High Court of KeralaSingle Judge2024-04-11Appeal partly allowed; enhanced compensation aw...

V. Anil Kumar v. Biju, Binu, Oriental Insurance Company Ltd, Balakrishnan Unnithan, New India Assurance Company Ltd

Case / Petition Number:MACA No. 1489 of 2013

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: Sophy Thomas, J.
Judgment Date: 2024-04-11
Court Decision / Holding: The appeal is allowed to the extent stated: enhanced compensation for several heads as detailed in the order, with the 3rd respondent insurer directed to deposit the enhanced amount with 9% interest per annum from the date of petition to the date of deposit before the Tribunal within two months, and the Tribunal shall disburse to the claimant after deducting liabilities (court fee, tax, and legal benefits). No costs order is specified.
Final Disposition: Appeal partly allowed; enhanced compensation awarded and insurer directed to deposit with interest; no order as to costs.

Parties to the Case

Appellants / Petitioners

V. ANIL KUMAR

Respondents

BIJU S/O.FANCIS, BIJU COTTAGE, NELLIMOODU, MURUKUMPUZHA P O, THIRUVANANTHAPURAM-695302
BINU S/O.SUGATHAN, TC 7/275, MUKKKOLAKKAL, KAZHAKKUTTOM P O, THIRUVANANTHAPURAM-695582
MS.ORIENTAL INSURANCE COMPANY LTD, DOOR II ST.MARY VILLA, ULLOOR P O, THIRUVANANTHAPURAM-695011, REP BY ITS BRANCH MANAGER-695011
BALAKRISHNAN UNNITHAN S/O.KESAVAN UNNITHAN, TC 11/196, PADMA NIVAS, PALLITHURA SOUTH P O, THIRUVANANTHAPURAM-695586
MS.NEW INDIA ASSURANCE COMPANY LTD, NEAR MUNICIPAL BUS STAND MAIN ROAD, ATTINGAL P O, THIRUVANANTHAPURAM-695101

Legal Representation & Advocates

Counsels for Petitioners

• SRI.K.RAJESH KANNAN
• SRI.A.S.SHAMMY RAJ

Counsels for Respondents

• SRI.R.AJITH KUMAR
• SRI.P.G.GANAPPAN
• K.S.SANTHI

Case Synopsis & Summary

This MACA is by the claimant (appellant) in O.P. (MV) No. 456 of 2004 before the Motor Accidents Claims Tribunal, Thiruvananthapuram, challenging the MACT award for inadequacy of compensation following an accident on 18 December 2003, when the car driven by the 1st respondent allegedly dashed against the appellant’s motorcycle, injuring him severely as a pillion rider. The claimant, a 32-year-old businessman earning about Rs. 10,000 per month, sustained serious injuries with permanent disability assessed at 40% and complete loss of hearing in the right ear, leading to hospitalization of about ten days. He claimed Rs. 15 lakh; the Tribunal awarded Rs. 3,48,083. The appellant contends that the Tribunal erred in fixing the notional income at Rs. 4,000 per month despite actual earnings evidence, and that the 40% disability (per the KIMS Disability Assessment Board) should be recognized, with insufficient justification for reducing it to 25%. The insurer admitted the policy. The court cites Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Co. Ltd. to justify a notional income of Rs. 4,000 and then awards enhanced compensation across multiple heads: loss of earnings, transportation, extra nourishment, pain and suffering, permanent disability (40%), and loss of amenities, raising the total enhancement to Rs. 1,63,700, with 9% interest to be deposited within two months. The appeal is allowed to that extent, with no costs order.

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellant contends that the Tribunal erred in fixing a notional income of Rs.4,000 per month despite documentary evidence of income at Rs.10,000 per month. He asserts the 40% disability found by the KIMS Disability Assessment Board should be accepted; the Tribunal’s reduction to 25% was unwarranted. He argues the awarding of compensation under several heads—loss of earnings, transportation, extra nourishment, pain and suffering, loss of amenities, and permanent disability—does not reflect the true extent of his injuries and losses, especially given the 2003 accident date and his long hospitalization. He relies on Ramachandrappa to support notional income and appropriate multiplier, and requests a higher total compensation with interest.

Contentions of Respondents

The respondents contend that the MACT’s notional income fixation is appropriate in the absence of conclusive documentary proof of earnings and that the insurer’s liability should be assessed within the statutory framework. They may rely on the Tribunal’s evaluation and the policy admission, arguing the awarded compensation is just and balanced against the evidence. They emphasize that the policy coverage and liability should be determined by the Act and related statutory principles, and that any enhancement should be grounded on substantial evidence and sound reasoning.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited	AIR 2011 SC 2951	Positive	The High Court relies on this decision to justify fixing notional income at Rs. 4,000 per month and applies the multiplier approach consistent with the precedent.

