National Insurance Company Limited v. Majeed @ Abdul Majeed S/O Haneefa

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **THURSDAY, THE 08TH DAY OF APRIL 2021 / 18TH CHAITHRA, 1943** **MACA.No.2410 OF 2012** **AGAINST THE AWARD IN OP(MV) 60/2006 DATED 25-05-2012 OF SPECIAL COURT FOR EC ACT CASES &MOTOR ACCIDENT CLAIMS TRIBUNAL ,TSR** ## **APPELLANT/3RD RESPONDENT:** **THE NATTIONAL INSURANCE CO. LTD THRISSUR, REPRESENTED BY ITS DEPUTY MANAGER, REGIONAL OFFICE, 2ND FLOOR, OMANA BUILDING, M.G. ROAD, KOCHI 35.** **BY ADV. SRI.GEORGE CHERIAN (SR.)** ## **RESPONDENT/CLAIMANT:** **MAJEED @ ABDUL MAJEED S/O.HANEEFA, PALLIPARAMBU HOUSE, NEAR POLICE STATION, ALATHUR P.O. PALAKKAD DISTRICT PIN 678541.** **R1 BY ADV. SRI T.C SURESH MENON(COVEATOR) R1 BY ADV. SRI T.C SURESH MENONCOVEATOR R1 BY ADV. SRI.P.S.APPU R1 BY ADV. SRI.A.R.NIMOD R1 BY ADV. SRI.T.C.SURESH MENON** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 08.04.2021, ALONG WITH CO.47/2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA.No.2410/2012 & CO 47/2019** **2** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **THURSDAY, THE 08TH DAY OF APRIL 2021 / 18TH CHAITHRA, 1943** **CO.No.47 OF 2019 IN MACA. 2410/2012** **AGAINST THE AWARD IN O.P (MV)60/2006 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, THRISSUR** ## **CROSS OBJECTOR/RESPONDENT:** **MAJEED @ ABDUL MAJEED, AGED 39 YEARS, S/O. HANEEFA, RESIDING AT PALLIPARAMBU HOUSE, NEAR POLICE STATION, ALATHUR P.O, PALAKKAD DISTRICT.** **BY ADVS. SRI.T.C.SURESH MENON SRI.P.S.APPU SRI.A.R.NIMOD** **RESPONDENT/APPELLANT:** **THE NATIONAL INSURANCE COMPANY LIMITED, THRISSUR, REPRESENTED BY ITS DEPUTY MANAGER, REGIONAL OFFICE, 2ND FLOOR, OMANA BUILDING, M.G.ROAD, KOCHI-682035.** **R1 BY ADV. K.S.SANTHI** **THIS CROSS OBJECTION/CROSS APPEAL HAVING BEEN FINALLY HEARD ON 08.04.2021, ALONG WITH MACA.2410/2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA.No.2410/2012 & CO 47/2019** **3** ## **COMMON JUDGMENT** The 3[rd] respondent – the Insurance Company – in O.P (MV) No.60/2006 on the file of the Motor Accident Claims Tribunal, Thrissur is the appellant in MACA No.2410/2012. The claimant before the Tribunal is the respondent in the appeal. The respondent/claimant has filed Cross-objection No.47/2019 against the appellant/Insurance Company. As the parties are the same and are aggrieved by the same impugned award, these cases are being disposed of by this common judgment. The parties are, for the sake of convenience, referred to as per their status in the claim petition. 2. The facts, in brief, for the determination of the appeal, are: on 16.7.2005 while the petitioner was riding as a pillion rider on a motorcycle bearing Reg. No.KL8/Q 8670, which was ridden by the 4[th] respondent through the Alathur Court Road, a bus bearing Reg.No.KL08/AC-5010 (offending **MACA.No.2410/2012 & CO 47/2019** ## **4** vehicle) driven by the 2[nd] respondent while attempting to overtake the motorcycle, hit on the rear side of the motorcycle. In the impact, the petitioner and the rider of the motorcycle fell down and sustained grievous injuries. The accident occurred solely due to the rash and negligent driving of the offending vehicle by the 2[nd] respondent. The 1[st] respondent was the owner and the 3[rd] respondent was the Insurance Company of the offending vehicle. The petitioner was a cloth merchant earning a monthly income of Rs.5,000/-. The respondents 1 to 3 were jointly and severally liable to pay compensation to the petitioner which he quantified at Rs.21,11,000/- rounded off to Rs.20,00,000/-. 3. The respondents 1 and 2 did not contest the proceedings and were set ex parte. 4. The respondents, 3,4 and 5 filed separate written statements. The 3[rd] respondent admitted that the the offending vehicle had a valid insurance policy issued by it at the time of **MACA.No.2410/2012 & CO 47/2019** **5** accident. However, it was contended that the accident occurred not due to the negligence on the part of the 2[nd] respondent, but due to the negligence of the 4[th] respondent. The amounts claimed under the various heads in the claim petition were excessive and exorbitant. Hence, the claim petition may be dismissed. 5. The petitioner was examined as PW2 and the Doctor who examined the petitioner and issued Ext.X2 medical report was examined as PW1. Exts.A1 to A12 were marked through PW2. Exts.X1 and X2 were marked as Court Exhibits. The insurance policy was marked Ext.B1. 6. The Tribunal, after analysing the pleadings and materials on record, by the impugned award allowed the claim petition, in part, by ordering that the petitioner was entitled to realise an amount of Rs.11,98,250/- with interest at the rate of 8% per annum from the date of petition till the date of realisation along with proportionate costs from the 3[rd] respondent, who **MACA.No.2410/2012 & CO 47/2019** **6** was directed to pay the compensation amount. 7. Aggrieved by the impugned award, the 3[rd] respondent/Insurance Company has filed the appeal. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioner has preferred the cross-objection. 