MACA Nos. 974/2012 & 1567/2013, The Oriental Insurance Company Ltd vs P.M. Suneer (and Suneer P.M. v The Oriental Insurance Company Ltd)

MACA.Nos.974/12 & 1567/13 1 _IN THE HIGH COURT OF KERALA AT ERNAKULAM_ ## _PRESENT_ _THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. WEDNESDAY, THE 13[TH] DAY OF DECEMBER 2023 / 22ND AGRAHAYANA,_ ## _1945_ ## _MACA NO. 974 OF 2012_ _AGAINST THE ORDER/JUDGMENT OPMV 910/2010 OF IST ADDITIONAL_ _M.A.C.T, KOZHIKODE_ ## _APPELLANT/3RD RESPONDENT:_ _THE ORIENTAL INSURANCE COMPANY, THRISSUR, NOW REPRESENTED BY ITS ASSISTANT MANAGER, REGIONAL OFFICE, METRO PALACE, KOCHI-18._ _BY ADVS. SRI.MATHEWS JACOB (SR.) SRI.P.JACOB MATHEW_ ## _RESPONDENT/PETITIONER:_ _P.M.SUNEER, S/O.BASHEER, NAMBIVEETTIL MEETHAL HOUSE, PAYYADIMEETHAL, PANTHEERANKAVU.P.O., KOZHIKODE. PIN.673 320._ _THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 13.12.2023, ALONG WITH MACA.1567/2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:_ MACA.Nos.974/12 & 1567/13 2 _IN THE HIGH COURT OF KERALA AT ERNAKULAM_ _PRESENT_ _THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. WEDNESDAY, THE 13[TH] DAY OF DECEMBER 2023 / 22ND AGRAHAYANA,_ ## _1945_ ## _MACA NO. 1567 OF 2013_ _AGAINST THE ORDER/JUDGMENT OPMV 910/2010 OF IST ADDITIONAL_ _M.A.C.T, KOZHIKODE_ ## _APPELLANT/PETITIONER:_ _SUNEER.P.M., S/O.BASHEER, RESIDING AT NAMBIVEETIL MEETHAL HOUSE, PAYYADIMEETHAL, P.O.PANTHEERNKAVU, KOZHIKODE._ _BY ADVS. SRI.V.S.CHANDRASEKHARAN SRI.M.V.DAS SMT.LEKSHMI SWAMINATHAN_ ## _RESPONDENTS/RESPONDENTS:_ _1 IDICULLA ISSAC, RESIDING AT 163/8, PLANTHOTTATHIL HOUSE, KURUKACHAL P.O., KOTTAYAM (OWNER OF THE CAR BERING REG.NO.KL07/AA-0489 DELETED FROM THE PARTY ARRAY)._ _2 NISAMUDHEEN, AGED 31 YEARS, S/O.MOHAMMED, RESIDING AT KUNNATH HOUSE, TRIPRAGOD, TIRUR, (DRIVER OF THE CAR BERING REG.NO.KL07/AA-0489 DELETED FROM THE PARTY ARRAY)._ _3 THE ORIENTAL INSURANCE COMPANY LTD_ MACA.Nos.974/12 & 1567/13 3 _K.P.NAMPOOTHIRIES SHOPPING COMPLEX, OPP.THIUVAMPADY TEMPLE, SHORNUR ROAD, TRICHUR. (INSURER OF THE CAR BERING REG.NO.KL07/AA-0489)._ _4 NIZZAR,_ _S/O.MUHAMMED, KUNNATH HOUSE, ALINGEL APPENGOTTU P.O., MALAPPURAM (DRIVER OF THE CAR BERING REG.NO.KL07/AA-0489)(AMMENDED AS PER ORDER IN IA NO.2317/11 DATED 16/11/2011 DELETED FROM THE PARTY ARRAY)._ _BY ADVS. SRI.P.JACOB MATHEW SRI.MATHEWS JACOB SR._ _THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 13.12.2023, ALONG WITH MACA.974/2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:_ MACA.Nos.974/12 & 1567/13 4 ## **JUDGMENT** ## **[MACA Nos.974/2012, 1567/2013]** These appeals arose from O.P.(MV).No.910 of 2010 on the file of the Motor Accidents Claims Tribunal, Kozhikode. The said claim petition was submitted by the claimant, who is the appellant in M.A.C.A.No.974 of 2012, seeking compensation for the injuries sustained to him in a motor accident that occurred on 21.09.2009. For the sake of convenience, the parties in these appeals are referred to on the basis of respective rankings in the claim petition. 2. The accident occurred when the motorcycle ridden by the petitioner was hit by a car bearing registration No.KL-07/AA0489 driven by the 2nd respondent in the claim petition. The 1st respondent was the owner of the vehicle and it was insured with the 3rd respondent. Due to the injuries, the petitioner suffered serious physical disablement. He was a coolie aged 30 years at the time of the accident. The monthly income claimed was Rs.8,500/-. The claim petition was submitted in such circumstances. MACA.Nos.974/12 & 1567/13 5 3. The 3[rd] respondent/Insurance Company filed a written statement admitting the coverage of the policy in respect of the car. However, they disputed the liability. They also disputed negligence and the quantum of compensation. 4. Evidence in this case consists of Exts.A1 to A21 from the side of the petitioners and the disability certificate issued by the Medical Board was marked as Ext.C1. No evidence was adduced from the side of the respondents. After the trial, the Tribunal came to the conclusion that the accident occurred due to negligence on the part of the driver of the car and being the insurer of the said vehicle, the 3[rd] respondent/Insurance Company was held liable to pay the compensation. The quantum of compensation was fixed as Rs.9,39,910/- and the same was directed to be deposited by the 3rd respondent/Insurance Company with interest at the rate of Rs.8% per annum from the date of petition till realization with a cost of Rs.15,000/-. M.A.C.A.No.974 of 2012 was filed by the 3[rd] respondent/Insurance Company challenging the quantum of compensation, whereas M.A.C.A.No.1567 of 2013 was submitted by the petitioner seeking enhancement of the compensation. MACA.Nos.974/12 & 1567/13 6 5. Heard Sri.V.S.Chandrasekharan, learned counsel for the petitioner and Sri.Mathews Jacob, learned Senior Counsel appearing for the Insurance Company. 