Cholamandalam MS General Insurance Company Limited v. Muhammed Shafeeq K.P. (MACA No.1021/2016(A) & CO No.100/2016)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE N.NAGARESH** **FRIDAY, THE 03RD DAY OF JULY 2020/12TH ASHADHA, 1942** **MACA.No.1021 OF 2016(A)** **AGAINST THE AWARD DATED 11-01-2016 IN OP(MV) 1211/2013 OF PRINCIPAL MOTOR ACCIDENT CLAIMS TRIBUNAL,KOZHIKODE** ## **APPELLANT/3rd RESPONDENT:** **CHOLAMANDALAM MS GENERAL INSURANCE COMPANY LIMITED,KOZHIKODE NOW REPRESETED BY ITS DEPUTY MANAGER-CLAIMS, ACEL ESTATE, IYYATTIL JUNCTION,CHITTOOR ROAD,KOCHI 11.** **BY ADVS. SRI.MATHEWS JACOB (SR.) SRI.P.JACOB MATHEW** ## **RESPONDENT/PETITIONER:** **MUHAMMED SHAFEEQ K.P.,S/O.SUBIDA V., SALAMATH MANZIL, KOLATHARA P.O., CHERUVANNUR AMSOM, KOZHIKODE 673 655.** **BY ADV. SRI.V.P.MUHAMMED SUNEER BY ADV. SRI.AVM.SALAHUDIN** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 03-07-2020, ALONG WITH CO.100/2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA No.1021/2016 & CO.100/2016 : 2 : ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE N.NAGARESH** **FRIDAY, THE 03RD DAY OF JULY 2020 / 12TH ASHADHA, 1942 CO.No.100 OF 2016 IN MACA. 1021/2016** **AGAINST THE AWARD DATED 11-01-2016 IN OP(MV) 1211/2013 OF PRINCIPAL MOTOR ACCIDENT CLAIMS TRIBUNAL,KOZHIKODE** ## **CROSS OBJECTOR/RESPONDENT/CLAIMANT:** **MUHAMMED SHAFEEQ K.P.,S/O. SUBAIDA V., RESIDING AT 'SALAMATH MANZIL', KOLATHARA POST,KOZHIKODE, PIN-673 655.** **BY ADV. SRI.AVM.SALAHUDIN** ## **RESPONDENT/APPELLANT/RESPONDENT:** **BRANCH MANAGER,CHOLAMANDALAM MS GENERAL INSURANCE CO. LTD.,SREEVALSAM BUILDING NO.5, BLOCK NO. 9, TS NO.375, 379, IIND FLOOR, EAST NADAKKAVU, KOZHIKODE, PIN-673 011.** **BY ADV.SRI.MATHEWS JACOB (SR) BY ADV. SRI.P.JACOB MATHEW** **THIS CROSS OBJECTION HAVING BEEN FINALLY HEARD ON 03.07.2020, ALONG WITH MACA.1021/2016(A), THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA No.1021/2016 & CO.100/2016 : 3 : ## **J U D G M E N T** ~ ~ ~ ~ ~ ~ ~ ~ ~ _**Dated this the 3[rd] day of July, 2020**_ The 3[rd] respondent-insurer in OP(MV) No.1211/2013 of the Principal Motor Accidents Claims Tribunal, Kozhikode is in appeal invoking Section 173 of the Motor Vehicles Act, 1988, aggrieved by Award dated 11.01.2016. The petitioner in OP(MV) (respondent herein) has filed Cross Objection No.100/2016. 2. In his OP(MV) filed under Section 166 of the Motor Vehicles Act, 1988, the respondent-petitioner stated that while he was travelling as pillion rider on a motorcycle on 28.12.2012, when he reached Chettiyarmad near Calicut University, a bus bearing No.KL-65-8837 driven negligently came from opposite direction and hit the motorcycle. The respondent sustained serious injuries and was taken to MACA No.1021/2016 & CO.100/2016 : 4 : Medical College Hospital, Kozhikode from where he was shifted to MIMS Hospital, Kozhikode. He was an inpatient till 08.03.2013. His treatment continued even thereafter. The respondent stated that he was working as a Messenger in an establishment in Dubai and was earning ₹35,000/- per month. The respondent therefore claimed ₹30,00,000/- as compensation. 3. The appellant-insurer filed written statement admitting the policy of the offending bus. The appellant denied the negligence of the driver of the bus and stated that accident occurred due to the negligence of the rider of the motorcycle involved in the accident. The age, occupation and monthly income of the respondent were also disputed. 4. The respondent produced Exts.A1 to A24 documents and examined himself as PW1. The Disability Certificate in respect of the respondent was marked as Ext.C1. The Tribunal, after appreciating the evidence on record, passed an Award allowing a compensation of ₹26,65,900/- under the following heads:- MACA No.1021/2016 & CO.100/2016 : 5 : |**Sl.**<br>**No.**|**The compensation**<br>**claimed under different**<br>**heads**|**Amount**<br>**claimed**<br>**(Rs)**|**Amount**<br>**allowed (Rs)**|**Basis /vital details in a**<br>**nut-shell**| |---|---|---|---|---| |1|Loss of earnings due to the<br>accident|3,00,000/-|1,08,000/-|9,000 x 12 months| |2|Transport to hospital|20,000/-|2,000/-|| |3|Hospitalisation as per A4,<br>19 & 20|25,000/-|60,200/-|700 x 86 days| |4|Medical expenses|6,00,000/-|5,40,795/-|Not seen objected by<br>R3.