Ansari v United India Insurance Co. Ltd.

``` 2025:KER:22633 ``` ``` MACA NO.3027 OF 2016 ``` ``` 1 ``` **==> picture [58 x 58] intentionally omitted <==** ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE C.PRATHEEP KUMAR ``` ``` MONDAY, THE 3[RD] DAY OF MARCH 2025 / 12TH PHALGUNA, 1946 ``` ``` MACA NO. 3027 OF 2016 ``` ``` AGAINST THE AWARD DATED IN OPMV NO.656 OF 2010 OF MOTOR ``` ``` ACCIDENT CLAIMS TRIBUNAL, PALAKKAD ``` ## **`APPELLANT/PETITIONER:`** ``` ANSARI AGED 40 YEARS S/O HANEEFA, AGED 40 YEARS, MUTHENGADAN HOUSE,MUNDAKANNI, THENKARA, MANNARKKAD, PALAKKAD DISTRICT. ``` ## **`BY ADV SRI.BABY MATHEW`** ## **`RESPONDENT/RESPONDENT NO.3:`** ``` UNITED INDIA INSURANCE CO. LTD IST FLOOR, PAZHERI PLAZA, KODATHIPADI,MANNARKKAD, PALKKAD. (INSURER OF CAR REG.NO.KL-50-1818) (POLICE NO.101205/31/08/02/00008993)VALID FROM 10/11/2008 TO 9/11/2009. ``` ## **`BY ADV P.K.MANOJKUMAR`** ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 03.03.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` 2025:KER:22633 ``` ``` MACA NO.3027 OF 2016 ``` ``` 2 ``` **==> picture [58 x 58] intentionally omitted <==** ## **J U D G M E N T** The petitioner in O.P.(M.V.) No.656/2010 on the file of the Motor Accident Claims Tribunal, Palakkad, is the appellant herein. (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 12.08.2009. According to the petitioner, on 12.08.2009 at about 9 p.m., while he was riding a motorcycle, he was hit down by a car driven by the 2[nd] respondent in a rash and negligent manner and a result of the accident, he sustained serious injuries. 3. The 1[st] respondent is the owner , the 2[nd] respondent is the driver and 3[rd] respondent is the insurer of the offending vehicle. According to the petitioner, the accident occurred due to the negligence of the driver of the offending vehicle. The quantum of compensation claimed in the O.P. is Rs.2,70,000/-. 4. The insurance company filed a written statement, admitting the accident as well as policy, but disputing the negligence on the part of the ``` 2025:KER:22633 ``` ``` MACA NO.3027 OF 2016 ``` ``` 3 ``` **==> picture [58 x 58] intentionally omitted <==** driver of the offending vehicle. 5. The evidence in the case consists of the oral testimony of PW1 and documentary evidence Exts.A1 to A18. No evidence was adduced by the respondents. 6. After evaluating the evidence on record, the Tribunal found negligence on the part of the driver of the offending vehicle, awarded a total compensation of Rs.1,78,525/- and directed the insurer to pay the same. 7. Aggrieved by the quantum of compensation awarded by the Tribunal, the petitioner preferred this appeal. 8. Now the point that arises for consideration is the following: _Whether the quantum of compensation awarded by the Tribunal is just and reasonable?_ 9. Heard Sri.Baby Mathew, the learned Counsel appearing for the petitioner/appellant, and Sri.Manoj Kumar, the learned Standing Counsel for the 3[rd ] respondent. 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 at Rs.3500/-. According to him, the ``` MACA NO.3027 OF 2016 ``` **==> picture [58 x 58] intentionally omitted <==** ``` 2025:KER:22633 ``` ``` 4 ``` petitioner was working as Driver in Saudi Arabia, getting Rs.15,000/- per month. However he could not prove the above claim by adducing evidence. However, the petitioner has produced a copy of his driving license issued from Kingdom of Saudi Arabia having validity upto 02.06.2011 along with I.A No.2/2025. Therefore, from the above driving license it can be presumed that the petitioner was working as driver in the Kingdom of Saudi Arabia. However, he could not prove his income he derived from the above employment. 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 2009 will come to Rs.7000/-. Therefore, the petitioner being driver by profession, his notional income is fixed at Rs.9000/-, for the purpose of computing the loss of disability. 12. In the accident the petitioner sustained the following injuries: - Type II open fracture of both bones left leg. - Deformity and muscle bulge over the middle third of the left leg, shortening of the leg by two centimeters, range of flexion of the knee decreased, range of dorsiflexion and **==> picture [58 x 58] intentionally omitted <==** ``` 2025:KER:22633 ``` ``` MACA NO.3027 OF 2016 ``` ``` 5 ``` plantar flexion of the left ankle decreased, that the petitioner has difficulty and pain in pushing with the left leg, climbing, squatting and sitting on the floor. 