High Court of KeralaSingle Judge2021-07-07Appeal partly allowed; enhanced compensation an...

Unnikrishnan Nair v. Vijayan, Sheeja S. and The New India Assurance Co. Ltd.

Case / Petition Number:MACA NO. 1871 OF 2009

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: C.S. DIAS
Judgment Date: 2021-07-07
Court Decision / Holding: Appeal partly allowed; enhanced compensation recalculated as Rs. 6,50,100/-, with interest at 6% p.a. from the date of petition to payment, excluding 51 days delay; the 3rd respondent directed to deposit the enhanced amount with interest and proportionate costs within two months; Tribunal to disburse to the petitioner in accordance with law.
Final Disposition: Appeal partly allowed; enhanced compensation and deposit directions with interest and costs.

Parties to the Case

Appellants / Petitioners

UNNIKRISHNAN NAIR, S/O.GOPALAN NAIR, USHUS, ARATTUVAZHY, ALAPPUZHA

Respondents

VIJAYAN, S/O.LAKHMANAN NADAR
SHEEJA S., SURESH BHAVAN
THE NEW INDIA ASSURANCE CO. LTD.

Legal Representation & Advocates

Counsels for Petitioners

• B. Pramod (Advocate)

Counsels for Respondents

• Lal K. Joseph (Advocate)

Case Synopsis & Summary

This is a Motor Accident Claims Appeal (MACA) arising from an award under the Workmen’s Compensation Act by the Motor Accidents Claims Tribunal, Alappuzha. On 8 October 2003, the appellant, Unnikrishnan Nair, riding a scooter on the Alappuzha–Cherthala National Highway, was struck from behind by a lorry (KL-01/P 2100) driven by the first respondent, resulting in severe injuries and eventual amputation of his left limb. He was treated at the Medical College Hospital, Alappuzha and subsequently at Specialists Hospital, Ernakulam, for about 105 days. He claimed approximately Rs. 9,90,919 as compensation; the Tribunal awarded Rs. 4,08,500, fixing the disability at 50% under the Workmen’s Compensation Act and ordering recovery from the respondents with 6% interest. The insurer challenged, contending that the accident occurred due to the appellant’s negligence and that the injuries were minor, limiting the compensation. In appeal, the High Court undertook a reappraisal guided by the Supreme Court’s Pranay Sethi decision on ‘just compensation’, and invoked notional income guidelines from Ramachandrappa, Syed Sadiq, and Pushkar Mehra to recalibrate earnings. The court recalculated loss of earnings, bystander expenses, and disability using a multiplier approach, increasing total compensation to Rs. 6,50,100, and allowed the appeal in part, directing deposit of the enhanced amount with interest and costs. The judgment reflects a measured balancing of fairness, adequacy of compensation, and MV Act principles.

Provisions of Law Cited

Section 168 of the Motor Vehicles Act, 1988Section 166 of the Motor Vehicles Act, 1988Second Schedule to the Motor Vehicles ActWorkmen’s Compensation Act (reference to Schedule)

Legal Doctrines & Maxims

Just compensation must be fair, reasonable and equitable (Pranay Sethi)
Notional income approach (Ramachandrappa, Syed Sadiq, Pushkar Mehra)
Multiplier method for disability compensation (Rajkumar v. Ajaykumar)
Equitable balancing under MV Act principle of fairness (Pranay Sethi)

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellant contends that the Tribunal undervalued the notional income and misapplied the multiplier method. He argues for higher notional income in line with his post as General Manager and higher earnings, and asserts that the notional income in 2003 should be used. The defence should apply Section 166 of the MV Act and not misapply the Second Schedule; the tribunal should adopt the standard notional incomes and multiplier to compute loss of earnings, bystander expenses, and disability compensation, ensuring just and equitable compensation under Pranay Sethi.

Contentions of Respondents

The respondents maintain that the accident occurred due to the appellant’s own negligence and the injuries were minor; the insurer is not liable for excessive compensation. They challenge the extent of loss claimed and question the notional income proposed, arguing the need to adhere to statutory frameworks and evidence of the appellant’s actual earnings.

