High Court of KeralaSingle JudgeAppeal allowed; enhanced compensation as specif...

V.H.KUTTYMOOSA v. K.BHASKARAN and NATIONAL INSURANCE COMPANY LIMITED

Case / Petition Number:MACA No. 766 of 2013
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Case Details & Bench

Court
High Court of Kerala
Hon'ble Judges
  • SOPHY THOMAS
Judgment Date
2022-09-23
Court Decision / Holding
The appeal is allowed. The appellant is entitled to enhanced compensation of Rs. 76,020 (comprising Rs. 15,000 for loss of earnings, Rs. 5,000 for transportation, Rs. 2,000 for extra nourishment, Rs. 35,020 for medical expenses, Rs. 4,000 for bystander expenses, Rs. 5,000 for pain and suffering, and Rs. 10,000 for loss of amenities). The 2nd respondent/insurer is directed to deposit the enhanced amount in the appellant’s bank account with interest at 8% per annum from the date of petition till deposit, subject to deductions for liabilities, within two months from receipt of a copy of this judgment, in terms of Circular No. 3 of 2019. The award amount will not carry interest for 200 days of delay in filing the appeal; additional Rs. 35,020 as medical expenses shall carry interest only from the date of appeal. The deposit shall comply with the directives in the Circular and other clarifications.
Final Disposition
Appeal allowed; enhanced compensation as specified; insurer to deposit within two months with interest; no costs.

Parties to the Case

Appellants / Petitioners

  • V.H.KUTTYMOOSA

Respondents

  • K. BHASKARAN
  • NATIONAL INSURANCE COMPANY LIMITED

Legal Representation & Advocates

Counsels for Petitioners

  • • SRI.ANIL S.RAJ
  • • SMT.ANILA PETER
  • • SMT.C.PRABITHA
  • • SMT.K.N.RAJANI
  • • SRI.J.VIVEK GEORGE

Counsels for Respondents

  • • SRI.SAJI KURIACHAN
  • • SRI.A.R.GEORGE

Case Synopsis & Summary

V.H. Kuttymoosa, a 59-year-old claimant, sustained injuries in a road traffic collision on 17 December 2009 when a car driven by the first respondent knocked him down near BOT junction, Kundannoor-Island road. He was hospitalized for 14 days and later required implant removal in 2012. He claimed Rs 3.5 lakh as compensation in OP(MV) 2524/2009; the Motor Accidents Claims Tribunal, Ernakulam, awarded Rs 1,74,500. The insurer admitted the accident and policy; no oral evidence was adduced; Exts. A1–A17 were marked. The appellant contends that the tribunal erred in notional income assessment, arguing Rs 6,000 per month, guided by Ramchandrappa v. Royal Sundaram (AIR 2011 SC 2951), which would yield higher compensation. The tribunal had fixed Rs 3,000 notional income and awarded various heads. The court notes the appellant’s age, occupation, and injury, and determines that notional income of Rs 6,000 per month is appropriate, given the seriousness of the case and prior jurisprudence; however, since the claim itself was Rs 6,000, it does not go beyond that. The Tribunal’s other heads—loss of earnings, transport, extra nourishment, medical expenses, bystander costs, pain and suffering, and loss of amenities—are re-examined, leading to an enhanced aggregate of Rs 76,020. The appeal is allowed; the insurer is directed to deposit the enhanced amount with interest within two months, in accordance with Circular No. 3 of 2019, etc., and without costs.

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellant contends that the Tribunal committed error in fixing a low notional income. He relies on Ramchandrappa v. Royal Sundaram Alliance Insurance Co. Ltd. to support a higher notional income (Rs. 6,000 per month for 2009), arguing that since the claimed amount is Rs. 6,000 per month, the court should not exceed it. He argues for reassessing heads of compensation, including loss of earnings, transport, extra nourishment, medical expenses, bystander expenses, pain and suffering, and loss of amenities, and for recognizing the extent of his injuries (fracture fibula, undisplaced fracture of pubic rami) and the two surgeries performed. He submits that the Tribunal should grant fair compensation reflecting his actual losses and the long rehabilitation period.

Contentions of Respondents

The respondents submit that the Tribunal’s award was largely reasonable given the injuries and hospitalizations. They admit liability under the policy but contend that the Tribunal’s framework for calculating compensation was proper and that there is no evidence of permanent disability. The insurer does not challenge the admissions and argues against excessive enhancement beyond the established medical costs, bystander expenses, and pain and suffering; they emphasize that the Tribunal’s conclusions in other heads were justified by the evidence presented and the nature of injuries.

