Vinod v. Rajesh, Sumesh and United India Insurance Co. Ltd.

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: Viju Abraham
Judgment Date: 2021-11-27
Court Decision / Holding: Appeal partly allowed; the Tribunal’s award was enhanced by recalculating heads of compensation, resulting in Rs 7,43,050 payable with interest at 8% per annum from the date of petition until realisation and costs. The insurer is directed to deposit the enhanced amount within two months from receipt of a certified copy of the judgment, and the Tribunal shall disburse the enhanced compensation accordingly.
Final Disposition: Appeal partly allowed; enhanced compensation with directions for deposit and disbursement.

Parties to the Case

Appellants / Petitioners

Vinod

Respondents

Rajesh, S/o Vijayan
Sumesh, S/o Sudheesh
United India Insurance Co. Ltd.

Legal Representation & Advocates

Counsels for Petitioners

• Jeena Joseph
• G. Damodara Panicker
• K. V. Ramarajan

Counsels for Respondents

• Smt. Preethy R. Nair

Case Synopsis & Summary

Vinod, a 38-year-old cable TV operator, sustained severe injuries in a motor accident on 04.11.2016 when his motorcycle KL-47-B-346 was hit by car KL-47-E-9594 driven rashly by the 2nd respondent on the Kothaparambu-Kara public road near Edavilangu. He was treated at OK Hospital Kodungallur and then Medical Trust Hospital, Ernakulam, with a 23-day inpatient stay. The injuries included a crush injury to the right foot and near amputation of the right great toe, resulting in substantial impact on earning capacity. Vinod claimed Rs.15,00,000 from the owner, driver, and insurer. The Tribunal, ex parte against the owner, held the accident occurred due to the 2nd respondent’s negligence and awarded Rs.6,31,450 with 8% interest and costs. Vinod challenged the quantum, arguing the notional income fixed by the Tribunal (Rs.12,000/month) underestimates his actual earnings and the extent of loss during disability. The appellant contends for higher compensation reflecting his subsistence, loss of earnings for a longer period, and greater disability. The High Court, relying on Ramachandrappa for notional income and Sarla Verma for the multiplier, enhanced the notional income to Rs.15,000/month and recalculated losses, resulting in a total compensation of Rs.7,43,050 with 8% interest and costs, directing deposit within two months and subsequent disbursement by the Tribunal. The appeal was allowed in part.

Legal Doctrines & Maxims

Notional income principle (Ramachandrappa)
Multiplier principle (Sarla Verma)

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellant contends that the Tribunal erred in fixing the notional income at Rs.12,000 per month and that his actual earnings and the severity of injuries warrant higher compensation. He seeks enhancement of notional income to Rs.15,000 per month and additional compensation for loss of earnings for about six months, along with higher disability compensation and inclusion of medical expenses.

Contentions of Respondents

The respondents contend that the Tribunal’s assessment was correct, the owner being ex parte, the insurer admitting policy, and the award reasonably calculated across the heads, including medical expenses; they contend the liability and computation were properly determined.

Cited Precedents (3)

Case Name	Citation	Treatment	Explanation
New India Assurance Company Ltd vs. Pazhani Ammal	2011 (3) KLT 648	Positive	Court relied on this decision to conclude that the accident was solely due to the negligence of the 2nd respondent.
Ramachandrappa vs. Manager, Royal Sundaram Alliance Insurance Company Ltd	(2011) 13 SCC 236	Positive	Notional income principle used to set a baseline for earnings and adjust based on circumstances; guided increase to Rs.15,000.
Sarla Verma vs. Delhi Transport Corporation	(2010 (2) KLT 802)	Positive	Multiplier of 16 adopted for computing disability compensation in view of the decision.

Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE VIJU ABRAHAM** **SATURDAY, THE 27[TH] DAY OF NOVEMBER 2021 / 6TH AGRAHAYANA, 1943** **MACA NO. 2760 OF 2020** **AGAINST THE AWARD DATED 15.7.2020 IN OP(MV)NO.395/2017 OF THE COURT OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL,IRINJALAKUDA APPELLANT/PETITIONER:** VINOD,AGED 38 YEARS, S/O VIJAYAN, KAKKARA HOUSE, CHATHEDATHPARAMBU DESOM, P O KODUNGALLUR, THRISSUR DISTRICT-680665. BY ADVS. JEENA JOSEPH SRI.G.DAMODARA PANICKER SHRI.K.V.RAMARAJAN ## **RESPONDENTS/RESPONDENTS:** 1 RAJESH, S/O VIJAYAN, THEKKOOTTU HOUSE, LOKAMALLESWARAM, KODUNGALLUR, THRISSUR DISTRCIT-680664,(OWNER ) 2 SUMESH, S/O SUDHEESH, PANAPPARAMBIL HOUSE, P O EDAVILANGU, PODIYAM, BAZAR, THRISSUR DISTRICT-680671. 3 UNITED INDIA INSURANCE CO.LTD KURUPPAM ROAD, THRISSUR-680671,(INSURER), REPRESENTED BY ITS MANAGER. BY ADV SMT.PREETHY R. NAIR THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 27.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **MACA NO. 2760 OF 2020 2** ## **JUDGMENT** The appellant is the petitioner in OP(MV) No. 395 of 2017 on the file of the Motor Accidents Claims Tribunal, Irinjalakuda. The respondents are the respondents before the Tribunal. 2. The short facts relevant for the determination of this appeal are as follows: On 04.11.2016 at about 7:30 pm, the appellant was riding motorcycle bearing Reg. No.KL-47-B-346 through Kothaparambu-Kara public road from west to east direction and when the appellant reached at Edavilangu, a car bearing Reg. No. KL-47-E9594 driven by the 2nd respondent came in a rash and negligent manner from the opposite direction and hit on the appellant’s motorcycle and he sustained injuries in the accident. The appellant was immediately taken to OK Hospital Kodungallur and from there he was referred to Medical Trust Hospital, Ernakulam and he was treated as an inpatient for 23 days. The injuries sustained to the appellant are crush injury on the right foot with deep wound extending over 1st web space to the dorsum and plantar aspect, right great toe near total amputation with attachment over the medial aspect, right 2nd toe tip **MACA NO. 2760 OF 2020 3** amputation. The appellant was aged 35 years at the time of the accident and was a cable network operator earning Rs.20,000/- per month. The 1st respondent is the owner and the 2nd respondent is the driver of the car. The car bearing Reg. No. KL-47-E-9594 was insured with the 3rd respondent. The appellant had claimed a total compensation of Rs.15,00,000/- from the respondents. 3. The 1[st] respondent, who is the owner of the offending vehicle did not contest the matter before the Tribunal and was set ex parte. The 2nd respondent filed a written statement denying the negligence attributed against him. The 3rd respondent insurance company filed a written statement, admitting the insurance policy of the offending vehicle at the relevant time of the accident. 4. The appellant to prove his case produced and marked Exts.A1 to A11 before the Tribunal. 5. The Tribunal after analysing the pleadings and materials on record, by the impugned award allowed the claim petition in part, permitting the appellant to realise an amount of Rs.6,31,450/- with 8% interest per annum with proportionate costs from the date of petition **MACA NO. 2760 OF 2020 4** till the date of realisation. The 3rd respondent was directed to satisfy the award. 6. Dissatisfied with the quantum of compensation awarded by the Tribunal, the present appeal is filed. 7. Heard, Smt. Jeena Joseph, the learned counsel appearing for the appellant and also Smt.Preethy R Nair, the learned Standing Counsel appearing for the 3rd respondent Insurance Company. 8. The sole question that arises for consideration is whether the quantum of compensation awarded by the Tribunal is reasonable and just. 9. Ext.A1 is a copy of the FIR in Crime No.2350/2016 of Kodungallur Police Station registered against the 2nd respondent herein and Ext.A2 is the final report in the above said crime. The Tribunal taking into consideration Ext.A1 and A2 and also as per the decision of this Court in _**New India Assurance Company Ltd vs. Pazhani Ammal, 2011 (3) KLT 648**_ , held that the accident was solely on account of the negligence on the part of the 2nd respondent, who was riding the offending car bearing Reg. No. KL-47-E-9594. ## **MACA NO. 2760 OF 2020 5** 10. Admittedly, the 1st respondent is the owner and the 3rd respondent is the insurer of the offending vehicle. Therefore, the 3rd respondent is bound to indemnify the liability of the 1st respondent. 