| |5|Future treatment|Nil|1,80,000/-|| |6|Pain and sufferings|5,00,000/-|1,00,000/-|| |7|Loss of amenities|3,00,000/-|50,000/-|| |8|Loss of income due to<br>disability as per C1 with<br>loss of future prospects at<br>50% of 9000/- p.m.|8,00,000/-|16,24,860/-|(9,000 + 4,500)x12 x 17<br>x 59/100| ||**Total**||26**,65,855/- **|**Rounded to 26,65,900**| The Tribunal awarded 9% interest also from the date of the OP(MV). The insurer was directed to deposit the amount. Aggrieved by the Award, the insurer has filed MACA No.1021/2016 and the petitioner has filed Cross Objection No.100/2016. 5. Learned Standing Counsel for the appellantinsurer stated that the Tribunal assessed the monthly income of the respondent as ₹9,000/- which is on a higher side. MACA No.1021/2016 & CO.100/2016 : 6 : Though the respondent claimed that he was working abroad, his income should be notionally arrived at on the basis of the Indian standards. Since there is no evidence of loss of job of the respondent, no amount can be awarded towards future prospects, contended the Standing Counsel for the appellant. The Tribunal has granted compensation for loss of earnings for one year. This period has to be necessarily reduced to three months, it was contended. 6. The learned Standing Counsel for the appellant further argued that ₹1 lakh awarded by the Tribunal towards pain and suffering is much on a higher side. Similarly, compensation for loss of amenities of ₹50,000/- allowed by the Tribunal has to be brought down. The interest rate of 9% allowed by the Tribunal is also excessive. The total compensation awarded by the Tribunal is therefore liable to be reduced substantially. 7. The learned counsel for the respondent-cross objector brought to the notice of this Court details of severe injuries sustained by the respondent including scull fracture, MACA No.1021/2016 & CO.100/2016 : 7 : and urged that though the Medical Board assessed his disability at 59%, the occupational and functional disability of the respondent is 100%. The Tribunal ought to have awarded compensation treating functional disability as 100%. The respondent was a bachelor at the time of the accident and continues to be unmarried due to his disability. The Tribunal did not grant any amount as compensation towards diminution of marriage prospects. 8. Compensation awarded towards transport to hospital is also very low. The respondent requires future treatment also and the amount of ₹1,80,000/- granted under that head is too low. Compensation granted towards pain and suffering and loss of amenities is also liable to be enhanced, contended the counsel for the respondent. 9. I have heard the learned Standing Counsel for the appellant and the learned counsel for the respondent. 10. The accident was on 28.12.2012. The respondent suffered grievous injuries including scull fracture, fracture on right posterior temporal and parietal bone, brain injuries, MACA No.1021/2016 & CO.100/2016 : 8 : injuries on head and face, complex comminuted facial fractures, fractures at eye, ear, nasal bone, nasal cavity, facial bone, neck bone and injuries at chest and abdomen and midline shift of brain and oedema, among other injuries. The respondent was subjected to tracheotomy by a maxilla facial surgeon and canthotomy by an Ophthalmologist. He had to be inserted with feeding PEG initially. 11. The respondent was taken from the place of accident to Medical College Hospital, Kozhikode, from where he was shifted to MIMS Hospital, Kozhikode on the same day, where he underwent surgeries. The respondent remained in MIMS from 28.12.2012 to 08.03.2013. Thereafter, the respondent was taken to Aravind Eye Hospital, Coimbatore for specialised treatment. He was again treated at Kozhikode AWH and at Sree Chitra Tirunal Institute of Medical Sciences, where he was an inpatient from 02.09.2013 to 04.09.2013 and from 22.10.2013 to 01.11.2013. The respondent underwent angiogram, left LCA there, as is evident from Ext.A20. The Medical Board MACA No.1021/2016 & CO.100/2016 : 9 : assessed the permanent disability of the respondent as 59%. 