High Court of KeralaSingle Judge2021-06-23Appeal allowed; Tribunal’s order modified; enha...

Vijayanandan v. K.O. KuriaKose and others

Case / Petition Number:MACA NO. 954 OF 2009

Neutral Citation::null

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: C. S. Dias
Judgment Date: 2021-06-23
Court Decision / Holding: The appeal is allowed; the Tribunal’s order is modified and compensation is enhanced by Rs 49,000 with interest at 7% per annum from the date of the petition until realization, plus proportionate costs. The 3rd respondent shall deposit the additional amount before the Tribunal within two months from receipt of a certified copy of this judgment, and the Tribunal shall disburse the compensation to the appellant in accordance with law.
Final Disposition: Appeal allowed; Tribunal’s order modified; enhanced compensation and directions issued for deposit and disbursement.

Parties to the Case

Appellants / Petitioners

Vijayanandan

Respondents

K.O. KuriaKose
Joy P.O.
The United India Insurance Company Limited

Legal Representation & Advocates

Counsels for Petitioners

• Sri P.S.Appu
• Sri C.A.Anoop
• Sri Jibu P Thomas
• Sri A.R.Nimod
• Sri.T.C.Suresh Menon

Counsels for Respondents

• Sri John Joseph Vettikad

Case Synopsis & Summary

Vijayanandan, the appellant, sustained serious injuries when the bus he boarded (Reg. No. KRM 5151) suddenly moved forward, causing him to fall and suffer injuries that required hospitalisation. He was treated from 5 November 2002 to 6 December 2002, including amputation of his big toe and malunited fractures of other toes, resulting in permanent disability. He claimed compensation of Rs. 2,79,500 from the bus owner and insurer, with liability joint and several. The 1st and 2nd respondents were ex parte; the 3rd respondent contested the claim, contending that the amount claimed was excessive and that the accident occurred due to the appellant’s negligence. The Motor Accidents Claims Tribunal, Thrissur, awarded Rs. 86,900 with interest at 7% per annum and Rs. 2,000 costs. Dissatisfied, the appellant challenged the quantum as inadequate. The court relied on Supreme Court precedents on fair compensation under Section 168 of the Motor Vehicles Act, 1988, particularly the principles of fairness, reasonableness and equitability, and on the primacy of expert medical opinion. It reappraised heads such as notional income, disability, loss of earnings, transportation and bystander expenses. On these grounds, the appeal was allowed and the compensation enhanced. The insurer was directed to deposit the additional amount with interest within two months, and the Tribunal to disburse the funds thereafter.

Provisions of Law Cited

Section 168 of the Motor Vehicles Act, 1988

Legal Doctrines & Maxims

Just compensation under the Motor Vehicles Act, 1988 (Section 168)
Not ordinarily interfere with the opinion of experts (Talwinder Singh)
Fairness, reasonableness and equitability in determining compensation

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellant argues that the Tribunal under-compensated him by not applying the notional monthly income supported by precedents (Rs 4,000) and by reducing his disability from 10% to 8% despite medical evidence. He asserts that, given the injuries (amputation of two toes and malunited fractures) and his 32-year-old cook’s occupation, the compensation should be recalculated with higher notional income and 10% disability. He cites Ramachandrappa and Syed Sadiq for notional income and Pranay Sethi for the overarching principle of ‘just compensation’ under Section 168 of the MV Act, emphasizing fairness and equitability. He seeks enhancement in heads of loss of earnings, transportation, bystander expenses, medical expenses, pain and suffering, loss of amenities and disability, pointing to the 31 days hospitalisation. The appellant argues for higher compensation in line with precedents and medical findings.

Contentions of Respondents

The respondents contend that the Tribunal’s award was reasonable and proportionate. They challenge the assumption of higher income and disability, noting the accident involved the appellant’s own negligence. Relying on the insurer’s policy, they maintain liability and argue that any enhancement would be unwarranted and contrary to the evidence and liability principles.

Cited Precedents (4)

Case Name	Citation	Treatment	Explanation
National Insurance Company Ltd. v. Pranay Sethi	2017 (16) SCC 680	Positive	Defines the framework of ‘just compensation’ under Section 168 and guides the fairness principle applied in revising the award.
Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Ltd.	2011 (13) SCC 236	Positive	Cited for notional income benchmarks used to reassess compensation in motor vehicle accidents.
Syed Sadiq and Others v. Divisional Manager, United India Insurance Company Ltd.	2014 (2) SCC 735	Positive	Used to support notional income standards for specific occupations in a given era.
Union of India and another v. Talwinder Singh	2012 (5) SCC 480	Positive	Supports non-interference with expert medical findings in disability assessment.

Diagnostic Tool

Beta

Does this judgment govern your specific facts?

Don't risk relying on a distinguishable precedent. Enter your facts or proposition below. We will test it against Vijayanandan v. K.O. KuriaKose and others and instantly map out authorities that support, challenge, or govern your position.

