Surendran v. Bajaj Allianz General Insurance Co. Ltd.

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: C.S. Dias, J.
Judgment Date: 2021-07-26
Court Decision / Holding: Appeal allowed in part; enhanced compensation by Rs. 74,500 with 7% interest on the enhanced amount from the petition date until deposit; enhanced amount to be deposited within two months; Tribunal to disburse the enhanced amount in accordance with law.
Final Disposition: Appeal allowed in part

Parties to the Case

Appellants / Petitioners

Surendran

Respondents

Bajaj Allianz General Insurance Co. Ltd.

Legal Representation & Advocates

Counsels for Petitioners

• P. V. Baby
• A. N. Santhosh

Counsels for Respondents

• Akhil K. Madhav

Case Synopsis & Summary

This is MACA No. 1351 of 2010 before the Kerala High Court arising from a Motor Accident Claims Tribunal (MACT) award. On 30 November 2006, Surendran, a 42-year-old hotel employee, was struck by a car owned by the 1st respondent and insured with the 3rd respondent, on the Thrissur-Ernakulam National Highway. He suffered extradural haematoma and a fracture of the right parietal bone, underwent craniotomy, and was hospitalized for nine days. He claimed Rs. 4,12,000 in damages, later restricted to Rs. 3,00,000. The MACT awarded Rs. 1,08,900 with 7% interest and costs, against which Surendran appealed. The respondents 1 and 2 were ex parte; the 3rd respondent admitted coverage. The High Court relied on Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Co. Ltd. to fix the notional income at Rs. 4,500 per month for 2006, recalculating several heads of damage. It increased notional income, loss of earnings, bystander expenses, loss of amenities, disfiguration, and loss due to disability, resulting in an enhanced total of Rs. 1,83,400. The appeal was allowed in part, directing deposit of the enhanced sum with 7% interest from petition date to deposit, and costs.

Legal Doctrines & Maxims

Notional income principle for calculating compensation in MACT cases (notionally fixed income for the injured)
Ramachandrappa ratio (notional income)

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellant submits that the tribunal erred in adopting a low notional monthly income of Rs. 2,000 and in undervaluing several heads of damages. Relying on Ramachandrappa v. Manager, (2011) 13 SCC 236, the notional income for 2006 should be Rs. 4,500 per month. Given a 10% permanent disability and four months of incapacity, the appellant seeks higher compensation across heads such as loss of earnings, bystander expenses, loss of amenities, disfigurement, and disability loss, with a total that culminates in an enhanced award. The court should apply the notional income standard and recompute quantum accordingly and award interest at 7% on the enhanced amount.

Contentions of Respondents

The respondents contend that the MACT award, including liability and quantum, was just and proper on the evidence. The insurer admitted coverage; the 3rd respondent argues that liability is limited to the policy terms and that substantial enhancement is unwarranted. The appeal primarily questions the reasonableness of the quantum; the respondents urge maintaining the tribunal’s award unless legally untenable.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Co. Ltd.	[(2011) 13 SCC 236]	Positive	The High Court followed the Ramachandrappa ratio to fix the notional income at Rs 4,500 per month for 2006 and recalculated damages accordingly.

Extracted Judgment Text

Exact text extracted from official judgment records.

