High Court of KeralaSingle Judge2021-06-25Appeal allowed in part; enhanced compensation a...

V. Suresh v. The New India Assurance Co. Ltd.

Case / Petition Number:MACA NO. 1022 OF 2010

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: C. S. Dias, J.
Judgment Date: 2021-06-25
Court Decision / Holding: The appeal is allowed in part. The High Court re-assesses and increases the compensation: disability fixed at 20%, notional income at Rs. 4,000 per month, enhanced losses including loss of earnings (Rs. 36,000), bystander expenses (Rs. 5,000), loss of amenities (Rs. 10,000), and overall figures culminating in a total enhanced compensation of Rs. 2,81,297. An additional amount of Rs. 1,33,900 is awarded as enhanced compensation, with interest at 8% per annum on the enhanced amount from the date of petition to realization, plus proportionate costs. The insurer is directed to deposit the enhanced sum with the Tribunal within two months from certification, and the Tribunal is to disburse to the appellant under law.
Final Disposition: Appeal allowed in part; enhanced compensation awarded; enhanced amount to be deposited within two months; Tribunal to disburse.

Parties to the Case

Appellants / Petitioners

V. Suresh

Respondents

The New India Assurance Co. Ltd.

Legal Representation & Advocates

Counsels for Petitioners

• Sri. T. C. Suresh Menon

Counsels for Respondents

• Smt. M. Hemalatha

Case Synopsis & Summary

This Kerala High Court MACA appeals arises from an order of the Motor Accidents Claims Tribunal, Thrissur, awarding partial compensation to the applicant (V. Suresh) for injuries in a vehicular accident on 3.4.2003. The Tribunal held the third respondent insurer liable to pay Rs. 1,47,400 with 8% interest from the petition date. On appeal, the court deleted respondents 1 and 2 (as per an order dated 23.03.2021) and kept the suit against the third respondent, the insurer. The High Court’s analysis re-evaluates several heads of compensation, including disability and income, relying on Supreme Court precedents. The Medical Board’s finding of 20% disability is re-affirmed (overriding the Tribunal’s 8% disability). The notional monthly income is enhanced from Rs. 2,500 to Rs. 4,000, consistent with decisions in Ramachandrappa and Syed Sadiq. Notable decisions applied include Pranay Sethi (just compensation), Raj Kumar (disability assessment by medical board), and Talvinder Singh (deference to expert opinion). The Court also refines bystander expenses (Rs. 5,000), loss of amenities (Rs. 10,000), and overall compensation, resulting in a total enhanced compensation of Rs. 2,81,297, an increase of Rs. 1,33,900 over the Tribunal’s award. The appeal is allowed in part; the insurer is directed to deposit the enhanced amount with interest at 8% from petition date and costs within two months, for distribution through the Tribunal.

Provisions of Law Cited

Motor Vehicles Act, 1988 - Section 168

Legal Doctrines & Maxims

Just compensation must be fair, reasonable and equitable (Pranay Sethi)
Do not ordinarily interfere with the opinion of experts; defer to expert medical evidence (Talvinder Singh)
Proper disability assessment to be conducted by a medical board/qualified doctors (Raj Kumar)
Notional income standards for determining compensation (Ramachandrappa; Syed Sadiq)

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellant contends that the Tribunal erred in reducing the disability from the Medical Board's 20% to 8%, and in notional income that underestimates the applicant’s true earning capacity. The applicant seeks enhancement of compensation across heads, including loss of earnings (Rs. 4,000 notional income), bystander expenses, loss of amenities, and medical expenses, and insists upon the 20% disability finding and the admissible notional income used by the claim petition. The appellant relies on the medical board's assessment and on Supreme Court precedents on just compensation (Pranay Sethi).

