MACA Nos. 901 & 1612 of 2018; Irshad Hassan v. Shriram General Insurance Co. Ltd.

**MACA.Nos.901 & 1612 OF 2018** **1** **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **THURSDAY, THE 14TH DAY OF JANUARY 2021 / 24TH POUSHA, 1942** **MACA.No.901 OF 2018(A)** **AGAINST THE AWARD IN OPMV 796/2015 DATED 16-12-2017 OF PRINCIPAL MOTOR ACCIDENT CLAIMS TRIBUNAL ,KOZHIKODE** ## **APPELLANT/ PETITIONER:** **IRSHAD HASSAN S/O ABDUL RAZAK, AGED 30 YEARS,RESIDING AT KHADEEJAS', THAZHE MANNODIPARAMBU,KUNDOOR NARAYANAN ROAD, P.O.KALLI, KOZHIKODE-673003.** **BY ADV. SRI.AVM.SALAHUDIN** ## **RESPONDENT/3RD RESPONDENT** **SHRIRAM GENERAL INSURANCE CO.LIMITED** **AZAD TOWERS, AMMAN KOVIL STREET, COCHIN,ERNAKULAM682035.** **R1 BY ADV. SRI.R.AJITH KUMAR (128/84) R1 BY ADV. SRI.R.AJITH KUMAR 12884** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 07-01-2021, ALONG WITH MACA.1612/2018(F), THE COURT ON 14-012021 DELIVERED THE FOLLOWING:** **MACA.Nos.901 & 1612 OF 2018** **2** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **THURSDAY, THE 14TH DAY OF JANUARY 2021 / 24TH POUSHA, 1942** ## **MACA.No.1612 OF 2018** **AGAINST THE AWARD IN OPMV 796/2015 DATED 16-12-2017 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,KOZHIKODE** ## **APPELLANT/ 3RD RESPONDENT** **SHRIRAM GENERAL INSURANCE CO. LTD. AZAD TOWER, AMMANKOVIL STREET, ERNAKULAM, REP. BY IT'S MANAGER, SHRIRAM GENERAL INSURANCE COMPANY LTD., ERNAKULAM.** **BY ADV. SRI.R.AJITH KUMAR (128/84)** ## **RESPONDENT/CLAIMANT** **IRSHAD HASSAN S/O. ABDUL RAZAK, RESIDING AT KHADEEJAS, THAZHE MANNODIPARAMBU, KUNDOOR NARAYANAN ROAD, P.O. KALLAI, KOZHIKODE – 673 003. R1 BY ADV. AVM. SALAHUDIN** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 07-01-2021, ALONG WITH MACA.901/2018(A), THE COURT ON 14-012021 DELIVERED THE FOLLOWING:** **MACA.Nos.901 & 1612 OF 2018** **3** ## **JUDGMENT** The petitioner in OP(MV) No.796 of 2015 of the Principal Motor Accidents Claims Tribunal, Kozhikode is the appellant in MACA No. 901/2018. The 3[rd] respondent – the Insurance Company - before the Tribunal is the respondent in MACA 901/2018. The 3[rd] respondent and the petitioner in the above claim petition are the appellant and the respondent in MACA No.1612/2018. As the parties are the same and they are assailing the same award, these appeals are disposed of by this common judgment. The parties are, for the sake of convenience, referred to as per their litigate status in the claim petition. 2. The petitioner had filed the claim petition under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of the accident that he sustained on 20.1.2015. The case of the petitioner, in a nutshell, is that while he was riding his motor cycle bearing Reg.No. KL-11-AV-1888 through the Nallalam-Feroke road, a stage **MACA.Nos.901 & 1612 OF 2018** **4** carriage bus bearing Reg. No.KL-02-X-6667 driven by the 2[nd] respondent in a rash and negligent manner hit the motor cycle of the petitioner. The petitioner sustained serious injuries including a fracture. He was treated at the MIMS Hospital, Kozhikode and, thereafter, at the Baby Memorial Hospital, Kozhikode as an inpatient. The 1[st] respondent is the owner and the 3[rd] respondent is the insurer of the vehicle. The petitioner claimed an amount of Rs.50,00,000/- as compensation. 3. The 1[st] respondent was set ex parte. 4. The respondents 2 and 3 had filed separate written statements. The 3[rd] respondent, inter alia, admitted that the offending vehicle was owned by the 1[st] respondent was driven by the 2[nd] respondent and had a valid insurance policy. The 3[rd] respondent denied the age, income and occupation of the petitioner and that the petitioner had sustained injuries. The amount claimed as compensation was stated to be exaggerated and exorbitant. **MACA.Nos.901 & 1612 OF 2018** **5** 5. The petitioner and a witness were examined as PW1 and PW2 and Exts.A1 to A10 were produced and marked through them. Ext.C1 disability certificate was marked as a Court Exhibit and Ext.X1 was marked through PW2. 6. The Tribunal, after considering the pleadings and materials on record, allowed the claim petition, in part, by ordering that the petitioner is entitled to a compensation of Rs.31,18,000/- with interest at the rate of 9% per annum from the date of petition till the date of realisation. The 3[rd] respondent was directed to deposit the compensation amount within a period of 30 days. 7. The comparative table of compensation that was claimed by the petitioner and that was awarded by the Tribunal is as follows:- **MACA.Nos.901 & 1612 OF 2018** **6** |SI.