High Court of KeralaSingle Judge2021-03-26Appeal is allowed in part; enhanced compensatio...

V.K. Vasu v Abdul Hameed and others

Case / Petition Number:MACA.No.2133 of 2011(C)

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: C.S. Dias
Judgment Date: 2021-03-26
Court Decision / Holding: Appeal allowed in part; the compensation is enhanced by Rs. 1,34,500, with interest at 7% per annum on the enhanced amount from the date of petition till realization, excluding 496 days of delay in filing the appeal; proportionate costs. The 3rd respondent shall deposit the enhanced compensation with interest and costs before the Tribunal within two months from receiving a certified copy of the judgment, and the Tribunal shall disburse the enhanced amount in accordance with law.
Final Disposition: Appeal is allowed in part; enhanced compensation and costs; the enhanced amount to be deposited before the Tribunal within two months; Tribunal to disburse in accordance with law.

Parties to the Case

Appellants / Petitioners

V.K.Vasu

Respondents

Abdul Hameed
Kottathodi Mani
National Insurance Company Limited

Legal Representation & Advocates

Counsels for Petitioners

• SMT.K.V.RESHMI

Counsels for Respondents

• Sri.PMM.NAJEEB KHAN

Case Synopsis & Summary

V.K. Vasu, a mason, sustained permanent disability in a 2004 road accident when a car reversed negligently after approaching Parammal on the Ramanattukara Pantheerankavu bypass. The car, reg. no. KL 10/C 817, was driven by the 2nd respondent and owned by the 1st respondent; the vehicle was insured by the 3rd respondent. The petitioner claimed compensation against the owner, driver and insurer for injuries, disability and loss of earning, quantifying a claim of Rs. 2,26,000 (brought down by the tribunal to Rs. 1,21,689 with interest). The Tribunal held the 3rd respondent liable and partly allowed the petition, directing payment of Rs. 1,21,689 with 7% interest and costs. The petitioner challenged the quantum, arguing that the notional income was incorrectly fixed at Rs. 2,500/month and that the 25% permanent occupational disability (as per Ext. C1) should be included; he relied on Ramachandrappa to fix higher notional income (Rs. 4,500/month). The High Court, invoking the Supreme Court’s Pranay Sethi guidelines on ‘just compensation’ (fairness, reasonableness and equitability), re-determines heads of claim: notional income Rs. 4,500/month; 25% occupational disability; loss of earnings Rs. 13,500; bystander expenses Rs. 7,500; pain and sufferings Rs. 20,000; loss of amenities Rs. 10,000; loss due to disability Rs. 2,02,500; total Rs. 2,56,189. The appeal is allowed in part, with an enhanced compensation of Rs. 1,34,500 plus 7% interest from petition date to realization (excluding 496 days of delay) and proportionate costs. The 3rd respondent is to deposit the enhanced amount with interest and costs before the Tribunal within two months for disbursement to the claimant.

Provisions of Law Cited

Section 168 of the Motor Vehicles Act, 1988

Legal Doctrines & Maxims

Just compensation doctrine (fairness, reasonableness and equitability)
Notional income doctrine (Ramachandrappa)
Bystander expenses fixed in a composite manner

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellant contends that the Tribunal’s quantum of compensation was inadequate and not in consonance with the principles of just compensation as crystallized by the Supreme Court in Pranay Sethi. He argues that the notional income for 2004 should be Rs.4,500 per month (per Ramachandrappa) and that the 25% permanent occupational disability, certified by Ext. C1, must be incorporated into the calculation. He urges re-assessment under heads including loss of earnings, bystander expenses, pain and sufferings, loss of amenities and loss due to disability, resulting in a higher overall compensation; interest on the enhanced amount from the petition date and cost consequences should follow.

Contentions of Respondents

The respondents contend that the liability and factual basis are as found by the Tribunal; the accident occurred due to negligence of the 2nd respondent and the insurer is liable for compensation; the earlier quantum was just and proper, and the petitioner’s submissions to elevate notional income or to incorporate disability head were not substantiated beyond the Tribunal’s findings; the insurer/owner resist any inflation of liability beyond the settled heads and the Court should adhere to the lower quantum and costs, while maintaining proportional liability.

Cited Precedents (2)

Case Name	Citation	Treatment	Explanation
National Insurance Company Ltd. v. Pranay Sethi	2017 16 SCC 680	Positive	The court relies on the Pranay Sethi decision to define ‘just compensation’ and to emphasize fairness, reasonableness, and equitability in quantum.
Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Co. Ltd.	2011 13 SCC 236	Positive	Notional income fixed in Ramachandrappa is applied to re-fix earnings (Rs. 4,500/month) for verification of compensation heads.

