Muhammed Shereef v. United India Insurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN** **FRIDAY, THE 16[TH] DAY OF DECEMBER 2022 / 25TH AGRAHAYANA, 1944** **MACA NO. 2810 OF 2014** **AGAINST THE ORDER/JUDGMENT IN OPMV 687/2011 OF MOTOR ACCIDENT** ## **CLAIMS TRIBUNAL ,KOZHIKODE** ## **APPELLANT/S:** MUHAMMED SHEREEF AGED 22 YEARS S/O. ABDUL AZEEZ, CHIRUTHA PARAMBU HOUSE, VELLIPARAMBA P.O., KOZHIKODE -8. BY ADV SRI.AVM.SALAHUDIN ## **RESPONDENT/S:** THE UNITED INDIA INSURANCE CO. LTD. GROUND FLOOR, KDC BANK BUILDING MAIN ROAD, KUNNAMANGALAM - 673 571. BY ADVS. SRI.P.K.MANOJKUMAR,SC,UNITED INDIA INSU SRI.P.K.MANOJKUMARSCUNITED INDIA INSU THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 16.12.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: MACA.Nos.2810 of 2014 & 248 of 2015 2 **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN FRIDAY, THE 16[TH] DAY OF DECEMBER 2022 / 25TH AGRAHAYANA, 1944 MACA NO. 248 OF 2015** **AGAINST THE ORDER/JUDGMENT IN OPMV 687/2011 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,KOZHIKODE** **APPELLANT/S:** UNTIED INDIA INSURANCE COMPANY LIMITED KUNNAMANGALAM NOW REPRESENTED BY ITS DEPUTY MANAGER, REGIONAL OFFICE, "SHARANYA", HOSPITAL ROAD, KOCHI -11. BY ADVS. SRI.MATHEWS JACOB (SR.) SRI.P.JACOB MATHEW ## **RESPONDENT/S:** MUHAMMED SHEREEF @ SHEREEF C.P. S/O.ABDUL AZEEZ, CHIRUTHALA PARAMBU HOUSE, VELLIPARAMBA P.O., KOZHIKODE - 08. BY ADV SRI.AVM.SALAHUDIN THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 16.12.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: MACA.Nos.2810 of 2014 & 248 of 2015 3 ## **C. JAYACHANDRAN, J.** **…................................................................. M.A.C.A.Nos. 2810 of 2014 & 248 of 2015 …................................................................. Dated this the 16[th] day of December, 2022** ## **JUDGMENT** The award of the Motor Accident Claims Tribunal, Kozhikode in O.P(MV)No.687 of 2011 has been assailed by both the claimant, as also, the 3[rd] respondent Insurance Company. MACA No.248 of 2015 is the appeal preferred by the 3[rd] respondent Insurance Company, while MACA No.2810 of 2014 is the one preferred by the claimant. 2. The accident occurred on 08.05.2010, when the claimant was traveling in a motorcycle, which collided with a lorry, resulting in serious injuries. 3. Heard the learned counsel for the appellant in MACA No.2810 of 2014 (the claimant) and the learned counsel for the appellant in MACA No.248 of 2015 (3[rd] respondent Insurance Company). Perused the records. 4. Learned Senior Counsel for the appellant in MACA No.248 of 2015 preferred by the Insurance Company assailed the award on the following counts. First of all, learned counsel MACA.Nos.2810 of 2014 & 248 of 2015 4 submitted that the Tribunal ought to have found contributory negligence on the part of the driver/claimant, in as much as, no charge sheet in respect of the crime registered in connection with the accident was produced before the Tribunal. It was also submitted that the Tribunal went seriously wrong in finding negligence against the driver of the offending vehicle in the absence of a charge sheet, but relying upon the FIR. 5. Faced with the situation, the learned counsel for the claimant (appellant in MACA No.2810 of 2014) produced the charge sheet before this Court, a copy of which has been served upon the learned Senior Counsel for the Insurance Company, wherein, the driver of the offending vehicle has been found as the accused, who according to the Investigating Officer, drove the vehicle in a rash and negligent manner. Going by the judgment in **New India Assurance Co. Ltd. v. Pazhani Ammal [2011(3) KLT 648]** , a charge sheet is prima facie sufficient proof of negligence for the purpose of a claim under Section 166 of the Motor Vehicles Act. Therefore, the said contention of the Insurance Company is rejected in the light of the additional evidence produced. Copy of the charge sheet is marked as Ext.A11. MACA.Nos.2810 of 2014 & 248 of 