**MACA NO. 1351 OF 2010** **1** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **MONDAY, THE 26[TH] DAY OF JULY 2021 / 4TH SRAVANA, 1943 MACA NO. 1351 OF 2010 AGAINST THE JUDGMENT IN OP(MV) 193/2007 OF MOTOR ACCIDENT CLAIMS TRIBUNAL , IRINJALAKUDA, THRISSUR** ## **APPELLANT/PETITIONER IN O.P (MV):** SURENDRAN @ SURESH VILLANGATTIL HOUSE, MARATHAMPILLY DESOM,, KODAKARA VILLAGE & P.O., MUKUNDAPURAM TALUK,, THRISSUR DISTRICT. BY ADVS. SRI.P.V.BABY SRI.A.N.SANTHOSH ## **RESPONDENTS/RESPONDENTS IN O.P(MV):** 1 ZUBAIR AHAMED, S/O.FARHAT ISLAM, 174, SAGAR KUTIR SANG BUNGLOW, ANDHERI(W),, MUMBAI. 2 AJISH THOMAS S/O. THOMAS PARAMUNDAYIL HOUSE, VAZHAKKULAM P.O., NEAR CARMENL SCHOOL, MOOVATTUPUZHA,, ERNAKULAM DISTRICT. 3 BAJAJ ALLIANZ GENERAL INSURANCE CO. LTD., MUMBAI. R1 & R2 ARE DELETED FROM THE PARTY ARRAY AS PER ORDER DATED 22.7.2021 IN I.A. 1/2021. BY ADV SRI.AKHIL K.MADHAV THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 26.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **MACA NO. 1351 OF 2010** **2** ## **JUDGMENT** The appellant was the petitioner in O.P (MV) No.193/07 on the file of the Motor Accident Claims Tribunal, Irinjalakuda. The respondents in the appeal were the respondents before the Tribunal. Pursuant to the order of this Court on 22.7.2021 in I.A No.1/2021, the respondents 1 and 2 were deleted from the party array. 2. The facts in brief, relevant for the determination of the appeal, are: on 30.11.2006 while the appellant was walking through the eastern side of the ThrissurErnakulam National Highway, a car bearing Reg. No.MH2/LA-3655 driven by the 2[nd] respondent in a rash and negligent manner knocked down the appellant. The appellant **MACA NO. 1351 OF 2010** **3** sustained serious an injuries, including extradural haematoma and a fracture of his right parietal bone. He was treated as an inpatient at St.John's Hospital, Chalakudy for a period of nine days. The car was owned by the 1[st] respondent and insured with the 3[rd] respondent. The appellant was 42 years of age. He was a hotel employee and earning a monthly income of Rs.4,500/-. The appellant sustained permanent disability and claimed compensation from the respondents, which he quantified at Rs.4,12,000/- but limited to Rs.3,00,000/-. 3. The respondents 1 and 2 did not contest the proceedings and were set ex parte. 4. The 3[rd] respondent filed a written statement, inter alia, admitting that the car had a valid insurance coverage. **MACA NO. 1351 OF 2010** **4** 5. The appellant produced and marked Exts.A1 to A8 in evidence. 6. The Tribunal, after analysing the pleadings and materials on record, allowed the claim petition, in part, by permitting the appellant to realise an amount of Rs.1,08,900/from the respondents with interest at the rate of 7% per annum from the date of the petition till the date of realisation and proportionate costs. The 3[rd] respondent was directed to pay the compensation amount. 7. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioner is in appeal. 8. Heard the learned counsel appearing for the appellant/petitioner and the learned counsel appearing for the 3[rd] respondent/insurance company. **MACA NO. 1351 OF 2010** **5** 9. The sole question that arises for consideration in the appeal is whether the quantum of compensation awarded by the Tribunal is just and reasonable. 10. Ext.A2 charge-sheet filed by the Kodakara Police in Crime No.421/2006 proves that the accident occurred solely on account of the negligence of the 2[nd] respondent, who drove the car in a negligent manner. Admittedly, the 1[st] respondent was the owner and the 3[rd] respondent was the insurer of the car. Therefore, it is the 3[rd] respondent who is liable to indemnify the liability of the 1[st] respondent to pay the compensation amount. 11. The appellant was 42 years of age. He claimed that he was a hotel employee and drawing a monthly income of Rs.4,500/-. The Tribunal fixed the notional income of the **MACA NO. 1351 OF 2010** **6** appellant at Rs.2,000/- per month. ## 12. In **Ramachandrappa v. Manager,** **Royal Sundaram Alliance Insurance Company Limited** [(2011) 13 SCC 236] the Hon'ble Supreme Court has fixed the notional income of a coolie worker in the year 2004, at Rs.4,500/- per month. ## **Notional income** 13. Following the ratio in the afore-cited decision and considering the fact that the accident occurred in the year 2006 and that the appellant had claimed that he had monthly income of Rs.4,500/- , I hold that the appellant's notional income can safely be fixed at Rs.4,500/- per month as claimed in the claim petition. Hence, I re-fix the notional income of the appellant at Rs.4,500/- per month. **MACA NO. 1351 OF 2010** **7** ## **Loss of earning** 14 **.