High Court of KeralaSingle Judge2023-03-07Appeal allowed; enhanced compensation with insu...

Subhash v. Abdul Rahseed and IFFCO-Tokio General Insurance Co. Ltd., MACA 2894 of 2016, High Court of Kerala at Ernakulam

Case / Petition Number:MACA 2894 of 2016

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: Sophie Thomas, J.
Judgment Date: 2023-03-07
Court Decision / Holding: The appeal is allowed; enhanced compensation of Rs. 6,63,275 to be deposited by the insurer with 9% interest from the petition date till deposit, within two months, after adjusting taxes, liabilities, and legal benefits as per Circular No. 3/2019 and Om No. D1/62475/2016. No costs.
Final Disposition: Appeal allowed; enhanced compensation with insurer directed to deposit the amount in two months; no order as to costs; liability of insurer confirmed.

Parties to the Case

Appellants / Petitioners

Subhash

Respondents

Abdula Rahseed
IFFCO-Tokio General Insurance Co. Ltd.

Legal Representation & Advocates

Counsels for Petitioners

• Smt. K.V. Rashmi

Counsels for Respondents

• Sri. Mathews Jacob Sr.
• Sri. P. Jacob Mathew

Case Synopsis & Summary

The appellant Subhash, a 49-year-old carpenter, sustained 65% permanent disability after a road traffic accident on 05.03.2012 involving two vehicles. He challenged an award of Rs. 9,41,457 passed by the Principal MACT, Kozhikode, alleging inadequacy of compensation for loss of earning, permanent disability, pain and suffering, and future treatment. The High Court first notes that the 1st respondent was removed from the party array by order IA No. 1868/2018, leaving the insurer as the primary respondent in the appeal. Relying on Ramachandrappa v. Manager, Royal Sundaram (AIR 2011 SC 2951), the court determines the claimant’s notional income should be Rs. 8,500 per month (2012 context). The court then computes loss of earning as Rs. 1,02,000 for 12 months, subtracts the already paid Rs. 60,000, leaving Rs. 42,000. For disability, applying 25% future prospects (age around 49–50) and a multiplier of 13 yields Rs. 10,77,375; after deducting Rs. 5,07,000 already paid, the balance is Rs. 5,70,375 enhanced compensation. The court also adjusts physiotherapy bills (Ext. A1) to Rs. 35,900 and increases pain and suffering by Rs. 10,000 and loss of amenities by Rs. 5,000. The total enhanced compensation is Rs. 6,63,275, with the insurer directed to deposit within two months at 9% interest, subject to deductions for taxes and other liabilities. The appeal is allowed; no costs.

Provisions of Law Cited

null

Legal Doctrines & Maxims

Notional income principle for non-available evidence (Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Co. Ltd., AIR 2011 SC 2951)
Future prospects for disability as per Pranay Sethi (National Insurance Co. Ltd. v. Pranay Sethi and Others, (2017) 16 SCC 680)
Multiplier principle in computing compensation (age-appropriate multiplier; 13 in this case)

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellant argued that the notional income should be fixed at Rs. 8,500 per month for 2012, applying the Ramachandrappa principle. With 65% permanent disability, 25% future prospects ought to be added, and the correct multiplier for a 49-year-old should be used to compute higher compensation under the disability head. He contended that the Tribunal erred in excluding physiotherapy expenses and underestimating pain, suffering, and loss of amenities. He asserted that the enhanced compensation determined by applying these principles and reinstating future treatment would meet the just compensation requirement.

Contentions of Respondents

The insurer contended that the accident involved contributory negligence by the claimant and that compensation ought to reflect the evidence before the Tribunal. It argued against elevated notional income and challenged the extent of future prospects and disability calculations. The insurer also defended the Tribunal’s handling of medical bills and treatment expenses, and the lack of hospital authority proof for physiotherapy expenses. Overall, the respondents maintained that the impugned award did not justify a higher quantum beyond the evidence on record.

Cited Precedents (2)

Case Name	Citation	Treatment	Explanation
Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited	AIR 2011 SC 2951	Positive	Cited to justify fixing notional income at Rs. 8,500 per month for the claimant in the 2012 context.
National Insurance Company Ltd. v. Pranay Sethi and Others	(2017) 16 SCC 680	Positive	Applied for the 25% addition towards future prospects in calculating disability compensation.

