Vivek T.C. vs National Insurance Company Limited (MACA Nos. 259 of 2013 & 1958 of 2021)

``` MACA Nos.259 of 2013 & 1958 of 2021 1 ``` ``` 2025:KER:23993 ``` **==> picture [58 x 49] intentionally omitted <==** ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE C.PRATHEEP KUMAR ``` ``` TUESDAY, THE 18[TH] DAY OF MARCH 2025 / 27TH PHALGUNA, 1946 ``` ``` MACA NO. 259 OF 2013 ``` ``` AGAINST THE AWARD DATED 09.10.2012 IN OP(MV) NO.115 OF 2009 OF ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL, ERNAKULAM ``` ## **`APPELLANT/3RD RESPONDENT:`** ``` NATIONAL INSURANCE COMPANY LIMITED KOCHI, NOW REPRESENTED BY ITS MANAGER, KOCHI REGIONAL OFFICE, OMANA BUILDING, M.G.ROAD, KOCHI-35. ``` ``` BY ADVS. SRI.MATHEWS JACOB (SR.) SRI.P.JACOB MATHEW ``` ## **`RESPONDENT/PETITIONER:`** ``` VIVEK.T.C. S/O. CHANDRAN T.V., THEKKEPARAMBIL HOUSE, EROOR P.O., NADAMA VILLAGE, PIN-682 026. ``` ``` BY ADV SRI.V.A.OMANAKUTTAN ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 18.03.2025, ALONG WITH MACA.1958/2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA Nos.259 of 2013 & 1958 of 2021 2 ``` ``` 2025:KER:23993 ``` **==> picture [58 x 49] intentionally omitted <==** ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ## **`THE HONOURABLE MR. JUSTICE C.PRATHEEP KUMAR`** ``` TUESDAY, THE 18[TH] DAY OF MARCH 2025 / 27TH PHALGUNA, 1946 MACA NO. 1958 OF 2021 ``` ``` AGAINST THE AWARD DATED 09.10.2012 IN OP(MV) NO.115 OF2009 OF ADDITIONAL MOTOR ACCIDENTCLAIMS TRIBUNAL,ERNAKULAM ``` ## **`APPELLANT/PETITIONER:`** ``` VIVEK T.C. AGED 33 YEARS, S/O.CHANDRAN T.V., THEKKEPARAMBIL HOUSE, EROOR DESOM, NADAMA VILLAGE, ERNAKULAM, PIN - 682 306. ``` ``` BY ADV SRI. V.A.OMANAKUTTAN ``` ## **`RESPONDENT/3RD RESPONDENT:`** ``` THE REGIONAL MANAGER, NATIONAL INSURANCE CO.LTD. OMAN BUILDING, PADMA JUNCTION, ERNAKULAM. ``` ``` BY ADVS. SRI. MATHEWS JACOB (SR.) SRI. P.JACOB MATHEW ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 18.03.2025, ALONG WITH MACA.259/2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` 2025:KER:23993 ``` ``` MACA Nos.259 of 2013 & 1958 of 2021 3 ``` **==> picture [58 x 49] intentionally omitted <==** ## **J U D G M E N T** Dated this the 18[th] day of March, 2025 The 3[rd] Respondent, insurer in O.P.(M.V.) No.115 of 2009 on the file of the Additional Motor Accident Claims Tribunal, Ernakulam is the appellant herein in MACA No.259 of 2013 and the original petitioner in the above OP (MV) is the appellant in MACA No.1958 of 2021. _(For the purpose of convenience, the parties are hereafter referred to as per their rank before the Tribunal)_ 2. The petitioner filed the above O.P. under Section 166 of the Motor Vehicles Act, 1988, claiming compensation for the injuries sustained in a motor vehicle accident that occurred on 12.04.2008. According to the petitioner, on 12.04.2008 at about 8.40 a.m., while he was riding pillion on a motorcycle ridden by the 1[st] respondent along Chottanikkara - Mulanthuruthy road, the said motorcycle hit against another scooter bearing registration No. KL-07-L/285 ridden by one Sudhi Thomas. As a result of the accident, the petitioner sustained serious injuries. 3. The 1[st] respondent is the rider, the 2[nd] respondent is the owner and 3[rd] respondent is the insurer of the motorcycle. According to ``` MACA Nos.259 of 2013 & 1958 of 2021 4 ``` **==> picture [58 x 49] intentionally omitted <==** ``` 2025:KER:23993 ``` the petitioner, the accident occurred due to the negligence of the rider of the motorcycle. The quantum of compensation claimed in the O.P. is Rs.2,00,000/-. 4. The insurance company filed a written statement, admitting the accident as well as policy, but disputing the negligence on the part of the rider of the offending vehicle. 