<br>No|Head of claim|Amount<br>claimed<br>(in rupees)|Amount<br>awarded (in<br>rupees)|Basis/vital<br>details in a<br>nutshell| |---|---|---|---|---| |1|Loss of earning|1,00,000|48,000|8000x6<br>months| |2|Transport to hospital|10,000|6,000|| |3|Damage to clothings|3,000|1,000|| |4|Extra nourishment|50,000|12,000|| |5|Medical expenses|10,00,000|13,78,124|Ext.A8 series<br>and A9 series| |6.|Future<br>treatment<br>expenses|5,00,000|Nil|| |7.|Bystander|25,000|30,000|6000x5<br>months| |8.|Pain & suffering|50,000/-|1,00,000|(Relied on<br>Rajesh v.<br>Rajbeer Singh<br>(2013 (3)KLT<br>89)| |9.|Loss of amenities|2,00,000|1,00,000|| |10|Expenses<br>for<br>prosthesis<br>and<br>expenses<br>for<br>the<br>surgery of changing<br>the same|5,00,000|2,50,000|(200000+5000<br>0)| |11|Dis-figuration|Nil|50,000|(Relied on<br>Rajesh v.<br>Rajbeer Singh<br>(2013 (3) KLT<br>89)| |12.|Loss of income due to<br>disability|15,00,000|11,42,400|8000x12x17x7<br>0/100| ||Total||31, 17, 524/-|| 8. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioner has preferred MACA No.901/2018. Aggrieved by the compensation awarded by the Tribunal, the 3[rd] respondent/Insurance **MACA.Nos.901 & 1612 OF 2018** **7** Company has preferred MACA No.1612/2018. 9. Heard the learned counsel appearing for the appellant/petitioner and the learned counsel appearing for the respondent/3rd respondent. 10. Exts.A2 and A3 medical records and Exts.A5 to A7 and Ext.A10 discharge summaries issued by the Baby Memorial Hospital and MIMS Hospital, Kozhikode prove that the petitioner was admitted as an inpatient in the above hospitals and underwent treatment on account of the accident. Ext.A5 establishes that the petitioner had sustained a severe crush injury on his right lower limb with fracture of his bones with doubtful distal vascularity. His right leg was amputated below the knee on 20.1.2015. Ext.A10 certificate substantiates that due to the non-healing of the wound, the petitioner was again admitted to the hospital and underwent skin grafting procedure on the right stump. Ext.C1, the permanent disability certificate, issued by the Medical Board, constituted pursuant to the directions of the Tribunal shows that the petitioner has a permanent **MACA.Nos.901 & 1612 OF 2018** **8** disability of 70%. It was after taking into consideration all the above aspects that the Tribunal awarded an amount of Rs.31,17,525/-. 11. The learned counsel appearing for the petitioner argued that the Tribunal has fixed the notional income of the petitioner, who was a painter by profession at only Rs.8,000/- per month. 12. Going by the law laid down by the Hon'ble Supreme Court in **Ramachandrappa v. Manager, Royal Sundaram Alliance** [(2011) 13 SCC 236] and **Syed Sadiq and others v. Divisional Manager, United India Insurance Co.Ltd** [(2014) 2 SCC 735] the notional income fixed by the Tribunal is too low, especially considering the fact that the accident occurred in the year 2015. He also argued that in light of the law laid down in **Munna Lal Jain** **& another** v. **Vipin Kumar Sharma and others** [(2015) 6 SCC 347] and **United India Insurance Co. Ltd v. Satinder Kaur @ Satwinder Kaur and others** [2020 (3) KHC 760] **,** the Tribunal ought to have awarded future prospects to the **MACA.Nos.901 & 1612 OF 2018** **9** petitioner. It was also contended that as per Annexure- A1 produced before this Court, the petitioner had to further undergo amputation above his knee on 23.02.2018 and the Medical Board, as per Annexure-A2, has certified that the petitioner has a permanent disability of 80%. The petitioner had to incur additional medical expenses of Rs.77,479/- as per Annexure-A3 series bills. Similarly, as per AnnexureA4, the petitioner had to spend an amount of Rs.6,10,000/for the modular leg prosthesis (TF). Hence, the appeal may be allowed and the petitioner may be granted additional compensation and also the expenses that has been incurred for the subsequent surgery and for purchasing the artificial limb. 13. The learned counsel appearing for the respondent/3rd respondent argued that Ext-C1 report of the Medical Board certifies only the whole body disability of the petitioner has been assessed and not the disability with regard to particular limb as per the law laid down by the Hon'ble Supreme Court. The amounts claimed in Exts. A8, **MACA.Nos.901 & 1612 OF 2018** **10** A9 and A10 series are excessive. There is duplication to the tune of Rs.3,76,000/- as evident from Ext.A8 