High Court of KeralaSingle Judge2023-06-13Appeal disposed of.

V.J. Reji vs M.K. Kabeer, Sajeer K, Oriental Insurance Co. Ltd.

Case / Petition Number:MACA NO. 3399 OF 2014

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: The Honourable MR.JUSTICE MURALI PURUSHOTHAMAN
Judgment Date: 2023-06-13
Court Decision / Holding: Appeal disposed of. Enhanced compensation of Rs. 1,84,160 is granted, making the total award Rs. 5,14,500 (3,30,340 originally awarded + 1,84,160 enhancement). The 3rd respondent insurer shall deposit the enhanced amount with 7.5% interest per annum from the date of petition till realization, with proportionate costs, within two months from receipt of a copy of the judgment, and exclude interest for 106 days delay as per the order dated 05.01.2022 in CM Application No.1/2014.
Final Disposition: Appeal disposed of.

Parties to the Case

Appellants / Petitioners

V.J. Reji

Respondents

M.K. Kabeer, S/o. Kunhumuhammed, Mechairkunnath House, Vallapuzha Post, Pattanamb, Palakkad District - 679 336 (Driver of vehicle No. KL 52/4567)
Sajeer K, Kalathil House, Vallapuzha Post, Pattambi, Palakkad District - 679 303 (Owner of the vehicle No. KL-52/4567)
The Branch Manager, Oriental Insurance Co. Ltd, Shoba TSM Complex, RS Road, Palakkad - 678 001

Legal Representation & Advocates

Counsels for Petitioners

• Sri. George Thomas (Mevada) (Sr.)
• Sri. Amal George

Counsels for Respondents

• Sri. George Cherian (Sr.)
• Smt. Latha Susan Cherian
• Smt. K.S. Santhi

Case Synopsis & Summary

This is an appeal under MACA No. 3399 of 2014 filed by the appellant, V.J. Reji, challenging the Motor Accidents Claims Tribunal, Kalpetta’s award in OP(MV) No. 147 of 2009 arising from a road accident on 15 October 2007. The claimant, a pillion rider on a motorcycle, sustained serious injuries when a jeep owned by the 2nd respondent and driven by the 1st respondent collided with the motorcycle. The Tribunal awarded Rs.3,30,340 with 7.5% interest and a heads-of-claim breakdown including notional income, loss of earning, medical and miscellaneous expenses, bystander expenses, transportation, nourishment, clothing, pain and suffering, permanent disability, loss of amenities and loss of earning power. The appellant contends that the Tribunal undervalued the compensation, especially by underestimating notional monthly income and misapplying disability and multiplier concepts. Counsel argues for Rs.6,000 as notional monthly income, citing Ramachandrappa; Ext.C1 shows 14% permanent disability but functional disability should be 20% given job and injuries. The court reworks the compensation by applying Sarla Verma’s multiplier (16 instead of 17) and increases income to Rs.6,000, fixates 20% functional disability, and calculates an enhanced total of Rs.1,84,160. The insurer is directed to deposit the enhanced amount with 7.5% interest within two months, with a note excluding interest for a 106-day delay per an earlier order; the appeal is disposed of with the enhanced compensation.

Legal Doctrines & Maxims

Multiplier principle (as per Sarla Verma v. Delhi Transport Corporation)
Notional income rule (as per Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Co. Ltd.)

Submissions & Arguments

Contentions of Appellants / Petitioners

The learned counsel for the appellant contends that the Tribunal erred in fixing a notional monthly income of Rs. 4,000 despite evidence of the petitioner’s skill as a cable TV operator and electrician. Relying on Ramachandrappa, Rs. 6,000 per month should be treated as the notional income. The disability was recorded at 14% functional disability and 18% permanent impairment, but the functional disability should be 20% for calculation. The multiplier should be 16 (as per Sarla Verma) rather than 17. Consequently, loss of earnings, pain and suffering, permanent disability, and loss of amenities must be recalculated, increasing the compensation by Rs. 1,84,160. The applicant seeks deposit of enhanced amount with 7.5% interest from petition date and costs, with adjustments for delays as per the court’s previous orders.

Contentions of Respondents

The respondents argue that the Tribunal correctly held the defendant-driver negligent; the policy is admitted and age/income contested, but no basis is shown to revise the notional income beyond Rs. 4,000; the evidence does not conclusively establish higher income; the Tribunal’s calculation for disability and loss of earning is appropriate; the insurer’s liability is as per policy; the court should maintain the Tribunal’s award unless a clear error is shown.

