High Court of KeralaSingle Judge2024-04-08Appeal allowed in part; enhanced compensation a...

VIJAYAN S/O KESAVAN v. MATHAI K, KA THOMAS (DELETED) & ORIENTAL INSURANCE COMPANY LIMITED

Case / Petition Number:MACA No. 2125 of 2013

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: Sophy Thomas
Judgment Date: 2024-04-08
Court Decision / Holding: The appeal is allowed to the extent described in the judgment. The enhanced compensation of Rs. 78,100 is awarded. The 3rd respondent insurer is directed to deposit the enhanced amount with 7.5% interest per annum from the date of petition till the date of deposit (excluding 612 days of delay in filing the appeal) before the Tribunal concerned within two months from the date of receipt of a copy of the judgment. The Tribunal shall disburse the award amount after deducting liabilities, if any, including tax, balance court fee, and the legal benefit fund. There is no order as to costs.
Final Disposition: Appeal allowed in part; enhanced compensation awarded; insurer directed to deposit with interest; no costs.

Parties to the Case

Appellants / Petitioners

VIJAYAN S/O KESAVAN, VALIYAKATTIL HOUSE, KUTHIATHODU, CHERTHALA

Respondents

MATHAI K
K A THOMAS (DELETED)
ORIENTAL INSURANCE COMPANY LIMITED

Legal Representation & Advocates

Counsels for Petitioners

• JOJO GEORGE
• P. MURALEEDHARAN (THURAVOOR)

Counsels for Respondents

• SRI. VPK. PANICKER

Case Synopsis & Summary

This is MACA No. 2125 of 2013, a Motor Accident Claims Appeal filed by the claimant Vijayan against the award in O.P. (MV) No. 825 of 2006 from the Motor Accidents Claims Tribunal, Alappuzha. The 2004 accident left Vijayan with serious injuries; he is a 50-year-old textile salesman earning Rs. 10,000 per month. The Tribunal awarded Rs. 68,699 against the claimed Rs. 3,00,000. The appellant contends that notional income should be Rs. 4,500 per month (per Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited), which would adjust compensation substantially: loss of earnings for six months would be Rs. 27,000, leaving Rs. 17,000 after deducting the Tribunal award. He argues for headwise enhancement across transportation, extra nourishment, damages to clothing, future medical expenses, bystander expenses, pain and suffering, and loss of amenities; he also sought disability assessment by Medical Board. The 3rd respondent insurer contested but admitted the policy. The High Court applied the Ramachandrappa principle, fixing notional income at Rs. 4,500 and enhancing several heads: transport Rs. 1,500 total, extra nourishment Rs. 8,000, damages to clothing Rs. 500, future medical expenses Rs. 20,000, bystander Rs. 5,000, pain and suffering Rs. 30,000, and loss of amenities Rs. 15,000, while recognizing 5% disability for recurring infection worth Rs. 35,100. The aggregate enhanced compensation was Rs. 78,100, and the insurer was directed to deposit it with 7.5% interest within two months, with disbursement by the Tribunal after liabilities. The appeal was allowed in the stated extent, with no costs awarded.

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellant contends that the Tribunal erred in not applying the notional income principle and in under-compensating in multiple heads. Relying on Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Co. Ltd., he argues the notional income should be Rs. 4,500 per month, which would raise notional earnings and the subsequent compensation (loss of earnings of Rs. 27,000 before deductions). He seeks enhanced amounts for transportation, extra nourishment, clothing, future medical expenses, bystander expenses, pain and suffering, and loss of amenities, as well as consideration for disability based on medical evidence. The appellant also sought referral to a Medical Board to assess disability, but the court later proceeded with a 5% disability for recurring infection. He urges comprehensive enhancement across heads to reflect the actual medical neglect and ongoing treatment.

