High Court of KeralaSingle Judge2021-03-16Appeal allowed in part

SREEDEVI KANAMKUMARATH HOUSE v. V.N. ASOKAN, VIJAYAKUMAR, THE NEW INDIA ASSURANCE CO. LTD.

Case / Petition Number:MACA.No.2663 OF 2010(C)

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: C. S. Dias
Judgment Date: 2021-03-16
Court Decision / Holding: Appeal allowed, in part. Notional income fixed at Rs.3,500 per month; disability assessed at 16% (Ext. C1); enhanced compensation across heads (pain and suffering, loss of earnings, disability, bystander and transport costs, etc.) with total enhancement of Rs.95,800 plus 8% interest from the petition date to the date of deposit. The 3rd respondent to deposit the enhanced amount before the Tribunal within two months from certified copy of the judgment, after deducting liability of the appellant towards balance court-fee and legal benefit fund, if any; the 3rd respondent may recover the enhanced amount, interest and costs from the 1st respondent in accordance with law.
Final Disposition: Appeal allowed in part

Parties to the Case

Appellants / Petitioners

SREEDEVI KANAMKUMARATH HOUSE

Respondents

V.N. Asokan
Vijayakumar
The New India Assurance Co. Ltd.

Legal Representation & Advocates

Counsels for Petitioners

• P. V. Chandra Mohan

Counsels for Respondents

• Smt. M. M. Deepa
• Sri V. A. Johnson Varikkappallil
• Sri P. Vijaya Bhanu
• Sri C. K. Prasad, GP

Case Synopsis & Summary

This appeal arises from an award of the Motor Accidents Claims Tribunal, Thrissur, in OP(MV) No.2443/2004. On 01-10-2002 the appellant, then 46 years old, sustained serious injuries when a motorcycle (KL 8 H 2983) driven rashly by the 2nd respondent struck her while she was crossing a public road. The appellant, a milk trader, claimed a monthly income of Rs. 4,000 and permanent disability; the Tribunal found the 3rd respondent insurer liable but awarded only Rs. 63,100 with 8% interest, directing recovery from the 1st respondent for breach of policy. Dissatisfied, the appellant challenged the quantum in MACA 2663/2010, contending that notional income and heads of compensation should reflect actual loss and the extent of disability. The respondents contend the accident occurred due to the appellant’s crossing, that the 2nd respondent did hold a valid license, and that the claim of liability and damages was excessive; they emphasize policy breach and argue the award should not be enhanced. The High Court relies on Supreme Court precedents like Pranay Sethi, Ramachandrappa and Syed Sadiq to recalibrate notional income and assess damages under the principles of fairness, reasonableness and equitability. After reappreciating the evidence, it fixes notional income at Rs. 3,500/month, holds disability at 16%, and enhances several heads of compensation, ultimately allowing the appeal in part and directing an additional Rs.95,800 with 8% interest, to be deposited within two months.”

Provisions of Law Cited

Motor Vehicles Act, 1988, s. 168

Legal Doctrines & Maxims

Just compensation under the Motor Vehicles Act, 1988 (Section 168 framework)
Notional income approach for computation of damages
Fairness, reasonableness and equitability in determining compensation

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellant contends that the Tribunal erred by not adopting the correct notional income in view of her dairy business and the evidence of earning capacity post-accident. Citing Ramachandrappa and Syed Sadiq, she argues for a higher notional income reflecting actual earning potential (about Rs. 4,000/month claimed) and stresses the 16% disability (Ext. C1) as affecting earning capacity. She asserts that the insurer is liable due to policy breach and seeks enhancement across heads such as pain and suffering, loss of earnings, and disability, with appropriate compensation including medical and related expenses, and interest under Section 168 of the Act.