Medical Bill because the amount that was paid as advance has again been claimed and awarded by the Tribunal, which is unsustainable in law. The Tribunal has already awarded the respondent the cost of the artificial limb after the first amputation. Hence, the Insurance Company cannot be saddled with the liability to pay a further amount as claimed in Annexure-A4 for the amputation that was done above the knee subsequent to the passing of the impugned award. At any rate, the amount that has been awarded by the Tribunal is on the higher side and only a reasonable amount shall be ordered to be paid as compensation. He prayed that the appeal filed by the respondent may be allowed and the appeal filed by the appellant be dismissed. 14. The sole question that emerges for consideration in these appeals is whether the quantum of compensation awarded by the Tribunal is just and reasonable? **MACA.Nos.901 & 1612 OF 2018** **11** 15. A Constitution Bench of the Hon'ble Supreme Court in **National Insurance Company Ltd. v. Pranay Sethi [(2017) 16 SCC 680],** has held that Section 168 of the Motor Vehicles Act, 1988, deals with the concept of 'just compensation' and the same has to be determined on the foundation of fairness, reasonableness and equitability on acceptable legal standards. The conception of 'just compensation' has to be viewed through the prism of fairness, reasonableness and non-violation of the principle of equitability. 16. It is on record as per Ext.A4 final report that the accident was caused due to the rash and negligent driving of the offending vehicle by the 2[nd] respondent and that the offending vehicle was owned by the 1[st] respondent and insured with the 3[rd] respondent. 17. Admittedly, the petitioner was aged 28 years at the time of accident. He was a painter by profession. Although the petitioner had claimed that he was earning a monthly income of Rs.25,000/-, the Tribunal has fixed his notional **MACA.Nos.901 & 1612 OF 2018** **12** income only at Rs.8,000/- per month. 18. The Hon'ble Supreme Court in **Ramachandrappa** and **Syed Sadiq** (supra) has fixed the notional income of a coolie worker at Rs.4,500/- per month in the year, 2004 and for a vegetable vendor at the rate of Rs.6,500/- per month in the year 2008. Similarly, this Court in **Soman v. Jinesh James and others** [ILR 2020 (3) Kerala 1003] has fixed the notional income of the coolie worker in the year 2010 at Rs.7,500/- per month. ## Income 19. Considering the parameters laid down by the Hon'ble Supreme Court and this Court in the afore-cited decisions, and taking into consideration the fact that the petitioner was a painter by profession as on 20.1.2015, **I am of the considered opinion that the petitioner's notional income can safely be re-fixed at Rs.10,000/-** (Rupees Ten Thousand only) **per month,** instead of Rs.8,000/- fixed by the Tribunal. **MACA.Nos.901 & 1612 OF 2018** **13** ## Disability certificate 20. The Tribunal had referred the petitioner to be examined by a competent Medical Board. The competent Medical Board after examining the petitioner, by Ext.C1 report, found that the petitioner has disability of 70%. Although Annexure-A2 certificate has been produced before this Court issued by another Medical Board of the Medical College Hospital, to prove that the petitioner's permanent disability is 80%, as on 17.4.2018, after the amputation above the knee, I am of the considered opinion that Ext.C1 report can be relied on by this Court as there is no much change in the whole body disability of the petitioner due to his amputation above the knee subsequent to the passing of the award. As the petitioner's disability as per Ext.C1 was considered by the Tribunal, after examining the materials on record and after personally seeing the petitioner, I fix the petitioner's disability at 70%. **MACA.Nos.901 & 1612 OF 2018** **14** ## Multiplier 21. As the petitioner was aged 28 years at the time of accident, the multiplier to be adopted is 17 in light of the ratio decidendi in **Sarla Verma & Others v. Delhi Transport Corporation** [(2009) 6 SCC 121] **, National Insurance Company Ltd. v. Pranay Sethi** and **United India Insurance Co. Ltd v. Satinder Kaur @ Satwinder Kaur and others** (supra). ## Loss due to disability with future prospects: 22. Even though the petitioner has suffered 70% disability on account of the accident and his right leg was amputated above the knee, as discernible from Annexure-A1, the Tribunal failed to award the petitioner any compensation for future prospects as per the law laid down by the Hon'ble Supreme Court in **Pappu Deo Yadav v. Naresh Kumar and others (Civil Appeal No.2567/2020), Syed Sadiq** (supra) and **Raj Kumar** v. **Ajay Kumar [2011 (1) KLT 620(SC)].