Cited Precedents (2)

Case Name	Citation	Treatment	Explanation
Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited	2011 (13) SCC 236	Positive	Used to justify fixing notional monthly income at Rs.6,000 as a reasonable standard for skilled persons.
Sarla Verma v. Delhi Transport Corporation	2009 (6) SCC 121; AIR 2009 SC 3104	Positive	Applied to fix the multiplier at 16 instead of 17 in view of the appellant’s age.

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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 MR.JUSTICE MURALI PURUSHOTHAMAN** **TUESDAY, THE 13[TH] DAY OF JUNE 2023 / 23RD JYAISHTA, 1945** **MACA NO. 3399 OF 2014** **AGAINST THE JUDGMENT IN OPMV 147/2009 DATED 22.05.2014 OF THE** **MOTOR ACCIDENTS CLAIMS TRIBUNAL ,KALPETTA** ## **APPELLANT/PETITIONER:** **V.J.REJI, AGED 33 YEARS S/O. JOSEPH, VAROOPALLIL HOUSE, PALLIKUNNU POST, WAYANAD DISTRICT - 673 121.** **BY ADVS. SRI.GEORGE THOMAS (MEVADA)(SR.) SRI.AMAL GEORGE** ## **RESPONDENTS/RESPONDENTS :** |**1**|**M.K.KABEER, S/O. KUNHUMUHAMMED,**| |---|---| ||**MECHAIRKUNNATH HOUSE, VALLAPUZHA POST,**| ||**PATTAMBI, PALAGHAT DISTRICT - 679 336**| ||**(DRIVER OF THE VEHICLE NO. KL.52/4567)**| |**2**|**SAJEER K, KALATHIL HOUSE,**| ||**VALLAPUZHA POST, PATTAMBI,**| ||**PALAGHAT DISTRICT - 679 303**| ||**(OWNER OF THE VEHICLE NO. KL - 52/4567)**| |**3**|**THE BRANCH MANAGER**| ||**ORIENTAL INSURANCE CO. LTD, SHOBA TSM COMPLEX,**| ||**R.S.ROAD, (OPP. TOWN RAILWAY STATION),**| ||**PALAGHAT - 678 001.**| ||**BY ADVS.**| ||**SRI.GEORGE CHERIAN (SR.)**| ||**SMT.LATHA SUSAN CHERIAN**| ||**SMT.K.S.SANTHI**| **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD** **ON 13.06.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA NO. 3399 OF 2014 :2:** ## **JUDGMENT** The appellant is the claimant in OP(MV)No. 147 of 2009 on the files of the Motor Accidents Claims Tribunal, Kalpetta. The parties are referred to as per their status in the claim petition. 2. On 15.10.2007, while the petitioner was travelling as a pillion rider on a motor bike, a jeep bearing Registration No.KL 52/4567, owned by the 2[nd] respondent and driven by the 1[st] respondent in a rash and negligent manner, hit the motor bike and the petitioner sustained serious injuries. The petitioner claimed an amount of Rs.12,08,500/- as total compensation for the injuries sustained in the accident. 3. Before the Tribunal, respondents entered appearance and filed written statements resisting the claim. Exts.A1 to A14 were marked on the side of the petitioner and Exts.B1 to B4 were marked on the side of the respondents. Ext.C1 is the disability certificate issued by the District Medical Board, Wayanad. From the side of the respondents, RWs 1 to 3 were **MACA NO. 3399 OF 2014 :3:** examined. No oral evidence was adduced by the petitioner. 4. The 3[rd] respondent Insurance Company has filed a written statement admitting the policy; but disputing the age, occupation and income of the petitioner. They denied negligence on the part of the 1[st] respondent as the cause of the accident. 5. The Tribunal found that the accident happened due to the negligence on the part of the driver of the jeep and awarded an amount of Rs.3,30,340/- with 7.5% interest per annum from the date of petition till realisation with proportionate costs. Compensation awarded under various heads is as follows: |ads is|as follows:||| |---|---|---|---| |**Sl.** **No**|**Head of Claim**|**Amount** **claimed**|**Amount** **awarded**| |1|Income/notional income|9000|4000| |2|Loss of earning (Total)|72000|16000| |3|Medical and miscellaneous|250000|143000| ## **MACA NO. 3399 OF 2014 :4:** ||expenses||| |---|---|---|---| |4|Bystander expenses|18000|3300| |5|Transportation expenses|15000|10000| |6|Extra nourishment|2000|3300| |7|Damage to clothing, etc|1500|500| |8|Pain and suffering|300000|25000| |9|Compensation for permanent disability|200000|114240| |10|Loss of amenities and conveniences caused|100000|5000| |11|Loss of earning poser|200000|10000| ||**Total**|**1208500**|**330340**| 6. The petitioner has preferred this appeal aggrieved by the quantum of compensation awarded by the Tribunal. 