High Court of KeralaSingle Judge2024-05-29Appeal partly allowed; enhanced compensation aw...

Thomas Varghese v. Noushad, Gliton Peter, and The Branch Manager, The New India Assurance Company Ltd.

Case / Petition Number:M.A.C.A. No. 2049 of 2013

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: Sophy Thomas
Judgment Date: 2024-05-29
Court Decision / Holding: The appeal is allowed to the extent of enhancing compensation as detailed: Loss of earning Rs.12,000 to Rs.48,000; Bystander expenses Rs.800 to Rs.22,500; Nursing Rs.10,000; Transportation Rs.5,000 to Rs.8,000; Extra nourishment Rs.800 to Rs.5,800; Pain and suffering Rs.30,000 to Rs.45,000; Permanent disability Rs.3,02,400 to Rs.6,09,840; Loss of earning power Rs.5,000; Loss of amenities Rs.5,000 to Rs.15,000; Future treatment Rs.0 to Rs.15,000. Total enhanced compensation: Rs.3,98,140. The 3rd respondent insurer is directed to deposit the enhanced compensation of Rs.3,98,140 with 7.5% interest per annum from the date of petition till deposit before the Tribunal Kalpetta within two months from the date of receipt of this judgment; the Tribunal to disburse the amount after deductions towards tax, court fee and legal benefit fund. No order as to costs.
Final Disposition: Appeal partly allowed; enhanced compensation awarded; insurer directed to deposit with interest; no costs order.

Parties to the Case

Appellants / Petitioners

THOMAS VARGHESE

Respondents

NOUSHAD
GLITON PETER
THE BRANCH MANAGER, THE NEW INDIA ASSURANCE COMPANY LTD.

Legal Representation & Advocates

Counsels for Petitioners

• CELINE JOSEPH

Case Synopsis & Summary

This is a Motor Accident Claims Appeal (M.A.C.A. No. 2049 of 2013) preferred by the claimant Thomas Varghese challenging a Motor Accidents Claims Tribunal award in OP (MV) No. 234 of 2011 at Kalpetta. The incident occurred on 11.02.2011 when Varghese, a security guard, was travelling in an auto-rickshaw that overturned due to the rash and negligent driving of the 1st respondent. Varghese sustained serious neurological injuries including cervical cord syndrome and 70% permanent disability, necessitating hospitalisation for eight days. The Tribunal awarded Rs. 4,24,900, which the appellant contends is inadequate. The appellant sought revaluation of several heads of compensation and seeks higher notional income; he asserts his monthly income was Rs. 6,000 and relies on Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Co. Ltd. and Alliance Insurance Co. Ltd. (AIR 2011 SC 2951) to justify a higher notional income. The High Court, after reviewing medical evidence (Ext. C1; Ext. A6) and disability certificates, increases the notional income to Rs.6,000 per month, enhances loss of earning for eight months, bystander expenses, nursing and transportation costs, extra nourishment, pain and suffering, and loss of amenities. With a 70% disability and 10% future prospects, the court computes enhanced compensation of Rs.3,98,140. The insurer is directed to deposit this amount with 7.5% interest within two months; the Tribunal will disburse subject to deductions, with no costs awarded. The appeal is allowed to the extent noted above.

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellant argues that the Tribunal erred in notional income assessment, fixing it at Rs. 4,000 per month, and relies on Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Co. Ltd. and Alliance Insurance Co. Ltd. (AIR 2011 SC 2951) to contend that a higher notional income of Rs.6,000 per month is warranted for a security guard and similar work. He further contends that, given 70% disability, the award should include enhanced heads such as loss of earnings for a longer period, bystander expenses, nursing and transportation costs, extra nourishment, pain and suffering, loss of amenities, and future treatment. He seeks recalculation leading to a total enhanced compensation of Rs.3,98,140.

Contentions of Respondents

The respondents’ counsel contends that the Tribunal’s award was reasonable and properly computed; they resist uplifts beyond what the Tribunal already awarded, relying on the evidence before the Tribunal and the insurance policy coverage. They oppose expansive enhancement and contend the existing heads already reflecting the claimant’s needs were sufficient. The insurer seeks no broader modification beyond the enhanced guidance sought by the appellant, and emphasizes the need to avoid excessive compensation beyond the proven losses.

Cited Precedents (2)

Case Name	Citation	Treatment	Explanation
Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Co. Ltd.	—	Positive	Court relies on the principle from Ramachandrappa that notional income for loss assessment can be adjusted upward; used to justify fixing notional income at Rs.6,000 per month for the appellant.
Alliance Insurance Company Limited	AIR 2011 SC 2951	Positive	Cited to support the proposition that a notional income level for certain workers can be higher (as per the Air 2011 SC 2951 decision), informing the court’s assessment of compensation in this case.