Contentions of Respondents

The Insurance Company asserts the Tribunal’s findings should stand, contesting the 20% disability and the higher notional income. It emphasises that the respondent insured vehicle caused only limited injuries, disputes the severity of disability, and contends that the compensation claimed is excessive. It relies upon maintaining the Tribunal's quantum and the 8% disability figure, arguing against interference with expert determination.

Cited Precedents (5)

Case Name	Citation	Treatment	Explanation
National Insurance Co. Ltd. v. Pranay Sethi	[(2017) 16 SCC 680]	Positive	Used to define 'just compensation' as fair, reasonable and equitable under Section 168 of the MV Act.
Raj Kumar v. Ajaykumar	(2011) 1 KLT 620 (SC)	Positive	Supports disability assessment by a medical board; cautions against substituting expert opinion.
Union of India v. Talvinder Singh	[(2012) 5 SCC 480]	Positive	Supports deference to expert medical opinion and not ordinarily overturning such determinations.
Ramachandrappa v. Royal Sundaram Alliance Insurance Co. Ltd.	[(2011) 13 SCC 236]	Positive	Notional income benchmarks for specific occupations used to assess compensation.
Syed Sadiq v. Divisional Manager, United India Insurance Co. Ltd.	[(2014) 2 SCC 735]	Positive	Notional income guidelines; supports calculation of income in compensation.