Cited Precedents (1)

Case NameCitationTreatmentExplanation
Ramchandrappa v. Manager, Royal Sundaram Alliance Insurance Co. Ltd.AIR 2011 SC 2951PositiveCited to justify notional income norms for calculating compensation in MACT matters; used to support fixing notional income at Rs. 6,000 per month in this case, given the appellant’s profile and claim amount.

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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 FRIDAY,THE 23[RD] DAY OF SEPTEMBER 2022/1ST ASWINA, 1944 ``` ``` MACA NO. 766 OF 2013 ``` ``` AGAINST THE AWARD IN OPMV 2524/2009 OF MOTOR ACCIDENT CLAIMS TRIBUNAL,ERNAKULAM ``` ## **`APPELLANT/PETITIONER:`** ``` V.H.KUTTYMOOSA, SON OF LATE HASSAN, RESIDING AT VELEEPARAMBIL HOUSE, PALLURUTHY P.O., PALLURUTHY VILLAGE, ERNAKULAM DISTRICT. ``` ``` BY ADVS. SRI.ANIL S.RAJ SMT.ANILA PETER SMT.C.PRABITHA SMT.K.N.RAJANI SRI.J.VIVEK GEORGE ``` ## **`RESPONDENTS/RESPONDENTS:`** ``` 1K.BHASKARAN S/O.KUNJARAKKAN, VELLIKKATTIL HOUSE, POOTHRIKKA P.O., (VIA) PUTHENCRUZ, ERNAKULAM DISTRICT, PIN - 682 308. ``` ``` 2NATIONAL INSURANCE COMPANY LIMITED, COCHIN DIVISIONAL OFFICE, AJAY VIHAR, M.G.ROAD, COCHIN - 682 016. ``` ``` BY ADVS. SRI.SAJI KURIACHAN SRI.A.R.GEORGE SRI.A.R.GEORGE ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 16.09.2022, THE COURT ON 23.09.2022 DELIVERED THE FOLLOWING: ``` 2 **MACA No.766 of 2013** ## **SOPHY THOMAS, J. = = = = = = = = = MACA No.766 of 2013** ## **= = = = = = = = =** Dated this the 23[rd] day of September, 2022 ## **J U D G M E N T** The claimant in OP (MV) No.2524 of 2009 on the file of Motor Accidents Claims Tribunal, Ernakulam is the appellant herein. He has preferred this appeal alleging inadequacy of compensation awarded by the Tribunal. 2. The appellant, a 59 year old man allegedly engaged in fast food business, met with a road traffic accident on 17.12.2009 at 7.30 a.m. KL-7-BK 8661 car driven by the 1[st] respondent in a rash and negligent manner, knocked him down, while he was standing near BOT junction at Kundannor-Island road. He sustained serious injuries including fracture fibula, undisplaced fracture of left inferior pubic rami, coupled with contusions and abrasions. He was admitted and treated in Medical Trust Hospital for 14 days. He approached the Tribunal claiming compensation of Rs.3,50,000/- but the Tribunal awarded only Rs.1,74,500/-, against which he has come up with this appeal. 3 **MACA No.766 of 2013** 3. The 1[st] respondent was the owner-cum-driver of the offending car and the 2[nd] respondent was the insurer. The accident, injuries and the policy are rather admitted by the insurer. 4. No oral evidence was adduced from either side before the Tribunal. Exts. A1 to A17 were marked from the side of the claimant. 5. Along with the appeal, the appellant produced annexure-A1 medical bills and annexure-A2 discharge summary issued from Medical Trust Hospital, to show that on 18.9.2012 he was admitted in that hospital for removal of implant, and he was discharged on 26.09.2012. Those documents were accepted in evidence as per order in I.A.No.1245 of 2013. 6. Now let us see whether the impugned award is liable to be interfered with, for inadequacy of the compensation awarded. 7. According to the appellant, he was 59 year old man doing fast food business during the period of accident, earning monthly income of Rs.6000/- but the Tribunal fixed 4 **MACA No.766 of 2013** his notional income @3000/-. As per the decision **Ramchandrappa vs Manager, Royal Sundraram Alliance Insurance Company Limited** (AIR 2011 SC 2951), even a daily labourer in an unorganized sector was eligible to get his notional income fixed @ Rs.7000/- per month in the year 2009. Since the claim of the appellant is only Rs.6000/-, per month we need not go beyond that. So his notional income is fixed at Rs.6000/- per month. 