Vinod P.B. vs Sunny Sebastian and The New India Insurance Co. Ltd.

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: C. S. Dias
Judgment Date: 2021-08-02
Court Decision / Holding: The appeal is allowed in part; enhanced compensation by Rs.18,400; 7% interest per annum from date of petition till deposit; deduction of 114 days delay; deposit enhanced amount within 60 days; Tribunal to disburse the enhanced sum; all pending interlocutory applications closed.
Final Disposition: Partly allowed; enhanced compensation; costs and interest; deposit within 60 days; Tribunal to disburse the enhanced amount.

Parties to the Case

Appellants / Petitioners

Vinod P.B., S/o. Bhaskar ( appellant )

Respondents

Sunny Sebastian
The New India Insurance Co. Ltd.

Legal Representation & Advocates

Counsels for Petitioners

• Sri. Sheji P. Abraham

Counsels for Respondents

• Sri. N. S. Mohammed Usman

Case Synopsis & Summary

Vinod P.B., a headload worker, filed MACA 2718/2009 challenging the MACT Ottapalam award arising from OP(MV) No.263/2006 for an accident on 14.07.2005 when his motorcycle KL-8 U-3594 was hit by a Tata Sumo KL-8 AD 1400 driven rashly by the first respondent. The vehicle was insured with the second respondent. The Tribunal awarded Rs.35,060 with interest and costs against the insurer, part of the petition. The appellant contends that the Tribunal erred in notional income and hence the compensation; relying on Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Co. Ltd., he argues for Rs.4,500 per month as notional income for a coolie worker in 2005. The insurer contends the amount claimed was excessive and that the accident occurred due to the appellant’s own negligence. The High Court, after considering the notional income and the 2005 date of accident, re-fixes the notional income at Rs.4,500 per month and recalculates figures: loss of earnings Rs.9,000; loss due to disability Rs.18,360; and an additional Rs.10,000 for loss of amenities and pain/suffering. The appeal is allowed in part, enhancing compensation by Rs.18,400 with 7% interest from the petition date, deducting 114 days delay, and costs. The insurer is to deposit the enhanced amount within 60 days; the Tribunal shall disburse in accordance with law. All pending interlocutory applications are closed.

Provisions of Law Cited

Motor Vehicles Act, 1988

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellant contends that his actual income as a headload worker was Rs.4,500 per month and the Tribunal erred in fixing a lower notional income of Rs.3,000 per month, resulting in reduced compensation. He places reliance on Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Co. Ltd. for determining notional income and for recalculating heads such as loss of earnings, disability and loss of amenities/pain and suffering. He seeks enhancement of compensation on these grounds, arguing that the accident occurred in 2005 and warrants higher notional income and corresponding damages.

Contentions of Respondents

The insurer contends the claim is excessive and disputes the quantum. It also notes the accident’s causation is disputed, arguing negligence by the appellant or other factors; it emphasizes the Tribunal’s evaluation should be respected unless demonstrated errors; and it seeks dismissal or limited enhancement, arguing that the insured’s liability should be capped and the heads recalculated within reasonable bounds.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited	[(2011) 13 SCC 236]	Positive	Cited and applied to fix the notional income of Rs.4,500 per month for a coolie worker for the relevant period, leading to recalculation of earnings and related heads.

