Advocates
Counsels for Petitioners
- • Sri. V.K. Gopalakrishna Pillai
- • Sri. Gopakumar G. Aluva
Counsels for Respondents
- • Sri. P.G. Ganappan
Case Synopsis & Summary
This Motor Accident Claims Appeal arising from OP (MV) 599/2006 before the Motor Accidents Claims Tribunal, Perumbavoor, concerns injuries sustained by the appellant, Sivasankaran Nair, in a Feb 23, 2006 accident when his motor cycle KL-7/AJ 4081 was struck by car KL-6/B 4285 driven negligently by the first respondent. The Tribunal granted compensation in part, allowing Rs. 42,616 with interest, and dismissed other heads of claim. The appellant contends that the Tribunal erred by not applying the higher notional income standards and the multiplier prescribed by leading decisions, and by misapprehending the disability assessment and the medical evidence. The insurer contests liability and the quantum, arguing lack of proof of income and challenging the higher sums claimed. The High Court re-evaluates key inputs: notional monthly income is fixed at Rs. 4,500 (citing Ramachandrappa) for a 2006 accident; the appropriate multiplier is 11 (per Sarla Verma); disability is finally assessed at 10% functional disability after scrutinizing Exts A4–A12 and the medical board evidence, and the need for a Medical Board is discussed (citing Raj Kumar). The court enhances compensation across several heads, recalculates losses including loss of earning capacity (Rs. 59,400), loss of earnings (Rs. 18,000), treatment expenses (Rs. 50,000), bystander expenses (Rs. 3,300), pain and sufferings (Rs. 25,000), and loss of amenities (Rs. 20,000), resulting in a total enhanced amount of Rs. 1,77,200. The appeal is thus allowed in part, with an order to deposit the enhanced amount within 60 days and to disburse to the appellant with 6% interest on the enhanced sum from the date of petition to realisation, along with Rs. 5,000 costs.
Provisions of Law Cited
Section 166 of the Motor Vehicles Act, 1988
Legal Doctrines & Maxims
- Notional income principle (Ramachandrappa)
- Multiplier doctrine (Sarla Verma)
- Disability assessment by Medical Board (Raj Kumar)
Submissions & Arguments
Contentions of Appellants / Petitioners
The appellant contends that the Tribunal erred in fixing the notional income at Rs. 3,000 per month and did not apply the higher standard of Rs. 4,500 per month as recognized in Ramachandrappa, coupled with the 2006 accident year and the 11-multiplier under the Sarla Verma framework. The disability certification Ext. A12 (30%) should not have been discarded; the appellant asserted that the accident caused a permanent impairment and called for appropriate compensation heads (loss of earning capacity, medical treatment, bystander expenses, pain and suffering, and loss of amenities). The appellant urged adherence to the principle that medical evidence should be properly considered (Raj Kumar) and that a Medical Board should have been referenced for disability assessment, a step the Tribunal failed to take. The relief sought included higher compensation on all heads and recognition of the prior medical history to determine functional disability.
Contentions of Respondents
The insurer contends that the accident resulted from the appellant’s fault and challenges the higher income claimed, arguing the appellant failed to prove actual earnings. The notional income of Rs. 3,000 per month was considered reasonable by the Tribunal. They contend the Court should not adopt the higher Ramachandrappa standard given the lack of corroborative evidence and emphasize the need to align with the Tribunal's findings. They further contest the disability assessment and claim that the damages and medical expenses were either unsupported or inflated.