Cited Precedents (5)

Case Name	Citation	Treatment	Explanation
National Insurance Company Ltd. v. Pranay Sethi	(2017) 16 SCC 680	Positive	Defines ‘just compensation’ under MV Act with emphasis on fairness, reasonableness, and equitability as the governing standard.
Rajkumar v. Ajaykumar	(2011) 1 KLT 620 SC	Positive	Announces the multiplier method for calculating compensation on disability.
Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Ltd.	(2011 (13) SCC 236)	Positive	Notional income approach for determining earnings in MV liability cases.
Syed Sadiq and Others v. Divisional Manager, United India Insurance Company Ltd.	(2014 (2) SCC 735)	Positive	Notional income benchmarks for different categories of workers used in compensation calculations.
Pushkar Mehra v. Brij Mohan Kushwaha and others	(2015 (12) SCC 688)	Positive	Notional income guidelines for skilled laborers in notional income calculations.

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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 MR.JUSTICE C.S.DIAS** **WEDNESDAY, THE 7[TH] DAY OF JULY 2021 / 16TH ASHADHA, 1943** **MACA NO. 1871 OF 2009** **AGAINST THE ORDER/JUDGMENT IN OP(MV) 521/2004 OF MOTOR ACCIDENTS** ## **CLAIMS TRIBUNAL ALAPPUZHA,** ## **APPELLANT/PETITIIONER** UNNIKRISHNAN NAIR, S/O.GOPALAN NAIR, USHUS, ARATTUVAZHY, ALAPPUZHA. BY ADV SRI.B.PRAMOD ## **RESPONDENTS/RESPONDENTS:** 1 VIJAYAN, S/O.LAKHMANAN NADAR, BHAGAVATHVILA PUTHEN VEEDU, UCHAKADA P.O.,THIRUVANANTHAPURAM. 2 SHEEJA S., SURESH BHAVAN,KOICHAL,KOZHIROOR P.O., THIRUVANANTHAPURAM. 3 THE NEW INDIA ASSURANCE CO.LTD. NEYYATTINKARA BRANCH, THIRUVANANTHAPURAM. ## **OTHER PRESENT:** SC - LAL K JOSEPH THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 07.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **MACA NO. 1871 OF 2009 2** ## **JUDGMENT** The appellant was the petitioner in OP(MV) No.521 of 2004 on the file of the Additional Motor Accidents Claims Tribunal, Alappuzha. The respondents in the appeal by the respondents in the claim petition. 2. The concise facts in the in the claim petition, relevant for the determination of the appeal, are: on 8.10.2003, while the appellant was riding his scooter along the Alappuzha-Cherthala National Highway, when he reached Valavanadu Hospital junction, a lorry bearing Reg. No.KL-01/P 2100 (offending vehicle) driven by the 1[st] respondent hit on the rear portion of the appellant's scooter. The appellant fell down and sustained serious injuries. He was treated at the Medical Medical College Hospital, Alappuzha, and thereafter at the Specialists Hospital, Ernakulam as an inpatient from 8.10.2013 to 21.1.2004, i.e for a period of 105 days. His lower left **MACA NO. 1871 OF 2009 3** limb was amputated. He was subjected to multiple debridement. The appellant was employed as the General Manager in DC Mills at Alappuzha and earning a monthly income of Rs.9,500/- The offending vehicle was owned by the 2[nd] respondent and insured with the 3[rd] respondent. The appellant claimed an amount of Rs.9,90,919/- as compensation from the respondents, which was limited to 9,50,000/-. 3. The respondents 1 and 2 did not contest the proceedings. 4. The 3[rd] respondent filed a written statement, contending that the offending vehicle had a valid insurance policy. However, it was averred that the accident occurred on account of the negligence on the appellant. The injury sustained by the appellant were only minor in nature and, therefore, the appellant was not entitled for compensation as claimed in the claim petition. **MACA NO. 1871 OF 2009 4** 5. The appellant marked Exts.A1 to A15 in evidence. 6. The Tribunal, after considering the pleadings and materials on record, fixed the disability of the appellant at 50% as per Schedule in the Workmen's Compensation Act. The Tribunal permitted the appellant to recover an amount of Rs.4,08,500/- from the respondents with interest @ 6% per annum from the date of petition till the date of realization. 7. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioner is in appeal. 8. Heard, Sri.B.Pramod, the learned counsel appearing for the appellant/petitioner and Sri.Lal.K Joseph, the learned counsel appearing for the 3[rd] respondent/Insurance Company. 9. The question that arises for consideration in this appeal is whether the quantum of compensation awarded by the Tribunal is reasonable and just. **MACA NO. 1871 OF 2009 5** 10. A constitution Bench of the Hon'ble Supreme Court in _**National Insurance Company Ltd. v. Pranay Sethi [(2017) 16 SCC 680)**_ , has held that Section 168 of the Motor Vehicles Act, 1988, deals with the concept of 'just compensation' and the same has to be determined on the foundation of fairness, reasonableness and equitability on acceptable legal standards. The conception of 'just compensation' has to be viewed through the prism of fairness, reasonableness and nonviolation of the principle of equitability. 11. Ext.A5 charge sheet filed by the Police substantiates that the accident occurred solely due to the negligence on the part of the 1[st] respondent. Undisputedly, the 2[nd] respondent is the owner of the offending vehicle and the 3[rd] respondent was the insurer. Therefore, the 3[rd] respondent is liable to indemnify the 2[nd] respondent of the liability on account of the accident caused by the offending vehicle. **MACA NO. 1871 OF 2009 6** 12. The appellant had contended that he was 64 years of age and was working as the General Manager of DC Mills Pvt. Ltd., and earning a monthly income of Rs.9,500/- per month. The appellant produced and marked Ext.A9 salary certificate issued by his employer. Nevertheless, the Tribunal fixed the notional income of the appellant at Rs.2,000/- per month. The Tribunal has observed that the position of the appellant in his company could not have helped him because the compensation cannot be awarded for physical disability and loss of earning power. It is further observed that though IInd Schedule of the Motor Vehicle Act does not strictly apply to a claim u/S.166 of the Act, the same can be adopted as a guideline. Accordingly, as the appellant was aged 60 years, he was not entitled for more compensation than what is prescribed under the II[nd] Schedule of the Act. Accordingly, the Tribunal fixed a total compensation at Rs.1,00,000/-. ## **MACA NO. 1871 OF 2009 7** 13. Undisputedly, the claim was filed u/s.166 of the Act. The Tribunal ought not have followed the course presently adopted in deciding the claim filed u/S. 166 of the Act. 14. It is proved that the left limb of the appellant was amputated below the knee and the Tribunal had fixed functional disability at 50%. Therefore, the Tribunal ought to have followed the multiplier method as laid down in the decision in _**Rajkumar v. Ajaykumar (2011 1 KLT 620 SC)**_ and host of judicial pronouncements on the point. Therefore, I hold that the method of compensation adopted by the Tribunal is erroneous and improper and is liable to be set aside. ## **Notional Income** 15. The appellant had claimed that he was working as a General Manager in a private limited company and earning a monthly income of Rs.9,500/-. Even though, Ext.A9 salary certificate was produced, he did not **MACA NO. 1871 OF 2009 8** examine the author of the document to prove the same. Hence, only the notional income of the appellant can be taken to decide the compensation. 16. In _**Ramachandrappa vs. Manager, Royal Sundaram Alliance Insurance Company Ltd., (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. Similarly, in _**Syed Sadiq and Others v. Divisional Manager, United India Insurance Company Ltd. (2014 (2) SCC 735),**_ the Hon'ble Supreme court has fixed the notional income of a Vegetable Vendor in the year 2008 at Rs.6.500/- per month. In _**Pushkar Mehra v. Brij Mohan Kushwaha and others (2015 (12) SCC 688**_ ) the Hon'ble Supreme Court notional income of the skilled labourer/technical supervisor in the year 2010 at Rs.7,020/- per month. 