12. As regards the income of the respondent, the claim was that he was employed abroad and was drawing ₹35,000/- per month. A Division Bench of this Court has held in _**Valsamma and another v. Binu Jose and others** [2014 (1) KHC 207]_ that in the case of employees abroad, in the absence of credible evidence, it is safe to assess their income in the context of Indian standards taking the probable income he may have earned if he was working in India during the relevant time. The documents produced before the Tribunal would show that the respondent was a three year Diploma holder in Civil Engineering who has scored 61% marks in the examination. The respondent also holds Certificate of Excellence in Auto CAD. It has come out from evidence that the respondent also held a Certificate of Appreciation from the Consulate General of India, Dubai in recognition of his outstanding services rendered to the Indian community during the “General Amnesty” declared by the Government of UAE in 2007. These records would show that MACA No.1021/2016 & CO.100/2016 : 10 : the respondent was well educated and skilled, and had a bright future. As the respondent was a three year Diploma holder in Civil Engineering, this Court is of the opinion that his monthly income should be fixed at ₹15,000/-. 13. The Medical Board has stated that the respondent has sustained severe head injury and the respondent has memory deficiency also. The disability due to the weakness of R1 upper and lower limbs is assessed as 50% and facial weakness as 20%. Considering the physical state of the respondent, the Medical Board has certified that the respondent is having post traumatic sequlac of head injury, facial palsy (L2) and weakness of (Rt) upper and lower limb and is physically handicapped. The learned counsel for the respondent, relying on the Division Bench judgment of this Court in _**Yousaf v. D. Albert and others** [2016 (4) KLT SN 68 (C.No.77)]_ , argued that when the claimant is totally incapacitated, then irrespective of the physical disability assessment by Medical Board, 100% functional disability should be taken for award of compensation. In the said MACA No.1021/2016 & CO.100/2016 : 11 : case, 85% disability was assessed by the Board. It was evident from records and it was also indisputable that the claimant became paraplegic due to injuries. In the present case, though injuries were serious and the respondent has suffered high degree of disability, from the evidence on record, it cannot be said that the respondent is incapable of doing any activities, so as to assess 100% functional disability. The percentage of functional disability taken by the Tribunal as 59% therefore appears to be fair and proper. The adequacy or otherwise of the compensation granted by the Tribunal is to be assessed in the afore context. 14. The respondent sought ₹3,00,000/- towards compensation for loss of earning. The Tribunal assessed the period of loss of earning as 12 months and granted ₹1,08,000/-, treating ₹9,000/- as the notional monthly income of the respondent. The accident was on 28.12.2012. From the documents produced before the Tribunal, it has come out that the respondent has been treated consecutively in five major hospitals during the period from 28.12.2012 to MACA No.1021/2016 & CO.100/2016 : 12 : 01.11.2013. He was subjected to multiple surgeries including angiogram. The angiogram was performed on 30.10.2013. Therefore, taking into consideration the nature of treatment, surgeries undergone and the long period of treatment, this Court finds that the Tribunal was justified in granting compensation for loss of earnings for a period of 12 months. As this Court has fixed the notional income of the respondent as ₹15,000/-, the respondent will be eligible to a total compensation of ₹1,80,000/- (₹15,000 x 12) towards loss of earnings. As the Tribunal has already awarded ₹1,08,000/under this head, the respondent will be entitled to **₹72,000/-** (₹1,80,000/- minus ₹1,08,000/- already granted by the Tribunal) as additional compensation towards loss of earnings. 15. The respondent had claimed ₹20,000/- towards compensation for transportation expenses. The respondent, as stated earlier, was taken from one hospital to another and underwent multiple surgeries. It is evident from the treatment history that the respondent was forced to visit more than five MACA No.1021/2016 & CO.100/2016 : 13 : hospitals on multiple times. Therefore, the respondent is held to be eligible for ₹10,000/- towards transportation expenses. Adjusting ₹2,000/- already granted by the Tribunal, the respondent will be entitled to additional compensation of **₹8,000/-** towards transportation expenses. 