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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`** ``` WEDNESDAY,THE29[TH]DAYOFMAY2024/8THJYAISHTA,1946 MACANO.2049OF2013 ``` ``` AGAINSTTHEAWARDDATED06.04.2013INOPMVNO.234OF2011OFMOTOR ACCIDENTCLAIMSTRIBUNAL,KALPETTA APPELLANT/S: ``` ``` THOMASVARGHESE AGED56YEARS ``` ``` S/O.VARGHESE,VALATHARAYILHOUSE,MADHUKOLLY,KRISHNAGIRIPOST, MEENANGADI. ``` ## **`BY ADV CELINE JOSEPH`** ``` RESPONDENT/S: ``` ## **`1 NOUSHAD`** ``` AGED39YEARS ``` ``` S/O.YOUSUF,PUTHUPPALAM,KUTTAMANGALAM,MANDAPP.O.,MUTTIL, WAYANADDISTRICT. ``` ## **`2 GLITON PETER`** ``` S/O.PETER,T.V.THACHAMPILLILHOUSE,THRIKKAIPETTA,MEPPADI-673577, WAYANADDISTRICT. ``` ## **`3 THE BRANCH MANAGER`** ``` THENEWINDIAASSURANCECOMPANYLTD.,M.G.T.BUILDINGS,KALPETTA NORTH. ``` ``` THISMOTORACCIDENTCLAIMSAPPEALHAVINGCOMEUPFOR ADMISSIONON29.05.2024,THECOURTONTHESAMEDAYDELIVEREDTHE FOLLOWING: ``` 2 M.A.C.A. No. 2049 of 2013 ## **SOPHY THOMAS, J.** ## **=====================** M.A.C.A. No. 2049 of 2013 ## **========================** ## J U D G M E N T ## Dated this the 29th day of May, 2024 This appeal is at the instance of the claimant in O.P. (MV) No. 234 of 2011 on the file of Motor Accidents Claims Tribunal, Kalpetta, impugning the award on the ground of inadequacy of compensation. 2. The appellant met with a road traffic accident on 11.02.2011 at 01.30 pm while he was travelling in an autorickshaw bearing registration No. KL-10-K/532. That autorickshaw was driven by the 1st respondent in a rash and negligent manner, and as a result, it 3 M.A.C.A. No. 2049 of 2013 capsized, and the appellant sustained serious neurological injuries. He was hospitalized for 8 days. He suffered serious spinal cord injury resulting in grade IV power to the upper and lower limbs, and 70% permanent disability thereby. He approached the Tribunal claiming compensation of Rs.5,00,000/-. Learned Tribunal awarded only Rs.4,24,900/-, and hence this appeal. 3. The 3rd respondent insurer admitted the accident as well as the insurance policy of the offending autorickshaw. 4. Now this Court is called upon to find out whether there is any illegality, impropriety, or irregularity in the impugned award of the Tribunal warranting interference by this Court. 5. Heard learned counsel for the appellant, and learned counsel for the 3rd respondent insurer. 6. Learned counsel for the appellant would submit that the appellant was a 54-year-old security guard earning monthly income of Rs.6,000/-. But, learned Tribunal fixed his notional income @ Rs.4,000/- and it is arbitrary. Learned counsel would rely on the decision _**Ramachandrappa v. Manager, Royal Sundaram**_ 4 M.A.C.A. No. 2049 of 2013 _**Alliance Insurance Company Limited [AIR 2011 SC 2951]**_ , to say that even a coolie worker was eligible to get his notional income fixed @ Rs.8,000/- in the year 2011. PW1, the appellant deposed before the Tribunal that he was working as a security guard during the relevant period earning monthly income of Rs.6,000/-. So, this Court is inclined to fix his notional income as Rs.6,000/- per month. Ext. A5 copy of wound certificate, and Ext. A6 discharge summary will show that the appellant had suffered cervical cord syndrome and numbness and paraesthesia of both upper and lower limbs. Learned Tribunal assessed loss of earning for three months, taking his monthly income as Rs.4,000/-. Considering the nature of injuries suffered by the appellant, this Court is inclined to assess his loss of earning for eight months @ Rs.6,000/- per month, which will come to Rs. 48,000/-. After deducting Rs.12,000/- already awarded, he is entitled to get the balance amount of Rs.36,000/- under the head loss of earning. 7. Towards bystander expense, though the appellant claimed Rs.25,000/-, learned Tribunal awarded only Rs.8,00/- @ Rs.100/- 5 M.A.C.A. No. 2049 of 2013 per day, for 8 days of hospitalization. Ext. A6 discharge summary issued from Baby Memorial Hospital, Kozhikode will show that the patient had weakness of both upper and lower limbs, and was unable to walk at the time of discharge. So, this Court is inclined to allow bystander expenses for a period of three months @ Rs.250/per day, which will come to Rs.22,500/-. After deducting Rs.8,00/awarded towards bystander expenses, and Rs.10,000/- awarded for nursing expenses by the Tribunal, the appellant is entitled to get the balance amount of Rs.11,700/- as enhancement under the head bystander expenses. 8. Towards transportation expenses, learned Tribunal awarded Rs.5,000/- against the claim of Rs.10,000/-. Though the discharge summary shows that he was hospitalized only for 8 days, the nature of the injury suffered by the appellant is sufficient to infer that he had to attend the hospital for regular review, and so this court is inclined to award Rs.3,000/- more under the head transportation expenses. 