7. According to Sri.George Thomas Mevada, the learned senior counsel for the petitioner, the petitioner was a cable T.V. operator and was drawing a monthly salary of Rs.9,000/at the time of the accident and was also a qualified **MACA NO. 3399 OF 2014 :5:** Electrician. The Tribunal, in the absence of any other evidence, took the notional monthly income of the petitioner as Rs.4,000/-. In the light of the decision of the Hon’ble _**v**_ Supreme Court reported in **Ramachandrappa . Manager, Royal Sundaram Alliance Insurance Company Limited [2011 (13) SCC 236]** , the petitioner is entitled for an amount of Rs.6,000/- as notional monthly income. Accordingly, I re-fix the monthly income of the petitioner as Rs.6,000/-. 8. Ext.C1 is the medical certificate issued by the Medical Board, Wayanad, which would show the permanent partial disablement of the petitioner as '14%' and the disability of the limb as '18%'. The Tribunal, relying on Ext.C1 disability certificate, took the functional disability of the petitioner as '14%'. The functional disability of a person cannot always be equal to that of his permanent physical disability. Considering the job of the petitioner as a cable T.V. operator and the nature of the injuries and the **MACA NO. 3399 OF 2014 :6:** percentage of disability, I fix the functional disability of the petitioner as 20%, for the purpose of calculation of compensation for permanent disability. 9. The petitioner was aged 31 years at the time of the accident. The Tribunal applied the multiplier as '17'. Going by the dictum laid down by the Hon'ble Supreme Court in **Sarla Verma** _**v**_ **. Delhi Transport Corporation [2009 (6) SCC 121: AIR 2009 SC 3104]** , the multiplier applicable is '16'. Taking into account the above factors, the compensation awarded under various heads has to be reworked. 10. The Tribunal has awarded an amount of Rs.16,000/(4000x4) as compensation for loss of earnings. Since I have already re-fixed the notional income of the petitioner as Rs.6,000/- per month, the compensation under the above head comes to Rs.24,000/- (6,000x4) and he is entitled for an enhanced amount of **Rs.8,000/-** (24,000-16,000). 11. Towards compensation for pain and sufferings, only an amount of Rs.25,000/- has been awarded by the Tribunal. **MACA NO. 3399 OF 2014 :7:** Going by Exts.A5 wound certificate and A6 discharge summary, I find that the petitioner is entitled for an amount of Rs.50,000/- under the said head and thus, he gets an enhanced amount of **Rs.25,000/-** (50,000-25,000). 12. Since I have re-fixed the notional monthly income and the percentage of functional disability of the petitioner, the compensation for disability has to be re-worked. Accordingly, the compensation under the head permanent disability is assessed as Rs.2,30,400/- (6,000x12x16x20/100). As the Tribunal has already awarded an amount of Rs.1,14,240/-, the petitioner is entitled for an enhanced amount of **Rs.1,16,160/-** (2,30,400-1,14,240) under the said head. 13. Rs.5,000/- has been awarded under the head compensation for loss of amenities and conveniences. Taking into consideration the age of the petitioner and the disability incurred, I find that an amount of Rs.50,000/- will be a just and reasonable compensation under the above head and I fix **MACA NO. 3399 OF 2014 :8:** so. Therefore, the petitioner is granted an additional amount of **Rs.45,000/-** (50,000-5,000) under the above head. 14. The Tribunal has awarded an amount of Rs.10,000/- towards compensation for loss of earning power. Since the petitioner is awarded compensation under the head permanent disability, he is not entitled for any compensation under the head loss of earning power and accordingly, **Rs.10,000/-** has to be deducted. 15. I find that the compensation awarded under other heads is just and reasonable. In the result, the petitioner is entitled for an enhanced amount of **1,84,160/-** (Rupees one lakh eighty four thousand one hundred and sixty only) [8,000+ 25,000+ 45,000+ 1,16,160 – 10,000]. The 3[rd] respondent insurance company shall deposit the amount with 7.5% interest per annum from the date of petition till realisation with proportionate costs before the Tribunal, within a period of two months from the date of receipt of a copy of this **MACA NO. 3399 OF 2014 :9:** judgment. While calculating interest on the enhanced compensation, the petitioner will not be entitled for interest for the period of 106 days delay in the light of the order dated 05.01.2022 in C.M. Application No.1/2014 in the appeal. Appeal is disposed of. **Sd/-** **MURALI PURUSHOTHAMAN JUDGE** SB