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 23[RD] DAY OF JUNE 2021 / 2ND ASHADHA, 1943 MACA NO. 954 OF 2009** **AGAINST THE ORDER/JUDGMENT IN OP(MV) 237/2003 OF IST ADDITIONAL MOTOR ACCIDENTS CLAIMS TRIBUNAL, THRISSUR** ## **APPELLANT/PETITIONER:** VIJAYANANDAN, RESIDING AT MULLAKKAL HOUSE,, KIZHAKKUMCHERRY, PALAKKAD DISTRICT. BY ADVS. SRI.P.S.APPU SRI.C.A.ANOOP SRI.JIBU P THOMAS SRI.A.R.NIMOD SRI.T.C.SURESH MENON ## **RESPONDENTS/RESPONDENTS:** 1 K.O.KURIAKOSE, S/O/OUSEPH, RESIDING AT KOTTALIYIL HOUSE, ELAVAMPADAM, VELAMPUZHA,, ALATHUR, PALAKKAD. 2 JOY P.O. S/O.OUSEPH RESIDING AT PAIAPPILLY HOUSE, P.O.KORANCHIRA,, PALAKKAD DISTRICT. 3 THE UNITED INDIA INSURANCE COMPANY LIMITED, PARK HOUSE, ROUND NORTH,, THRISSUR. BY ADV SRI.JOHN JOSEPH VETTIKAD THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 23.06.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **MACA NO. 954 OF 2009 2** ## **JUDGMENT** The appellant was the petitioner in OP(MV) No.237 of 2003 on the file of the 1[st] Additional Motor Accidents Claims Tribunal, Thrissur. The respondents in the claim petition are the respondents in the appeal. 2. The relevant facts in the claim petition, for the determination of the appeal, are: on 5.11.2002 while the appellant was boarding a bus bearing Reg. No.KRM 5151 at Wadakkanchery, the 2[nd] respondent the driver of the vehicle - suddenly moved the vehicle forward and as a result of which the appellant fell down and sustained serious injuries. He was admitted at the Cresent Hospital, Alathur and, thereafter, he was referred to Aswini Hospital, Thrissur. He was treated as an inpatient from 5.11.2002 to 6.12.2002. The appellant's big toe and 2[nd] **MACA NO. 954 OF 2009 3** toe had to be amputated and he had a malunited fracture of 3[rd] toe. The accident occurred solely due to the rashness and negligence on the part of the 2[nd] respondent. The bus was owned by the 1[st] respondent and was insured with the 3[rd] respondent. The appellant was a Cook by profession earning an income of Rs.6,000/per month. The respondents were jointly and severally liable to pay compensation to the appellant, which he quantified at Rs.2,79,500/-, but restricted to 2,00,000/-. 3. The respondents 1 and 2 did not contest the proceedings and were set ex parte. 4. The 3[rd] respondent filed a written statement denying the assertions in the claim petition. It was contended that the compensation claimed was excessive and that the accident occurred due to the negligence on the part of the appellant. **MACA NO. 954 OF 2009 4** 5. The doctor who issued Ext.A11 was examined as PW1. The appellant produced and marked Exts.A1 to A11 in evidence. The 3[rd] respondent produced Ext.B1 copy of the insurance policy. 6. The Tribunal, after analysing the pleadings and materials on record, by the impugned award allowed the claim petition in part, by directing the 3[rd] respondent to pay an amount of Rs.86,900/- with interest @ 7% per annum from the date of filing of the claim petition till the date of realization and Rs.2,000/- as costs. 7. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioner is in appeal. 8. Heard, the learned counsel appearing for the appellant/petitioner and the learned counsel appearing for the 3[rd] respondent. 9. The sole question that emerges for **MACA NO. 954 OF 2009 5** consideration in this appeal is whether the quantum of compensation awarded by the Tribunal is reasonable and just. 10. 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 equitability on acceptable legal standards. The conception of 'just compensation' has to be viewed through the prism of fairness, reasonableness and nonviolation of the principle of equitability. 11. Exts.A1 to A10 documents substantiate that the accident occurred solely due to the negligence on the part of the 2[nd] respondent in driving the bus. **MACA NO. 954 OF 2009 6** Undisputedly, the bus belonged to the 2[nd] respondent and was insured with the 3[rd] respondent. Therefore, the 3[rd] respondent is liable to indemnify the 2[nd] respondent for the loss sustained due to the accident by paying the compensation amount. 12. The appellant had claimed that he was a Cook by profession. He claimed that he was earning a monthly income of Rs.6,000/-. It is the fact that the appellant had not produced any documents to substantiate his income and avocation. The Tribunal fixed the notional income of the appellant at Rs.2,500/-. ## **Notional Income** 13. The Hon'ble Supreme Court in _**Ramachandrappa vs. Manager, Royal Sundaram Alliance Insurance Company Ltd., (2011 (13) SCC 236)** and in_ _**Syed Sadiq and Others vs.Divisional Manager,**_ **MACA NO. 954 OF 2009 7** _**United India Insurance Company 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 2006 at Rs.6.500/- per month, respectively. 