Contentions of Respondents

The insurer contested liability while admitting the policy; they did not participate fully in some steps but engaged in the proceedings. Their stance included endorsing the Court’s consideration of disability at 5% for recurring infection, and they supported a measured enhancement across certain heads. The insurer’s counsel (VPK Panicker) acknowledged the policy and the need for fair assessment, while maintaining the Tribunal’s framework could be adjusted to reflect genuine losses without prejudicing the insured. Overall, the respondents argued for a balanced, evidence-based computation of damages within the statutory framework.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited	AIR 2011 SC 2951	Positive	The court applies the principle from Ramachandrappa to determine the notional income (Rs. 4,500 per month) for 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 MRS. JUSTICE SOPHY THOMAS`_ ``` MONDAY, THE 8[TH] DAY OF APRIL 2024 / 19TH CHAITHRA, 1946 ``` ## _`MACA NO. 2125 OF 2013`_ ``` AGAINST THE ORDER/JUDGMENT DATED 13.10.2011 IN OPMV NO.825 OF 2006 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, ALAPPUZHA ``` ## _`APPELLANT/S:`_ ``` VIJAYAN S/O.KESAVAN,VALIYAKATTIL HOUSE,KUTHIATHODU,CHERTHALA BY ADVS. JOJO GEORGE P.MURALEEDHARAN (THURAVOOR) ``` ## _`RESPONDENT/S:`_ ``` 1MATHAI K S/O.KURIAN,THOTTICHIRAKKALAM,2ND WARD KUMARAKOM P.O,KOTTAYAM PIN 686 563 2K A THOMAS *(DELETED)* S/O.ABRAHAM,KALLIPURATH HOUSE,KUMARAKOM P.O,2ND WARD,KOTTAYAM PIN 686 563 3ORIENTAL INSURANCE COMPANY LIMITED DIVISIONAL OFFICER NO 1,MATTATHARA BUILDINGS,3RD FLOOR,BAKER JN,KOTTAYAM,REP BY ITS MANAGER *(RESPONDENT NO.2 IS DELETED FROM THE PARTY ARRAY AS PER ORDER DATED 17/11/2014 IN IA NO. 3420/2014 IN MACA NO. 2125/2013)* BY ADV SRI.VPK.PANICKER ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON ``` ``` 08.04.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA. No. 2125 of 2013 ``` ``` ..2.. ``` ## **SOPHY THOMAS, J.** ## **=====================** M.A.C.A. No. 2125 of 2013 ## **========================** ## _**J U D G M E N T**_ **Dated this the 08[th] day of April, 2024** This appeal is filed by the claimant in O.P. (MV) No. 825 of 2006 on the file of Motor Accidents Claims Tribunal, Alappuzha, impugning the award on the ground of inadequacy of compensation. 2. On 14.11.2004 at about 01.00 pm while the appellant/claimant was riding his motorcycle through Ernakulam – Alappuzha National Highway from Chammandu to Kuthiyathodu, KL-5L-7408 car driven by the 1[st] respondent in a rash and negligent manner knocked him down and he sustained serious injuries. He was admitted and treated in hospital on two different spells for a total of 27 days. He was a 50 year old salesman, working in a textile shop earning monthly income of Rs.10,000/- as on the date of accident. He approached the Tribunal ``` MACA. No. 2125 of 2013 ``` **==> picture [31 x 7] intentionally omitted <==** claiming compensation of Rs.3,00,000/-. But, the Tribunal awarded only Rs.68,6,99/- and 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. Respondents 1 and 2 remained exparte before the Tribunal. The 3[rd] respondent insurer contested the case, but admitted the policy. 4. In the appeal, 1[st] respondent did not appear inspite of Service of notice. The 2[nd] respondent was reported dead. But no steps were taken to implead his legal heirs. The 3[rd] respondent insurer entered appearance through counsel, and admitted the policy. 5. Heard learned counsel for the appellant, and learned counsel for the 3[rd] respondent insurer. 6. Learned counsel for the appellant would submit that the appellant was a salesman in a textile shop earning monthly income of Rs.10,000/- as on the date of accident. But, learned Tribunal without fixing any notional income awarded a lumpsum amount of Rs.10,000/- towards loss of earning. Going by the decision _**Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited [AIR 2011 SC 2951],**_ his notional income ought ``` MACA. No. 2125 of 2013 ``` **==> picture [31 x 7] intentionally omitted <==** to have been fixed @ Rs.4,500/- per month. Taking loss of income for six months, he was eligible to get Rs.27,000/-. After deducting Rs.10,000/- already awarded by the Tribunal, he is entitled to get balance amount of Rs.17,000/-. 7. Towards transportation expenses, learned Tribunal awarded only Rs.5,00/- against his claim of Rs.5,000/-. The accident occurred at Kuthiyathodu, and he was taken to Lissie Hospital, Ernakulam for treatment. The discharge summary also will show that he was taken to hospital several times. So this Court is inclined to award Rs.1,000/more towards transportation expenses. 