2015 5 6. The second count canvased by the learned counsel for the Insurance Company is with respect to the disability reckoned by the Tribunal. It was pointed out that 60% reckoned was very much on the higher side. This submission was seriously opposed by the learned counsel for the claimant. It was emphasised that the claimant was a student of Mechanical Engineering, aged 19 years at the time of accident and the disability has been reckoned based on the fact that his right hand is fully paralyzed, as discernible from Ext.C1 report. Having regard to the particular trade of Engineering, which the claimant was pursuing, fixing the disability at 60% is quite proper, according to the learned counsel for the claimant. 7. Having heard the learned counsel appearing on both sides, this Court is inclined to endorse the submissions made by the learned counsel for the claimant. As rightly pointed out, the claimant was a student aged 19 years, pursuing Mechanical Engineering Course at the time of accident. Loss of his right hand, in as much as it is fully paralyzed, would certainly affect his job prospects significantly, especially having regard to the fact that he was pursuing Mechanical Engineering. The disability reckoned by the Board vide Ext.C1 was 87%, whereas, the functional disability access by the Tribunal was 60%. This MACA.Nos.2810 of 2014 & 248 of 2015 6 Court is of the opinion that the functional disability has been correctly assessed by the Tribunal, which warrants no interference. 8. The 3[rd] count canvased by the learned counsel is with respect to the notional income of the claimant reckoned by the Tribunal. The Tribunal reckoned an annual income of Rs.1 lakh, which according to the learned counsel for the Insurance Company is on the higher side. In support of that proposition, the learned counsel relied upon the judgment in **Meena Pawaia & others v. Ashraf Ali & others [2021 (6) KHC 596],** wherein, the Hon'ble Supreme Court has reckoned Rs.10,000/per month in respect of an accident which took place in the year 2012. Per contra, in the claimants appeal, it is contended that the annual income of Rs.1 lakh taken by the Tribunal is on the lower side. In support of the same, the learned counsel relied upon the judgments in 1. **National Insurance Co. Ltd. v. Fathimath Zuhara [2016(3) KLT 459],** 2. **Mekala v. Malathi M. & Another ([2014(3) KLT Suppl.105 (SC)]: [2014 KHC 4325])** and 3. **Basanti Devi v. Divisional Manager, The New India Assurance Co.Ltd. [2021(6) KLT online 1081(SC)]** MACA.Nos.2810 of 2014 & 248 of 2015 7 9. Having heard the learned counsel appearing on both sides on the question of income, this Court is of the opinion that the annual income reckoned by the Tribunal is quite reasonable. Even if the yardstick followed in Meena Powia is followed, that is to take income at the rate of Rs.10,000/- per month, the annual Income would be Rs.1,20,000/-. Owing to the fact that the accident took place in the year 2010, as against 2012 in Meena Powia, this Court is of the opinion that the annual income fixed by the Tribunal does not suffer from any infirmity. However, as contended by the learned counsel for the appellant/claimant, the claimant is also entitled to future prospects reckoned at the rate of 40% of the annual income, having regard to his age at the time of accident. 10. Finally, the learned counsel submitted that the Tribunal went wrong in granting loss of amenities quantified at Rs.2 lakhs, which again is on the higher side, according to the learned counsel for the appellant/Insurance Company. Here again, this Court is not in a position to endorse the submissions of the learned Senior Counsel. At the cost of repetition, this Court may reiterate that the right hand of the claimant has seen paralyzed completely, wherefore, 87% disability has been found by the Medical Board. Loss of amenities takes within its sweep, MACA.Nos.2810 of 2014 & 248 of 2015 8 the possible difficulties, as also, the amenities of the claimant