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2025 Supreme(Online)(Ker) 14086
IN THE HIGH COURT OF KERALA AT ERNAKULAM
C.S. Sudha, J
RAMLA – Appellant
Versus
HDFC ERGO GENERAL INSURANCE CO. LTD. – Respondent
MACA 476/2020
For the Appellants/Petitioners: AVM.SALAHUDIN
For the Respondents: SRI.GEORGE CHERIAN (SR.), SMT.LATHA SUSAN CHERIAN, SMT.K.S.SANTHI, SRI.ALEXY AUGUSTINE, SRI.GEORGE A.CHERIAN
The court modified the compensation based on actual earning capacity, establishing that notional income must reflect the claimant's circumstances.
Headnote:(A) Motor Vehicles Act, 1988 - Section 173 - Compensation - Appeal filed by claimant challenging the compensation awarded by the Tribunal - Claimant sustained grievous injuries as a pillion rider in an accident - Tribunal awarded ₹4,24,000/- which was contested by claimant for being insufficient - The court modified the notional income and increased the compensation to ₹6,04,800/- with interest at 8% per annum. (Paras 5, 8, 9)
(B) Negligence - The Tribunal found negligence on the part of the driver of the offending vehicle, which was upheld by the court. (Paras 5, 6)
Facts of the case:
The claimant sustained grievous injuries in an accident involving a motorcycle and a car, leading to a claim for compensation. The Tribunal initially awarded ₹4,24,000/-, which the claimant appealed against, seeking higher compensation.
Findings of Court:
The court found merit in the claimant's arguments regarding notional income and pain and suffering, leading to an increase in compensation.
Issues: The main issue was whether the compensation awarded by the Tribunal was adequate given the injuries sustained.
Ratio Decidendi: The court ruled that the notional income should reflect the claimant's actual earning capacity and adjusted the compensation accordingly.
Result: Appeal allowed in part, enhancing compensation to ₹6,04,800/-.
| Table of Content |
|---|
| 1. court examined the adequacy of the tribunal's compensation ruling. (Para 6) |
| 2. court increased compensation based on notional income and pain suffered. (Para 8) |
| 3. court modified compensation, reflecting the claimant's true earning capacity. (Para 9) |
J U D G M E N T
This appeal has been filed under Section 173 of the Motor Vehicles Act, 1988 (the Act) by the claimant/petitioner in O.P.(MV) No.1265/2016 on the file of the Motor Accidents Claims Tribunal, Kozhikode (the Tribunal), aggrieved by the amount of compensation granted by Award dated 07/04/2018. The sole respondent herein is the third respondent/insurer in the petition. In this appeal, the parties and the documents will be referred to as described in the original petition.
2. According to the claim petitioner, on 26/03/2016 at
11:00 a.m., while she was travelling as a pillion rider in motorcycle bearing registration No.KL-57-K-6704 from Keezhuparamba to Vazhakkad, car bearing registration no.KL- 10-AQ-1555 driven by the second respondent in a rash and negligent manner knocked down the motorcycle as a result of which she was thrown on to the road whereby she sustained grievous injuries. Hence the petition claiming a sum of ₹
6,50,000/- as compensation.
3. The 1st respondent, owner and 2nd respondent, the driver remained ex parte. The 3rd respondent/insurer filed written statement admitting the existence of a valid policy in respect of the offending vehicle. There was no negligence on the part of the second respondent. In fact, negligence was on the side of the rider of the motor cycle. The age, job, income, nature of injuries and amount claimed under various heads were disputed.
4. Before the Tribunal, PW1 was examined and Exts.A1 to A10 were marked on the side of the claim petitioner. No documentary evidence was produced by the respondents.
Ext.C1 was marked as court exhibit.
5. The Tribunal on a consideration of the oral and documentary evidence and after hearing both sides, found negligence on the part of the 2nd respondent-driver of the offending vehicle resulting in the incident and hence awarded an ₹
amount of 4,24,000/- together with interest @ 8% per annum from the date of the petition till realisation along with proportionate costs. Aggrieved by the Award, the claim petitioner has come up in appeal.
6. The only point that arises for consideration in this appeal is whether there is any infirmity in the findings of the Tribunal calling for an interference by this Court.
7. Heard both sides.
8. The award of compensation by the Tribunal under the following heads are challenged by the claim petitioner -
Notional income It is submitted by the learned counsel for the claim petitioner that the claim petitioner was a tailor and therefore the ₹
notional income of 7,000/- fixed by the tribunal is on the lower side. In support of this argument, he relies on the dictum in Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Ltd. [(2011) 13 SCC 236], as per which ₹
her notional income is liable to be fixed as 10,000/- per month. In the light of the dictum in Ramachandrappa (Supra), the learned counsel for the claim petitioner is justified in arguing that fixing the notional income fixed by the Tribunal is on the lower side. Therefore, I find that the notional income of the ₹
claim petitioner can be fixed at 10,500/-. To the said extent, the Award shall stand modified.
Pain and suffering.
It is submitted by the learned counsel for the claim petitioner that in the light of the injuries sustained, an amount of ₹
1,00,000/- was claimed. However, the Tribunal granted only ₹
50,000/-, which also is challenged.
Going by Ext.A2 wound certificate, the following are the injuries sustained -
“1. fracture left neck of femur and shaft of femur and
2. Pain left thigh and left hip”
The period of hospitalisation in different spells as evidenced by Exts.A3, A5 and A6 is 50 days. She also underwent two ₹
surgeries. Hence, I find that an amount of 75,000/- towards pain and suffering