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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. 1489 OF 2013`_ ``` AGAINST THE ORDER/JUDGMENT DATED 20.04.2013 IN OPMV NO.456 OF 2004 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, THIRUVANANTHAPURAM ``` ## _`APPELLANT/S:`_ ``` V.ANIL KUMAR ``` ``` THANDAKKARAM VILAKOM, KULATHOOR P O, THIRUVANANTHAPURAM BY ADVS. SRI.K.RAJESH KANNAN SRI.A.S.SHAMMY RAJ ``` ## _`RESPONDENT/S:`_ |_`1`_|_`BIJU`_| |---|---| ||_`S/O.FANCIS,BIJU COTTAGE, NELLIMOODU, MURUKUMPUZHA P O,`_| ||_`THIRUVANANTHAPURAM-695302`_| |_`2`_|_`BINU`_| ||_`S/O.SUGATHAN, T C 7/275, MUKKKOLAKKAL, KAZHAKKUTTOM P O,`_| ||_`THIRUVANANTHAPURAM-695582`_| |_`3`_|_`MS.ORIENTAL INSURANCE COMPANY LTD`_| ||_`DOOR II ST.MARY VILLA, ULLOOR P O, THIRUVANANTHAPURAM, REP BY ITS`_| ||_`BRANCH MANAGER-695011`_| |_`4`_|_`BALAKRISHNAN UNNITHAN`_| ||_`S/O.KESAVAN UNNITHAN T C 11/196, PADMA NIVAS,PALLITHURA SOUTH P O,`_| ||_`THIRUVANANTHAPURAM-695586`_| |_`5`_|_`MS.NEW INDIA ASSURANCE COMPANY LTD`_| ||_`NEAR MUNICIPAL BUS STAND MAIN ROAD, ATTINGAL P O,`_| ||_`THIRUVANANTHAPURAM-695101`_| ||_`BY ADVS.`_| ||_`SRI.R.AJITH KUMAR 12884`_| ||_`SRI.P.G.GANAPPAN`_| ||_`K.S.SANTHI`_| ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON ``` ``` 11.04.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA. No. 1489 of 2013 ``` ``` ..2.. ``` ## **SOPHY THOMAS, J.** ## **=====================** M.A.C.A. No. 1489 of 2013 ## **========================** ## _**J U D G M E N T**_ ## **Dated this the 11[th] day of April, 2024** This appeal is at the instance of the claimant in O.P. (MV) No. 456 of 2004 on the file of Motor Accidents Claims Tribunal,Thiruvananthapuram, challenging the award on the ground of inadequacy of compensation. 2. On 18.12.2003 at about 03.00 p.m., while the appellant/claimant was pillion riding a motorcycle through Chacka – Kazhakuttam Bye Pass, KL-01-F-3306 car driven by the 1[st] respondent in a rash and negligent manner, dashed against his motorcycle, and he was thrown down and sustained serious injuries. He was hospitalized for ten days. He suffered permanent disability to ``` MACA. No. 1489 of 2013 ``` **==> picture [31 x 7] intentionally omitted <==** the extent of 40% due to the injuries suffered in that accident, and he completely lost hearing capacity of his right ear. He was a 32 year old business man, earning monthly income of Rs.10,000/-. He approached the Tribunal claiming compensation of Rs.15,00,000/-. But learned Tribunal awarded only Rs.3,48,083/-. Hence this appeal. 3. The 1[st] respondent was the driver of the offending car. The 2[nd] respondent was its owner, and the 3[rd] respondent was its insurer. 4. In the appeal, the 3[rd] respondent insurer entered appearance and admitted the policy. 5. Heard learned counsel for the appellant, and learned counsel for the 3[rd] respondent insurer of the offending vehicle. 6. The appellant is challenging the award mainly on the ground that learned Tribunal fixed notional income of the appellant @ Rs.4,000/- only, though he was earning monthly income of Rs.10,000/-. Moreover, though his disability was assessed by KIMS Disability Assessment Board as 40%, learned Tribunal reduced it to 25%, without assigning any valid reasons. ``` MACA. No. 1489 of 2013 ``` **==> picture [31 x 7] intentionally omitted <==** 7. Though the appellant claimed to be a business man earning monthly income of Rs.10,000/-, there was no documentary evidence to prove his income. So learned Tribunal fixed his monthly income notionally as Rs.4,000/-. The accident was in the year 2003, even going by the decision _**Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited [AIR 2011 SC 2951],**_ he was entitled to get his notional income fixed @ Rs.4,000/only. So, this Court finds no reason to modify the notional income fixed by the Tribunal. 