High Court of KeralaSingle Judge2024-06-28Appeal allowed in part; enhanced compensation o...

Viswanathan Pillai v. Sankar Kailas, Radha Gopi and The New India Assurance Co. Ltd.

Case / Petition Number:MACA NO. 4602 OF 2019

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: SHOBA ANNAMMA EAPEN
Judgment Date: 2024-06-28
Court Decision / Holding: Appeal partly allowed; claimant awarded an additional ₹3,43,820 over the Tribunal’s award, with interest at 7.5% per annum from the date of petition till realization and proportionate costs. The insurer is directed to deposit the enhanced amount within two months of receipt of a certified copy of the judgment, and the claimant must furnish PAN, Aadhaar, and bank details within one month to facilitate payment; failure to provide details permits deposit before the Tribunal. Upon deposit, the entire amount shall be disbursed to the appellant in accordance with law.
Final Disposition: Appeal allowed in part; enhanced compensation of ₹3,43,820 over the Tribunal award; interest at 7.5% p.a. from petition date; costs; insurer to deposit within two months and provide PAN/Aadhaar/bank details for disbursement.

Parties to the Case

Appellants / Petitioners

Viswanathan Pillai

Respondents

Sankar Kailas
Radha Gopi
The New India Assurance Co. Ltd.

Legal Representation & Advocates

Counsels for Petitioners

• George Varghese (Perumpally Kuttiyil)
• A.R. Dileep
• P.J. Joe Paul
• Rajan G. George

Counsels for Respondents

• N.M. Irshad Moopchan

Case Synopsis & Summary

Viswanathan Pillai, the claimant, appeals MACA 4602/2019 from the Motor Accidents Claims Tribunal, Mavelikkara, challenging an award of ₹10,83,500 with 7.5% interest. On 28 December 2014, the appellant was injured when his motorcycle KL-31D-6383 collided with another vehicle driven rashly by respondent no.1 on the Kayamkulam–Punalur Public Road. He claimed ₹21,11,000 in total compensation, capped at ₹20,00,000. The insurer admitted policy but contested quantum; the Tribunal’s Exts A1–A17 and X1 (disability certificate) were relied on by the claimant. The Tribunal awarded compensation under multiple heads and dismissed further enhancement. The appellant challenges the quantum before the High Court, arguing for higher notional income, loss of earnings, bystander expenses, pain and suffering, disability income and deformity. He relies on Ext.A14 (driving license) and Ramachandrappa to contend for ₹12,000/month notional income, arguing he is a skilled laborer and driver of the State carriage. The Court re-fixes the notional income at ₹12,000/month, increases loss of earnings, enhances bystander expenses to ₹300/day for 50 days, and awards ₹25,000 for pain and suffering and ₹10,000 for deformity. The MB certificate fixing 54% disability is accepted, following Manikantan G. and Raj Kumar, resulting in a recalculated disability income of ₹5,44,320 and an additional ₹2,92,320. Overall compensation becomes ₹14,27,320, with interest and costs. The appeal is allowed in part, directing the insurer to deposit the enhanced amount within two months and to furnish PAN/Aadhaar and bank details for disbursement.

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellant contends that notional income should be higher (₹12,000 per month) on the basis of Ext.A14 showing a heavy vehicle driving license and the appellant’s status as a skilled driver for the State Transport/State carriage. Citing Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Co. Ltd. (2011) 13 SCC 236, he argues that the notional income ought to be ₹9,500, and in view of his skills and role, ₹12,000 per month is just and reasonable. He seeks enhancement of loss of earnings, bystander expenses (₹300/day for ~50 days of hospitalization), and higher awards for pain and suffering, deformity, and disability income, backed by the MB certificate showing 54% disability, and by reliance on Manikantan G. v. K. Janardhanan Nair (2021) and Raj Kumar v. Ajay Kumar (2011) to validate the MB certificate’s primacy. He requests recalculation of damages across all heads to reflect actual injuries and earning capacity, as detailed in the petition and Ext.X1/X5/X14.