Contentions of Respondents

The respondents contend that the accident occurred due to the appellant’s crossing, the second respondent may not have held a valid driving license, and breach of policy conditions by the insured absolves or limits insurer liability. They argue the Tribunal’s award was reasonable, not excessive, and that liability should be confined to the insured’s breach with the insurer’s obligation to indemnify. They maintain that the compensation claimed is not justified by the evidence and request confirmation of the lower quantum or only modest enhancement, keeping the costs and interest in check.

Cited Precedents (3)

Case Name	Citation	Treatment	Explanation
National Insurance Company Ltd. v. Pranay Sethi	[(2017) 16 SCC 680]	Positive	The Court cites Pranay Sethi to frame the concept of 'just compensation' as fair, reasonable and equitably determined under s.168.
Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Co. Ltd.	[(2011) 13 SCC 236]	Positive	Used to justify notional income levels for calculating compensation (as a referenced standard for notional earnings).
Syed Sadiq v. Divisional Manager, United India Insurance Co. Ltd.	[(2014) 2 SCC 735]	Positive	Cited for notional income benchmarks in determining damages for loss of earnings in similar contexts.

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Extracted Judgment Text

Exact text extracted from official judgment records.

**MACA.No.2663 OF 2010(C)** 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **TUESDAY, THE 16TH DAY OF MARCH 2021 / 25TH PHALGUNA, 1942** ## **MACA.No.2663 OF 2010(C)** **AGAINST THE AWARD IN OP(MV)NO.2443/2004 OF SPECIAL COURT FOR EC ACT CASES &MOTOR ACCIDENT CLAIMS TRIBUNAL ,THRISSUR** ## **APPELLANT/PETITIONER:** **SREEDEVI KANAMKUMARATH HOUSE, P.O.CHERUTHURUTHY,, THRISSUR DISTRICT.** **BY ADV. SRI.P.V.CHANDRA MOHAN** ## **RESPONDENTS/RESPONDENTS:** **1 V.N.ASOKAN, S/O.T.S.NARAYANAN, ASOKA BHAVAN, VENGANELLOORE.P.O.,, VIA.CHELAKKARA, THRISSUR DISTRICT-680586. 2 VIJAYAKUMAR, S/O. CHATHANKUTTY CHOLAPARAMBIL HOUSE, VENGANELLORE, CHELAKKARA,, THRISSUR DISTRICT-680586. 3 THE NEW INDIA ASSURANCE CO.LTD. PERINCHERY BUILDING, ROUND NORTH,, THRISSUR-680001.** **R1 BY ADV. SMT.M.M.DEEPA SRI.V.A.JOHNSON VARIKKAPPALLIL SRI.P.VIJAYA BHANU SR. BY SRI.C.K.PRASAD, GP** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 10-03-2021, THE COURT ON 16-03-2021 DELIVERED THE FOLLOWING:** **MACA.No.2663 OF 2010(C)** 2 ## **C.S.DIAS,J** - - - - - - - - - - - - - - - - - - - - - - - - MACA No. 2663 of 2010 - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 16[th] day of March, 2021 ## **JUDGMENT** The appellant was the petitioner in OP (MV) No.2443 of 2004 on the file of the Motor Accidents Claims Tribunal, Thrissur. The respondents in the claim petition are the respondents in the appeal. 2. The relevant facts in the claim petition, for the determination of the appeal are: on 01.10.2002 while the appellant was walking through the Pallam Cheruthuruthy public road, a motorcycle bearing registration No.KL8/H 2983 (offending vehicle) driven by the 2[nd] respondent in a rash and negligent manner, hit the appellant causing serious injuries to her. She was treated at the Divine Medical Centre, Wadakkanchery as an in-patient. The vehicle belonged to 1[st] respondent, who had insured the vehicle with the 3[rd] respondent. The appellant was 46 years of age and she was **MACA.No.2663 OF 2010(C)** 3 having her own cows and was doing business in sale of milk. She was getting a monthly income of Rs.4,000/- per month. The respondents are jointly and severally liable to pay her compensation, which is quantified at Rs.1,62,000/- 3. The respondents 1 and 2 filed a joint written statement, i _nter alia,_ contending that the 2[nd] respondent was not rash or negligent in driving the motorcycle. The accident was caused only due to the careless crossing of the road by the appellant. The 2[nd] respondent was holding a valid driving license and the motorcycle was insured with the 3[rd] respondent. If all the respondents 1 and 2 are found liable to pay the compensation, the 3[rd] respondent has to indemnify the respondents 1 and 2. 