11. The appellant claimed that he is a Cable network operator, aged 35 and was having a monthly income of Rs.20,000/- at the time of the accident. The Tribunal fixed the notional income of the appellant at Rs.12,000/- and the appellant claimed that the Tribunal went wrong in fixing Rs.12,000/- as notional income. The Tribunal has found that the appellant has produced Exhibit A11 registration certificate issued by Postal and Telegram Department, Irinjalakkkuda to prove that the appellant is a cable TV operator. 12. I feel the notional income fixed by the Tribunal cannot be accepted in as much as even in the case of Coolie worker the Apex Court in _**Ramachandrappa vs. Manager, Royal Sundaram Alliance Insurance Company Ltd [(2011) 13 SCC 236]**_ has fixed the notional income at Rs.4,500/- per month in the year 2004. Even going by the dictum laid down by the aforesaid decision, a notional income for even a coolie worker will be Rs. 10,500/-. Taking **MACA NO. 2760 OF 2020 6** into consideration the fact that the appellant was running his own establishment of cable TV operation, I deem it appropriate to fix the notional income of the appellant at Rs. 15,000 per month. 13. Under the head Loss of Earnings a total amount of Rs.1,20,000/- was claimed and an amount of Rs.36000/-(12000 x 3) was allowed by the Tribunal on finding that there is loss of income for 3 months and by fixing the notional income per month at Rs.12,000/-. The appellant contended that due to the severe nature of the injury he could not conduct his business for almost one year. It has come out in evidence that the appellant was under treatment as an inpatient for 23 days and a perusal of Exhibit A8 Disability Certificate shows that there is amputation of toes and crush injury on the right foot with a deep wound. Taking all these aspects into consideration, I am of the view the appellant could not conduct his business for at least 6 months. So taking into consideration loss of income for 6 months and due to enhancement of notional income at Rs.15,000/-, the amount due to the appellant under the head of loss of earnings is fixed at Rs.90,000/(15000 x 6) instead of Rs.36,000/- awarded by the Tribunal. ## **MACA NO. 2760 OF 2020 7** 14. Even though the appellant had claimed Rs.3,00,000/- as compensation for permanent disability, the Tribunal granted only Rs.2,30,400/- under this head. Based on Exhibit A8 Disability Certificate dated 23.12.2019, the Tribunal fixed functional disability at 10%. Considering the age of the appellant, which was 35 at the time of the accident and in view of the judgment in _**Sarla Verma vs. Delhi Transport Corporation [(2010 (2) KLT 802]**_ the Tribunal has correctly adopted the proper multiplier of 16. Since notional income has been increased by this Court from Rs.12000/- to 15,000/-, the appellant is entitled to a total amount of Rs.2,88,000/- (Rs. 15,000 x 12 x 16 x 10/100) as compensation for permanent disability instead of Rs.2,30,400/-(12000 x 12 x 16 x 10/100) fixed by the Tribunal. 15. With respect to compensation awarded under various other heads, I find that the Tribunal has awarded reasonable and just compensation. 16. On an overall re-appreciation of the pleadings and materials on record and the law laid down in the decisions cited _**supra**_ , I am of the firm opinion that the appellant is entitled for the enhancement of **MACA NO. 2760 OF 2020 8** compensation as modified and recalculated above and as given in the table below for easy reference. |||**Amounts** **modified** **and** **recalculate** **d by this** **Court** **(Rs.)**|**Actual** **increase as** **per the** **recalculati** **on by this** **Court** **(Rs.)**| |---|---|---|---| ||**Amount** **awarded by** **the Tribunal** **(Rs.)**||| |**Head of Claim**|||| ||||| ||||| |Loss of earning|36000/-|90000/-|54000/-| |Transportation expenses|||| ||5000/-|5000/--|-------| ||||| |Extra nourishment|3000/-|3000/-|……| |Damage to clothing|2000/-|2000/-|-------| |Bystander expenses|7800/-|7800/-|-------| |Medical expenses|147218/-|147218|-------| |Pain and suffering|100000/-|100000/-|-------| |Permanent Disability Loss of earning power Loss of amenities|2,30,400/- —----- 1,00,000|2,88,000/- —--- 1,00,000|57,600/- —--- —----| ||Rs. 631418 /- (Rounded off to Rs. 631450/-)||| |**Total**||Rs.743050/-|Rs.1,11,600/-| In the result, the appeal is allowed in part, by modifying the order of the Tribunal and enhancing the compensation by a further **MACA NO. 2760 OF 2020 9** amount of Rs.1,11,600/- with interest at the rate of 8 % per annum on the compensation from the date of petition till the date of realisation with proportionate costs. The 3rd respondent shall deposit the additional compensation amount awarded in the appeal before the Tribunal with interest and 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 the law. Sd/- ## **VIJU ABRAHAM JUDGE** pm