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High Court of KeralaSingle JudgeJudgment delivered; appeal allowed in part; enh...

VIJAY CHACKO v. K.K. DIVAKARAN and Others

Case / Petition Number:MACA No. 430 of 2011

Case Details & Bench

Court
High Court of Kerala
Hon'ble Judges
  • C. S. DIAS
Judgment Date
2022-02-02
Court Decision / Holding
The appeal is allowed in part; enhanced compensation by a further amount of Rs.33,750 (i.e., Rs.13,750 for loss of earnings, Rs.10,000 for pain and suffering, Rs.10,000 for loss of amenities) with interest at 7.5% per annum from the date of petition till the date of deposit, after deducting interest for 238 days (delay in filing) as ordered by this Court on 28.09.2021. A cost of Rs.5,000 is imposed. The third respondent/insurer is ordered to deposit the enhanced compensation with interest and cost before the Tribunal within sixty days from the receipt of a certified copy of this judgment. On deposit, the amount shall be disbursed to the appellant in accordance with law.
Final Disposition
Judgment delivered; appeal allowed in part; enhanced compensation awarded; insurer directed to deposit enhanced amount with interest and costs; disbursement to appellant on deposit.

Parties to the Case

Appellants / Petitioners

  • Vijay Chacko

Respondents

  • K. K. Divakaran
  • Thankachan
  • New India Assurance Company Limited
  • Sunny Chacko
  • National Insurance Company Limited

Legal Representation & Advocates

Counsels for Petitioners

  • • Sri Thampan Thomas
  • • Sri B.V. Joy Sanker

Counsels for Respondents

  • • Smt. M. Hemalatha
  • • Smt. Sarah Salvvy

Case Synopsis & Summary

This is a Motor Accidents Claims Appeal (MACA No. 430 of 2011) heard by the Kerala High Court, challenging an award of the Motor Accidents Claims Tribunal, Palakkad, in OP(MV) No.1432/2001. The appellant sustained serious injuries in a road accident on 02.09.1995 while riding a motorcycle (KL-09-9875) when another motorcycle (KL-9-B7834) allegedly ridden by the first respondent collided with him. The Tribunal quantified the compensation and awarded Rs. 49,635 with interest and costs, holding the third respondent insurer liable to indemnify the first respondent’s liability. The appellant contends that the compensation was inappropriately low, particularly in light of his occupation as an Electronic Engineer running his own business and notional income fixed at Rs. 2,250 per month. He relies on Exts A1–A7 to support his claims. The respondents denied liability on the grounds of negligence by the appellant and disputed the quantum, but did not adduce evidence to refute the petition’s averments. The High Court, citing Chameli Devi v. Jivrail Mian, re-determined the notional monthly income at Rs. 5,000 for 1995 and augmented the award, resulting in a total enhanced compensation of Rs. 33,750, with 7.5% interest and costs, to be deposited by the insurer and disbursed after deposit.

Provisions of Law Cited

Section 166 of the Motor Vehicles Act, 1988

Legal Doctrines & Maxims

  • Notional income principle for calculating compensation (as relied on Chameli Devi v. Jivrail Mian)

Submissions & Arguments

Contentions of Appellants / Petitioners

Appellant contends that the Tribunal's quantum is not just and reasonable given the extent of injuries and the appellant's occupation. He argues that the Tribunal undervalued his income by fixing a notional monthly income of Rs. 2,250, which is inconsistent with his actual earnings as an Electronic Engineer running his own enterprise. He submits that the income should be fixed at Rs. 5,000 per month, following Chameli Devi v. Jivrail Mian, and seeks enhancement across heads including loss of earnings, pain and suffering, and loss of amenities. He asserts that the accident rendered him totally disabled in terms of earning capacity and that the appeal should not be defeated by overly rigid notional figures. He relies on Exts A1–A7 to establish the facts, and on the Tribunal's account of the injury and treatment, as well as the period of disability. He prays that the compensation be re-quantified to reflect the true financial impact and the altered standard of living.

Contentions of Respondents

Respondents contend that the accident occurred due to the negligence of the appellant (the second respondent), and that the case is controlled by the evidence on record that the appellant has not established a permanent disability or sustained loss beyond the Tribunal's findings. They argue there was no adequate materials to justify the high notional income or enhanced amounts, and they maintain that the third respondent insurer is bound to indemnify only to the extent of the policy conditions. They underscore that the Respondents did not lead evidence to controvert the petition; thus, liability remained as adjudicated by the Tribunal. They request that the Court uphold the Tribunal's factual findings on liability and limit any enhancement to the Tribunal's calculated amount, if at all justified.

