Ismayil v. Reliance General Insurance Company Limited

``` MACA No.2743 of 2017 ``` ``` 1 ``` ``` 2025:KER:24453 ``` **==> picture [57 x 57] intentionally omitted <==** ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE C.PRATHEEP KUMAR ``` ``` WEDNESDAY, THE 19[TH] DAY OF MARCH 2025 / 28TH PHALGUNA, 1946 MACA NO. 2743 OF 2017 ``` ``` AGAINST THE AWARD DATED 30.11.2014 IN OP(MV) NO.752 OF 2014 OF THE PRINCIPAL MOTOR ACCIDENT CLAIMS TRIBUNAL,KOZHIKODE ``` ## **`APPELLANT/PETITIONER:`** ``` ISMAYIL AGED 52 YEARS, S/O.MARAKKARUTTY,PADINJARAYIL POTTAMMAL HOUSE,P.O.PERUMANA,PERUVAYAL,KOZHIKODE. ``` ``` BY ADV SRI.V.N.RAMESAN NAMBISAN ``` ## **`RESPONDENT/RESPONDENT NO.3:`** ``` RELIANCE GENERAL INSURANCE COMPANY LIMITED 2ND FLOOR,CITADEL ARCADE,R.C.ROAD, OPP.TAGORE CENTENARY HALL,KOZHIKODE,PIN-673 008. ``` ## **`OTHER PRESENT:`** ## **`SRI.TAPAS VARMA A.`** ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 19.03.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA No.2743 of 2017 ``` ``` 2 ``` ``` 2025:KER:24453 ``` **==> picture [57 x 57] intentionally omitted <==** ## **J U D G M E N T** Dated this the 19[th] day of March, 2025 The petitioner in O.P.(M.V.) No.752 of 2014 on the file of the Principal Motor Accident Claims Tribunal, Kozhikode 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 25.04.2013. According to the petitioner, on 25.04.2013 at about 5.45 p.m., while he was walking through the extreme side of the road, a tipper lorry bearing Reg.No.Kl-39-B-8758, driven by the 2[nd] respondent hit him down. As a result of the accident, the petitioner 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.26,20,500/-. ``` MACA No.2743 of 2017 ``` ``` 3 ``` ``` 2025:KER:24453 ``` **==> picture [57 x 57] intentionally omitted <==** 4. The insurance company filed a written statement, admitting the accident as well as policy, but disputing the negligence on the part of the driver of the offending vehicle. 5. The evidence in the case consists of the documentary evidence Exts.A1 to A9, and C1. 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.2,52,050/- 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.V.N. Ramesan Nambisan, the learned Counsel appearing for the petitioner/appellant, and Sri. Tapas Varma A., the learned Standing Counsel for the respondent. ``` MACA No.2743 of 2017 ``` ``` 4 ``` **==> picture [57 x 57] intentionally omitted <==** ``` 2025:KER:24453 ``` 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. According to him, the petitioner was working as a coolie, earning Rs.650/- per day, but the Tribunal fixed his monthly income at Rs.5,000/-. The learned counsel for the insurer would argue that the income fixed by the tribunal is reasonable. 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 2013 will come to Rs.9,500/-. Since the petitioner could not prove his income as claimed in the OP, in the light of a dictum laid down in the decision of the Hon’ble Supreme Court in **Ramachandrappa (supra)** , his notional income is liable to be fixed as , at Rs.9,500/-. 12. In the accident the petitioner sustained Hemorrhagic contusion noted in right frontal lobe with effacement of adjacent contri sulci, sylvan fissure and frontal hum of right lateral ventricle. Perilesional odema noted with minimal subfalcine herniation, Midline ``` MACA No.2743 of 2017 ``` ``` 5 ``` ``` 2025:KER:24453 ``` **==> picture [57 x 57] intentionally omitted <==** shift of 5mm noted to left, Thin SDH (2mm) thick noted in anterior interhemispheric fissure, SAH noted along cereal sulci of right frontal aging. 13. As per Exhibit C1 disability certificate the petitioner suffered 25% permanent physical disability. It was issued by the medical board. The Tribunal, has accepted the permanent physical disability of the petitioner as such and hence, I do not find any grounds to disbelieve the same. Therefore, the permanent physical disability of the petitioner is accepted as 25%, as fixed by the Tribunal. 14. On the date of accident, the petitioner was aged 49 years. Therefore, 25% of the monthly income is to be added towards future prospects, as held in the decision in **National Insurance Co. Ltd v. Pranay Sethi** [(2017) 16 SCC 680] and the multiplier to be applied is 13, 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.4,63,125/- (11875 x 12 x 13 x 25%) 15. Towards loss of earning, the tribunal has awarded only Rs. 25,000/- being the income for 5 months @ Rs.5000/-. Considering the nature of the injuries sustained and the percentage of disability ``` 6 ``` ``` MACA No.2743 of 2017 ``` **==> picture [57 x 57] intentionally omitted <==** ``` 2025:KER:24453 ``` suffered by the petitioner, the petitioner might have lost income at least for a period of 8 months. Therefore, towards 'loss of income' the petitioner is entitled to get a sum of Rs. 76,000/- ( 9500 x 8 months). 16. Towards the head ‘pain and sufferings’, the Tribunal has awarded Rs. 20,000/-. Towards 'loss of amenities of life' Rs. 10,000/was awarded. According to the learned counsel for the petitioner, the compensation awarded on those heads are on the lower side. Towards 'extra nourishment' no amount was awarded. 17. The petitioner sustained very serious injuries in the accident and was treated as inpatient for 19 days. In the meantime he had undergone a surgery also. 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’ and 'loss of amenities of life' are on the lower side and hence they are enhanced to Rs.75,000 /-, Rs.50,000/- respectively. Towards 'extra nourishment' Rs.10,000/- is awarded. 18. No change is required, in the amounts awarded on other heads, as the compensation awarded on those heads appears to be just and reasonable. ``` 7 ``` ``` MACA No.2743 of 2017 ``` **==> picture [57 x 57] intentionally omitted <==** **==> picture [85 x 8] intentionally omitted <==** **----- Start of picture text -----**<br> 2025:KER:24453<br>**----- End of picture text -----**<br> 19. Therefore, the appellant/petitioner is entitled to get a total compensation of Rs.7,06,175/-, 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**<br>**Awarded in**<br>**Appeal (in Rs.)**| |---|---|---|---| |1|Loss of earnings|25,000|76,000| |2|Transport to hospital|2,000|2,000| |3|Hospitalisation for 19<br>days as per A7|13,300|13,300| |4|Medical bills as per<br>Ext.A9|12,750|12,750| |5|Future treatment|4,000|4,000| |6|Loss of disability|1,65,000|4,63,125| |7|Pain and sufferings|20,000|75,000| |8|Loss of amenities|10,000|50,000| |9|Extra nourishment|-|10,000| ||**Total**|2,52,050/-|7,06,175/-| ||Enhanced Rs.4,54,125/-||| 20. In the result, this Appeal is allowed in part, and - Respondent No.3 is directed to deposit a total sum of Rs.7,06,175/ (Rupees Seven lakh six thousand one hundred and seventy five 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 ``` MACA No.2743 of 2017 ``` ``` 8 ``` ``` 2025:KER:24453 ``` **==> picture [57 x 57] intentionally omitted <==** deposit/realisation, excluding interest for a period of 866 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%). 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. ## Sd/- **C. PRATHEEP KUMAR, JUDGE** S.M.K.