5. The evidence in the case consists of the oral testimony of PW1 and documentary evidence Exts.A1 to A11. No evidence was adduced by the respondents. 6. After evaluating the evidence on record, the Tribunal found negligence on the part of the rider of the motorcycle, awarded a total compensation of Rs.1,34,500/- and directed the insurer to pay the same. 7. Aggrieved by the quantum of compensation awarded by the Tribunal, both the original petitioner and 2nd Respondent, insurer preferred these appeals. 8. Now the point that arises for consideration is the following: Whether the quantum of compensation awarded by the Tribunal is just and reasonable? ``` MACA Nos.259 of 2013 & 1958 of 2021 5 ``` **==> picture [58 x 49] intentionally omitted <==** ``` 2025:KER:23993 ``` 9. Heard Sri. Omanakuttan V.A., the learned Counsel appearing for the original petitioner and Sri.P. Jacob Mathew the learned Standing Counsel appearing for the insurance company. 10. The Point: In this case the accident as well as valid insurance policy of the offending vehicle are admitted. One of the contentions raised by the learned counsel for the petitioner is regarding the income of the petitioner as fixed by the Tribunal. According to him, the petitioner was working as Hardware Computer mechanic, earning Rs. 3000/- per month, the Tribunal fixed his monthly income as such at Rs.3000/-. 11. As per the dictum laid down by the Hon’ble Supreme Court in the decision in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Co. Ltd.** [2011 (13) SCC 236], the notional income of a coolie, in the year 2008 will come to Rs.6,500/-.Therefore, the learned counsel for the original petitioner prayed for fixing the notional income of the petitioner at Rs.6500/-. The learned counsel for the insurer would argue that the income fixed by the tribunal is reasonable. Since the notional income of a coolie, in the year 2008 will come to Rs.6,500/-, in order to award just and reasonable compensation, in the light of a dictum laid down in the decision of the Hon’ble Supreme ``` MACA Nos.259 of 2013 & 1958 of 2021 6 ``` **==> picture [58 x 49] intentionally omitted <==** ``` 2025:KER:23993 ``` Court in **Ramachandrappa (supra)** , the notional income of the petitioner is liable to be fixed as that of a coolie, at Rs.6,500/-. 12. In the accident the petitioner sustained the following injuries: 1. Type II compound comminuted fracture both bones (tibia and Fibula) right let. 2. Undisplaced fracture medial malleoulus right leg; 3. Lacerated wound onear, forehead and lip. 13. In this case the petitioner has not produced any disability certificate and as such the petitioner is not entitled to get any compensation on the head 'loss of disability'. 14. One of the arguments advanced by the learned Senior Counsel appearing for the 3[rd] respondent is that the tribunal was not justified in awarding a sum of Rs.80,000/- on the head expense for treatment as it is revealed that more than Rs.80,000/- was received by the petitioner from Medi-Claim policy. The tribunal also found that the petitioner has received a sum of Rs.37,957/- and Rs.49,856/towards treatment expense from Medi-Claim policy. However, the tribunal relying upon the decision of the learned Single Judge in **National Insurance Co. Vs. S. Bijumon and others** [2011 (1) KHC 776] ``` MACA Nos.259 of 2013 & 1958 of 2021 7 ``` **==> picture [58 x 49] intentionally omitted <==** ``` 2025:KER:23993 ``` held that even though the claimant received treatment expense from Medi-Claim, he is eligible to get the said expense from the insurer. 