High Court of KeralaSingle Judge2024-04-11Appeal allowed in part; enhanced compensation o...

Susheer v. K B Ajayan and A V Haridasan and The New India Assurance Company Limited

Case / Petition Number:MACA No. 60 of 2014

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: Sophy Thomas
Judgment Date: 2024-04-11
Court Decision / Holding: The appeal is allowed in part. Enhanced compensation of Rs.87,500 is awarded (comprising Rs.46,630 medical expenses, Rs.30,000 loss of earnings, Rs.2,000 nourishment, Rs.500 clothing, Rs.10,000 pain and suffering, Rs.10,000 loss of amenities, and Rs.10,000 for future treatment and implant removal, with Rs.18,000 already awarded). The 3rd respondent-Insurer is directed to deposit the enhanced compensation of Rs.87,500 with interest at 8% per annum from the date of petition till deposit, within two months of receipt of the judgment, and the Tribunal shall disburse after deducting liabilities such as tax, balance court fee, and funds. The pay and recovery order in favor of the insurer stands confirmed. No order as to costs.
Final Disposition: Appeal allowed in part; enhanced compensation of Rs.87,500 payable to the appellant; pay and recovery confirmed; no order as to costs.

Parties to the Case

Appellants / Petitioners

Susheer

Respondents

K B Ajayan
A V Haridasan
The New India Assurance Company Limited

Legal Representation & Advocates

Counsels for Petitioners

• T. C. Suresh Menon
• A. R. Nimod

Counsels for Respondents

• Renil Anto Kandamkulath y

Case Synopsis & Summary

This appeal challenges the Motor Accidents Claims Tribunal award in OP(MV) No.3195 of 2005 for a 2005 road-traffic accident involving KL-8/P-6062 autorickshaw. The claimant, Susheer, sustained a fracture of the femur and other injuries; he was hospitalised for 21 days and claimed compensation of Rs.1,50,000, while the Tribunal awarded Rs.58,850. Respondents 1 and 2 (the owner and driver) were absent; the insurer contested but acknowledged the policy. The tribunal ordered pay and recovery in favour of the insurer due to policy violations. In the appeal, the appellant's counsel argued that Ext.A6 medical bills show Rs.46,630, which ought to be reimbursed, and that the notional income should be enhanced beyond Rs.3,000 per month. Citing Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Co. Ltd. (AIR 2011 SC 2951), the appellant sought notional income at Rs.5,000 per month and an appropriate calculation for six months' loss of earnings, along with heads for nourishment, clothing, pain and suffering, loss of amenities, and future treatment. The 3rd respondent insurer conceded the medical bill amount but maintained the policy-violation basis for pay and recovery. The High Court re-calculated and, after increasing several heads, held enhanced compensation of Rs.87,500. The insurer was directed to deposit this amount with 8% interest within two months, while the tribunal would deduct liabilities before disbursal; the appeal is allowed in part with no costs. The pay and recovery finding remains intact.

Provisions of Law Cited

null

Legal Doctrines & Maxims

Notional income principle (as applied in Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Co. Ltd., AIR 2011 SC 2951)
Pay and recovery under policy conditions in motor accident insurance

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellant contended that Ext.A6 medical bills amount to Rs.46,630, which should be fully reimbursed; the Tribunal undercompensated by fixing notional income at Rs.3,000 per month. Relying on Ramachandrappa, the appellant urged a notional income of Rs.5,000 per month and enhanced compensation for six months’ loss of earnings, nourishment, clothing, pain and suffering, loss of amenities, and future treatment and implant removal. The necessary recalculation would yield higher compensation, including an additional Rs.43,000 for medical expenses, Rs.12,000 for loss of earnings, Rs.2,000 for nourishment, Rs.500 for clothing, Rs.10,000 each for pain and suffering and loss of amenities, and Rs.10,000 for future treatment.

Contentions of Respondents

The 3rd respondent insurer contested the appeal on the policy-violations ground and supported the pay-and-recovery mechanism; the insurer admitted Ext.A6 medical bills but argued the extent of liability and the policy condition violations. Respondents 1 and 2 remained absent in the appeal; the insurer's counsel acknowledged the medical bill amount and participated in arguments related to the calculations, while the pay-and-recovery issue remained a central point of contention.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited	AIR 2011 SC 2951	Positive	Cited and applied to support the notional income determination of Rs.5,000 per month for the claimant; the court follows the doctrine laid down in Ramachandrappa regarding notional income in a 2005 accident.