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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** **FRIDAY, THE 25[TH] DAY OF JUNE 2021 / 4TH ASHADHA, 1943** **MACA NO. 1022 OF 2010** **AGAINST THE ORDER/JUDGMENT IN OPMV 2973/2003 OF MOTOR** **ACCIDENTS CLAIMS TRIBUNAL, THRISSUR** ## **APPELLANT/S:** **V.SURESH, S/O.LATE VENKITESWARAN, SREEVALSAM,PALLISSERY P.O,ARATTUPUZHA, THRISSUR DISTRICT.** **BY ADV SRI.T.C.SURESH MENON** ## **RESPONDENT/S:** - ***1 DEVASYA , S/o.JOSEPH, PERUMAN KOIL STREET, PONDICHERRY.** - ***2 NAZEER, S/oMOIDEEN, VERAYIL KUZHIYIL HOUSE,THAVANAM,MALAPPURAM DISTRICT.** - **3 THE NEW INDIA ASSURANCE CO.LTD K.H.BUILDING,THAZHEPPALAM,THIROOR.** **R3 BY ADV SMT.M.HEMALATHA** - **R1 and R2 are deleted from the party array at the risk of the appellant vide order dated 23.03.2021** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 25.06.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA NO. 1022 OF 2010** -2- ## **JUDGMENT** **The appellant was the petitioner in O.P (MV) No.2973/2003 on the file of the Motor Accidents Claims Tribunal, Thrissur. The respondents in the claim petition were the respondents in the appeal. This Court by order dated 23.03.2021 in I.A.No.1/2021 deleted the respondents 1 and 2 from the party array, as the 3[rd] respondent – Insurance Company admitted its liability. The parties are, for the sake of convenience, referred as per their status in the claim petition.** **2. The relevant facts in the claim petition, for the determination of the appeal, are that: on 3.4.2003, while the** **MACA NO. 1022 OF 2010** -3- **petitioner was traveling in a Mahindra pick up van bearing registration No.KL8/S 9933 through the National Highway 47, a Santro car bearing registration No.PY01/N-6318 (offending vehicle) driven in a rash and negligent manner by the second respondent hit the vehicle in which the petitioner was travelling. The petitioner sustained serious injuries and was initially treated at the Crescent Hospital Alathur and, thereafter, at the West Fort Hospital, Thrissur. The offending vehicle was owned by the first respondent and insured with the 3[rd] respondent. The petitioner was employed as a** **Sales Manager and was getting a monthly income of Rs.4,000/-. The petitioner** **MACA NO. 1022 OF 2010** -4- **claimed an amount of Rs.3,82,500/- as compensation from the respondents, which was limited to Rs.3,00,000/-.** **3. The first respondent did not** **contest the proceedings and was set exparte. Although the second respondent entered appearance, he did not file a written statement.** **4. The third respondent filed a written statement refuting the allegations in the claim petition, but admitted that the offending vehicle had a valid insurance policy. It was further contended that the petitioner did not sustain any serious injury or disability and the compensation claimed was excessive.** **MACA NO. 1022 OF 2010** -5- **5. A witness on the side of the petitioner was examined as PW1 and Exts.A1 to A12 were marked in evidence.** **6. The third respondent produced** **Ext.B1 copy of the insurance certificate.** **7. The Tribunal, after analysing the pleadings and materials on record, by the impugned award allowed the claim petition in part by permitting the petitioner to realise from the third respondent, an amount of Rs.1,47,400/- with interest at the rate of** **8% per annum from the date of the petition to the date of realization.** **8. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioner is in appeal.** **MACA NO. 1022 OF 2010** -6- **9. Heard the learned counsel** **appearing for the appellant/petitioner and the learned counsel appearing for the third respondent/Insurance Company.** **10. The sole question that emerges for consideration in the appeal is whether the quantum of compensation awarded by the Tribunal is reasonable and just.** **11. 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** **MACA NO. 1022 OF 2010** -7- **equitability on acceptable legal standards. The conception of 'just compensation' has to be viewed through the prism of fairness, reasonableness and non-violation of the principle of equitability.** **12. Ext.A5 final report filed by the Alathur Police after investigation substantiate that the accident occurred solely on account of the negligence on the part of the second respondent in driving the offending vehicle. In Ext.A11 certificate issued by a duly constituted Medical Board under the Medical College Hospital, Thrissur, it is certified that the appellant has a disability of 20% due to the partial ackylosis of left knee following** **MACA NO. 1022 OF 2010** -8- ## **tibial condylar fracture.** **13. Unfortunately, the Tribunal, in paragraph 12 of the impugned award has disagreed with the assessment of the medical board for the reason that the petitioner had not consulted any hospital after the issuance of Ext.A11. Hence the Tribunal fixed the disability of the petitioner at 8%.** **14. In Raj Kumar v. Ajaykumar (2011(1) KLT 620 (SC)] the Hon'ble Supreme Court has held that the proper course to assess the permanent disability of a person is to get himself examined by a duly constituted medical board or by a Doctor who should be examined in Court.** **15. In the case on hand, the** **MACA NO. 1022 OF 2010** -9- **petitioner was examined and his disability was assessed by a duly constituted medical board consisting of five specialist members from different departments, who came to the** **conclusion that the petitioner has a disability of 20%.