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** **MONDAY, THE 2[ND] DAY OF AUGUST 2021 / 11TH SRAVANA, 1943** **MACA NO. 2718 OF 2009** **AGAINST THE AWARD DATED 06.04.2009 IN OP(MV) NO.263/2006 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, OTTAPPALAM, PALAKKAD** ## **APPELLANT/PETITIONER:** **VINOD P.B., S/O. BHASKARAN, PARAKKAL HOUSE, MULLURKKARA P.O., VAZHAKODE DESOM, VALAVU-680 583, VADAKKANCHERRY.** **BY ADV SRI.SHEJI P.ABRAHAM** ## **RESPONDENTS/RESPONDENTS:** **1 SUNNY SEBASTIAN, S/O. SEBASTIAN, PURAYAMKUZHIYIL HOUSE, CROSS VALLY ESTATE, PANJAL P.O., CHEWRUTHURUTHY, THRISSUR.** - **2 THE NEW INDIA INSURANCE CO. LTD. KOLLANNUR DEVASSY SMARAK BLDG., PALACE ROAD, THRISSUR.** **BY ADV SRI.N.S.MOHAMMED USMAN** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 02.08.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** M.A.C.A.No.2718/2009 -:2:- Dated this the 2[nd] day of August, 2021 ## **J U D G M E N T** The appellant was the petitioner in O.P (MV) No.263/2006 on the file of the Motor Accidents Claims Tribunal,Ottapalam. The respondents in the appeal were the respondents before the Tribunal. 2. The facts in brief, relevant for the determination of the appeal, are: on 14.07.2005, while the appellant was riding his motorcycle bearing registration No. KL-8 U-3594 from Vadakkancherry to Mullurkkara, a Tata Sumo vehicle bearing registration No. KL-8 AD 1400, driven by the first respondent in a rash and negligent manner, hit the motorcycle. The first respondent was also the owner of the vehicle. The vehicle was insured with the second respondent. The appellant was a headload worker by profession and earning a monthly income of Rs.4,500/-. The appellant sustained fractures and was treated as an inpatient for M.A.C.A.No.2718/2009 -:3:- a period of five days. The appellant suffered a permanent disability. Hence, the appellant claimed a total compensation of Rs.2,40,750/- from the respondents, which was limited to Rs.1,50,000/-. 3. The first respondent though contested the proceedings, did not file any written statement. 4. The second respondent filed a written statement refuting the allegations in the claim petition. The second respondent contended that the accident occurred on account of the negligence of the appellant. It was also stated that the amount of compensation claimed was excessive. 5. The appellant was examined as PW1 and Exts.A1 to A9 were marked in evidence. The respondents produced and marked Exts.B1 to B3 in evidence. 6. The Tribunal, after analysing the pleadings and materials on record, allowed the claim petition in part by permitting the appellant to realise an amount M.A.C.A.No.2718/2009 -:4:- of Rs.35,060/- with interest and costs from the second respondent. 7. Dissatisfied with the quantum of compensation awarded by the Tribunal, the appellant/petitioner is in appeal. 8. Heard the learned counsel appearing for the appellant/petitioner and the learned counsel appearing for the second respondent-insurance company. 9. The sole question that emerges for consideration in the appeal is whether the quantum of compensation awarded by the Tribunal is reasonable and just. 10. Ext.A5 charge-sheet filed by the police substantiates that the accident occurred on account of the negligence of the first respondent. Undisputably, the second respondent was the insurer of the vehicle and therefore, the second respondent is liable to indemnify the liability of the first respondent. 11. The appellant had contended that he was a M.A.C.A.No.2718/2009 -:5:- headload workers by profession and earning a monthly income of Rs.4,500/- per month. The Tribunal fixed the notional income of the appellant at Rs.3,000/- per month. 12. In _**Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited**_ [(2011) 13 SCC 236], the Hon'ble Supreme Court has fixed the notional income of a coolie worker in the year 2004, at Rs.4,500/- per month. ## **Notional income:** 13. Following the parameters in the afore-cited decision and considering the fact that the accident was occurred in 2005, I am of the considered opinion that the appellant's notional income has to be re-fixed at Rs.4,500/- per month as claimed in the claim petition. ## **Loss of earnings:** 14. It is proved that the appellant was indisposed for a period of two months. The Tribunal, on the basis of the notional income fixed, awarded the appellant an M.A.C.A.No.2718/2009 -:6:- amount of Rs.6,000/- as 'loss of earnings'. In view of the re-fixation of the notional income of the appellant at Rs.4,500/- per month, I re-fix the 'loss of earnings' of the appellant at Rs.9,000/- i.e., an enhancement by Rs.3,000/-. ## **Loss due to disability:** 15. The Tribunal had fixed the permanent disability of the appellant at 2%. In view of the re-fixation of the notional income of the appellant at Rs.4,500/- per month and taking note of the fact that the appellant was 26 years at the time of accident and the relevant multiplier being '17', I re-fix the compensation for 'loss due to disability' at Rs.18,360/instead of Rs.12,960/- awarded by the Tribunal i.e., an enhancement by Rs.5,400/-. ## **Loss of amenities:** 16. Taking note of the fact that the appellant had sustained fractures and was indisposed for a period of two months and suffered 2% permanent disability, I M.A.C.A.No.2718/2009 -:7:- hold that the appellant is entitled for compensation under the head 'loss of amenities' and 'pain and sufferings' by a further amount of Rs.10,000/- . 17. With respect to the other heads of compensation, I find that the Tribunal has awarded reasonable and just compensation. 18. On an overall re-appreciation of the pleadings and materials on record and the law referred to in the afore-cited decisions, I am of the firm opinion that the appellant/petitioner is entitled for enhancement of compensation as modified and re-calculated above i.e., an enhancement by a further amount of Rs.18,400/i.e., Rs.3,000/- towards 'loss of earnings', Rs.5,400/towards the 'loss due to disability' and Rs.10,000/towards 'loss of amenities' and 'pain and sufferings'. In the result, the appeal is allowed in part by enhancing the compensation by a further amount of Rs.18,400/- with interest at the rate of 7% per annum from the date of petition till the date of deposit, after M.A.C.A.No.2718/2009 -:8:- deducting the period of 114 days i.e., the period of delay in filing the appeal and as ordered by this Court on 02.07.2021 in C.M.Appln. No.3205/2009, and proportionate costs. The second respondent is directed to deposit the enhanced compensation within a period of sixty days from the date of receipt of a certified copy of this judgment. The Tribunal shall disburse the enhanced compensation to the appellant/petitioner in accordance with law. All pending interlocutory applications will stand closed. Sd/- ## **C.S.DIAS,JUDGE** DST //True copy/ P.A.To Judge