4. The 3[rd] respondent filed a written statement, denying the allegations in the claim petition. The 3[rd] respondent admitted that the offending vehicle was having a valid insurance policy. However, it was contended that the 2[nd] respondent was not holding a valid driving license. **MACA.No.2663 OF 2010(C)** 4 Therefore, the 1[st] respondent had committed breach of the policy condition, therefore, the 3[rd] respondent was not liable to indemnify the insured. The compensation claimed under various heads was excessive and exorbitant. Hence, the claim petition be dismissed. 5. The appellant marked Exts. A1 to A9 in evidence. The 1[st] respondent marked Ext.B1 in evidence. 6. The Tribunal, after considering the pleadings and materials on record, by the impugned award allowed the claim petition, in part, by directing the 3[rd] respondent to deposit an amount of Rs.63,100/- with interest at the rate of 8% per annum from 01.10.2004 till the date of realization. The 3[rd] respondent was permitted to recover the amount from the 1[st] respondent, as there was a breach of the policy conditions. 7. Dissatisfied with the quantum of compensation awarded by the Tribunal, the appellant/petitioner is in appeal. **MACA.No.2663 OF 2010(C)** 5 8. Heard the learned counsel for the appellant and the learned counsel appearing for the respondents 1 and 3 in the appeal. 9. The question that emerges for consideration in the appeal is whether the quantum of compensation awarded by the Tribunal is reasonable and just. 10. A Constitution Bench of the Hon'ble Supreme Court in **National Insurance Company Ltd. v. Pranay Sethi** [(2017) 16 SCC 680], has held that Section 168 of the Motor Vehicles Act, 1988, deals with the concept of 'just compensation' and the same has to be determined on the foundation of fairness, reasonableness and equitability on acceptable legal standards. The conception of 'just compensation' has to be viewed through the prism of fairness, reasonableness and non-violation of the principle of equitability. 11. Ext.A2 final report read with Ext.A3 scene mahazar and Ext.A4 AMVI report substantiates the fact that the **MACA.No.2663 OF 2010(C)** 6 accident occurred on 01.10.2002 due to the rash and negligent riding of the offending vehicle by the 2[nd] respondent. Ext.A6 discharge summary proves that the appellant sustained injuries and was hospitalised. Ext.A7 series medical bills shows that the appellant had spent an amount of Rs.7,944/- for her medical expenses. Ext.A9 disability certificate proves that the appellant has suffered permanent disability. 12. This Court by its order dated 08.01.2020 referred the appellant to the Medical College Hospital, Thrissur, to be examined by a competent Medical Board. The Medical Board by Disability Assessment Board Certificate dated 15.01.2020, which is herein marked as Ext.C1, has certified the permanent disability of the appellant at 16%. In view of the certification by the competent medical board, the petitioner's permanent disability is fixed at 16%. 13. Now, the main area of dispute in this appeal is with regard to the notional income of the appellant fixed by the **MACA.No.2663 OF 2010(C)** 7 Tribunal at Rs.2,500/- when she claimed an amount of Rs.4,000/- per month. 14. The appellant had claimed that she was having her own cows and was doing business in sale of milk from which she earned an amount of Rs.4,000/- per month. The Tribunal, fixed the notional income of the appellant at Rs.2,500/- per month. 