6. The quantum of compensation alone is disputed in both these appeals. The main contest is under the head of the compensation for disability. Learned Senior Counsel for the Insurance Company contends that the Tribunal took the percentage of functional disability as 100% and calculated the compensation accordingly, which was not at all warranted. It was also contended that the multiplier adopted by the Tribunal is 18, whereas the proper multiplier should have been 17, considering the fact that the petitioner was 30 years old at the time of the accident. 7. The learned counsel for the petitioner, on the other hand, would contend that the amount awarded by the Tribunal is not just compensation and requires enhancement. After carefully going through the materials produced on records and considering the rival contentions, I find some force in the contention put forward by the learned counsel for the petitioner. First of all, the monthly income adopted by the Tribunal appears MACA.Nos.974/12 & 1567/13 7 to be on the lower side, as it was only Rs.3,300/-. Of course, it is true that even though it was contended that the petitioner was working as a coolie with a monthly income of Rs.8,500/-, no evidence was adduced to substantiate the same. However, even in the absence of evidence, the monthly income of Rs.3,300/- is on the lower side. When the method of computation of monthly income evolved from the principles laid down in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Co. Ltd. [2011 (13) SCC 236] and Syed Sadiq v. Divisional Manager, United India Insurance Co. [2014 (2) SCC 735]** is taken into account, the monthly income of an ordinary worker, even without any evidence, can be accepted as Rs.7,000/- in respect to an accident that occurred in the year 2009. As per the said method of computation, the basic monthly income is to be taken Rs.4,500/- for the year 2004 and Rs.500/each to be added for the subsequent years. In this case, in the absence of any better evidence, Rs.7,000/- can be fixed as monthly income. 8. The next aspect relates to the percentage of disability. The Tribunal has accepted the functional disability as 100%. I MACA.Nos.974/12 & 1567/13 8 have gone through the Ext.C1 disability certificate issued by the Medical Board as well. It can be seen that the same was certified by the Doctors after examining him, wherein the percentage of permanent partial disability is determined as 80%, and occupational disability due to the injuries was certified as 100%. The injuries suffered by the petitioner include a head injury that resulted in neurological disability also. Since the panel of expert Doctors, after evaluating the condition of the petitioner, had certified the occupational disability as 100%, the assessment of compensation made by the Tribunal by accepting the said conclusion cannot be found fault with. Therefore, I do not find any scope for interference in the percentage of disability. The next aspect relates to the addition of the monthly income towards future prospects. This is a case in which a person engaged in manual labour sustained 100% disability, which incapacitated him from carrying out any other work. Therefore, certainly, this is a case in which future prospects is to be taken into account and as per **National Insurance Co. Ltd v. Pranay Sethi [2017 (4) KLT 662 (SC)],** there has to be an addition of 40% of the income. Thus, while re-assessing the compensation with MACA.Nos.974/12 & 1567/13 9 the criteria referred to above, the compensation for disability would come to Rs.19,99,200/- [(7000+40%) x 12 x 17 x 100/100]. The amount already awarded by the Tribunal is Rs.7,12,800/and the additional amount, therefore, would come to Rs.12,86,400/-. In addition to the same, the petitioner is granted a further sum of Rs.30,000/- under the head of pain and suffering as well, taking note of the serious injuries and the prolonged treatment which includes in-patient treatment of 143 days. Consequent to the enhancement in the monthly income, the appellant would be entitled to an additional amount under the head of loss of earnings as well. The Tribunal has awarded loss of earnings for a period of six months, which appears to be reasonable, particularly since the percentage of disability has been accepted as 100%. Therefore, additional compensation would come to Rs.22,200/- [(7000x6)-(3300x6)]. Thus, the total additional compensation is determined as Rs.13,38,600/[1286400+30000+22200]. 9. In the light of the aforesaid observations and findings these appeals are disposed of by modifying the award dated 13.01.2012 in O.P.(MV).No.910 of 2010 passed by the Motor MACA.Nos.974/12 & 1567/13 10 Accidents Claims Tribunal, Kozhikode by granting an additional compensation of Rs.13,38,600/- (Rupees thirteen lakhs thirty eight thousand and six hundred only) and the said amount shall be deposited by the 3[rd] respondent Insurance Company with interest at the rate as ordered by the Tribunal with proportionate cost, within a period of three months from the date of receipt of a copy of this judgment. It is clarified that as the M.A.C.A.No.1567 of 2013 was filed with a delay of 435 days, the Insurance Company shall be at liberty to exclude the said period while computing the interest on the additional amount. Sd/- **ZIYAD RAHMAN A.A. JUDGE** DG/13.12.23