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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 MRS. JUSTICE SOPHY THOMAS TUESDAY, THE 7[TH] DAY OF MARCH 2023 / 16TH PHALGUNA, 1944`** ## **`MACA NO. 2894 OF 2016`** ## **`OPMV 3/2013 OF THE PRINCIPAL MOTOR ACCIDENTS CLAIMS TRIBUNAL, KOZHIKODE`** ## **`APPELLANT/CLAIMANT:`** ``` SUBHASH, AGED 52 YEARS, S/O. KUMARAN (LATE), PONNATH HOUSE, MALAPPARAMBA P.O., KOZHIKODE. ``` ## **`BY ADV SMT.K.V.RESHMI`** ## **`RESPONDENTS/RESPONDENTS:`** ``` *1ABDULA RAHSEED, AGED 46 YEARS, HASBHI GHAR, CHERIKKAL ROAD, PINARAYI P.O.,THALASSEERRY - 679 532. [DELETED] ``` ``` * [1ST RESPONDENT IS DELETED FROM THE PARTY ARRAY AT THE RISK OF THE APPELLAMT AS PER ORDER DATED 14/06/2018 IN IA.NO.1868/2018]. ``` ``` 2IFFCO-TOKIO GENERAL INSURANCE CO. LTD., 2ND FLOOR, A1 RAHABA ARCADE, PUSHPA JN. KALLAI ROAD, KOZHIKODE, REPRESENTED BY IT'S MANAGER, PIN - 673 001. ``` ``` BY ADVS. SRI.MATHEWS JACOB SR. SRI.P.JACOB MATHEW ``` ``` THISMOTORACCIDENTSCLAIMSAPPEALHAVINGBEENFINALLY HEARDON02.03.2023,THECOURTON07.03.2023DELIVEREDTHE FOLLOWING: ``` MACA 2894 of 2016 2 ## **J U D G M E N T** The claimant in OP(MV) No.03 of 2013 on the file of the Principal Motor Accidents Claims Tribunal, Kozhikode, is the appellant herein impugning the award on the ground of inadequacy of compensation. 2. The appellant met with a road traffic accident on 05.03.2012, while he was walking through the side of Malaparamba-Thondayad bypass road. KL-58/F-2185 car driven by the 1st respondent, in a rash and negligent manner, collided with KL-11/AF-7722 car and that car knocked down the petitioner and he sustained serious injuries. He was admitted and treated at Medical College Hospital, Kozhikode. He was a 49 year old Carpenter, earning monthly income of Rs.10,000/-. Due to the accident, he suffered 65% permanent disability and he is not able to do his Carpentry work anymore. He approached the Tribunal claiming compensation of Rs.15,00,000/-. But the Tribunal awarded only Rs.9,41,457/-. Hence this appeal. 3. The 1[st] respondent was the owner-cum-driver of the offending car KL-58/F-2185, and the 2[nd] respondent was its Insurer. Though they admitted the accident as well as the injuries, according to them, the appellant was negligent, while crossing the road and the accident MACA 2894 of 2016 3 occurred only because of his negligence. The policy of the offending vehicle was admitted by the 2[nd] respondent-Insurer. 4. The evidence consists of oral testimony of PWs1 to 3 and Exts. A1 to A7 and C1. 5. The appellant would contend that though he suffered permanent disability of 65%, the Tribunal awarded only Rs.5,07,000/- under the head ‘loss of income due to disability’. The Tribunal fixed his notional income at a lower rate. The amount awarded for pain and suffering, loss of amenities etc. are also on the lower side. 6. Now let us see whether any interference is warranted in the impugned award. 7. The 1[st] respondent owner-cum-driver of the offending car was removed from the party array at the risk of the appellant, as per order in I.A.No.1868 of 2018. So, the Insurer alone is the respondent in this appeal. 8. Heard Smt.K.V.Rashmi learned counsel appearing for the appellant and Sri. P. Jacob Mathew learned counsel appealing for the respondent-Insurer. 9. The appellant was a 49 year old Carpenter earning monthly MACA 2894 of 2016 4 income of Rs.10,000/-. The Tribunal fixed his notional income @ Rs.5,000/-. Though there was no document to prove his income, as the accident was in the year 2012, he was eligible to get his notional fixed @ Rs.8,500/-, going by the decision **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited [AIR 2011 SC** **2951]** . The Tribunal assessed loss of income for 12 months @ Rs.5,000/-. Since we have fixed his notional income @ Rs.8,500/-, he is entitled to get Rs.1,02,000/- (8,500 x 12) under the head ‘loss of earning’. Since he was already paid Rs.60,000/-, he is entitled to get the balance amount at Rs.42,000/- under the head ‘loss of earning’ . 10. Ext.C1 Disability Certificate shows that he had suffered disability of 65%. Since he was a Carpenter, the functional disability might have been even more than that. So he was eligible to get an addition of 25% towards future prospects as he was coming under the age group of 45-50 years. So for assessing compensation for permanent disability his income can be fixed as Rs.10,625/- (8,500 + 25%), as he was a self employed man aged 49, relying on the decision **National Insurance Company Ltd. v. Pranay Sethi and Others, [(2017) 16 SCC 680].