compromised for the rest of his life. Needless to say that the claimant will be put to serious hardship and difficulties, in as much as his right hand has become paralyzed. In such circumstances, the amount awarded by the Tribunal for loss of amenities cannot be held to be on the higher side. 11. In MACA No.2810 of 2014, the learned counsel for the appellant contended that the functional disability of the claimant should be taken as 100% as held in **Raj Kumar v. Ajay Kumar [2011(1) KLT 620(SC)]** . This Court is not in a position to endorse the said submission made by the learned counsel for the appellant. As rightly pointed out by the learned Senior Counsel for the Insurance Company, what has been assessed as disability at 87% is with respect to a limb. It cannot be said that claimant is precluded from performing any job on account of the disability of his right hand, in the form of paralysis. In such circumstances, the dictum laid down in Raj Kumar may not apply to the instant facts. 12. It is important to note that the claimant was treated at Kasturba Hospital at Manipal, as could be seen from Ext.A7 and A8 documents produced. This Court is therefore of the opinion that the transportation expenses can be enhanced to MACA.Nos.2810 of 2014 & 248 of 2015 9 Rs.15,000/-. Similarly, under the head 'pain and suffering', Rs.50,000/- alone is seen granted by the Tribunal. Paragraph No.8 of the impugned award deals with the nature of the injuries sustained by the claimant. There is a fracture to right scapula and another to frontal bone. As per the MRI Scan, the claimant suffered Brachial Plexus injury on his right hand, resulting in its paralysis. He had undergone inpatient treatment for a period of 19 days. In such circumstances, this Court inclined to grant an enhancement of Rs.25,000/- more under the head 'pain and suffering'. 13. In the result, both the MACAs are disposed of as indicated above and the compensation amount payable to the claimant (appellant in MACA No.2810 of 2014) will be as indicated in the tabular statement shown here under; |_Sl._<br>_No._|_The compensation claimed_<br>_under different heads_|_Amount_<br>_awarded by_<br>_the Tribunal_|_Total amount_<br>_after_<br>_enhancement_<br>_in appeal_| |---|---|---|---| |_1_|_Loss of earnings_|_₹ 1,00,000_|_₹1,00,000_| |_2_|_Transport to hospital_|_₹5,000_|_₹15,000_| |_3_|_Damage to clothing and articles_|_₹500_|_₹5,00_| |_4_|_Extra nourishment_|_₹5,000_|_₹5,000_| |_5_|_Bystander's expense_|_₹4,750_|_₹4,750_| |_6_|_Treatment expanses_|_₹59,406_|_₹59,406_| MACA.Nos.2810 of 2014 & 248 of 2015 10 |_7_|_Pain and suffering_|_₹50,000_|_₹75,000_| |---|---|---|---| |_8_|_Loss of future earning power_|_₹10,80,000_|_₹15,12,000*_| |_9_|_Loss of amenities (physical_<br>_disability)_|_₹2,00,000_|_₹2,00,000_| ||_Total_|_₹15,04,656_|_₹15,39,656_| |**_Amount enhanced = ₹19,71,656 -_**<br>_* (₹1,00,000+40%) x 18 x 60%_||**_₹15,04,656_**|**_= ₹4,67,000/_**| 14. The Insurance Company shall pay interest for the amount awarded by the Tribunal at the rate directed in the impugned award; and for the enhanced amount, at the rate of 5% from the date of petition. If any amount has already been paid, the same shall be granted set off. 15. The claimant shall produce the details of the Bank account before the Insurance Company/Tribunal within two months from the date of receipt of a certified copy of this judgment and amount shall be transferred to the Bank account directly through NEFT/RTGS mode, within a period of one month thereafter. If the Bank account is not given within the time stipulated, it is made clear that, no interest shall run on the enhanced amount after the period stipulated by this Court. However, if the Insurance Company fails to deposit the MACA.Nos.2810 of 2014 & 248 of 2015 11 amount, as directed, interest on the enhanced amount shall also run at the rate ordered by the Tribunal from the date of petition. These appeals are allowed to the above extent. Sd/- **C. JAYACHANDRAN JUDGE** Dxy