Cited Precedents (3)
| Case Name | Citation | Treatment | Explanation |
|---|---|---|---|
| Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited | (2011) 13 SCC 236 | Positive | High Court applies Ramachandrappa’s standard for notional income for a 2006 accident to fix Rs. 4,500 as monthly income. |
| Sarla Verma v. Delhi Transport Corporation | (2009) 6 SCC 121 | Positive | High Court adopts the 11 multiplier from Sarla Verma for computing compensation. |
| Raj Kumar v. Ajay Kumar | 2011 (1) KLT 620(SC) | Positive | Principle that where disability is not satisfactorily proved, the matter should be referred to a Medical Board; court discusses this in applying the principle to the case. |
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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**
**TUESDAY, THE 29[TH] DAY OF MARCH 2022 / 8TH CHAITHRA, 1944**
**MACA NO. 1833 OF 2010**
**AGAINST THE ORDER/JUDGMENT IN OPMV 599/2006 OF MOTOR ACCIDENT**
**CLAIMS TRIBUNAL ,PERUMBAVOOR**
## **APPELLANT/S:**
SIVASANKARAN NAIR AGED 56 YEARS, PARACKAL HOUSE,, PERUMBAVOOR VILLAGE, PERUMBAVOOR KARA. BY ADVS. SRI.V.K.GOPALAKRISHNA PILLAI SRI.GOPAKUMAR G. ALUVA
## **RESPONDENT/S:**
THE NEW INDIA INSURANCE CO. LTD. DIVISIONAL OFFICE, KOTTACKAL ARYAVAIDYASALA,, BUILDING M.G.ROAD, KOCHI. BY ADV SRI.P.G.GANAPPAN
## **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME**
**UP FOR ADMISSION ON 29.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:**
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## **C.S.DIAS, J.**
## **====================== MACA No.1833 of 2010**
## **====================== Dated this the 29[th] day of March, 2022.**
## **JUDGMENT**
The appellant was the petitioner in OP (MV) No.599/2006 on the file of the Motor Accident Claims Tribunal, Perumbavoor. The respondent in the appeal was the third respondent/insurer before the Tribunal. The appellant has not impleaded the respondents 1 and 2 before the Tribunal as parties in the appeal. Therefore, the parties are, for the sake of convenience, referred to as per their status before the Tribunal.
2. The petitioner had filed the claim petition under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of the injuries sustained to him in an accident on 23.2.2006. It was his case that, on the above said date, while he was riding his motor cycle bearing registration No.KL-7/AJ 4081 from Perumbavoor
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to Pattal, a car bearing registration No.KL-6/B 4285 (car), driven by the first respondent in a negligent manner, hit his motor cycle. The petitioner sustained multiple injuries including a fracture of his right femur. He was treated as an inpatient from 6.3.2006 to 20.3.2006 and 7.7.2006 to 15.7.2006 at Sanjoe Hospital, Perumbavoor, and M.N Orthopedic Hospital, Chennai. The second respondent was the owner and the third respondent was the insurer of the car. The petitioner was a businessman and was earning a monthly income of Rs.4,500/-. Hence, the petitioner had claimed a compensation of Rs.5,61,000/- from the respondents, which claim was limited to Rs.4,50,000/-.
3. The respondents 1 and 2 did not contest the proceeding and were set ex parte.
4. The third respondent had filed a written statement denying the pleadings in the claim petition. It was contended that the accident occurred due to the negligence of the petitioner. The third respondent also
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disputed the age, income and occupation of the petitioner and stated that the compensation claimed was excessive.
However, the third respondent admitted that the car had a valid insurance coverage.
5. The petitioner had examined a Doctor as PW1 and marked Exts A1 to A13 in evidence. The respondents did not let in any evidence.
6. The Tribunal, after analysing the pleadings and materials on record, allowed the claim petition, in part, by permitting the petitioner to realise from the third respondent an amount of Rs.42,616/- with interest from the date of petition till the date of realisation.
7. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioner is in appeal.
8. Heard; Smt.Anupama Johny, the learned counsel appearing for the appellant/petitioner and Sri.P.G.Ganappan, the learned counsel appearing for the respondent/third respondent/insurer.
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9. The sole question that arises for consideration in the appeal is whether the quantum of compensation awarded by the Tribunal is reasonable and just.
## **Negligence and liability**
10. Ext A3 charge-sheet filed by the Perumbavoor Police in crime No.137/2006 proves that the accident occurred due to the negligence of the first respondent. Indisputably, the second respondent was the owner and the
third respondent was the insurer of the car. The respondents have not let in any evidence to discredit Ext A3 charge-sheet. The third respondent has also not proved that the second respondent had violated the insurance policy conditions. Therefore, I hold that the third respondent is to indemnify the liability of the second respondent arising out of the accident.
## **Income**
11. The petitioner had claimed that he was a businessman by profession and was earning a monthly
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income of Rs.4,500/- . However, the petitioner did not produce any material to prove his income. Accordingly, the
Tribunal fixed the notional monthly income of the petitioner at Rs.3,000/-.
12. 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.
13. Following the yardstick in the aforecited decision and considering the fact that the accident occurred in the year 2006, I refix the notional monthly income of the petitioner at Rs.4,500/- as claimed in the claim petition.
## **Multiplier**
14. Admittedly, the petitioner was aged 52 years at the time of the accident. In view of the law laid down in
**Sarla Verma v. Delhi Transport Corporation [(2009) 6 SCC 121]** , the relevant multiplier to be adopted is '11'.
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## **Disability**
15. The petitioner had got his disability assessed by a three-member Medical Board attached to the General Hospital, Ernakulam. The Medical Board by Ext A12 disability certificate found that the petitioner has a permanent physical disability of 30%. To prove Ext A12, the petitioner had examined PW1.