Cited Precedents (1)

Case NameCitationTreatmentExplanation
Chameli Devi and Ors. v. Jivrail Mian & Ors.2019 KHC 5352PositiveCited to support re-fixation of notional monthly income at Rs.5,000 per month for the year 1995 in calculating 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 WEDNESDAY, THE 2[ND] DAY OF FEBRUARY 2022 / 13TH MAGHA, 1943 ``` ## `MACA NO. 430 OF 2011` ``` AGAINST THE AWARD DATED 31.03.2010 IN OP(MV)NO.1432/2001 OF MOTOR ACCIDENT CLAIMS TRIBUNAL , PALAKKAD ``` ## `APPELLANT/CLAIMANT:` ``` VIJAY CHACKO, AGED 25 YEARS, S/O.CHACKO, RESIDING AT AZHANTHARA HOUSE, MUNDUR, PALAKKAD DISTRICT. ``` ``` BY ADVS.SRI.THAMPAN THOMAS SRI.B.V.JOY SANKER ``` ## `RESPONDENTS/RESPONDENTS:` ``` 1K.K.DIVAKARAN, AGE NOT KNOWN, KAVUNGAL, DHONI, OLAVAKKODE, PALAKKAD TALUK.(R.C.OWNER OF K.L./9/B/7834, HERO HONDA BIKE). ``` ``` 2THANKACHAN, S/O.THOMAS, AGED 35 YEARS, RESIDING AT PAZHAYAMPALLIL HOUSE, UMMINI, RAILWAY COLONY, OLAVAKKODE, PALAKKAD TALUK., (DRIVER OF K.L./9/B/7834 HERO HONDA BIKE). ``` ``` 3NEW INDIA ASSURANCE COMPANY LIMITED, T.B.ROAD, PALAKKAD., (INSURER OF THE VEHICLE K.L./9/B/7834), (POLICE NO.31/56053-15-3-95 TO 14-3-96). 4SUNNY CHACKO, AGED 30 YEARS, S/O.CHACKO, AZHANTHARA HOUSE, MUNDUR, PALAKKAD DISTRICT. ``` M.A.C.A.No.430/2011 -:2:- - `(R.C.OWNER OF KL9/9875, YAMAHA BIKE).` ``` 5NATIONAL INSURANCE COMPANY LIMITED, NEAR I.M.A. HALL, FORT MAIDAN, PALAKKAD., (INSURER OF KL 9/9875 YAMAHA BIKE), (POLICE NO.570706/31/10/6702793/94/A). ``` ``` BY ADVS.SMT.M.HEMALATHA SMT.SARAH SALVY ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 02.02.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` M.A.C.A.No.430/2011 -:3:- Dated this the 2[nd] day of February,2022 ## **J U D G M E N T** The appellant was the petitioner in O.P (MV) No.1432/2001 on the file of the Additional Motor Accidents Claims Tribunal, Palakkad. The respondents in the appeal were the respondents before the Tribunal. 2. The appellant had filed the claim petition under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of the injuries that he sustained in an accident on 02.09.1995. It was his case that, on the above said day, while he was riding his motorcycle bearing registration No.KL-09-9875 through the Mundoor-Palakkad road, another motorcycle bearing registration No.KL-9-B7834(offending motorcycle), ridden by the first respondent in a rash and negligent manner, hit the motorcycle of the appellant. The appellant sustained M.A.C.A.No.430/2011 -:4:- multiple injuries, including a compound fracture of both bones of his left leg and a fracture on the metacarpal 3[rd] and 4[th] left hand. He was treated as an inpatient for a period of 30 days at the District Hospital, Palakkad, and the Westfort Hospital, Thrissur. The appellant has become totally disabled. The offending motorcycle was owned by the first respondent and insured with the third respondent. The motorcycle ridden by the appellant was owned by the fourth respondent and insured with the fifth respondent. The appellant was an Electronic Engineer was by profession and running his own concern of ‘Indicators and Systems’ at Mundoor in Palakkad and earning a monthly income of Rs.10,000/-. The appellant had claimed a compensation of Rs.2,03,000/from the respondents. 3. The respondents 1 to 3 filed separate written statements, inter alia, contending that the accident occurred due to the negligence of the appellant. M.A.C.A.No.430/2011 -:5:- Therefore, he was not entitled to any amount as compensation. Nevertheless, the third respondent insurer admitted that the offending motorcycle had a valid insurance coverage. 4. The fifth respondent-insurer of the appellant's motorcycle filed a written statement contending that the accident occurred due to the negligence of the second respondent. Therefore, the fifth respondent may be exonerated. 