Mohammad Shahid v. Kannan & Oriental Insurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR** **& THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH** **WEDNESDAY, THE 14TH DAY OF DECEMBER 2016/23RD AGRAHAYANA, 1938** ## **MACA.No. 568 of 2012 ()** **------------------------** ## **AGAINST THE AWARD IN OPMV 406/2006 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, IRINJALAKUDA DATED 13-01-2010** ## **APPELLANT(S)/PETITIONER:** ## **------------** **MOHAMMAD SHAHID AGED 24 YEARS S/O.ABDUL JABBER ULLAMPUZHA HOUSE P.O KAIPAMANGALAM BEACH, KODUNGALLUR.** **BY ADVS.SMT.JEENA JOSEPH SRI.G.D.PANICKER** ## **RESPONDENT(S)/RESPONDENTS:** ## **--------------** ## **1. KANNAN** **S/O.BALAN, ARAYANGATTIL HOUSE, KAIPAMANGALAM BEACH KAIPAMANGALAM P.O KODUNGALLUR PIN 680 664** **2. ORIENTAL INSURANCE CO.LTD BRANCH OFFICE, MANAPATT BUILDING, NORTH NADA, KODUNGALLUR 680 664** **R2 BY ADV. SRI.VPK.PANICKER R BY SRI.GEORGE CHERIAN (THIRUVALLA)** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 14-12-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **SHG/** ## **C.T. RAVIKUMAR & K.P. JYOTHINDRANATH, JJ.** **- - - - - - - - - - - - - - - - - - - - - - - M.A.C.A.No.568 of 2012** **- - - - - - - - - - - - - - - - - - - - - - - Dated this the 14[th] day of December, 2016** ## **J U D G M E N T** ## **Jyothindranath, J.** This is an appeal filed by the claimant in O.P.(M.V.)No. 406/2006 on the file of the Motor Accidents Claims Tribunal, Irinjalakuda. 2. The facts in a nutshell for consideration of this appeal is as follows: A motor vehicle accident occurred on 12.9.2005 wherein the claimant herein sustained very grievous injuries. The claimant was riding his motorcycle bearing registration No.KL-8/V 6950 and it collided with another motorcycle bearing registration No.KL-8/W 5308. A claim petition was moved before the tribunal alleging that the accident occurred due to the negligence of the rider of the bike bearing registration No.KL-8/W 5308. The tribunal M.A.C.A.No.568 of 2012 2 awarded a total compensation of Rs.2,20,200/- against a total claim of Rs.4 lakhs. The challenge is against the quantum of compensation awarded. It is also brought to our notice that in the accident the appellant sustained very severe injuries. He sustained permanent disability and the medical board assessed his disability as 19%. The appellant was aged only 18 years at the time of the accident and was pursuing his studies. The accident adversely affected his studies as well as his future. All these aspects were not properly considered by the tribunal. The tribunal considered only Rs.2,000/- for the assessment of compensation on the head of disability factor and adopted a multiplier of 16%. As per the decision of the Apex Court in **Sarla Varma v. Delhi Transport Corporation [2010 (2) KLT 802 (SC)]** a multiplier of 18 should have been adopted. It is also the submission that the notional income considered for assessment purpose for the minor aged 18 as Rs.2,000/- is not correct. It is a fact that he was studying for a better future and it was affected by the accident. It is M.A.C.A.No.568 of 2012 3 also the submission that no amount was awarded towards the adverse effect on studies on future prospects. When the tribunal considered only Rs.2,000/- as monthly income, as a student the adverse effect on the studies should have been considered by the tribunal. It is also the submission that the compensation awarded on the head of loss of amenities is also on a lower side. The compensation awarded on other heads like by standers expenses, extra nourishment etc. are also on a lower side. 3. We have heard Sri.V.P.K. Panicker, learned counsel appearing for the 2[nd] respondent insurance company. 4. It is submitted before us that it is a fact that the appellant was shown as a student. When the appellant was only a student, there will be no income and the income considered by the tribunal itself is on a higher side and it is also brought to our notice that the appellant was driving the vehicle without a licence as evident from the award. When the accident occurred due to the riding of a bike without a M.A.C.A.No.568 of 2012 4 licence, actually the tribunal should have considered this fact and should have found that it is a case of contributory negligence. Rightly the tribunal deducted 10% of the compensation as it was found that the appellant was not having a valid driving licence at the time of the accident. The learned counsel also brought to our notice that there is an error in the calculation and the awarded amount is Rs.2,20,200/- whereas the calculation will show that it will be only Rs.2,19,400 i.e. there is a difference of Rs.800/-. 