14. Following the parameters laid down in the aforesaid decisions and considering the fact that the appellant was only 32 years at the time of accident and was a Cook by profession, and that the accident occurred in the year 2002, I am of the considered opinion that the appellant's notional income can safely be fixed at Rs.4,000/- per month. Hence, I fix the notional income of the appellant at Rs.4,000/- per month. ## **Compensation for permanent disability** 15. The appellant had produced Ext.A11 certificate which was proved through PW1. PW1 had testified that ## **MACA NO. 954 OF 2009 8** the appellant has a permanent disability of 10% due to the amputation of his two toes and malunited fracture of the 1[st] and 3[rd] toes, and the appellant had stiffness of 3[rd] and 4[th] toes with no movement. However, the Tribunal, without giving any reason, arrived at a conclusion that the appellant has only a disability of 8%. 16. The Hon'ble Supreme Court in _**Union of India and another v. Talwinder Singh (2012 (5) SCC 480)**_ has held that Courts should not ordinarily interfere with the opinion of experts. It would be always safe for the courts to take the decision of the experts, who are familiar with the problems than the courts to give general opinion. 17. In the case on hand, the expert (PW1) who has issued Ext.A11 has categorically found that the appellant has a disability of 10%. The Tribunal without any reason **MACA NO. 954 OF 2009 9** has reduced the disability to 8%, which according to me, is erroneous and wrong. Therefore, I fix the disability of the appellant at 10%. ## : **Loss of earnings** 18. Going by Ext.A11, it is seen that the appellant had undergone amputation of his two toes and also had a malunited fracture of his 1[st] and 3[rd] toes. Therefore, it can be concluded that the appellant had stay away from work for a period of three months. Thus, he had loss of earnings for a period of three months. In view of the refixation of the notional income , I hold that the appellant is entitled for compensation under the head loss of earnings at Rs.12,000/-. ## **Transportation expenses** 19 **.** The appellant had claimed that he had incurred Rs.3,000/- for his transportation expense. He had **MACA NO. 954 OF 2009 10** produced Ext.A10 receipt to prove the ambulance charges. Nevertheless, the Tribunal awarded only Rs.1,200/- towards the said expense, which also is wrong. Hence, I refix the transportation expenses at Rs.3,000/-. ## **Bystander expenses** 20. Undisputedly, the appellant was treated in the hospital for a period from 5.11.2002 to 6.12.2002, i.e for a period of 31 days. However, the Tribunal has only awarded a meager amount of Rs.2,000/-. Taking into account that the appellant was treated as an inpatient for 31 days, I hold that the appellant is entitled for bystander expenses at Rs.200/- per day for the period of 31 days. Hence, I refix the bystander expenses at Rs.6,200/- per month. 21. With respect to the other heads of claim, namely; pain and sufferings, clothing, medical expenses, ## **MACA NO. 954 OF 2009 11** extra nourishment and loss of amenities, I find that the Tribunal has awarded reasonable and just compensation. 22. On an over all re-appreciation of the pleadings and materials on record, the law laid down in the aforesaid decisions, I am of the firm opinion that the appellant is entitled for enhancement of compensation as modified and recalculated above and given in the table below for easy reference. |Head of claim|Amount Awarded by the Tribunal (in Rs.)|Amounts modified and recalculated by this Court| |---|---|---| |Loss of earnings|5,000/-|12,000/-| |Transportation expenses|1,200/-|3,000/-| |Damages to|5,00/-|5,00/-| |**MACA NO. 954 OF 2009** clothing Bystander expenses Extra nourishment Medical expenses Pain and sufferings Loss of amenities Loss due to disability Total|**MACA NO. 954 OF 2009** clothing Bystander expenses Extra nourishment Medical expenses Pain and sufferings Loss of amenities Loss due to disability Total|**12**|| |---|---|---|---| ||clothing||| ||Bystander expenses|2,000/-|6,200/-| ||Extra nourishment|5,00/-|5,00/-| ||Medical expenses|14,900/-|14,900/-| ||Pain and sufferings|12,000/-|12,000/-| ||Loss of amenities|10,000/-|10,000/-| ||Loss due to disability|40,800/-|76,800/-| ||Total|86,900/-|1,35,900/-| In the result, the appeal is allowed, by modifying the order of the Tribunal and enhancing the compensation by a further amount of Rs.49,000/- with interest at the rate **MACA NO. 954 OF 2009 13** of Rs.7% per annum on the compensation from the date of petition till the date of realisation with proportionate costs. The 3[rd] respondent shall deposit the additional compensation amount awarded in the 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 this judgment. The Tribunal shall disburse the compensation to the appellant/petitioner in accordance with law. Sd/- **C.S.DIAS, JUDGE** pm