17. Following the above parameters laid down in the aforecited decisions and taking into consideration the **MACA NO. 1871 OF 2009 9** fact that the appellant was employed as a General Manger in a private limited company and that the accident occurred in the year 2003, I am of the definite opinion that the appellants notional income can safely be fixed at Rs.7,000/- per month. Hence, I fix the appellant's notional income at Rs.7,000/- per month. ## **Loss of earnings** 18. It is on record as per Ext.A10 discharge summary that the appellant was admitted on 8.10.2003 and discharged only on 21.1.2004. He had claimed that he was incapacitated for the period from 8.10.2003 till 7.5.2004 i.e., the date of filing of the claim petition. Nevertheless, the Tribunal awarded only an amount of Rs.12,000/- towards loss of earnings. 19. In view of the refixation of the notional income of the appellant at Rs.7,000/- and the period of incapacity as six months, I refix the compensation for loss of earnings at Rs.42,000/- instead of Rs.12,000/- awarded by **MACA NO. 1871 OF 2009 10** the Tribunal. ## **Bystander Expenses** 20. Going by Ext.A10 discharge summary, it is seen that the appellant was treated as an inpatient for a period of 105 days, i.e from 8.10.2003 to 21.1.2004. The Tribunal awarded only an amount of Rs.3,000/- as bystander expenses, which according to me is too meager. Therefore, I refix the compensation for bystander expenses at Rs.200/- per day, for a period of 103 days. Accordingly, I refix the bystander expenses at Rs.20,600/-. ## **Loss due to disability** 21. In light of the fact that the appellant was aged 64 years at the time of accident, the relevant multiplier being '7' the notional income being fixed at Rs.7,000/and the disability fixed at 50%, I refix the compensation for loss due to disability at Rs.2,94,000/- instead of Rs.1,00,000/- fixed by the Tribunal. ## **MACA NO. 1871 OF 2009 11** 22. With respect to the other heads of claim, I find that the Tribunal has awarded reasonable and just compensation. 23. On an over all re-appreciation of the pleadings and materials on record, the law laid down in the aforesaid decisions, I am of the definite opinion that the appellant is entitled for enhancement of compensation as modified and recalculated above and given in the table below for easy reference. |Head of claim|Amount Awarded by the Tribunal (in Rs.)|Amounts modified and recalculated by this Court| |---|---|---| |Loss of earnings|12,000/-|42,000/-| |Transportatio n expenses|3,000/-|3,000/-| |Damages to clothing|5,00/-|5,00/-| ## **MACA NO. 1871 OF 2009 12** |Bystander expenses|3,000/-|20,600/-| |---|---|---| |Extra nourishment|3,000/-|3,000/-| |Medical expenses|1,87,000/-|1,87,000/-| |Pain and sufferings|50,000/-|50,000/-| |Loss of amenities|50,000/-|50,000/-| |Loss due to disability|1,00,000/-|2,94,000/-| |Total|4,08,500/-|6,50,100/-| In the result, the appeal is allowed in part, by enhancing the compensation by a further amount of Rs.2,41,600/- with interest at the rate of Rs.6% per annum on the compensation from the date of petition till the date of deposit, after excluding the period of 51 days i.e., the period of delay in filing the appeal and as ordered by this Court on 16.1.2020 in C.M.Appln.No.2155 of 2009, and proportionate costs. The 3[rd] respondent shall deposit the enhanced **MACA NO. 1871 OF 2009 13** compensation amount awarded in the appeal with interest and proportionate costs before the Tribunal within a period of two months from the date of receipt of a certified copy of this judgment. The Tribunal shall disburse the enhanced compensation to the appellant/petitioner in accordance with law. Sd/- **C.S.DIAS, JUDGE** pm