5. After hearing the learned counsel and perusing the award, it can be seen that the accident occurred on 12.9.2005. The appellant was aged 18 years at that point of time. Considering the age of the appellant and the potentiality of a person aged 18 years, but at the very same time considering the fact that he was a student alone and was having no income, it will be only just and proper to consider Rs.30,000/- as his annual income for calculation of compensation. There is force in the submission of the learned counsel for the appellant that the multiplier should 5 M.A.C.A.No.568 of 2012 have been 18. Thus, on reassessing the compensation towards disability by adopting an annual income of Rs.30,000/- and a multiplier of 18 the appellant will be entitled to get an additional compensation of Rs.29,640/[30000x18x19/100- 72960]. Apart from the same the compensation awarded towards loss of amenities is also on a lower side. Hence an additional compensation of Rs.10,000/- is awarded towards loss of amenities. The appellant was a student. His income is considered as a student. Thus, when the case of the appellant is that he was hospitalised for 14 days and there is a disability of 19% surely, the injury and accident will have its own effect on his future prospects as well as on his studies. No amount is seen awarded on this head. Thus, a sum of Rs.20,000/- is awarded on this head. 6. Towards bystander's expenses only a sum Rs.1,400/- is seen awarded by taking daily expenses of Rs.100/-. The accident occurred in the year 2005. Thus, considering Rs.150/- per day as bystander's expenses, the M.A.C.A.No.568 of 2012 6 appellant will be entitled to get an additional compensation of Rs.700/- on this head. Similarly no amount is seen awarded towards extra nourishment. Thus, a sum of Rs.1,400/- is awarded towards extra nourishment as well as Rs.750/- is awarded towards damage to clothings. 7. The learned counsel appearing for the Insurance company got a case that there is calculation error and Rs.800/- is in excess. In this case, only a sum of Rs.2,000/is seen awarded towards transportation expenses. Actually the petitioner will be entitled to get an amount more than the said amount. Therefore, the excess or difference of Rs.800/- can be adjusted under this head. There is also a submission for the learned counsel for the insurance company that there is a deduction of 10% made towards non-production of licence. But surely in this case, it can be seen that the negligence was found by the tribunal on the side of the rider of the motorcycle bearing registration No.KL-8/W 5308 (1[st] respondent before the Tribunal). When there is a clear cut finding that the accident occurred due to M.A.C.A.No.568 of 2012 7 the negligence of the rider of the bike bearing registration No.KL-8/W 5308, a deduction for the reason stated above will not be legal. There may be a penal offence committed by the claimant. But when there is a finding to the effect that the accident occurred due to the negligence of the respondent No.1, non possession of licence cannot be a ground for making deduction. Hence the direction to that effect is hereby quashed. Consequently, the appellant will be entitled to get the whole amount assessed as compensation by the tribunal over and above the additional compensation awarded by this court. The said additional amount, now ordered to be paid i.e. 10% of the amount already assessed by the tribunal will bear 7% interest as originally ordered by the tribunal. It is further made clear that the appellant will be entitled for the whole compensation assessed by the Tribunal and also entitled for the additional compensation awarded hereafter by this court. Thus the appellant will be entitled to get an additional compensation of Rs.62,490/- which is rounded off M.A.C.A.No.568 of 2012 8 to Rs.62,500/- (Rupees sixty two thousand five hundred only). It is awarded. The said enhanced amount will carry interest at the rate of 8% per annum from the date of petition till realisation. The second respondent insurer is directed to deposit the said amount along with interest thereon within a period of two months from the date of receipt of a copy of this judgment. As per the order in CMA 702/2012, the appellant is not entitled to get interest for the period of 686 days delay caused in preferring the appeal. It is made clear that the said period shall be excluded while computing the interest awarded by this court. There will be no order as to costs. Sd/- **C.T. RAVIKUMAR** **JUDGE** Sd/- **K.P. JYOTHINDRANATH** **JUDGE** //True copy// P.A. TO JUDGE shg