** **16. The Hon'ble Supreme Court in** **Union of India and Another v. Talvinder** **Singh [2012 (5) SCC 480] has held that courts should not ordinarily interfere with the opinion of experts, and that it is always safe for the courts to leave the decision to the experts in the field who are familiar with the problems rather than the courts expressing a general opinion.** **17. In view of the ratio laid down in** **MACA NO. 1022 OF 2010** -10- **Raj Kumar and Talvinder Singh (supra), I am of the opinion that the Tribunal has fell in error by substituting the opinion of the expert with its own wisdom, by reducing the disability percentage of the petitioner to 8% instead of 20%. Hence, I set aside the said finding and fix the petitioner's disability at 20%.** **18. Now coming to the question of notional income of the petitioner.** **19. The petitioner had claimed that he was a Sales Manager earning a monthly income of Rs.4,000/-. However, the Tribunal fixed his notional income at Rs.2500/-.** **20. The Hon'ble Supreme Court in** **v. Ramachandrappa Manager, Royal** **MACA NO. 1022 OF 2010** -11- **Sundaram Alliance Insurance Company Limited [(2011) 13 SCC 236] and Syed Sadiq v. Divisional Manager, United India Insurance Co. Ltd. [(2014) 2 SCC 735] has fixed the notional income of a coolie worker in the year 2004, at Rs.4,500/- per month and that of a vegetable vendor in the year 2008, at Rs.6,500/- per month, respectively.** ## **Notional income** **21. Following the parameters laid down by the Hon'ble Supreme Court in the aforesaid decisions and considering the fact that the petitioner was 44 years of age and was working as a Sales Manager and that the accident occurred in the year 2003, I am of** **MACA NO. 1022 OF 2010** -12- **the considered opinion that the petitioner's notional income can safely be fixed at 4000/- per month as claimed in the claim petition. Hence, I fix the petitioner's notional income at Rs.4000/- per month.** **Loss of earnings** **22. The petitioner had claimed that he was incapacitated to carry-on with his work for a period of nine months, due to the injuries that he sustained in the accident. Ext.A7 Medical Certificate substantiates that the petitioner was under treatment for a period of nine months. Therefore, I hold that the petitioner was incapacitated for a period of nine months. In view of the refixation of the petitioner's notional** **MACA NO. 1022 OF 2010** -13- **income, I enhance the compensation under the head loss of income at Rs.36000/- i.e., 9 months x Rs.4000/-.** **Bystander expense** **23. It is seen that the petitioner was hospitalized for a period of 27 days. The Tribunal has only awarded a meager amount Rs.3000/-. The appellant had claimed Rs.5000/- as bystander expense. Considering that the petitioner was hospitalised for a period of 27 days, I feel that Rs.5000/- is only reasonable. Hence, I fix bystander expense at Rs.5000/-.** ## **Loss of amenities** **24. The petitioner had also claimed compensation under the head loss of** **MACA NO. 1022 OF 2010** -14- **amenities at Rs.25,000/-. The Tribunal did not award any amount under the said head. Therefore, I fix the compensation under the head loss of amenities at Rs.10,000/-.** **25. With respect to the other heads of compensation awarded by the Tribunal, namely transport, extra nourishment, damage to clothing, treatment and pain and sufferings, I find that the Tribunal has awarded reasonable and just compensation.** **26. On an over all re-appreciation of the pleadings, materials on record and the law laid down by the Hon'ble Supeme Court in the afore-cited decisions, I am of the opinion that the petitioner is entitled for enhancement of compensation as modified and** **MACA NO. 1022 OF 2010** -15- ## **recalculated above and given in the table below for easy reference.** |**Sl.** **No.**|**Head of claim**|**Amount** **awarded by** **the Tribunal** **(in Rupees)**|**Amounts** **modified and** **recalculated** **by this** **Court** **(in Rupees)**| |---|---|---|---| |**1**|**Loss of earnings**|**12500**|**36000**| |**2**|**Transportation**|**3000**|**3000**| |**3**|**Clothing**|**500**|**500**| |**4**|**Extra nourishment**|**2000**|**2000**| |**5**|**Medical Treatment**|**65397**|**65397**| |**6**|**Bystander expenses**|**3000**|**5000**| |**7**|**Pain and sufferings**|**25000**|**25000**| |**8**|**Loss of amenities**|**0**|**10000**| |**9**|**Loss** **due** **to** **disability**|**36000**|**134400**| ||**Total**|**147397**|**281297**| **MACA NO. 1022 OF 2010** -16- **In the result, the appeal is allowed in part, by enhancing the compensation by a further amount of Rs.1,33,900/- (Rupees One lakh thirty three thousand and nine hundred only) with interest at the rate of 8% per annum on the enhanced compensation, from the date of petition till the date of realisation along with proportionate costs. The third respondent shall deposit the enhanced compensation awarded in this appeal before the Tribunal with interest and proportionate costs within a period of two months from the date of receipt of a certified copy of the judgment. The Tribunal shall disburse the compensation to the** **MACA NO. 1022 OF 2010** -17- ## **appellant in accordance with law.** **Sd/-** **C.S. DIAS, JUDGE** STK