Contentions of Respondents

The insurer contends that the Tribunal’s award was just and based on material on record; no compelling justification is shown to depart from the Tribunal’s findings on income, expenses, and disability. It argues for maintaining the Tribunal’s quantum and resulting discharge of liability in accordance with policy terms, and challenges any substantial enhancement of bystander expenses and pain-and-suffering awards, stressing that the MB certificate’s findings should be treated with care but not overruled without conclusive evidence. It relies on standard practice in MACT appeals to avoid speculative enhancement and emphasizes adherence to the Tribunal’s appraisal of evidence, keeping the award within reasonable bounds.

Cited Precedents (3)

Case Name	Citation	Treatment	Explanation
Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Co. Ltd.	2011 (13) SCC 236	Positive	Cited to support the proposition that notional income may be adjusted based on the claimant’s occupation and qualification, guiding the court’s decision to fix ₹12,000/month.
Manikantan G. v. K. Janardhanan Nair	2021 (5) KHC 305	Positive	Cited for acceptance that the Medical Board certificate must be considered and followed where there is no compelling reason to disbelieve it.
Raj Kumar v. Ajay Kumar	2011 (1) KLT 620	Positive	Cited to justify referring the claimant to another Medical Board if there was doubt about the MB report; supports relying on MB certificate.

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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 SHOBA ANNAMMA EAPEN`** ## **`FRIDAY, THE 28[TH] DAY OF JUNE 2024 / 7TH ASHADHA, 1946`** ## **`MACA NO. 4602 OF 2019`** ``` AGAINST THE AWARD DATED 14.05.2019 IN OPMV NO.830 OF 2015 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, MAVELIKKARA APPELLANT/PETITIONER: ``` ``` VISWANATHAN PILLAI AGED 66 YEARS VINU VIHAR, KOMALLOOR P.O., CHARUMMOODU. BY ADVS. GEORGE VARGHESE(PERUMPALLY KUTTIYIL) A.R.DILEEP P.J.JOE PAUL RAJAN G. GEORGE ``` ## **`RESPONDENTS/RESPONDENTS:`** |**`1`**|**`SANKAR KAILAS`**| |---|---| ||**`AMBIYIL HOUSE, KANNANAKUZHY P.O.,`**| ||**`CHARUMMOODU-690 505.`**| |**`2`**|**`RADHA GOPI,`**| ||**`AMBIYIL HOUSE, KANNANAKUZHY P.O.,`**| ||**`MAVELIKKARA, CHARUMMOODU-690 505.`**| |**`3`**|**`THE NEW INDIA ASSURANCE CO.LTD.,`**| ||**`REPRESENTED BY ITS DIVISIONAL MANAGER,`**| ||**`DIVISIONAL OFFICE, KHAISE BUILDING,`**| ||**`BEACH ROAD, KOLLAM-691 001.`**| ||**`BY ADV SRI.N.M.IRSHAD MOOPPAN`**| ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 28.06.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA NO. 4602 OF 2019 ``` ``` 2 ``` ## **JUDGMENT** ## **Dated this the 28[th] day of June, 2024** This appeal has been filed by the claimant in OP(MV) No.830 of 2015 on the file of the Motor Accidents Claims Tribunal, Mavelikkara. The respondents herein are the respondents before the Tribunal. 2. According to the appellant, on 28.12.2014, at about 6.45 p.m, while he was riding his motorcycle bearing registration No.KL-31D-6383 along the Kayamkulam – Punalur Public Road, another motorcycle bearing registration No.KL-31G-3966 driven by the first respondent in a rash and negligent manner hit the motorcycle of the appellant and thereby he sustained serious injuries. The appellant approached the Tribunal claiming a total compensation of ₹21,11,000/-, which is limited to ₹20,00,000/-. 3. The respondent-insurer filed a written statement, admitting the insurance policy, but disputing the quantum of compensation claimed. Before the Tribunal, no oral or documentary evidence was adduced by the respondent-insurer. Exts.A1 to A17 documents were marked on the side of the appellant. Ext.X1 was marked as the disability certificate. The ``` MACA NO. 4602 OF 2019 ``` ``` 3 ``` Tribunal, after analysing the pleadings and materials on record, awarded a sum of ₹10,83,500/- as compensation under different heads with interest @ 7.5 % per annum from the date of petition, till realization, against the respondent being the insurer. Dissatisfied with the quantum of compensation awarded by the Tribunal, the claimant has come up in appeal. 