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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 C.S.DIAS** ## **FRIDAY, THE 26TH DAY OF MARCH 2021 / 5TH CHAITHRA, 1943** ## **MACA.No.2133 OF 2011(C)** **AGAINST THE AWARD IN OP(MV) 2280/2004 DATED 23-11-2009 ON THE FILE OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, KOZHIKODE** ## **APPELLANT/CLAIMANT:** **V.K.VASU, AGED 47 YEARS, S/O.CHOYI, VALIYAVEETTIL HOUSE, P.O. PUTHUKODY, RAMANATTUKARA, MALAPPURAM, KOZHIKODE.** **BY ADV. SMT.K.V.RESHMI** ## **RESPONDENTS/RESPONDENTS:** |**1**|**ABDUL HAMEED,**| |---|---| ||**S/O.CHEKKU, CHEMBRA HOUSE, PONMALA, MALAPPURAM-**| ||**676528.**| |**2**|**KOTTATHODI MANI,**| ||**S/O. KUMARAN, KOTTATHODI HOUSE, PARAMMAL, P.O.,**| ||**RAMANATTUKARA, KOZHIKODE-673633.**| |**3**|**NATIONAL INSURANCE COMPANY LIMITED,**| ||**DIVISIONAL OFFICE, NOOR COMPLEX, MAVOOR ROAD,**| ||**KOZHIKODE-673001.**| **R3 BY ADV. SRI.PMM.NAJEEB KHAN** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 05-03-2021, THE COURT ON 26-03-2021 DELIVERED THE FOLLOWING:** ## **MACA.No.2133 OF 2011(C) 2** ## **JUDGMENT** ## **Dated this the 26th day of March 2021** The appellant was the petitioner in OP(MV) No.2280 of 2004 on the file of the Principal MACT, Kozhikode. The respondents in the appeal by the respondents in the claim petition. The parties are, for the sake of convenience, referred to as per their status in the claim petition. 2. The concise case of the petitioner in the claim petition is that: on 16.8.2004 while he was riding his bicycle through the Ramanattukara Pantheerankavu bypass road, when he reached Parammal, a Car bearing Reg.No. KL 10/C 817(offending vehicle) suddenly reversed in a negligent manner and hit the appellant. The appellant sustained serious injuries and was treated at the Medical College Hospital, Kozhikode as an inpatient for a period of 30 days. The accident occurred solely due to the negligence on the part of the 2[nd] respondent, who drove the offending vehicle in a rash ## **MACA.No.2133 OF 2011(C) 3** and negligent manner. The 1[st] respondent is the owner and the 3[rd] respondent is the insurer of the vehicle. The petitioner was a Mason by profession and earning a monthly income of Rs.5,000/-. The petitioner had suffered a permanent disability and unable to carry on his avocation. The respondents 1 to 3 are jointly and severally liable to pay compensation to the petitioner, which he has quantified at Rs.2,26,000/- but limited to Rs.2,00,000/-. 3. The respondent 1 and 2 did not contest the proceedings. 4. The 3[rd] respondent filed a written statemen admitting that the offending vehicle was insured by it. However, the 3[rd] respondent disputed the fact that the 2[nd] respondent was negligent in driving the vehicle. According to the 3[rd] respondent, the accident was caused solely due to the negligence on the part of the petitioner. 5. The petitioner and the doctor of the Medical ## **MACA.No.2133 OF 2011(C) 4** Board was examined as PW1 and PW2 and Exts.A1 to A4 and Ext.C1 were marked through them. 6. The Tribunal, after considering the pleadings and materials on record, by the impugned award allowed the claim petition in part by allowing the petitioner to realise an amount of Rs.1,21,689/- with interest @ 7% per annum from the date of petition till the date of deposit and proportionate costs. The 3[rd] respondent was directed to pay the compensation amount. 7. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioner is in appeal. 8. Heard Smt.Resmi K.V, the learned counsel appearing for the appellant/petitioner and Sri.P.M.M.Najeebkhan, the learned counsel appearing for the 3[rd] respondent/Insurance Company. 9. The sole question that emerges for consideration in this appeal is whether the amount of compensation awarded by the Tribunal by reasonable and ## **MACA.No.2133 OF 2011(C) 5** just. 10. A Constitution Bench of the Hon’ble Supreme Court in _**National Insurance Company Ltd. V. Pranay Sethi (2017 16 SCC 680)**_ , has held that Section 168 of the Motor Vehicles Act, 1988, deals with the concept of ‘just compensation’ and the same has to be determined on the foundation of fairness, reasonableness and equitability on acceptable legal standards. The conception of ‘just compensation’ has to be viewed through the prism of fairness, reasonableness and nonviolation of the principle of equitability. 