13. Ext.A17 disability certificate shows that the petitioner suffered 12% permanent physical disability. It was issued by a private doctor, who was examined as PW1. The Tribunal, however, scaled down the percentage of disability of the petitioner to 10%, without assigning valid and cogent reasons. The law is settled that, if the Tribunal is not satisfied with the disability certificate produced by the petitioner, the remedy is to refer him to a medical board or higher Authority.(See **Manikantan G. v. Janardhanan Nair and Others** , 2021 (5)KHC 305). Having not done so, the Tribunal was not justified in scaling down the percentage of disability from what is shown in the disability certificate. I do find any grounds to disbelieve the said disability and as such the permanent physical disability of the petitioner is fixed as 12%. 14. On the date of accident, the petitioner was aged 34 years. Therefore, 40% of the monthly income is to be added towards future prospects, as held in the decision in **National Insurance Co. Ltd v.** ``` MACA NO.3027 OF 2016 ``` ``` 6 ``` **==> picture [58 x 58] intentionally omitted <==** ``` 2025:KER:22633 ``` **Pranay Sethi** [(2017) 16 SCC 680] and the multiplier to be applied is 16, as held in **Sarla Verma v. Delhi Transport Corporation,** [(2009) 6 SCC 121]. In the above circumstances, the loss of disability will come to Rs.2,90,304/-. 15. Towards loss of earning, the tribunal has awarded only Rs.21,000/-. Towards partial loss of earning another Rs.10,500 has been awarded. The learned counsel for the 3[rd] respondent would argue that the Tribunal was not justified in awarding partial loss of earning after awarding loss of earning. There is merit in the above argument advanced by the learned counsel for the 3[rd] respondent. Since the notional income of the petitioner is re-fixed at Rs.9000/-, towards loss of earning and partial loss of earning together, he is entitled to get a sum of Rs.54,000/- (9000 x 6 months). 16. Towards the head ‘pain and sufferings’, the Tribunal has awarded Rs.12500/-. Towards 'loss of amenities of life' Rs.15000/- and towards '‘Bystander expenses’ Rs.3000/- was awarded. According to the learned counsel for the petitioner, the compensation awarded on those heads are on the lower side. 17. The petitioner sustained very serious injuries in the accident ``` MACA NO.3027 OF 2016 ``` ``` 7 ``` **==> picture [58 x 58] intentionally omitted <==** ``` 2025:KER:22633 ``` and was treated as inpatient for 30 days. 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 '‘Bystander expenses’ ' are on the lower side and hence they are enhanced to Rs.50000, Rs.30000/- and Rs.6000/- respectively. 18. Towards the head ‘extra nourishment’, the tribunal has not awarded any amount. In the circumstances, an amount of Rs.5000/-, can awarded towards ‘Extra nourishment’. 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.551829/-, as modified and recalculated above and given in the table below, for easy reference: |**Sl.**<br>**No.**|**Head of Claim**|**Amount awarded by**<br>**Tribunal (in Rs.)**|**Amount Awarded in**<br>**Appeal (in Rs.)**| |---|---|---|---| |1|Loss of earning|21,000|54,000| |2|Partial loss of earning|10,500|| |3|Medical expenses|42000|42000| ``` MACA NO.3027 OF 2016 ``` **==> picture [58 x 58] intentionally omitted <==** ## `2025:KER:22633` **==> picture [8 x 9] intentionally omitted <==** **----- Start of picture text -----**<br> 8<br>**----- End of picture text -----**<br> |4|Bystander expenses|3000|6000| |---|---|---|---| |5|Damage to clothing etc.|250|250| |6|Transportation|11275|11275| |7|Extra nourishment|Nil|5000| |8|Pain and suffering|12500|50000| |9|Loss of amenities and<br>convenience of life|15000|30000| |10|Loss of earning power|63000|63000| |11|Loss of disability|Nil|290304| ||**Total**|**178525**|**551829**| ||Enhanced /Reduced Rs.**373304**||| 21. In the result, this Appeal is allowed in part, and Respondent No.3 is directed to deposit a total sum of Rs.5,51,829/- (Rupees Five Lakhs Fifty One Thousand Eight Hundred and Twenty Nine 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 590 days, the period of delay in filing the appeal, with proportionate costs, within a period of two months from today. (Enhanced compensation will carry interest @8%) 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. Return the driving license produced by the petitioner along with **==> picture [58 x 58] intentionally omitted <==** ``` 2025:KER:22633 ``` ``` MACA NO.3027 OF 2016 ``` **==> picture [8 x 9] intentionally omitted <==** I.A.No.2/2025. **Sd/C. PRATHEEP KUMAR, JUDGE** Pvv