16. The Tribunal, after relying on Ext A7 reference letter, found that the petitioner had earlier undergone a hip replacement surgery at the M.N Orthopedic Hospital, Chennai. Therefore, the Tribunal held that, as the petitioner had not disclosed the earlier surgery in the claim petition, the petitioner has no functional disability. Consequentially, the Tribunal discarded Ext A12 disability certificate in its entirety.
17. In **Raj Kumar v. Ajay Kumar [2011 (1) KLT 620(SC)]** , the Hon'ble Supreme Court has held that if the Tribunal is not satisfied with the disability certificate
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produced before it, it is imperative for the Tribunal to refer the injured-claimant to a Medical Board.
18. In the instant case, even though the Tribunal was dissatisfied with Ext A12, it failed to refer the petitioner to a Medical Board.
19. I have re-appreciated the oral testimony of PW1 and the materials on record.
20. The Tribunal ought to have taken note of the fact that it was the petitioner who produced Ext A7 reference letter, wherein it is stated by the Sanjoe Hospital, Perumbavoor that the petitioner was being referred to the M.N Orthopedic Hospital, Chennai, because he had undergone a hip replacement surgery at the latter Hospital. If the intention of the petitioner was to suppress the above fact, he could have very well refrained himself from producing Ext A7. Instead, the petitioner had with all bona fides produced Ext A7, to show that he had undergone a hip replacement surgery at the M.N
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Orthopedic Hospital, Chennai. Furthermore, the respondents have not pleaded that the petitioner had suppressed material facts or that he did not suffer a subsequent injury in the accident that happened on 23.2.2006. Also, the relevant and pertinent matter that needs to be looked into for deciding the case at hand was the subsequent injury sustained by the petitioner.
21. On scanning through Ext A4 accident register cum wound certificate issued by the Sanjoe Hospital, Perumbavoor, it is clearly mentioned in column No.14 that the petitioner had suffered a fracture of the proximal right femur. Thus, it is the disability, if any, that arose from the said injury that needs to be considered.
22. Going by the principles laid down in **Raj Kumar** (supra), the proper course to be followed by the Tribunal was to refer the petitioner to a duly constituted Medical Board, to assess his functional disability arising out of the accident on 23.2.2006. However, taking into account the
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fact that the accident had occurred nearly 16 years back, I am of the view that it would be a travesty of justice to refer the petitioner to a Medical Board at this distance of time. Thus, my endeavour is to segregate the disability that has been caused to the petitioner in the first and second accidents from Ext A12 disability certificate.
23. The three - member Medical Board in Ext A12 has
## stated as follows:
“We, members of the board, have today examined Sivasankaran Nair, 53 years, tea vender, whose signature is given above and found that he had an RTA on 23.2.2006 as per wound certificate of San Joe Hospital, Perumbavoor in which he sustained proximal femur (R) and as per discharge summary of MN orthopedic hospital, Kilpauk, he had periprosthetic femur (R ).
## **C/o pain (R) hip. – O/E walks with limp.**
## **33 cms long surgical scar extending from (R) hip to (R) knee laterally.**
## **– (R ) lower limb externally rotated. 2Cms shortening (R ) femur.**
(R ) hip – from 180∘ to 110∘ flexion. 20∘ ER and further ER upto 80∘. No IR. No add, abduction – 30∘ . **( R) knee – from 180∘ to 80 ∘ flexion.** X-ray (R) hip and thigh – custom made prosthesis, OA hip, myositis Ossificans.
Based on the above findings his total permanent physical disability is assessed to be 30% (thirty) as per Mc
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Bride's scale”.
24. As per the findings in Ext A12, the petitioner has suffered 2 cm shortening of his right femur due to the accident that happened on 23.2.2006 and also has difficulty with his flexion. Even though PW1, a member of the Medical Board was cross-examined by the learned counsel for the insurer, not a question was put to PW1 with regard to the earlier injury suffered by the petitioner. Therefore, it is only to be accepted that the respondent did not have a case of suppression or that the disability to the right femur of the petitioner was pre-existing on the date of latter accident. In the light of Exts A4 and A12, and the oral testimony of PW1, I fix the functional disability of the petitioner at 10%.
## **Loss of earning capacity**
25. Taking into account the above-mentioned factors, namely, the notional monthly income of the petitioner at 4,500/-, the multiplier at 11 and his functional disability
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at 10%, I award the petitioner an amount of **Rs.59,400/-** towards loss of earning capacity.