** As the petitioner was aged 28 years and the **MACA.Nos.901 & 1612 OF 2018** **15** multiplier is 17, I hold that the petitioner is entitled for future prospects at 40%. ## Loss of earnings 23. It is evident from Exts.A5 to A7,A10 and AnnexureA1 discharge summaries that the petitioner underwent medical treatment from 20.1.2015 to 24.2.2018. Undisputedly, the petitioner's right leg was amputated above the knee on 23.2.2018. However, the Tribunal has awarded loss of earnings to the petitioner only for a period of six months. In light of the above discharge summaries, I hold that the petitioner is entitled for loss of earnings for a period of 36 months. 24. I find sufficient force in the argument of the learned counsel appearing for the respondent that the Tribunal has not considered Exts.A1,A8, A9 and A10 series medical records in its proper perspective. **MACA.Nos.901 & 1612 OF 2018** **16** 25. On a re-appreciation of the above medical bills, especially Serial No.82 in Ext.A8 from page 12 onwards, it is seen that a total amount of Rs.3,76,000/- was paid towards advance amount. The said amount was again claimed towards medical expenses, which was awarded by the Tribunal based on the said documents. In fact, the petitioner was entitled only to an amount of Rs.10,02,124/as per Exts.A8, A9 and A10 series bills. Thus, the Tribunal has granted the petitioner an excess amount of Rs.3,76,000/-, which I deduct from the amount of Rs.13,78,124/- awarded by the Tribunal. ## Other Heads of Claims 26. With respect to the amounts claimed under the other heads of claim namely, (1) Transport to hospital, (2)Damage to clothing, (3) Bystander expenses, (4) Extra nourishment, (5) Pain and sufferings, (6) Loss of amenities, (7) Expenses for Medical expenses for changing the **MACA.Nos.901 & 1612 OF 2018** **17** artificial limb and Dis-figuration, I find that the Tribunal has awarded reasonable and just compensation. I do not find any reason to enhance the amounts under the said head of claims. 27. In light of the discussions and findings above, I fix the petitioner's notional income at Rs.10,000/-, his loss of earnings for a period of 36 months, his medical expenses at Rs.10,02,124/-, his future treatment (in light of AnnexuresA3 and A4. produced before this Court) at Rs.6,87,479/- and his loss due to disability with future prospects at 40% at Rs.19,99,200/-. The petitioner is entitled for enhancement of the amounts as modified and re-calculated above and given . in the table below for easy reference **MACA.Nos.901 & 1612 OF 2018** **18** |SI.<br>No|Head of claim|Amount<br>claimed<br>(in rupees)|Amount<br>awarded (in<br>rupees)|Amounts<br>modified and<br>recalculated<br>by this Court| |---|---|---|---|---| |1.|Loss of earnings|1,00,000|48,000|3,60,000| |2.|Transport to hospital|10,000|6,000|6,000| |3.|Damage to clothings|3,000|1,000|1,000| |4.|Extra nourishment|50,000|12,000|50,000| |5.|Medical expenses|10,00,000|13,78,124|10,02,124| |6.|Future treatment expenses|5,00,000|Nil|6,87,479| |7.|Bystander|25,000|30,000|30,000| |8|Pain & suffering|50,000/-|1,00,000|1,00,000| |9.|Loss of amenities|2,00,000|1,00,000|1,00,000| |10|Expenses for prosthesis<br>and expenses for the<br>surgery of changing the<br>same|5,00,000|2,50,000|2,50,000| |11|Dis-figuration|Nil|50,000|50,000| |12.|Loss of income due to<br>disability|15,00,000|11,42,400|19,99,200| ||Total||31, 17, 524/-|46,35,803/-| In the result, the appeals are allowed in part by enhancing the compensation for an amount of Rs.15,18,279/-. (Rupees Twelve Lakh Eighteen Thousand Two hundred and Seventy Nine only). The respondent/insurance company in MACA 901/2018 shall deposit the additional compensation awarded of Rs.15,18,279/- with interest at the rate of 9% per annum from the date of petition till the date of deposit/realisation **MACA.Nos.901 & 1612 OF 2018** **19** with proportionate costs before the Tribunal, within a period of two months from the date of receipt of a certified copy of the judgment, after deducting the liability, if any, of the appellant/petitioner towards balance court fee and legal benefit fund. The disbursement of compensation and additional compensation to the appellant/petitioner shall be done by the Tribunal in accordance with law. ma/13.1.20201 Sd/- **C.S.DIAS, JUDGE** **/True copy/**