High Court of KeralaSingle Judge2024-04-09Partly allowed; enhanced compensation and depos...

Sugesh Kumar v. National Insurance Company Limited

Case / Petition Number:MACA No.1163 of 2019

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: C.S. Sudha
Judgment Date: 2024-04-09
Court Decision / Holding: The impugned Award is partly modified: the total compensation is increased to ₹9,48,160/- (₹7,28,910/- awarded by the Tribunal + ₹2,19,250/- in appeal) with interest at 7.5% per annum from the date of petition till realization and proportionate costs. The insurer is directed to deposit the amount before the Tribunal within 60 days from receipt of the judgment, and upon deposit, the Tribunal shall disburse the amount to the claimant as per law.
Final Disposition: Partly allowed; enhanced compensation and deposit order; direction to insurer to deposit within 60 days; Tribunal to disburse accordingly.

Parties to the Case

Appellants / Petitioners

Sugesh Kumar

Respondents

The National Insurance Company Limited

Legal Representation & Advocates

Counsels for Petitioners

• V. A. Omanakuttan

Counsels for Respondents

• Sri. Abhijett Lessli

Case Synopsis & Summary

Sugesh Kumar, the appellant in MACA No.1163 of 2019, challenges the Motor Accidents Claims Tribunal, Ernakulam’s award dated 28 September 2016 in OP(MV) No.547 of 2014, which held the first respondent driver negligent and awarded ₹7,28,910 with 9% interest. The High Court examines the Tribunal’s assessment across heads of compensation: notional income, bystander expenses, loss of earnings, and disability-related damages. The appellant contends that, though the accident occurred in 2013, he was engaged in skilled tile work with potential earnings around ₹15,000 per month; the Tribunal’s figure of ₹14,000 lacks evidentiary basis and should be increased. He seeks higher bystander expenses (70 days at ₹250) and an award for loss of earnings for 12 months due to prolonged recovery and multiple surgeries; he also argues for compensation for loss of future prospects given permanent disability. The insurer defends the Tribunal’s award, arguing the claimant did not prove tile-work status and that ₹14,000 is reasonable for 2013. The court notes the scale of injuries and surgical interventions, modifies several heads (notably loss of earnings, bystander expenses, and other heads), and cites Pranay Sethi and Raj Kumar as guiding principles for disability-related calculations. Ultimately, the appeal is partly allowed, increasing the total compensation to ₹9,48,160 with 7.5% interest, and directs the insurer to deposit the amount within 60 days for disbursement.

Provisions of Law Cited

Section 173 of the Motor Vehicles Act, 1988

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellant contends the notional income should be higher (₹15,000/month for a skilled tile worker) and that bystander expenses should cover the 70-day hospitalization. He urges as loss of earnings for 12 months due to recoveries and surgeries (₹1,68,000) and asserts entitlement to future-earnings loss given disability. He relies on guidelines in Pranay Sethi and Raj Kumar for the calculation of ongoing disability and future prospects and seeks higher compensation for pain, suffering, and loss of amenities.

Contentions of Respondents

The insurer defends the Tribunal’s figure, arguing lack of evidence of tile-work and that ₹14,000/month is reasonable for 2013. It contends bystander expenses were properly limited and cites Ramachandrappa to justify lower wages for comparators. It opposes substantial enhancement of compensation and argues for adherence to the Tribunal’s calculations and statutory limits.

Cited Precedents (3)

Case Name	Citation	Treatment	Explanation
Ramachandrappa v. Manager, Royal Sundaram Alliance Co. Ltd	(2011) 13 SCC 236	Mentioned Only	Cited as a benchmark for wage scales; used for comparative purposes and not as a binding ruling in this case.
National Insurance Co. Ltd v. Pranay Sethi	(2017) 16 SCC 680	Positive	Cited for the principle and methodology of determining compensation for future loss of earnings and disability under established guidelines.
Raj Kumar v. Ajay Kumar	(2011) 1 SCC 343	Positive	Cited for the approach to assess loss of earnings in light of permanent disability affecting earning capacity.