## **Loss of earnings**
26. The Tribunal has found that the petitioner was indisposed for a period of three months.
27. Taking into account the fact that the petitioner had suffered a fracture of the proximal right femur and he had undergone treatment for the period from 6.3.2006 to 15.7.2006, I hold that he was indisposed for a period of four months.
28. In view of the refixation of the notional monthly income of the petitioner at Rs.4,500/-, I award him an amount of **Rs.18,000/-** towards loss of earnings instead of Rs.9,000/- awarded by the Tribunal.
## **Treatment expenses**
29. The petitioner had produced Ext A13 medical bills to prove that he had incurred an amount of Rs.1,74,795/for his medical treatment. However, the Tribunal directed
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only an amount of Rs.11,116/- to be reimbursed on the finding that the petitioner could have got himself treated at the Sanjoe Hospital, Perumbavoor. I find the course adopted by the Tribunal to be incorrect and wrong.
30. It is to be remembered that the petitioner was earlier treated at the M.N Orthopedic Hospital, Chennai, for his hip replacement surgery. It was only natural and pragmatic that the petitioner requested to be referred to the same hospital where he was treated earlier, because his earlier treatment records were available at the said Hospital. Nonetheless, the respondents cannot be mulcted with the entire cost of the treatment incurred by the petitioner at a hospital of his choice. In the above circumstances, after going through Exts A13 series medical bills, I am of the firm view that a reasonable amount can be directed to be reimbursed by the third respondent. Accordingly, I fix the treatment expenses of the petitioner at Rs.50,000/- instead of Rs.11,116/- awarded by the
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Tribunal.
## **Bystander expenses**
31. Admittedly, the petitioner was treated as an inpatient for a period of 22 days. The Tribunal has awarded only an amount of Rs.1,000/- towards attendant's charges, which I find to be on the lower side.
32. On a consideration of the fact that the petitioner was treated as an inpatient for a period of 22 days in the year 2006, I award him an amount of **Rs.3,300/-** under the head 'bystander expenses'.
## **Pain and sufferings and Loss of amenities**
33. The Tribunal has awarded an amount of Rs.12,000/- under the head 'pain and sufferings' and Rs.8,000/- under the head 'loss of amenities'.
34. Taking into account the fact that the accident occurred in the year 2006, that the petitioner was treated as an inpatient for a period of 22 days, that he was indisposed for a period of four months and that he has
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suffered a functional disability of 10%, I award him a further amount of **Rs.13,000/-** under the head 'pain and sufferings' and **Rs.12,000/-** under the head 'loss of amenities'.
## **Other heads of compensation**
35. With respect to the other heads of claim, I find that the Tribunal has awarded reasonable and just compensation.
36. On an overall re-appreciation of the pleadings, materials on record and the law referred to in the aforecited precedents, I hold that the appellant/petitioner is entitled to enhancement of compensation as modified and re-calculated above, and given in the table below for easy reference.
|SI.<br>No|Head of claim|Amount<br>awarded by the<br>Tribunal (in<br>rupees)|Amounts<br>modified and<br>recalculated<br>bythis Court|
|---|---|---|---|
|1|Loss of earnings|9,000/-|18,000/-|
|2|Transportation expenses|500/-|500/-|
|3|Extra nourishment|1,000/-|1,000/-|
|4|Bystander expenses|1,000/-|3,300/-|
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|5|Treatment expenses|11,116/-|50,000/-|
|---|---|---|---|
|6|Pain and sufferings|12,000/-|25,000/-|
|7|Loss of amenities etc|8,000/-|20,000/-|
|8|Loss of earningcapacity|Nil|59,400/-|
||Total|42,616/-|1,77,200/-|
In the result, the appeal is allowed, in part, by enhancing the compensation by a further amount of **Rs.1,34,584/-** (Rupees One Lakh Thirty Four Thousand Five Hundred and Eighty Four only) with interest at the rate of 6% per annum on the enhanced compensation from the date of claim petition till the date of realisation, after deducting interest for a period of 39 days (i.e., the period of delay in filing the appeal and as ordered by this Court on 26.10.2021 in C.M Appln No.2/2010) and a cost of Rs. 5,000/-. The respondent/third respondent/insurer is ordered to deposit the enhanced compensation with interest and costs before the Tribunal within a period of sixty days from the date of receipt of a certified copy of the judgment. Immediately on the compensation amount
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being deposited, the Tribunal shall disburse the same to the appellant/petitioner, in accordance with law.
Sd/-
sks/29.3.2022
**C.S.DIAS, JUDGE**