4. Heard the learned counsel for the appellant and the learned Standing Counsel for the respondent insurer. 5. The learned counsel for the appellant claims enhancement mainly under the following heads:- ## **I. Notional income** Though, the appellant claimed an amount of ₹20,000 per month towards the notional income, the Tribunal had awarded only an amount of ₹10,000/-. The learned Counsel for the appellant submitted that Ext.A14 copy of the driving licence, clearly shows that he had a driving licence for driving heavy goods motor vehicle, heavy passenger motor vehicle and other vehicles. Going by the judgment in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Co. Ltd. [2011 (13) SCC 236],** the monthly income ought to have been ``` MACA NO. 4602 OF 2019 ``` ``` 4 ``` taken at ₹9,500/-. But considering the fact that he was a skilled labourer as well as driver of the State carriage, he cannot be put under the category of a coolie. Hence, I find that an amount of ₹12,000/- would be just and reasonable under the said head. Accordingly, I re-fix the notional income at **₹12,000/-** (Rupees Twelve Thousand Only) per month. ## **II. Loss of earnings** Since the notional income has been re-fixed at ₹12,000/-, there will be an enhancement under the head of loss of earnings also. The Tribunal had granted ₹72,000/- for 6 months. Thus, there will be an additional enhancement of ₹ **12,000/-** (Rupees Twelve Thousand Only) towards the head loss of earnings. ## **III. Bystander Expenses** The next head under which the appellant sought enhancement is under the head of bystander expenses. The learned counsel for the appellant submits that though the accident was in the year 2014 and he had to undergo in-patient treatment for 50 days, the Tribunal had taken only ₹210/- per day as bystander expenses and that is very low. ``` MACA NO. 4602 OF 2019 ``` ``` 5 ``` Considering the injuries sustained as well as hospitalization of the appellant, I am of the opinion that the bystander expenses be enhanced to ₹300/- per day. Thus, the total compensation under the afore head comes to ₹15,000/(300 x 50 days). Accordingly, there will be an additional amount of **₹4,500/-** (Rupees Four Thousand Five Hundred Only) under this head. ## **IV. Pain and Sufering/Compensation for disfguration** Though an amount of ₹1,00,000/- was claimed by the appellant under the said head, the Tribunal had granted only an amount of ₹75,000/-. Following are the injuries sustained by the appellant as per Ext.A5 wound certificate:-  The sutured wound 7 cm long over the left forehead extending to the medial aspect of right eye - Swelling of both eyelids - Lacerated wound 2 x 0.5 cm over left 2[nd] inter digital space - Multiple abrasions over extremity. ``` MACA NO. 4602 OF 2019 ``` ``` 6 ``` Considering the injuries sustained by the appellant, I feel that a total enhancement of ₹50,000/- would be just and reasonable under the head of pain and suffering/compensation for disfiguration. Thus, there will be an additional amount of **₹25,000/-** (Rupees Twenty Five Thousand Only) under the said head. ## **V. Disability income** The next head under which the appellant sought enhancement is the disability income. The learned Counsel for the appellant submitted that as per Ext.X1 disability certificate issued by the Medical Board, consisting of four doctors, constituted by the Government T.D Medical College Hospital, Alappuzha, the permanent disability of the appellant was assessed at 54%. It is further submitted that he had 40% disability for his eyesight. However, the Tribunal after considering the functional disability as well as the permanent disability of the appellant, had fixed the disability at 30%. However, I am of the opinion that the fixation of disability at 30% does not appear to be reasonable. In **Manikantan G. v. K.Janardhanan Nair [2021 (5) KHC 305],** it is stated that ``` MACA NO. 4602 OF 2019 ``` ``` 7 ``` the certificate issued by the Medical Board has to be taken into consideration and that if the Tribunal had any doubt, they ought to have followed the dictum laid down in **Raj Kumar v.