8. The Tribunal assessed loss of earnings for three months @ Rs.3000/-. Considering the fact that he had suffered fracture fibula and undisplaced fracture of left inferior pubic rami, loss of earning for four months is justifiable. So towards loss of earning @ Rs.6000/-, he is eligible to get Rs.24000/-. After deducting Rs.9000/- already paid, he is entitled to get Rs.15000/- towards enhanced compensation for loss of earning. 9. For transportation to hospital and back though he had claimed Rs.5000/-, nothing was awarded by the Tribunal. Immediately after accident, he was hospitalised for 14 days, and in the year 2012 he was admitted in hospital for implant removal as seen from Annexure A1 and A2. So, Rs.5000/- 5 **MACA No.766 of 2013** towards transportation expenses is only just and reasonable. 10. Towards extra nourishment, Rs.3000/- was awarded by the Tribunal. Since he was hospitalised on two occasions and was on rest for four months, Rs.2000/- more towards extra nourishment can be allowed. 11. Towards medical expenses, the bills produced before the Tribunal were already considered and allowed. Annexure A1 bills produced by the appellant will amount to Rs.35020/- including the in-patient bill. So, the appellant is also entitled to get Rs.35020/- more towards medical expenses. 12. Towards bystander expenses, the appellant was paid only Rs.3000/-. Since the accident was in the year 2009, Rs.300/- per day towards bystander expenses seems to be reasonable. Moreover, in the year 2012 also, he was hospitalsed for 8 days in connection with implant removal, so an additional amount of Rs.4000/- could be awarded towards bystander expenses. 13. Towards pain and sufferings, the appellant was given Rs.35000/-. Considering the fact that he had suffered undisplaced fracture of left inferior pubic rami and fracture of 6 **MACA No.766 of 2013** left fibula, and underwent two surgeries with 23 days of hospitalization, Rs.5000/- more could be awarded towards pain and suffering. 14. Towards loss of amenities, he was awarded only Rs.4000/-. Considering the nature of injuries, period of hospitalization and surgical procedure undergone, an additional Rs. 10000/- could be awarded towards loss of amenities. 15. There is nothing to show the appellant has suffered permanent disability or loss of earning capacity. So he is not eligible to get any amount under the head permanent disability or loss of earning capacity. The compensation awarded under other heads seems to be reasonable and it need not be interfered with. |**Head of claim**|**Amount**<br>**awarded by the**<br>**Tribunal**|**Amount**<br>**awarded in**<br>**appeal**|**Diference to**<br>**be drawn as**<br>**enhanced**<br>**compensation**| |---|---|---|---| |Loss of<br>earning|Rs.9,000/-|Rs.24,000/-|Rs.15,000/-| |Transportation<br>to hospital<br>and back|-|Rs.5,000/-|Rs.5,000/-| 7 **MACA No.766 of 2013** |Extra<br>nourishment|Rs.3,000/-|Rs.5,000/-|Rs.2,000/-| |---|---|---|---| |Medical<br>expenses|Rs.1,20,000/-|1,55,020/-|Rs.35,020/-| |Bystander<br>expenses|Rs.3,000/-|Rs.7,000/-|Rs.4,000/-| |Pain and<br>suferings|Rs.35,000/-|Rs.40,000/-|Rs.5,000/-| |Loss of<br>amenities|Rs.4,000/-|Rs.14,000/-|Rs.10,000/-| |**Total**|**Rs.1,74,000/- **|**Rs.2,50,020/-**|**Rs.76,020/-**| In the result, the appellant is entitled to get enhanced compensation of Rs.76,020/- (15000+ 5000+ 2000+ 35020+ 4000+ 5000+10000). The 2[nd] respondent/insurer is directed to deposit the enhanced compensation in the bank account of the appellant with interest @ 8% per annum from the date of petition till the date of deposit (the award amount will not carry interest for 200 days of delay in filing the appeal, and the additional 8 **MACA No.766 of 2013** medical expenses amounting to Rs.35020/- will carry interest only from the date of appeal) within a period of two months from the date of receipt of a copy of this judgment. The deposit must be in terms of the directives issued by this Court in Circular No.3 of 2019 dated 06.09.2019 and clarified in O.M.No.D1/62475/2016 dated 07/11/2019 after deducting the liabilities, if any, of the appellant towards Tax, balance court fee and legal benefit fund. The appeal is allowed. No order as to costs. **Sd/SOPHY THOMAS JUDGE** nk