Varghese v. Noushiji and United India Insurance Co. Ltd.

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: T.R.RAVI
Judgment Date: 2021-09-06
Court Decision / Holding: Appeal allowed. The compensation awarded by the Tribunal is enhanced to Rs. 3,64,585/- with interest at 9% per annum on the enhanced amount from 7.11.2005 till realization, and with proportionate costs. The insurer is directed to deposit the enhanced compensation, along with interest and costs, within two months and in accordance with law.
Final Disposition: Appeal allowed; enhanced compensation and directions issued to insurer.

Parties to the Case

Appellants / Petitioners

Varghese

Respondents

Noushiji S/o Ibrahim Chembayil
United India Insurance Co. Ltd.

Legal Representation & Advocates

Counsels for Petitioners

• Sri. Raj Mohan R. Pillai
• Sri. G. Gireesh Kumar
• Sri. Vino Jose

Counsels for Respondents

• Sri. Thomas Mathew Nellimoottil
• Sri. John Joseph Vettikkad

Case Synopsis & Summary

Varghese, aged 67, challenged the Motor Accidents Claims Tribunal’s award in OP(MV) No.2466/2005, seeking enhanced compensation after sustaining serious injuries in a jeep-bus collision on 10 August 2005. The Tribunal awarded Rs. 1,44,647 with 7% interest from 7.11.2005. The appellant argued that the notional income of Rs. 2,000 used by the Tribunal was too low for that period and urged Rs. 4,500 as the notional income, relying on Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Co. Ltd. He also pressed for higher sums for pain and suffering, loss of earning power, bystanders’ expenses, and future prospects, arguing the accident left him permanently disabled and dependent on others. The insurer contended that compensation under permanent disability sufficed, and suggested limiting future prospects to a modest percentage given his age and lack of income evidence. The High Court examined medical evidence and recent precedent, ultimately fixing the notional income at Rs. 4,500 and recalculating several heads. It granted further enhancement for pain and suffering, bystanders’ expenses, permanent disability, and other heads, culminating in a total enhanced compensation of Rs. 3,64,585 with 9% interest from 7.11.2005 and costs. The appeal was allowed in part.

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellant contends that the Tribunal erred in applying a too low notional income (Rs. 2,000) for the accident of 2005, and relies on Ramachandrappa to argue for Rs. 4,500. He asserts the Tribunal failed to compensate adequately for pain and suffering given 36 days of hospitalisation, permanent disability, loss of earning power, future prospects, and bystander expenses. He also seeks higher awards for loss of amenities, clothing, and other articles, and argues for inclusion of future clinical and care costs.

Contentions of Respondents

The insurer argues that awarding for permanent disability subsumes any separate loss of earning power; future prospects should be restricted, citing age and lack of income proof. It challenges the higher head-claims by the appellant and suggests that no additional compensation be awarded beyond the Tribunal’s assessment, noting lack of evidence for income at the time and to keep contingency costs within reason.

Cited Precedents (3)

Case Name	Citation	Treatment	Explanation
Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Co. Ltd.	AIR 2011 SC 2951	Positive	The court follows the Ramachandrappa dictum to fix notional income at Rs.4,500.
Pappu Deo Yadav v. Naresh Kumar and others	AIR 2020 SC 4424	Distinguished	Cited for a principle on future prospects but not adopted; the court uses 20% rather than 40% as future prospects due to facts.
Nagappa v. Gurudayal Singh	2003(1)KLT 115(SC)	Positive	Cited to affirm that compensation can exceed the amount claimed in the petition.

Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE T.R.RAVI** **MONDAY, THE 6[TH] DAY OF SEPTEMBER 2021 / 15TH BHADRA, 1943 MACA NO. 994 OF 2012** **AGAINST THE AWARD IN OP(MV) NO.2466/2005 OF PRINCIPAL MOTOR ACCIDENT CLAIMS TRIBUNAL, KOZHIKODE** ## **APPELLANT/PETITIONER IN THE OP(MV):** VARGHESE AGED 67 YEARS, S/O.JOSEPH, KARIPPUKATTIL, KOODATHAI BAZAR P.O KOZHIKODE DISTRICT BY ADVS. SRI.RAJ MOHAN R.PILLAI SRI.G.GIREESH KUMAR SRI.VINO JOSE ## **RESPONDENTS/RESPONDENTS 1 & 2 IN THE OP(MV):** 1 NOUSHIJI S/O.IBRAHIM CHEMBAYIL P.O THAMARASSERRY, KOZHIKODE DISTRICT 673573 2 UNITED INDIA INSURANCE CO. LTD DIVISIONAL OFFICE II, SEEMA TOWERS, MAVOOR ROAD, KOZHIKODE DISTRICT 673 661. (INSURER OF JEEP BEARING NO.KL-11-M 5824) BY ADV SRI.THOMAS MATHEW NELLIMOOTTIL SRI.JOHN JOSEPH VETTIKKAD FOR R2 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 25.08.2021, THE COURT ON 06.09.2021 DELIVERED THE FOLLOWING: :-2-: M.A.C.A.No.994 of 2012 ## **T.R.RAVI, J.** **-------------------------------------M.A.C.A.No.994 of 2012** **-----------------------------------------------** Dated this the 6[th] day of September, 2021 ## **J U D G M E N T** The case of the appellant is that while he was travelling in a jeep on 10.8.2005 from Thamarassery to Omassery, the jeep hit against a bus coming from the opposite side. The appellant sustained serious injuries. He was taken to the Government Medical College Hospital, Kozhikode. The injuries sustained by the appellant were Grade III open fracture of pelvis bones (unstable open type), loss of two teeth in the upper line, mobility of 2 teeth in the lower line, abrasion on the side of the nostril, collapse of the urinary bladder and other minor injuries causing severe pain all over the body. He was discharged from the hospital on 28.8.2005. On 30.8.2005, he was readmitted at Community Health Centre and was discharged on 2.9.2005. He was once again admitted on 10.9.2005 at Santhi Hospital and discharged on 22.9.2005. Even after discharge from the hospital, the collapse :-3-: M.A.C.A.No.994 of 2012 of the urinary bladder was not corrected. Several treatments were done. He was advised complete bed rest for 6 months. The claim was filed at a time when the treatment was still continuing. 2. The appellant preferred the claim alleging that he was permanently disabled and was not in a position to do any type of work, that he cannot walk without the help of supporting crutches or a walker. The claim was preferred for a sum of Rs.6,17,500/-, which was limited to Rs.2 lakhs. Exhibits A1 to A8, were marked on the side of the appellant. Exhibit C1 document was marked as Court exhibit. The respondents did not adduce any evidence. The Tribunal granted a total compensation of Rs.1,44,647/- with interest at the rate of 7% per annum from 7.11.2005 till the date of deposit of the amount, with cost of Rs.1,300/- from the respondents. The appellant has filed this appeal seeking enhancement of the compensation granted by the Tribunal. 3. Heard the counsel for the appellant and Sri Thomas Mathew Nellimoottil on behalf of the insurer. 4. The main contention of the appellant is that the :-4-: M.A.C.A.No.994 of 2012 notional income fixed by the Tribunal was very low. The accident happened on 10.8.2005. The Tribunal fixed the notional income at Rs.2,000/-. Reliance is placed on the decision in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Co.Ltd.,** reported in [ **AIR 2011 SC 2951]** , to submit that the notional income should have been taken as at least Rs.4,500/- for fixing the compensation. Another contention is that the Tribunal granted only Rs.10,000/- towards pain and suffering without considering the fact that the petitioner was hospitalised for 36 days. It is contended that permanent disablity should have been fixed on the basis of a notional income of Rs.4,500/-. It is also submitted that the Tribunal did not grant any amount for loss of amenities and that for extra nourishment and transport only a sum of Rs.500/- each was granted despite the fact that he had to be admitted in three different hospitals. It is also contended that the loss of earnings for 1 1/2 months should have been taken on the basis of the notional income of Rs.4,500/-. Under the head bystanders expenses, against a claim of Rs.25,000/- only a sum :-5-: M.A.C.A.No.994 of 2012 of Rs.2,500/- was granted and no amount was granted towards future prospects, clothing and other articles and loss of earning power; are the contentions. 5. The Standing Counsel for the insurer submitted that no amount can be granted towards loss of earning power, since the Tribunal has granted compensation under the head "permanent disability". Regarding future prospects, it is submitted that a maximum of 10% can be granted going by earlier decisions, having regard to the age of the appellant and the lack of evidence regarding his income at the time of the accident. 6. The claim made by the appellant under different heads of compensation, and the amount which has been awarded by the Tribunal are shown in the form of a table: |Sl. No.