5. The appellant had produced and marked Exts.A1 to A7 series in evidence. The respondents did not let in any evidence. 6. The Tribunal, after analysing the pleadings and material on record, and taking note of the fact that the appellant did not suffer any permanent disability, allowed the claim petition in part, by permitting him to recover from the third respondent an amount of Rs.49,635/- with interest and cost. M.A.C.A.No.430/2011 -:6:- 7. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioner is in appeal. 8. Heard; Sri. Thampan Thomas, the learned counsel appearing for the appellant/petitioner and Smt. M. Hemaletha, the learned counsel appearing for the third respondent-insurer. 9. The sole point that emerges for consideration in the appeal is whether the quantum of compensation awarded by the Tribunal is reasonable and just? ## **Negligence and liability:** 10. Ext.A1 First Information Report (FIR) in Crime No.174/1995 of Kongod police read with Ext.A2 scene mahazar and the uncontraverted pleadings in the claim petition proves that the accident occurred due to the negligence of the second respondent. The respondents have not let in evidence to controvert the assertions in the claim petition. Similarly, the third M.A.C.A.No.430/2011 -:7:- respondent has not proved that the first respondent had violated the insurance policy conditions. Therefore, the third respondent is to indemnify the liability of the first respondent arising out of the accident. ## **Income:** 11. The appellant had claimed that he was an Electronic Engineer and was running his own concern in Indicators and Systems at Mundoor, Palakkad. He claimed that he was earning a monthly income of Rs.10,000/-. However, the Tribunal, for the want of materials, has fixed the notional monthly income of the appellant at Rs.2,250/-. 12. The Hon’ble Supreme Court in **Chameli Devi and Ors. v. Jivrail Mian & Ors.** [2019 KHC 5352], has fixed the notional income of a carpenter in the year 2001, at Rs.5,000/- per month. M.A.C.A.No.430/2011 -:8:- 13. Following the yardstick in the afore-cited decision and considering the fact that the appellant was an Electronic Engineer by profession and the accident occurred in the year 1995, I re-fix the monthly notional income of the appellant on notional basis at Rs.5,000/-. ## **Loss of earnings:** 14. The Tribunal has found that the appellant was indisposed for a period of five months. I confirm the said finding. 15. In view of the re-fixation of notional monthly income of the appellant at Rs.5,000/-, I award him a further amount of **Rs.13,750/-** under the head ‘loss of earnings’. 16. Similarly, I award him a further amount of **Rs.10,000/-** each under the heads 'pain and M.A.C.A.No.430/2011 -:9:- sufferings' and 'loss of amenities'. 17. With respect to the other heads of compensation, I find that the Tribunal has awarded reasonable and just compensation. In the result, the appeal is allowed in part by enhancing the compensation by a further amount of **Rs.33,750** /-(i.e., Rs.13,750/- towards enhanced compensation for 'loss of earnings', Rs.10,000/towards enhanced compensation under the head 'pain and sufferings' and Rs.10,000/- towards 'loss of amenities') with interest the rate of 7.5% per annum from the date of petition till the date of deposit ,after deducting interest for a period of 238 days i.e., the period of delay in filing the appeal and as ordered by this Court on 28.09.2021 in C.M.Appln. No.1/2011, and a cost of Rs.5,000/-. The third respondent/insurer is M.A.C.A.No.430/2011 -:10:- ordered to deposit the enhanced compensation with interest and cost before the Tribunal within a period of sixty days from the date of receipt of a certified copy of this judgment. Immediately on the compensation amount being deposited, the same shall be disbursed to the appellant in accordance with law. ``` Sd/- ``` ## **C.S.DIAS,JUDGE** DST/02.02.22 //True copy/ P.A.To Judge