8. Learned Tribunal assessed loss of earning for four months only. Ext.A3 wound certificate will show the injuries suffered by the appellant. He had sustained fracture of right temporal bone, extending to the floor of MLF, fracture (L) maxilla, haemosinus (L) maxilla, fracture (R) clavicle, etc, etc. He lost hearing capacity of right ear due to the injuries suffered in that accident. He was hospitalized for ten days, and he was continuing his treatment even after discharge. There was malunited fracture of right clavicle. Learned Tribunal also noted that right clavicle of the appellant was ``` MACA. No. 1489 of 2013 ``` **==> picture [31 x 7] intentionally omitted <==** seen protruded and there was facial nerve palsy on the right side. Considering all these aspects this court is inclined to assess loss of income for eight months @ Rs.4,000/-. So, the appellant is eligible to get Rs.32,000/- towards loss of earning. After deducting Rs.16,000/already awarded, he is entitled to get a balance amount of Rs.16,000/-. 9. Towards transportation expenses, though he claimed Rs,2,500/-, the Tribunal awarded Rs.1,000/-. So, this Court is inclined to award Rs.1500, more towards transportation expenses. 10. Towards extra nourishment, Rs.1,000/- more is awarded as he had suffered extensive injuries on his face and so he might not have been able to take normal food for a considerable period. 11. Towards pain and suffering, considering the nature of injuries suffered, especially on the face, this Court is inclined to award Rs.10,000/- more towards pain and suffering. 12. Towards permanent disability, learned Tribunal fixed the percentage of permanent disability as 25%, though Ext.A12 disability certificate was to the effect that, the appellant suffered permanent ``` MACA. No. 1489 of 2013 ``` **==> picture [31 x 7] intentionally omitted <==** disability of 40%. True that it was not a certificate issued by the medical board. The member secretary of KIMS Disability Assessment Board issued that certificate. The appellant was treated in that hospital itself. There is no dispute with respect to the fact that, the appellant a 32 year old man suffered hearing loss of right ear due to the injuries suffered in that accident. So, this Court is of the view that 40% disability assessed by the KIMS Disability Assessment Board is not on the higher side. So, this Court is inclined to accept the disability of the appellant as 40%. Taking his monthly income as Rs.4,000/- and adopting the multiplier of 16, he is eligible to get compensation of Rs.3,07,200/- towards 40% disability. After deducting Rs,1,92,000/- already awarded, he is entitled to get the balance of Rs.1,15,200/- 13. Towards loss of amenities learned Tribunal awarded Rs.64,000/- against his claim of Rs.1,50,000/-. Since the appellant lost hearing capacity of his right ear, this Court is inclined to award Rs.20,000/- more towards loss of amenities. 14. The compensation awarded under all other heads seems to be ``` MACA. No. 1489 of 2013 ``` ``` ..7.. ``` ## reasonable, and hence it needs no modification. 15. The enhanced compensation awarded in this appeal is given in the table below:- |_Head of claim_|_Amount_ _awarded_ _by the_ _Tribunal_|_Amount_ _awarded in_ _appeal_|_Difference to be_ _drawn as_ _enhanced_ _compensation_| |---|---|---|---| |_Loss of earnings_|_16,000/-_|_32,000/-_|_16,000/-_| |_Transportation_|_1,000/-_|_2,500/-_|_1,500/-_| |_Extra nourishment_|_2,000/-_|_3,000/-_|_1,000/-_| |_Pain and suffering_|_20,000/-_|_30,000/-_|_10,000/-_| |_Permanent disability_|_1,92,000/-_|_3,07,200_|_1,15,200/-_| |_Loss of amenities_|_64,000/-_|_84,000/-_|_20,000/-_| |_Total_|||_1,63,700/-_| 16. So the appellant is entitled to get enhanced compensation of Rs.1,63,700/- (16,000 + 1,500 + 1,000 +10,000 +1,15,200 + 20,000) 17. The 3[rd] respondent insurer is directed to deposit the enhanced compensation with 9% interest per annum from the date of petition till the date of deposit before the Tribunal concerned 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 ``` MACA. No. 1489 of 2013 ``` **==> picture [31 x 7] intentionally omitted <==** 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