15. The learned Senior Counsel relied upon the decision of a Division Bench of this court in **National Insurance Company Ltd. v. Akber Badsha** [2015 (4) KLT 442] in which the Division Bench held that treatment expense received from Medi- Claim policy has to be reckoned while fixing the quantum of compensation payable to victims of motor vehicle accidents. In the above circumstances, the tribunal was not justifiable in awarding a sum of Rs.80,000/- towards treatment expenses and as such the above **Rs.80,000/-** will be deducted from the compensation awarded to the petitioner. 16. Towards loss of earning, the tribunal has awarded only Rs.12,000/- being the income for 4 months @ Rs.3,000/-. The petitioner sustained serious injuries in the accident including two fractures and was treated as inpatient for 15 days. In the mean time he had undergone 2 surgeries also. Because of the injuries sustained, the percentage of disability suffered and the length of treatment undergone by the petitioner, the petitioner might have lost income at least for a period of 6 months. Therefore, towards 'loss of income' the petitioner is ``` MACA Nos.259 of 2013 & 1958 of 2021 8 ``` **==> picture [58 x 49] intentionally omitted <==** ``` 2025:KER:23993 ``` entitled to get a sum of **Rs. 39,000/-** (6500 x 6 months). 17. Towards the head ‘pain and sufferings’, the Tribunal has awarded Rs.25,000/-. Towards 'loss of amenities of life' Rs. 12,000 was awarded and towards 'extra nourishment' Rs.1,000/- was awarded. According to the learned counsel for the petitioner, the compensation awarded on those heads are on the lower side. 18. The petitioner sustained serious injuries in the accident including two fractures and was treated as inpatient for 15 days. In the mean time he had undergone 2 surgeries also. Because of the injuries sustained, the percentage of disability suffered and the length of treatment undergone by the petitioner, I hold that the compensation awarded by the Tribunal on the heads ‘pain and sufferings’, 'loss of amenities of life' and 'extra nourishment' are on the lower side and hence they are enhanced to **Rs.40,000/-, Rs.30,000/-** and **Rs.3,000/-** respectively. 19. No change is required, in the amounts awarded on other heads, as the compensation awarded on those heads appears to be just and reasonable. 20. Therefore, the petitioners/appellants are entitled to get a total compensation of Rs.1,16,500/-, as modified and recalculated ``` MACA Nos.259 of 2013 & 1958 of 2021 9 ``` ``` 2025:KER:23993 ``` **==> picture [58 x 49] intentionally omitted <==** above and given in the table below, for easy reference: |**Sl.**<br>**No.**|**Head of Claim**|**Amount awarded**<br>**by Tribunal (in**<br>**Rs.)**|**Amount Awarded in**<br>**Appeal (in Rs.)**| |---|---|---|---| |1|Loss of earnings|12,000|39,000| |2|Transportation expenses|1,000|1,000| |3|Damage to clothing|500|500| |4|Extra nourishment|1,000|3,000| |5|Expense for treatment|80,000|Nil| |6|Bystanders expenses|3,000|3,000| |7|Shock, pain and sufferings|25,000|40,000| |8|Loss of amenities and<br>enjoyment in life|12,000|30,000| ||**Total**|**1,34,500/-**|**1,16,500/-**| ||Reduced Rs.18,000/-||| 21. In the result, both the Appeals are disposed of and the insurance company is directed to deposit a total sum of Rs.1,16,500/(Rupees One lakh Sixteen thousand and Five hundred only), less the amount already deposited, if any, along with interest at the rate ordered by the Tribunal, from the date of the petition till deposit/realisation, excluding interest for a period of 2997 days, the period of delay in filing M.A.C.A No.1958 of 2021, with proportionate costs, within a period of two months from today. ``` MACA Nos.259 of 2013 & 1958 of 2021 10 ``` **==> picture [58 x 49] intentionally omitted <==** ``` 2025:KER:23993 ``` 22. On depositing the aforesaid amount, the Tribunal shall disburse the entire amount to the petitioner, excluding court fee payable, if any, without delay, as per rules. Sd/- ## **C. PRATHEEP KUMAR, JUDGE** S.M.K.