16. The Tribunal has granted compensation of ₹60,200/- under the head hospitalisation. From the Award, it appears that this amount is awarded towards attendant/bystander expenses. If that be so, the amount awarded is excessive. As per the standardised rates, the accident being of the year 2012, bystander expenses of ₹250/- per day will be reasonable. Therefore, the respondent would be eligible only for ₹21,500/- (₹250 x 86 days) as bystander expenses. An amount of **₹38,700/-** is therefore liable to be reduced from the compensation awarded by the Tribunal. 17. The Tribunal has awarded ₹1,80,000/- towards future treatment. I have gone through the evidence on record. There is no material available to assess expenses MACA No.1021/2016 & CO.100/2016 : 14 : that may be incurred by the respondent for future treatment, though it is evident that the respondent would indeed require treatment in future. ₹1,80,000/- awarded by the Tribunal, in the absence of supporting materials, is therefore excessive. Accordingly, it is held that the respondent will be entitled only to an amount of ₹1 lakh towards future treatment. Therefore, **₹80,000/-** is liable to be reduced from the compensation awarded by the Tribunal. 18. The Tribunal has granted ₹1 lakh towards pain and suffering. The surgeries undergone by the respondent and the nature of treatment and history of hospitalisation would establish that ₹1 lakh granted by the Tribunal towards pain and suffering is justified. So is the compensation of ₹50,000/- awarded by the Tribunal towards loss of amenities. 19. It is to be noted that the accident occurred while the respondent was 29 years old. The injuries resulted in permanent disability of 59%. During the proceedings in the OP(MV), the respondent could not get married due to his disabilities. Learned counsel for the respondent submits that MACA No.1021/2016 & CO.100/2016 : 15 : the respondent continues to be unmarried even now. In the circumstances, it is declared that the respondent is entitled to an amount of **₹3,00,000/-** as compensation for diminution of marriage prospects. 20. Coming to the disability benefits, the Tribunal has granted ₹16,24,860/- treating 59% as functional disability. This amount needs revision. The monthly income of the respondent being fixed as ₹15,000/-, an addition of 40% has to be made towards future prospects. The notional income of the respondent inclusive of future prospects therefore should be treated as ₹21,000/- (₹15,000 + ₹6,000) for the purpose of calculating disability benefits. Accordingly, the respondent will be entitled to ₹25,27,560/- (₹21,000 x 12 x 17 x 59/100) as compensation for disability. The Tribunal has granted ₹16,24,860/- under this head. Hence, the respondent will be entitled to an additional compensation of **₹9,02,700/-** towards disability. 21. Therefore, the respondent will be entitled to **₹12,82,700/-** as additional compensation, over and above the MACA No.1021/2016 & CO.100/2016 : 16 : compensation awarded by the Tribunal, under the following heads:- |(i)|Additional compensation towards loss of|Additional compensation towards loss of|₹72,000/-| |---|---|---|---| ||earnings||| |(ii)|Additional<br>compensation|towards|₹8,000/-| ||transportation expenses||| |(iii)|Compensation for diminution in marriage||₹3,00,000/-| ||prospects||| |(iv)|Additional compensation towards disability||₹9,02,700/-| ||**Total**||**₹12,82,700/-**| ||||**==========**| The following amounts, being found excessive compensation awarded by the Tribunal, are liable to be deducted from the compensation amount awarded by the Tribunal. |(i)|Compensation for hospitalisation/ attendant/|₹38,700/-| |---|---|---| ||bystander expenses|| |(ii)|Compensation for future treatment|₹80,000/-| ||**Total**|**₹1,18,700/-**| |||**==========**| Accordingly, it is declared that the respondent is entitled to aggregate additional compensation of **₹11,64,000/-** MACA No.1021/2016 & CO.100/2016 : 17 : (₹12,82,700 minus ₹1,18,700). The said amount will also carry interest at the rate of 9% from the date of the OP(MV) till the date of payment. The appellant is directed to pay the additional compensation along with interest within a period of 30 days. The MACA and the Cross Objection are disposed of as above. Sd/- **N. NAGARESH, JUDGE** aks/01/07/2020