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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 C.S. SUDHA** **TUESDAY, THE 9[TH] DAY OF APRIL 2024 / 20TH CHAITHRA, 1946** **MACA NO. 1163 OF 2019** **AGAINST THE AWARD DATED 28.09.2016 IN OP(MV) NO.547 OF 2014 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, ERNAKULAM.** **APPELLANT/PETITIONER IN O.P.M.V.NO.547/2014 OF M.A.C.T. ERNAKULAM:** **SUGESH KUMAR, AGED 29 YEARS, S/O. SUKUMARAN, MALEKAVARATHODE HOUSE, H. NO. 551(8/112), NANIYODE P.O., PATTANCHERRY, PALAKKAD.** **BY ADV V.A.OMANAKUTTAN** **RESPONDENT/2ND RESPONDENT IN O.P.M.V.NO.547/2014 :** **THE NATIONAL INSURANCE COMPANY LIMITED, KOCHI-16.** **BY ADV SRI.ABHIJETT LESSLI** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR HEARING ON 09.04.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** M.A.C.A. No.1163 of 2019 2 ## **C.S. SUDHA, J.** **---------------------------------------------M.A.C.A. No.1163 of 2019 ----------------------------------------------Dated this the 09[th] day of April 2024** ## **J U D G M E N T** This appeal under Section 173 of the Motor Vehicles Act, 1988 (the Act), has been filed by the claimant in O.P.(MV) No.547/2014 on the file of the Motor Accidents Claims Tribunal, Ernakulam, (the Tribunal), aggrieved by the amount of compensation granted by Award dated 28/09/2016. The respondent herein is the second respondent before the Tribunal. The parties and the documents will be referred to as described in the original petition. 2. According to the claimant/injured, on 05/10/2013 at 02:00 a.m. he was a passenger in the car bearing registration No. KL-11/AR-9083 driven by the first respondent through AluvaEdapally national highway. The car was being driven in a rash and negligent manner and when the car reached near KIMS Hospital, M.A.C.A. No.1163 of 2019 3 Kalamassery, the first respondent driver swerved the vehicle towards the left side, as a result of which it rammed into a tanker lorry parked by the side of the road, due to which the claimant sustained grievous injuries. The first respondent is the driver as well as the owner and the second respondent, the insurer of the offending vehicle, are jointly and severally liable to compensate the claimant. Hence, the claimant claimed an amount of ₹6,00,000/- as compensation under various heads. 3. The first respondent owner cum driver remained _ex parte._ 4. The second respondent insurer filed written statement admitting the insurance policy but denying the liability. 5. Before the Tribunal, no oral evidence was adduced by either side. Exts.A1 to A14 were marked on the side of the petitioner. No documentary evidence was adduced by the respondent. Ext.X1, the report of the Medical Board was also marked. 6. The Tribunal on a consideration of the documentary M.A.C.A. No.1163 of 2019 4 evidence and after hearing both sides, found negligence on the part of the first respondent resulting in the accident and hence awarded an amount of ₹7,28,910/- with interest @ 9% per annum from the date of the petition till realisation along with proportionate costs. Aggrieved, the petitioner has come up in appeal. 7. The only point that arises for consideration in this appeal is whether there is any infirmity in the findings of the Tribunal calling for an interference by this Court. 8. Heard both sides. 9. The learned counsel for the claimant/injured challenges the Award of the Tribunal under the following heads - **Notional Income** – It is submitted by the learned counsel for the claimant that the latter at the time of the accident was a tile worker, which is a skilled job. He was getting an income of ₹15,000/- per month. However, the Tribunal granted only an amount of ₹14,000/-, which requires to be interfered with. _Per contra_ , it is submitted by the learned counsel for the second M.A.C.A. No.1163 of 2019 5 respondent/insurer that the accident happened in the year 2013 and therefore, the monthly income of ₹14,000/- fixed by the Tribunal is just and adequate. 9.1. No evidence has been let in by the claimant to establish the fact that he is a tile worker or a skilled worker. The amount of ₹14,000/- awarded is more than what has been granted to a coolie in **Ramachandrappa v. Manager, Royal Sundaram Allian.Co.Ltd, (2011) 13 SCC 236** . In such circumstances, I find that the amount of ₹14,000/- granted under this head is just compensation. - 10. The Tribunal has **Bystander expenses** granted expenses at the rate of ₹250/- per day for a period of 45 days. It is brought to my notice by referring to Exts.A4 to A10 that the claimant had undergone hospitalization for a period of 70 days. In the light of the several injuries and the surgeries the claimant had to undergo, the service of a bystander was indispensable. In such circumstances, I find that the claimant is entitled to bystander expenses for a period of 70 days at the rate of ₹250/- per day. The M.A.C.A. No.1163 of 2019 6 Tribunal has granted expenses for a period of 45 days. The claimant will be entitled to the expenses for the remaining 25 days also. 11. **Loss of earnings** - It is submitted by the learned counsel for the claimant that no amount has been awarded towards loss of earnings though Ext.A10 certificate which has not been disputed shows that the claimant was advised to refrain from strenuous activity for a period of one year following the primary surgery. In such circumstances, it is clear that he was unable to work at least for a period of one year and hence loss of earnings for a period of one year ought to have been granted. 