** It is on record that as per Ext.A3 wound certificate, the appellant had an extradural haematoma over the right temporo parietal region and also a fracture of the right parietal bone. Craniotomy was done and the extradural haematoma was evacuated. Ext.A7 disability shows that the petitioner sustained 10% permanent disability due to the brain scar and also the deformity caused due to the head injury. The Tribunal fixed the period of incapacity of the appellant at four months, which I find to be reasonable and just. 15. In view of the re-fixation of the notional income of the appellant at Rs.4,500/per month and he was incapacitated for a period of four months, I re-fix the 'loss of earning' at Rs.18,000/- instead of Rs.8,000/- **MACA NO. 1351 OF 2010** **8** awarded by the Tribunal. ## **Bystander expenses** 16. It is on record that the appellant was hospitalised and was treated as an inpatient for a period of nine days. The Tribunal awarded only an amount of Rs.900/- i.e 100/per day, which according to me is on the lower side. Hence, I re-fix the 'bystander expenses' at Rs.200/- per day, i.e., Rs.1,800/-. ## **Loss of amenities** 17. The appellant had claimed an amount of Rs.50,000/- as compensation for loss of amenities. However, the Tribunal awarded only an amount o Rs.6,000/-, which again according to me is on the lower side. 18. Taking note of the fact that the appellant has suffered 10% permanent disability as per Ext.A7 and that he had **MACA NO. 1351 OF 2010** **9** suffered a fracture as well as a head injury and had to undergo prolonged treatment, I am of the opinion that the appellant is entitled for a further amount of Rs.14,000/- under the head 'loss of amenities', i.e, a total amount of Rs.20,000/-. ## **- Loss due to dis figuration** 19. The appellant had claimed an amount of Rs.10,000/- as 'compensation for disfiguration'. In fact, the Tribunal in paragraph 7 of the award has adverted that the appellant was slightly abnormal and that there was a prominent mark of operation on the head and also there was a depression on the head to the depressed fracture of the parietal bone sustained in the accident, which is a permanent scar. In such circumstances, I hold that the appellant is entitled for **MACA NO. 1351 OF 2010** **10** compensation under the head ' compensation for dis-figuration' at Rs.10,000/- as claimed for in the claim petition. 20. With respect to other heads of compensation, I find that the Tribunal has awarded reasonable and just compensation. 21. On an overall re-appreciation of the pleadings and materials on record and the law laid down in the afore-cited decision, I am of the definite opinion that the appellant/petitioner is entitled for enhancement of compensation as modified and re-calculated above, and given in the table below for easy reference. **MACA NO. 1351 OF 2010** **11** |SI. No|Head of claim|Amount awarded by the Tribunal (in rupees)|Amounts modified and recalculate d by this Court| |---|---|---|---| |1|Loss of earnings|8,000|18,000| |2|Transport to hospital|750|750| |3|Bystander Expenses|900|1,800| |4|Medical expenses|42,250|42,250| |5|Pain and suffering|15,000|15,000| |6|Loss of amenities|6,000|20,000| |7|Compensation for dis-figuration|–|10,000| |8|Loss due to disability|36,000|75,600| |9.|Total|1,08,900 ======|1,83,400 =======| In the result, the appeal is allowed, in part, by enhancing the compensation by a further amount of Rs.74,500/- with interest at the rate of 7% per annum on the enhanced compensation from the date of petition till the **MACA NO. 1351 OF 2010** **12** date of deposit and proportionate costs. The 3[rd] respondent/insurance company shall deposit the enhanced compensation along with interest and costs before the Tribunal, within a period of two months from the date of receipt of a certified copy of the judgment. The Tribunal shall disburse the enhanced compensation to the appellant/petitioner, in accordance with law. ma/26.07.2021 Sd/- **C.S.DIAS, JUDGE** /True copy/