** **Ajay Kumar [2011 (1) KLT 620].** It is held that the certificate issued by the medical board has to be taken into consideration. If the Tribunal had any doubt regarding the certificate issued by the Medical Board, ought to have referred the claimant before another Medical Board and obtain a report. However, no such course was adopted by the Tribunal. Hence, there is no reason to disbelieve Ext.X1 certificate issued by the doctor. Therefore, I am inclined to fix the percentage of disability of the appellant at 54%. Accordingly, the compensation granted under the head of disability income is recalculated, totalling to an amount of ₹5,44,320/- (12,000 x 12 x 7 x 54/100) Thus, there will be an additional enhancement of **₹2,92,320/-** (Rupees Two Lakh Ninety Two Thousand Three Hundred and Twenty Only). ## **VI. Loss of amenities/Compensation for deformity** The next head under which the appellant sought enhancement is the loss of amenities/Compensation for ``` MACA NO. 4602 OF 2019 ``` ``` 8 ``` deformity. Though the appellant had claimed an amount of ₹1,00,000/- under the said head, the Tribunal had awarded only ₹20,000/-. Considering the nature of the injuries as well as the age of the appellant, I find that an additional amount of ₹ **10,000/-** (Rupees Ten Thousand only) under the said head would be just and reasonable. Thus, the impugned award of the Tribunal is modified as follows; |**Sl.** **No.**|**Head of Claim**|**Amount** **claimed** **(in Rs.)**|**Amount** **awarded** **by the** **Tribunal** **(in Rs.)**|**Amount** **modifed** **in appeal** **(in Rs.)**|**Total** **compensatio** **n**| |---|---|---|---|---|---| ||**Notional income**|**20,000**|**10,000**|**2,000**|**12,000**| |**1**|**Loss of earnings**|**1,20,000**|**60,000**|**12,000**|**72,000**| |2|Partial loss of earnings|-|-|-|-| |3|Transport to hospital|20,000|10,000|(not modifed)|10,000| |4|Extra nourishment|20,000|5,000|(not modifed)|5,000| |5|Damage to clothing|1,000|1,000|(not modifed)|1,000| |6|Medical expenses|12,00,000|7,00,000|(not modifed)|7,00,000| |**7**|**Bystander’s** **expenses**|**50,000**|**10,500**|**4,500**|**15,000**| |8|**Pain and** **sufering** **/compensation for**|**1,00,000**|**25,000**|**25,000**|**50,000**| ``` MACA NO. 4602 OF 2019 ``` ``` 9 ``` ||**disfguration**||||| |---|---|---|---|---|---| |9|**Disability income**|**5,00,000**|**2,52,000**|**2,92,320**|**5,44,320**| |10|Compensation for loss of earning power|-|-|-|-| |**11**|**Loss of amenities** **/compensation for** **deformity**|**1,00,000**|**20,000**|**10,000**|**30,000**| ||**Total** **(claim limited to)**|**21,11,000** **20,00,000**|**10,83,500**|**3,43,820**|**14,27,320**| Accordingly, the appeal is allowed in part and the appellant/claimant is awarded an additional compensation of **₹3,43,820/- (Rupees Three Lakh Forty Three Thousand Eight Hundred and Twenty Only)** over and above the compensation awarded by the tribunal with interest @ 7.5% per annum from the date of petition till realization and proportionate costs.The respondent insurer shall deposit the said amount together with interest and costs within a period of two months from the date of receipt of a certified copy of this judgment. The claimant shall furnish copies of the PAN Card, AADHAAR Card and bank details before the respondent insurer within a period of one month so as to enable the insurance company to make the deposit as ordered above. In case of failure to furnish details as above, it shall be open for the insurance company to deposit the said amount before the ``` MACA NO. 4602 OF 2019 ``` ``` 10 ``` Tribunal. Upon such deposit being made, the entire amount shall be disbursed to the appellant at the earliest in accordance with law. ``` Sd/- SHOBA ANNAMMA EAPEN JUDGE ``` ``` RK ```