11.1. There is certainly force in the argument advanced by the learned counsel for the claimant. In the light of the several injuries sustained by the claimant, which include multiple fractures and the fact that he had to undergo a number of surgeries, I find that loss of income for at least 12 months ought to have been granted. Therefore, I find that the claimant is entitled to loss of earnings for a period of 12 months, that is, ₹1,68,000/- M.A.C.A. No.1163 of 2019 7 (14,000/- x 12). 12. **Loss of future prospects due to permanent disability** - It is submitted by the learned counsel for the petitioner that no amount towards loss of future prospects has been granted which is against the dictums in **National Insurance Co. Ltd v. Pranay Sethi, (2017)16 SCC 680** and **Raj Kumar v. Ajay Kumar, (2011) 1 SCC 343** . The argument at first blush appeared to be correct. However, on a reading of the impugned award it can be seen that an amount of ₹2,72,160/- has been granted towards this head. This amount has been arrived at based on the method laid down in **Pranay Sethi** and **Raj Kumar** ( _Supra_ ). Therefore, the argument that no amount has been awarded is incorrect **.** The amount of ₹2,72,160/- has been given by the Tribunal under the head ‘compensation for continuing or permanent disability’. As held by the Apex Court in **Raj Kumar** ( _Supra_ ), where the claimant suffers a permanent disability as a result of the injuries sustained in the accident, the assessment of compensation under the head 'loss of future earnings' would M.A.C.A. No.1163 of 2019 8 depend upon the effect and impact of such permanent disability on his earning capacity. What requires to be assessed by the Tribunal is the effect of permanent disability on the earning capacity of the injured; and after assessing the loss of earning capacity in terms of a percentage of the income, it has to be quantified in terms of money to arrive at the future loss of earnings by applying the standard multiplier method used to determine loss of dependency. Ext.X1 medical certificate issued by the Special Medical Board, District Hospital, Palakkad says that the claimant had sustained 9% permanent disability. This was accepted as such and compensation awarded. The amount granted is in accordance with the aforesaid dictums and hence no interference is called for. 13. **Pain and suffering** - The Tribunal has granted an amount of ₹85,000/- which is again pointed out to be low in the light of the multiple fractures and several surgeries the claimant had to undergo. As the claimant had sustained multiple fractures and had undergone more than one surgery an amount of ₹1,00,000/- towards pain and suffering would be adequate and M.A.C.A. No.1163 of 2019 9 just. An amount of ₹85,000/- has already been granted and therefore the claimant would be entitled to the remaining amount. 14. **Loss of amenities and enjoyment in life-** The Tribunal has granted an amount of ₹ 70,000/-. Here again I find that due to the multiple fractures sustained by the claimant and several surgeries undergone by him an amount of ₹1,00,000/- would be just compensation. ## 15. The impugned Award is partly modified thus - |Sl. No.|Head of claim|Amount claimed|Amount awarded by Tribunal|Modified in appeal| |---|---|---|---|---| |1.|Loss of earnings|1,00,000/-|-|₹1,68,000/ (₹14,000/- x 12M*)| |2.|Transport to hospital and back to home|20,000/-|14,500/-|₹14,500/- (No modification)| |3.|Extra Nourishment|22,000/-|17,000/-|₹17,000/- (No modification)| |4.|Damage to clothes and articles|₹3,000/-|₹3,000/-|₹3,000/- (No modification)| |5.|Attendant expenses|₹35,000/-|₹11,250/-|17,500/- (250/- x70 D*)| |6.|Treatment expenses|₹2,50,000/-|₹1,66,000/-|₹1,66,000/- (No modification)| M.A.C.A. No.1163 of 2019 10 |7.|Compensation for pain and sufferings|₹1,00,000/-|₹85,000/-|1,00,000/- (₹85,000/- + 15,000/-)| |---|---|---|---|---| |8.|Compensation for loss of amenities and comforts|₹1,00,000/-|₹70,000/-|₹1,00,000/- (₹70,000/- +₹30,000/-)| |9.|Compensation for Continuing or permanent disabilityif any|₹3,00,000/-|₹2,72,160/-|₹ 2,72,160/- (15,120/- x 18) (No modification)| |10.|Compensation for loss of earning power|₹3,00,000/-|0|- (No modification)| |11.|Compensation for disfiguration|₹50,000/-|₹75,000/-|₹75,000/- (No modification)| |12.|Future treatment expenses|₹1,00,000/-|₹15,000/-|₹15,000/- (No modification)| ||Total|₹13,80,000/ -|₹7,28,910/-|₹9,48,160/-| ||Claim limited to Rs.6,00,000/-|||| *M-Month, *D-Day In the result, the appeal is allowed in part by enhancing the compensation by a further amount of **₹2,19,250/-** (total compensation ₹9,48,160/-, that is, ₹7,28,910/- granted by the Tribunal + ₹2,19,250/- granted in appeal) with interest at the rate of 7.5% per annum from the date of petition till date of realization and proportionate costs. The second respondent/insurer is directed M.A.C.A. No.1163 of 2019 11 to deposit the compensation with interest and costs before the Tribunal within a period of 60 days from the date of receipt of a copy of the judgment. On deposit of the compensation amount, the Tribunal shall disburse the amount to the claimant/appellant at the earliest in accordance with law. Interlocutory applications, if any pending, shall stand closed. **SD/C.S. SUDHA JUDGE** ak