15. The Hon'ble Supreme Court in _**Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited**_ [ _(2011) 13 SCC 236_ ] and **Syed Sadiq v. Divisional Manager, United India Insurance Co. Ltd. [(2014) 2 SCC 735]** has fixed the notional income of a coolie worker in the year 2004, at Rs.4,500/- per month and that of a vegetable vendor in the year 2008, at Rs.6,500/- per month. ## **Notional income** 16. Following the parameters laid down by the Hon'ble Supreme Court in the afore-cited decisions and **MACA.No.2663 OF 2010(C)** 8 considering the appellant was aged 46 years and doing business in sale of milk and that the accident occurred in the year 2002, I am of the considered opinion that the appellant's notional income can safely be fixed at Rs.3,500/per month. Hence, I fix the appellant's notional income at Rs.3,500/- per month. ## **Pain and suffering** 17. Evidenced by Ext.A6 discharge summaries, the appellant had suffered fractures of her 5[th] , 6[th] and 7[th] ribs. She was hospitalised for a period of 17 days. She had loss of earnings for a period of three months. In the said circumstances, taking into consideration Ext.C1 disability certificate and Ext.A5 discharge summaries, I am of the view that the petitioner is entitled for compensation under the heard 'pain and sufferings' as claimed in the claim petition at Rs.25,000/- ## **Loss of earnings** 18. With respect to the loss of earnings, as I have re- **MACA.No.2663 OF 2010(C)** 9 fixed the notional income of the appellant at Rs.3,500/-, and her loss of earning power for the period of three months, the compensation under the head 'loss of earnings' is enhanced to Rs.10,500/- instead of Rs.7,500/- ## **Disability** 19. In view of Ext.C1 disability certificate, assessing the appellant's disability at 16% and the fact that her notional income has been fixed at Rs.3,500/-, the compensation for 'loss due to disability' is enhanced to Rs.1,09,200/-, instead of Rs.23400/- fixed by the tribunal. ## **Other heads of claim** 20. With respect to the compensation awarded by the Tribunal, under the other heads of claim namely, Transportation, clothing, by-stander expenses and medical expenses, I find that the Tribunal has awarded reasonable and just compensation. 21. On an overall re-appreciation of the pleadings, materials on record and the law laid down in the afore-cited **MACA.No.2663 OF 2010(C)** 10 decisions, I am of the firm opinion that the petitioner is entitled for enhancement of compensation as modified and recalculated above and given in the table below for easy reference. |Sl. No|Heads of claim|Amount claimed|Amount awarded by the Tribunal (in rupees)|Amounts modified and recalculated by this Court| |---|---|---|---|---| |1|Loss of earning (total)|2,000/-|7,500/-|10,500/-| |2|Loss of earnings (partial)|||| |3|Medical and miscellaneous expenses|10,000/-|7,944/-|7,944/-| |4|Future treatment|||| |5|Bystander expenses|3,500/-|3,000/-|3,000/-| |6|Transportation expenses|1,500/-|750/-|750/-,| |7|Extra nourishment|1,500/-|2,000/-|2,000/-| |8|Damage to clothing, etc.|500/-|500/-|500/-| |9|Pain and suffering|25,000/-|18,000/-|25000| |10|Disability, Discomfort, etc.Loss of amenities disfiguration|1,00,000|23,400/-|1,09,200/-| ||||63,094/-|1,59,294/-| In the result, the appeal is allowed, in part, by enhancing the compensation by a further amount of Rs.95,800/-(-(Rupees ninety five thousand eight hundred **MACA.No.2663 OF 2010(C)** 11 only) with interest at the rate of 8% per annum on the enhanced compensation, from the date of petition till the date of deposit by the 3[rd] respondent and proportionate costs. The 3[rd] respondent shall deposit the additional compensation awarded in this appeal before the Tribunal with proportionate interest and costs within a period of two months from the date of receipt of a certified copy of the judgment, after deducting the liability of the appellant towards balance court-fee and legal benefit fund, if any. The disbursement of the additional compensation to the appellant shall be done in accordance with law. Needless to mention that the 3[rd] respondent would also be entitled to realise the additional compensation, interest and proportionate costs from the 1[st] respondent. Sd/- ## **C.S.DIAS,JUDGE** dlK 16.03.2021