9. Towards extra nourishment, learned Tribunal awarded only Rs.8,00/-, i.e., Rs.100 per day during the period of hospitalization 6 M.A.C.A. No. 2049 of 2013 alone. The appellant was not able to walk at the time of discharge as seen from Ext.A6 discharge summary. Ext. C1 disability certificate also shows that the appellant suffered grade IV power of both upper and lower limbs and sensory defect of soles of both foot. We have seen that, he might have been under the assistance of a bystander for a minimum period of three months. Considering that fact, this Court is inclined to award Rs.5,000/- more towards extra nourishment. 10. Towards pain and suffering, learned Tribunal awarded only Rs.30,000/- against his claim of Rs.1,00,000/-. Considering the nature of injury i.e. injury to the spinal cord resulting in grade IV power of both upper and lower limbs, this Court is inclined to award Rs.15,000/- more, under the head pain and suffering. 11. The appellant suffered disability of 70% as seen from Ext.C1 disability certificate issued by the Medical Board of Medical College Hospital, Calicut. Learned Tribunal assessed disability compensation taking monthly income of the appellant as Rs.4,000/-. We have fixed his notional income @ Rs.6,000/-. Since he suffered 7 M.A.C.A. No. 2049 of 2013 70% disability, this Court is inclined to award 10% addition towards future prospects, finding that his functional disability may exceed even more than that. So, his monthly income for assessing disability compensation is taken as Rs.6,600/-. So, for 70% disability, the compensation can be assessed as Rs.6,09,840/(6,600 x 12 x 11 x 70/100). Learned Tribunal awarded Rs.3,02,400/under the head permanent disability, and also Rs.5,000/- for loss of earning power. On deducting Rs.3,07,400/- awarded by the Tribunal under those two heads, the appellant is entitled to get the balance amount of Rs.3,02,440/-. 12. Under the head loss of amenities, learned Tribunal awarded Rs.5,000/-. Since the appellant suffered 70% disability due to severe cervical cord injury resulting in grade IV power of both upper and lower limbs coupled with sensory defect of sole of both foot, this Court is inclined to award Rs.10,000/- more under the head loss of amenities. 13. Learned counsel for the appellant would submit that the appellant was continuing treatment, and he suffered expenses for 8 M.A.C.A. No. 2049 of 2013 his future treatment also. Considering the nature of injuries suffered by the appellant as stated in Ext.C1 disability certificate, he might have been under continued medication though he failed to produce documents in support. So this Court is inclined to award Rs.15,000/- towards future treatment expenses. 14. The compensation awarded under all other heads seems to be reasonable, and hence it needs no modification. 15. The enhanced compensation awarded in this appeal is given ## in the table below:- |he table below:-|||| |---|---|---|---| |_Head of claim_|_Amount_ _awarded_ _by the_ _Tribunal_|_Amount_ _awarded in_ _appeal_|_Difference to be_ _drawn as_ _enhanced_ _compensation_| |_Loss of earning_|_12,000/-_|_48,000/-_|_36,000/-_| |_Bystander_ _expenses_|_800/-_|_22,500/-_ _…….._|_11,700/-_| |_Nursing expense_|_10,000/-_||| 9 M.A.C.A. No. 2049 of 2013 |_Transportation_ _expenses_|_5,000/-_|_8,000/-_|_3,000/-_| |---|---|---|---| |_Extra_ _nourishment_|_800/-_|_5,800/-_|_5,000/-_| |_Pain and suffering _|_30,000/-_|_45,000/-_|_15,000/-_| |_Permanent_ _disability_|_3,02,400/-_|_6,09,840/-_|_3,02,440/-_| |_Loss of earning_ _power_|_5,000/-_||| |_Loss of amenities_|_5,000/-_|_15,000/-_|_10,000/-_| |_Future treatment_ _expenses_|_……_|_15,000/-_|_15,000/-_| |_Total_|||_3,98,140/-_| 16. In the result, the appellant is entitled to get enhanced compensation of Rs.3,98,140/- (36,000 + 11,700 +3,000 + 5,000 + 15,000 + 3,02,440 + 10,000 +15,000). 17. The 3[rd] respondent insurer is directed to deposit the enhanced compensation of Rs.3,98,140/- with 7.5% interest per 10 M.A.C.A. No. 2049 of 2013 annum from the date of petition till the date of deposit before the Motor Accidents Claims Tribunal, Kalpetta within a period of two months from the date of receipt of a copy of this judgment. Learned Tribunal shall disburse the award amount to the appellant after deducting the liabilities, if any, towards Tax, balance court fee, and legal benefit fund. The appeal is allowed to the extent as above and no order as to costs. Sd/- ## **SOPHY THOMAS** **JUDGE** ## _**RMV**_