8. Towards extra nourishment learned Tribunal awarded only Rs.5,500/- against his claim of Rs.20,000/-. Since he was hospitalized for 27 days in total, this Court is inclined to award Rs. 2,500/- more towards extra nourishment. 9. Towards damages to clothing, learned Tribunal awarded no amount. So, this Court is inclined to award Rs.500/- towards damages to clothing. 10. Learned counsel for the appellant would submit that the appellant was continuing his treatment even after discharge from ``` MACA. No. 2125 of 2013 ``` **==> picture [31 x 7] intentionally omitted <==** hospital, and he is still suffering from an ulcer on his foot with recurring infection. Learned Tribunal awarded only Rs.15,000/towards future treatment. So, this Court is inclined to award Rs.5,000/- more towards future medical expenses. 11. Towards bystander expenses, this Court is inclined to award Rs.2,000/- more, since he was hospitalized for 27 days, and even after discharge, he was continuing his treatment. 12. Towards pain and suffering, learned Tribunal awarded Rs.20,000/- only. Since as the case of the appellant is that he suffered much pain and agony due to the injury suffered in the accident and he was hospitalized for 27 days, and still suffering from the after effects of the injuries suffered, this Court is inclined to award Rs.10,000/more towards pain and suffering. 13. Towards permanent disability, the appellant had claimed Rs.50,000/-. But learned Tribunal did not award any amount, as no evidence was adduced to show that the appellants suffered permanent disability due to the injuries suffered in the accident. 14. In the appeal, learned counsel for the appellant prayed for referring the appellant to a Medical Board for assessing his disability. ``` MACA. No. 2125 of 2013 ``` **==> picture [31 x 7] intentionally omitted <==** But, the appellant did not appear before the Medical Board with necessary documents, to assess his disability and, so his disability was not assessed. So, as per order dated 22.11.2023 this Court ordered that no further directions are to be issued in that regard, and the case was posted for hearing. 15. On direction the appellant appeared in person before this court, and showed a scar on his left foot, which according to him will get infected occasionally. According to him, that ulcer developed as result of the injuries suffered in the accident, for which, he is still undergoing treatment. 16. Learned counsel for the 3[rd] respondent insurer was fair enough for taking 5% disability for that recurring infection, even though the appellant failed to appear before the medical board with relevant documents to assess his disability. We have taken his notional income @ Rs.4,500/-. He was aged 50 at the time of accident, so the multiplier applicable is 13. So for 5% disability the appellant is eligible to get compensation of Rs.35,100/- (4,500 x 12 x 13 x 5/100). 17. Towards loss of amenities, learned Tribunal awarded ``` MACA. No. 2125 of 2013 ``` **==> picture [31 x 7] intentionally omitted <==** Rs.10,000/-. This Court is inclined to award Rs.5,000/- more under the head loss of amenities. 18. The compensation awarded under all other heads seems to be reasonable and hence it needs no modification. ## 19. The enhanced compensation awarded in this appeal is given in the table below:- |_SL._ _No_|_Head of claim_|_Amount_ _awarded_ _by the_ _Tribunal_|_Amount_ _awarded in_ _appeal_|_Difference to be_ _drawn as_ _enhanced_ _compensation_| |---|---|---|---|---| |_1_|_Loss of earnings_|_10,000/-_|_27,000/-_|_17,000/-_| |_2_|_Transportation_ _expenses_|_5,00/-_|_1,500/-_|_1,000/-_| |_3_|_Extra_ _nourishment_|_5,500/-_|_8,000/-_|_2,500/-_| |_4_|_Damages to_ _clothing_|_….._|_5,00/-_|_5,00/-_| |_5_|_Future medical_ _expenses_|_15,000/-_|_20,000/-_|_5,000/-_| |_6_|_Bystander_ _expenses_|_3,000/-_|_5,000/-_|_2,000/-_| |_7_|_Pain and_ _suffering_|_20,000/-_|_30,000/-_|_10,000/-_| |_8_|_Permanent_ _disability_|_…..._|_35,100/-_|_35,100/-_| |_9_|_Loss of_ _amenities_|_10,000/-_|_15,000/-_|_5,000/-_| |_Total_||||_78,100/-_| ``` MACA. No. 2125 of 2013 ``` ``` ..8.. ``` 20. So the appellant is entitled to get enhanced compensation of Rs.78,100/- (17,000 + 1,000 + 2,500 + 5,00 +5,000+ 2,000 +10,000 + 35,100 +5,000). 21. The 3[rd] respondent insurer is directed to deposit the enhanced compensation with 7.5% interest per annum from the date of petition till the date of deposit (except 612 days of delay in filing the appeal) 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 appellant after deducting the liabilities, if any, of the appellant 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