** So for the permanent disability of 65%, applying the multiplier of 13, the compensation awardable was Rs.10,77,375/(10,625x12x13x65/100). He was already paid Rs.5,07,000/- and so he is MACA 2894 of 2016 5 entitled to get the balance amount of Rs.5,70,375/as enhanced compensation for disability. 11. The Tribunal did not award any amount on the basis of Ext.A1 series bills for physiotherapy. PW1-the physiotherapist was examined to prove those documents. According to him, he was a permanent employee of IQRAA Hospital and he attended the appellant at his home with the consent of the hospital management. Learned Tribunal finding that there was no evidence to show that the hospital management authroised PW1 to conduct physiotherapy for the appellant, those bills were rejected _in toto._ Since the appellant suffered severe injuries resulting in 65% disability, normally physiotherapy might have been necessary to improve his physical condition. Whether the hospital management authorised or not, if PW1 conducted physiotherapy for the appellant, he had to be paid for that. PW1 deposed before court that he conducted physiotherapy for the appellant and he issued Ext.A1 series bills. Those bills are in the letterhead of IQRAA Hospital and it bears the signature of PW1. The third bill is for the period from 12.09.2013 to 12.12.2013. The first bill is for the period from 12.09.2013 to 25.12.2014, which takes in, the period covered by the third bill. So the appellant is not entitled to get the amount of Rs.27,000/- covered by the third bill. Whereas he is entitled to get the amount covered by first and second bills which comes to MACA 2894 of 2016 6 Rs.96,900/-(69,900 + 27,000) in total. The Tribunal awarded Rs.61,000/towards future treatment without any evidence. Ext.A1 series documents will show that the physiotherapy continued for an year and so it can be considered as future treatment to improve his condition. In the absence of any other evidence to prove expenditure for future treatment, this Court is inclined to allow the amount covered by the first two bills in Ext.A1 series, and to adjust Rs.61,000/- awarded by the Tribunal towards future treatment, against that amount. So the appellant is entitled to receive Rs.35,900/(96,900-61,000) form Ext.A1 bill amount, as expenses for future treatment including physiotherapy. 12. Towards pain and suffering, the Tribunal awarded Rs.40,000/and towards loss of amenities, Rs.20,000/- was awarded. According to the appellant, considering the nature of injuries, period of hospitalisation and disability suffered, the compensation awarded by the Tribunal under those heads cannot be justified. Considering the fact that he was a 49 year old Carpenter, who suffered permanent disability of 65%, and hospitalised for 93 days, this Court is inclined to award Rs.10,000/- more under the head ‘pain and suffering’ and Rs.5,000/- more under the head ‘loss of amenities’. 13. Under all other heads the compensation awarded seems to be reasonable. MACA 2894 of 2016 7 |Head of claim|Amount awarded by the Tribunal|Amount awarded in appeal|Difference to be drawn as enhanced compensation| |---|---|---|---| |Loss of earning|Rs.60,000/-|Rs.1,02,000/-|Rs.42,000/-| |Loss of income due to disability|Rs.5,07,000/-|Rs.10,77,375/-|Rs.5,70,375/-| |Future treatment|Rs.61,000/-|Rs.96,900/-|Rs.35,900/-| |Pain and suffering|Rs.40,000/-|Rs.50,000/-|Rs.10,000/-| |Loss of amenities|Rs.20,000/-|Rs.25,000/-|Rs.5,000/-| |Total|||Rs.**6,63,275**/-| 14. In the result, the appellant is entitled to receive enhanced compensation of Rs.6,63,275/(42,000+5,70,375+35,900+10,000 +5000). 15. The liability of the Insurer to compensate the appellant found by the Tribunal is not under challenge. So, the respondent-Insurer is directed to deposit the enhanced compensation of Rs.6,63,275/- (Rupees Six Lakh Sixty Three Thousand Two Hundred and Seventy Five only) in the bank account of the appellant with interest @ 9% per annum from the date of petition till the date of deposit (except 167 days of delay in filing the appeal), within a period of two months from the date of receipt of a copy of this judgment. The deposit must be in terms of the directives MACA 2894 of 2016 8 issued by this Court in Circular No.3 of 2019 dated 06/09/2019 and clarified in O.M.No.D1/62475/2016 dated 07/11/2019 after deducting the liabilities, if any, of the appellant towards Tax, balance court fee and legal benefit fund. The appeal is allowed accordingly. No order as to costs. Sd/- **SOPHY THOMAS JUDGE** DSV/04.03.2023.