H. Aslam v. Oriental Insurance Co. Ltd.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** ## **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** # **TUESDAY, THE 22[ND] DAY OF FEBRUARY 2022 / 3RD PHALGUNA, 1943** ## **MACA NO. 665 OF 2012** ## **AGAINST THE AWARD DATED 20.06.2011 IN OPMV 381/2007 OF MOTOR** ## **ACCIDENTS CLAIMS TRIBUNAL ,KASARAGOD** ## **APPELLANT/CLAIMANT:** **H.ASLAM AGED 24, S/O. MOHAMMED HASSAN KUTTY, R/AT M.H.HOUSE, KANWATHEERTHA P.O. & AMP VILLAGE, MANJESHWAR, KASARAGOD TALUK AND DISTRICT. BY ADV SMT.R.PADMAKUMARI** ## **RESPONDENTS/RESPONDENTS:** - **1 NARAYANA AGED 50, S/O. KITTA MOOLYA @ KRISHNAPPA, R/AT KAPPIKKAD HOUSE, ALLIHADDE, ALLIHADDE VILLAGE, BANTWAL TALUK. PIN.675 013** - **2 A. HAMEED S/O. HAMMABBA ADYAR, ACHARAPAL HOUSE, P.O., ADYAR, MANGALORE. PIN.575 012** - **3 THE BRANCH MANAGER ORIENTAL INSURANCE CO.LTD., BEAUTY PLAZA, BALMATTA ROAD, HAMPANKATTA, MANGALORE-575001.** - **BY ADVS. SRI. GEORGE CHERIAN SRI.A.R.GEORGE** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR** **ADMISSION ON 22.02.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** M.A.C.A No. 665 of 2012 **2** ## **JUDGMENT** This appeal has been filed against the award in O.P.M.V No.381/2007 on the file of Motor Accidents Claims Tribunal, Kasaragod. The claim petition was filed under Section 166 of Motor Vehicles Act, 1988 (In short the Act) for the injuries sustained by the appellant/claimant in a motor accident occurred on 27.04.2006, while he was travelling on a Motor Cycle bearing Registration No. KA.19Q/1017 as a pillion rider, a Lorry bearing Registration No. KA19A/696 driven by the 1[st] respondent came in a rash and negligent manner and hit the Motor Cycle on which the claimant was travelling, thereby the appellant/claimant sustained grievous injuries. Immediately he was taken to Unity Health Complex, Mangalore. It is alleged that the accident happened due to the rash and negligent driving of the 1[st] respondent. 2[nd] respondent is the owner of the offending vehicle and 3[rd] respondent is the insurer. Total compensation of Rs.2,00,000/- has been claimed. 2. Before the Tribunal, the 1[st] and 2[nd] respondents the driver and owner of the offending vehicle remained ex parte and the 3[rd] respondent insurer filed written statement admitting the insurance M.A.C.A No. 665 of 2012 **3** coverage with respect to the offending vehicle. It is contended that the accident happened due to the rash and negligent driving of the rider of the Motor Cycle and further that the Motor Cycle was overloaded by two pillion riders and it hit against the parked Lorry. It is also stated that the rider of the Motor Cycle was not having driving license to ride the motor cycle. Hence, claimant is not entitled to claim any compensation from the respondents. 3. This case was tried along with O.P.(M.V) Nos.379 and 380 of 2007. Exts. A15 to A17 and Ext.X2 were marked from the side of the appellant in this case. There is no oral evidence on either side. On evaluation of the documents and pleadings, the Tribunal awarded a total compensation of Rs.98,200/- under various heads together with interest at the rate of 8% per annum. 4. Dissatisfied with the quantum of compensation awarded by the Tribunal, the appellant/claimant approaches this Court in appeal for the various grounds stated in the memorandum of appeal. Notice to respondents 1 and 2 have been dispensed with since the 3[rd] respondent insurer admitted the policy coverage with respect to the offending vehicle. Adv.A.R.George, the Standing Counsel appeared on behalf of the 3[rd] respondent. 5. Heard the learned counsel for the appellant and the learned M.A.C.A No. 665 of 2012 **4** Standing Counsel for the 3[rd] respondent. Lower court records were called for and perused. 6. According to the learned counsel for the appellant, claimant was a student aged 19 years studying Pre-university course in Rosario Composite Pre-university College, Mangalore. But the Tribunal taken his monthly income as Rs.2,000/- per month, it is very low. It is also contended that the amount awarded under other heads are very low in view of the nature of injuries sustained by the claimant. Hence he seeks for enhancement of compensation on all heads. 7. The learned Standing Counsel for the 3[rd] respondent on the other hand contended that just and reasonable compensation has already been awarded by the Tribunal and no interference is called for in this appeal. 8. The accident was in the year 2004. No evidence as such adduced to prove the monthly income of the appellant. There is no dispute in connection with the finding of negligence on the part of the 1[st] respondent and liability of the 3[rd] respondent. The only dispute between the parties is with respect to the quantum of compensation awarded by the Tribunal under various heads. 9. In **National Insurance Co. Ltd v. Fathimath Zuhara @ Zuhara Razak & Another** [2016 3 KLT 459], a Division Bench of this M.A.C.A No. 665 of 2012 **5** Court fixed monthly income of Engineering student in an accident on 10.09.2005 as Rs.12,000/-. In **Basanti Devi & Another v. The New India Assurance Co. Ltd and Others** (Civil Appeal Nos. 7435-7436 of 2021), the Apex Court fixed the notional income of an Engineering graduate who lost life in an accident occurred on 10.03.2011 at the age of 25 as Rs.20,000/-. The accident in this case is in 2006. Claimant in this case was 19 years doing Pre-University Course. Hence the monthly income of the claimant can notionally be fixed as **Rs.4,000/-.