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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 THURSDAY, THE 11[ TH ] DAY OF APRIL 2024 / 22ND CHAITHRA, 1946`** ## **`MACA NO. 60 OF 2014`** ``` AGAINST THE AWARD DATED 20.12.2012 IN OP(MV) NO.3195 OF 2005 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, THRISSUR ``` ## **`APPELLANT/PETITIONER:`** ``` SUSHEER, AGED 36 YEARS, S/O.BHARATHAN, RESIDING AT KANJATTY HOUSE, MANATHALA, CHAVAKKAD, THRISSUR. ``` ``` BY ADVS. SRI.T.C.SURESH MENON SRI.A.R.NIMOD ``` ## **`RESPONDENTS/RESPONDENTS:`** - **`1 K B AJAYAN,`** ``` RESIDING AT KANJATTY HOUSE, MANATHALA, CHAVAKKAD, THRISSUR - 680 506. ``` - **`2 A.V.HARIDASAN,`** ``` S/O.VELAYI, RESIDING AT ADAPUZHA ACHIVEETTIL, BLANGAD, CHAVAKKAD, THRISSUR, PIN - 680 506. ``` MACA No.60 of 2014 2 - **`3 THE NEW INDIA ASSURANCE COMPANY LIMITED,`** ``` ANUGRAHA BUILDINGS, WADAKKANCHERY ROAD, KUNNAMKULAM, THRISSUR - 680 503. ``` ``` BY ADV SRI.RENIL ANTO KANDAMKULATHY, SC, THE NEW INDIA ASSURANCE COMPANY LIMITED ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 11.04.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` MACA No.60 of 2014 3 ## **J U D G M E N T** This appeal is at the instance of the claimant in OP(MV)No.3195 of 2005 on the file of Motor Accidents Claims Tribunal, Thrissur, challenging the award on the ground of inadequacy of compensation. 2. The appellant met with a road traffic accident on 05.11.2005, while he was travelling in KL-8/P-6062 autorickshaw from Pavaratty to Chavakkad. The 2nd respondent was the driver of the autorickshaw and the accident occurred due to his rash and negligent driving. The appellant suffered serious injuries, including fracture of femur of left leg. He was hospitalised for 21 days. He was a businessman earning monthly income of Rs.8,000/-. He approached the Tribunal claiming compensation of Rs.1,50,000/-. But the Tribunal awarded only Rs.58,850/-. Hence this appeal. 3. Respondents 1 and 2, the owner and driver of the autorickshaw remained _ex parte_ before the Tribunal. The 3rd respondent-Insurer contested the case, but admitted the policy. Since there was violation of the policy conditions, ‘pay MACA No.60 of 2014 4 and recovery’ was ordered by the Tribunal, in favour of the Insurer. 4. In the appeal also, respondents 1 and 2 remained absent in spite of service of notice. The 3rd respondent-Insurer entered appearance through counsel. 5. Heard learned counsel for the appellant and learned counsel for the 3rd respondent-Insurer. 6. Learned counsel for the appellant would submit that though they produced Ext.A6 medical bills for Rs.46,630/-, learned Tribunal erroneously awarded only Rs.3,630/-. Learned counsel for the 3rd respondent also admitted that Ext.A6 medical bills were amounting to Rs.46,630/- and so, that amount ought to have been awarded by the Tribunal. So, this Court is inclined to award Rs.46,630/- towards medical expenses. After deducting, Rs.3,630 already awarded, the appellant is entitled to get Rs.43,000/- towards medical expenses. 7. Learned Tribunal fixed the notional income of the MACA No.60 of 2014 5 appellant @ Rs.3,000/- against his claim of Rs.8,000/-. Learned counsel for the appellant would submit that going by the decision **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited [AIR 2011 SC 2951]** , the appellant was eligible to get his notional income fixed @ Rs.5,000/- per annum, as the accident was in the year 2005. So, this Court is inclined to accept his notional income @ Rs.5,000/-. For loss of earning for six months, he was eligible to get Rs.30,000/-. After deducting Rs.18,000/already awarded, he is entitled to get the balance amount of Rs.12,000/-. 8. Towards extra nourishment, this Court is inclined to award Rs.2,000/- as he was hospitalised for 21 days. 9. Towards damage to clothing Rs.500/- can be awarded as no amount was ordered by the Tribunal under that head. 10. Towards pain and suffering, and for loss of amenities, Rs.10,000/- each is awarded in addition to the amount awarded by the Tribunal, as he had suffered fracture to the MACA No.60 of 2014 6 femur left leg, and he was hospitalised for 21 days. 11. Learned Tribunal awarded Rs.10,000/- towards future treatment and for removal of implants. Since the fracture was on femur of left leg, and treated with implants, this Court is inclined to award Rs.10,000/- more towards future treatment and removal of implants. 12. The compensation awarded under all other heads seems to be reasonable, and hence it needs no modification. |Head of claim|Amount awarded by the Tribunal|Amount awarded in appeal|Difference to be drawn as enhanced compensation| |---|---|---|---| |Medical expenses|Rs.3,630/-|Rs.46,630/-|Rs.43,000/-| |Loss of earning|Rs.18,000/-|Rs.30,000/-|Rs.12,000/-| |Extra nourishment|…..|Rs.2,000/-|Rs.2,000/-| |Damage to clothing|……|Rs.500/-|Rs.500/-| |Pain and suffering|Rs.12,000/-|Rs.22,000/-|Rs.10,000/-| |Loss of amenities|Rs.8,000/-|Rs.18,000/-|Rs.10,000/-| MACA No.60 of 2014 7 |Discomfort & future treatment|Rs.10,000/-|Rs.20,000/-|Rs.10,000/-| |---|---|---|---| |Total|||Rs.87,500/-| |Enhanced compensation is Rs.**87,500/-**|||| ||||| 13. In the result, the appellant is entitled to get enhanced compensation of Rs.87,500/- (43,000 + 12,000 + 2,000 + 500 +10,000 + 10,000 + 10,000). 14. The 3rd respondent-Insurer is directed to deposit the enhanced compensation of Rs.87,500/- (Rupees Eighty Seven Thousand and Five Hundred only) with interest @ 8% per annum, from the date of petition till the date of deposit, (excluding 244 days of delay in filing the appeal), before the Motor Accidents Claims Tribunal concerned, within a period of two months from the date of receipt of a copy of this judgment. Learned Tribunal shall disburse that amount to the appellant after deducting the liabilities, if any, towards tax, balance court fee, legal benefit funds etc. 15. Learned Tribunal ordered pay and recovery in favour of the 3rd respondent, as there was violation of the policy MACA No.60 of 2014 8 conditions. That finding was never challenged by respondents 1 and 2. So the pay and recovery ordered in favour of the 3rd respondent stands confirmed. The appeal is allowed to the extent as above, and no order is made as to costs. Sd/- **SOPHY THOMAS JUDGE** DSV/-