11. The fact that the accident occurred due to the negligence on the part of the 2[nd] respondent is established by Ext.A1. Nobody disputes the said finding. The principle area of dispute with regard to the fixation of notional income of the appellant and the compensation paid under the different heads. ## **Disability** ## **MACA.No.2133 OF 2011(C) 6** 12. The Medical Board of the Medical College Hospital, Kozhikode by Ext.C1 has certified that the petitioner has a permanent disability of 22% and a permanent occupational disability of 25%. Nevertheless, the Tribunal has only taken into account the permanent disability of the petitioner at 22%. The petitioner being a Mason by profession, was certainly unable to carrying on his avocation due to the disability. Hence, the Tribunal ought to have taken the occupational disability of the petitioner into account while calculating the disability. Hence, I take the occupational disability assessed by the Medical Board as per Ext.C1 at 25%. ## **Notional income** 13. The petitioner had claimed that he was a Mason by profession and was earning a monthly income of Rs.5,000/-. The Tribunal fixed the notional income at Rs.2,500/- 14. The Hon’ble Supreme Court in **MACA.No.2133 OF 2011(C) 7** _**Ramachandrappa v. Manager, Royal Sundaram Aliance (2011 13 SCC 236)**_ has fixed the notional income of a Coolie Worker in the year 2004 at Rs.4,500/-. 15. Following the parameters in _**Ramachandrappa**_ (supra), I am of the considered opinion that the petitioner’s notional income can safely be fixed at Rs.4,500/- per month. Accordingly, I refix the notional income of the petitioner at Rs.4,500/- per month. ## **Loss of earnings** 16. In view of the refixation of notional income of the petitioner and the fact that he was incapacitated due to the injury sustained by him for a period of 3 months, I refix the compensation under the head loss of earnings at Rs.13,500/- instead of Rs.3,000/- fixed by the Tribunal. ## **Bystander Expenses** 17. The petitioner was admittedly hospitalized for a period of 30 days. The Tribunal has awarded only Rs.1,000/- as bystander expenses. It is settled law that ## **MACA.No.2133 OF 2011(C) 8** bystander expenses has to be fixed in a composite manner. As the petitioner was hospitalization was in the year 2004, I am of the opinion that a reasonable sum of Rs.250/- can be fixed as bystander expenses per day. Hence, I fix the bystander expenses at Rs.7,500/-. ## **Pain and sufferings** 18. The Tribunal has fixed the compensation under the head pain and sufferings at Rs.16,000/-. Taking note of the fact that the petitioner had sustained a fracture and that he was treated as an inpatient for 30 days and was incapacitated for a period of 3 months due to the injury and that he has a permanent disability of 25%, I am of the firm opinion that the petitioner’s compensation under the head pain and sufferings can be refixed at Rs.20,000/-. ## **Loss of Amenities** 19. Due to the fact that the petitioner was hospitalized for a period of 30 days and was incapacitated ## **MACA.No.2133 OF 2011(C) 9** for a period of 3 months, I hold that petitioner is entitled for compensation under the head loss of amenities at Rs.10,000/-. ## **Loss due to disability** 20. As the petitioner was aged 40 years and was having a notional income of Rs.4,500/- and the relevant multiplier being 15, I am of the opinion that the petitioner is entitled for compensation under the head loss due to disability at Rs.2,02,500/- instead of Rs.99,000/- fixed by the Tribunal. ## **Other heads of claim** 21. With respect to the other heads of claim namely; transport and clothing, I find that the Tribunal has awarded reasonable and just compensation. 22. On an over all reappreciation of the pleadings and materials on record and the law laid down by the aforecited decisions, I am of the firm opinion that the appellant/petitioner is entitled for enhancement of ## **MACA.No.2133 OF 2011(C) 10** compensation as modified and recalculated above and given in the table below for easy reference. |Head of claim|Amount awarded by the Tribunal|Amounts modified and recalculated by this Court| |---|---|---| |Loss of earnings|3,000/-|13,500/-| |Transport|5,00/-|5,00/-| |Bystander expenses|1,000/-|7,500/-| |Clothing|2,50/-|2,50/-| |Medical expenses|1,939/-|1,939/-| |Pain and sufferings|16,000/-|20,000/-| |Loss due to disability|99,000/-|2,02,500/-| |Loss of amenities|-----|10,000/-| |Total|1,21,689/-|2,56,189/-| In the result, the appeal is allowed in part, by enhancing the compensation by a further amount of Rs.1,34,500/- with interest at the rate of Rs.7% per annum on the enhanced compensation from the date of petition till the date of realisation excluding the period of 496 days of delay in filing the appeal as ordered by this **MACA.No.2133 OF 2011(C) 11** Court in C.M.Appln.No.3146 of 2012 dated 7.2.2012, and proportionate costs. The 3[rd] respondent shall deposit the additional compensation awarded in this appeal with interest and proportionate costs before the Tribunal within a period of two months from the date of receipt of a certified copy of this judgment. The Tribunal shall disburse the additional compensation to the appellant/petitioner in accordance with law. Sd/- **C.S.DIAS JUDGE** pm