|Head of the Claim|Amount Claimed(Rs.)|Amount Awarded(Rs.)| |---|---|---|---| |1|Transport to Hospital|Rs.1000/-|Rs.500/-| |2|Extra Nourishment|Rs.25,000/-|Rs.500/-| |3|Loss of Earning|Rs.13,000/-|Rs.3,000/-| |4|Treatment Expenses|Rs.50,000/-|Rs.11,507/-| |5|Bystanders expenses|Rs.25,000/-|Rs.2500/- (25x100)| :-6-: M.A.C.A.No.994 of 2012 |6|Pain and Sufferings|Rs.50,000/-|Rs.20,000/-| |---|---|---|---| |7|Permanent Disability|Rs.1,00,000/-|Rs.1,16,640/- (2000x12x9x5 4/100)| |8|Damage to clothing & articles|Rs.2,500/-|NIL| |9|Future expense|Rs.1,00,000/-|NIL| |10|Loss of enjoyment of life|Rs.1,50,000/-|NIL| |11|Compensation for loss of earning power|Rs.1,00,000/-|NIL| ||Total|Rs.6,16,500/- limited to Rs.2,00,000/-|Rs.1,44,647/-| 7. I have considered the contentions of the appellant and the respondent insurer. Following the dictum laid down in **Ramachandrappa(supra)** , I am of the opinion that the appellant is entitled to have the notional income fixed as Rs.4,500/- and consequential changes are to be made in the compensation to be granted under various heads. In **Pappu Deo Yadav v. Naresh Kumar and others (AIR 2020 SC 4424)** , a Data Entry Operator who lost a limb and whose permanent disability was assessed at 65 % was granted an addition of 40% towards future prospects. The appellant herein claims to be an :-7-: M.A.C.A.No.994 of 2012 agriculturist who has suffered 54% disability as per the report of the Medical Board. There is no contra evidence to dispute the finding of the Medical Board. Having regard to the report of the Medical Board regarding the disability and the nature of the injuries, the appellant has a functional disability justifying the grant of 20% addition towards future prospects. Since the appellant is being awarded compensation under the head "disability", his claim regarding loss of earning power need not be considered under a different head of compensation. As regards the bystanders expenses, I am of the opinion that the amount granted at the rate of Rs.100/- per day is liable to be increased as Rs.150/- per day and the number of days is to be taken as 36 days instead of 25 days. Having regard to the nature of the injuries, the appellant who had to suffer serious damage to the urinary bladder, which needs a long passage of time to be set right reasonably, apart from the fracture and other injuries, I am of the opinion that the compensation under the head "pain and suffering" is liable to be increased to Rs.25,000/-. I am of the :-8-: M.A.C.A.No.994 of 2012 opinion that the Tribunal has granted just compensation as regards the other heads of compensation. 8. In the light of the above findings, the compensation awarded by the Tribunal is liable to be enhanced and modified in the manner shown in the table below: |Sl. No.|Head of the Claim|Amount Claimed(Rs.)|Amount Awarded(Rs.)|Amount as modified by this Court(Rs.)| |---|---|---|---|---| |1|Transport to Hospital|Rs.1000/-|Rs.500/-|Rs.500/-| |2|Extra Nourishment|Rs.25,000/-|Rs.500/-|Rs.500/-| |3|Loss of Earning|Rs.13,000/-|Rs.3000/-|Rs.6,750/-| |4|Treatment Expenses|Rs.50,000/-|Rs.11507/-|Rs.11,507/-| |5|Bystanders expenses|Rs.25,000/-|Rs.2500/- (25x100)|Rs.5,400/- (150x36)| |6|Pain and Sufferings|Rs.50,000/-|Rs.10,000/-|Rs.25,000/-| |7|Permanent Disability|Rs.1,00,000/-|Rs.1,16,640/- (2000x12x9x54 /100)|Rs.3,14,928/- (5400x12x9x5 4/100)| |8|Damage to clothing & articles|Rs.2,500/-|NIL|NIL| |9|Future expense|Rs.1,00,000/-|NIL|NIL| |10|Loss of enjoyment of life|Rs.1,50,000/-|NIL|NIL| |11|Compensation for loss of earning power|Rs.1,00,000/-|NIL|NIL| :-9-: M.A.C.A.No.994 of 2012 ||Total|Rs.6,16,500/- limited to Rs.2,00,000/-|Rs.1,44,647/-|Rs.3,64,585/-|| |---|---|---|---|---|---| Even though the appellant had claimed a sum of Rs.6,16,500/and restricted the claim to Rs.2 lakhs, I find that he is entitled to a just compensation of Rs.3,64,585/- in the light of reasonings stated above. It is well settled that there is no restriction in awarding a compensation more than the amount claimed in the claim petition. **[See Nagappa v. Gurudayal Singh 2003(1)KLT 115(SC)]** . 9. In the result, the appeal is allowed. The compensation granted by the Tribunal is enhanced by a further sum of Rs.2,19,938/- (Rupees Two lakhs Nineteen Thousand Nine Hundred and Thirty Eight only) with interest at 9% per annum on the enhanced compensation from 7.11.2005 till the date of realisation, with proportionate costs. The 2[nd] respondent insurer shall deposit the additional compensation granted in this appeal along with the interest and proportionate costs, before the Tribunal within two months from the date of receipt of a certified :-10-: M.A.C.A.No.994 of 2012 copy of this judgment, after deducting any amount to which the appellant is liable towards balance court fee and legal benefit fund. The disbursement of the compensation to the appellant shall be in accordance with law. Sd/- **T.R.RAVI JUDGE** dsn