** 10. In _**Raj kumar v. Ajay Kumar and Another**_ (2011 (1) SCC 343 = 2010 KHC 5021) the apex court has elaborately discussed the general principle relating to compensation in injury cases. In personal injury cases, heads under which the compensation is awarded has been classified into two as pecuniary damages (special damages) and non pecuniary damages (general damages). In paragraph No.5, the heads coming under pecuniary damages and non pecuniary damages have been discussed in detail. In personal injury cases, compensation would be awarded only under the heads ie, expenses relating treatment, hospitalization, medicine, transportation nourishing food and miscellaneous expenditure and loss of earning during the period of treatment as well as damages for pain, suffering and trauma as a consequence of the injuries. M.A.C.A No. 665 of 2012 **6** 11. In case of serious injuries, where there is specific medical evidence corroborating evidence of the claimants, the compensation would be granted under the heads loss of earnings (and other gains) which the injured would have made had he not been injured, comprising:- Loss of future earnings on account of permanent disability, Future medical expenses, Loss of amenities (and/or loss of prospects of marriage) and Loss of expectation of life (shortening of normal longevity). 12. The assessment of non pecuniary damages under the damages for pain, suffering and trauma, loss of amenities and loss of expectation of life involves determination of lump sum amounts with reference to circumstances such as age, nature of injury/deprivation/disability suffered by the claimant and the effect thereof on the future life of the claimant. 13. The injuries sustained by the claimant in this case is as follows: 1. Swelling right knee joint with fracture knee cap (patella). Lateral condyle femur. 2. Fracture both bones right forearm. 3. Multiple abrasion left foot. 14. Claimant had undergone 18 days inpatient treatment at M.A.C.A No. 665 of 2012 **7** Onity Health Complex, Manglore. He was a Pre-University student. He had fracture of both bones of right fore arm and fracture of right knee cap. As per Ext.X2 the certificate issued by the Medical Board, he has permanent physical impairment of 14% in relation to right lower limb and has physical impairment of 12% in relation to right upper limb. Tribunal takes 13% whole body disability that appears as reasonable. As per **Sarla Verma(smt) v. Delhi Transport Corporation Anr. (2009 6 SCC 121)** approved by the Constitution Bench in **National Insurance Company Limited v. Pranay Sethi and Ors (2017 (4) KLT 662)** the suitable multiplier would be '18' and not '15' as taken by the Tribunal. Hence towards permanent disability, the claimant is entitled to get 4,000x12x13x18/100=1,12,320. Deducting the amount already awarded, the balance would be **Rs.83,070/-** (1,12,320-29,250). 15. No award was granted towards loss of amenities. As per _**Raj kumar v. Ajay Kumar and Another**_ (2011 (1) SCC 343 = 2010 KHC 5021), claimant is entitled to get some amount towards loss of amenities. In view of the nature of injuries and the disability suffered, I am of the view that **Rs.10,000/-** can be given towards the loss of amenities. 16. Towards the extra nourishment, the amount of Rs.500/- M.A.C.A No. 665 of 2012 **8** awarded by the Tribunal is seems to very low. In view of the facts and circumstances, I am of the view that **Rs.1,000/-** can be further awarded under the head of extra nourishment. 17. Towards the bystander expenses, the Tribunal awarded Rs.1,800/-. The accident was occurred in the year 2006. So towards the by stander expenses, the claimant is entitled to get Rs.200/- per day. On that head, claimant would be further entitled to get enhanced compensation of **Rs.1,800/-.** Hence, the claimant is entitled to get an enhanced compensation of Rs. 95,870/- (Ninety five thousand eight hundred and seventy) (83,070+1,000+10,000+1,800) rounded to **Rs.95,900/-.** 18. In the result, claimant is allowed to realize an enhanced compensation of **Rs.95,900/-.** in this appeal, which will carry interest at the rate of 7.5% per annum from the date of petition till realization. Respondent No.3 is directed to pay the enhanced compensation granted in this appeal, together with interest, within a period of two months from the date of receipt of certified copy of this judgment. 19. The appeal has been filed with a petition to condone delay of 168 days. While condoning the delay by order dated 13.07.2012 in CMA.No.833/2012, it was made clear that, in case any M.A.C.A No. 665 of 2012 **9** enhancement of compensation is granted, the claimant will not be entitled to claim interest for the above said period. Hence, interest for the period of 168 days is excluded. Appellant/claimant shall provide his Bank Account details (attested copy of the relevant page of the Bank Passbook having details of the Bank Account Number and IFSC Code of the branch) before the Tribunal with copy to the Standing Counsel for insurer within one month from the date of receipt of certified copy of this judgment. Parties shall bear their respective costs. SD/- **M.R.ANITHA** **JUDGE** rps/