8. Heard Smt.K.S.Santhi, the learned counsel appearing for the appellant/Insurance Company and Sri.A.R.Nimod, the learned counsel appearing for the respondent/claimant. 9. The question that arises for consideration in this appeal and cross-objection is whether the amount of compensation awarded by the Tribunal is just and reasonable. 10. 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 **MACA.No.2410/2012 & CO 47/2019** **7** 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. 11. It is proved by Ext.A5 final report filed by the Police that the accident occurred solely due to the negligence on the part of the 2[nd] respondent, who drove the offending vehicle in a rash and negligent manner. Exts.A7 and A8 discharge summaries substantiate that the petitioner was treated as an inpatient for a period of 81 days. The petitioner was examined by a Special Medical Board pursuant to the order of the Tribunal. The Medical Board after examination of the petitioner and the relevant documents noted that the petitioner had suffered the following injuries. 1. Avulsion of penis 2. Avulsion of scrotum 3. Deglowing of lower abdominal wall 4. Femoral artery left exposed **MACA.No.2410/2012 & CO 47/2019** **8** 12. In light of Ext.A5 final report and that the appellant/Insurance Company does not dispute that the offending vehicle was insured by it, there is no doubt in my mind that the appellant/3[rd] respondent is liable to indemnify the owner of the offending vehicle. Therefore, it is the appellant who is liable to pay the compensation. 13. The Tribunal, based on Ext.X2 certificate assessed the disability of the petitioner at 40%. However, when this appeal came up for consideration, this Court by order dated 3.12.2019 ordered the petitioner's whole body and functional disability to be assessed by a competent Medical Board. Pursuant to the order, the Superintendent of the Medical College Hospital, Thrissur constituted a Medical Board, who by the Disability Assessment Board Certificate dated 18.12.2019 has assessed the whole body disability of the petitioner. The said certificate is accepted on record and marked in evidence as Ext.X3. 14. As per Ext.X3, the Medical Board has **MACA.No.2410/2012 & CO 47/2019** **9** assessed the petitioner's total whole body permanent disability, using the combination formula, at 89%. In view of the said certification pursuant to the direction of this Court, Ext.X3 supersedes and overrides Ext.X2. 15. The petitioner had filed I.A 2/2019 to accept the treatment certificate issued by Dr.Jyothish.K., Associate Professor of Orthopaedics, Government Medical College Hospital, Thrissur dated 24.1.2019. The said certificate was issued prior to Ext.X3. Moreover, the said Doctor has not certified the whole body/functional disability of the petitioner. In such circumstances, I am of the opinion that the said certificate has no relevance, particularly because the competent Medical Board by Ext.X3, pursuant to the orders of this Court, has certified the whole body disability of the petitioner. Therefore, I had dismissed I.A No.2/2019. Accordingly, I fix the petitioner's whole body permanent disability as per Ext.X3 at 89%. **MACA.No.2410/2012 & CO 47/2019** **10** 16. The main area of dispute is with regard to the compensation awarded under the heads 'loss of earning power' at Rs.1,50,000/- and 'loss of expectation of life' at Rs.1,20,000/-. 17. The learned counsel appearing for the appellant argued that a Full Bench of this Court in **Oriental Insurance Company Ltd. v. Hariprasad** [2005 (4) KLT 977] has held that once compensation on account of permanent disability is awarded, no compensation under the head 'loss of earning capacity, can be awarded. Therefore, the compensation of Rs.1,50,000/- under the head 'compensation for loss of earning power' and Rs.1,20,000/- under the head 'loss of expectation of life' is erroneous. 18. Per contra, the learned counsel appearing for the respondent/cross objector/claimant relied on the decision of this Court in **Minor Basid v. Sanu** [2018 (2) KLT 453] to drive home his contention that subsequent to the decision of the Full Bench in **Hariprasad** (supra), the Division Bench in **Minor** **MACA.No.2410/2012 & CO 47/2019** **11** **Basid** (supra), after referring to a plethora of decisions of the Hon'ble Supreme Court, has gone on to hold that the compensation can be awarded under multiple heads, provided the same is reasonable and just compensation. 19. In the present case, the petitioner had claimed that he was a cloth merchant and earning a monthly income of Rs.5,000/-. The said assertion was accepted by the Tribunal. 20. In the instant case, in view of the subsequent declaration of law by the Hon'ble Supreme Court in **Syed Sadiq and others v. Divisional Manager, United India Insurance Co.Ltd** [(2014) 2 SCC 735] to the most recent decision in **Pappu Deo Yadav** v. **Naresh Kumar and Others** [AIR 2020 SC 4424], wherein, the Hon'ble Supreme Court has held that in the case of permanent disability, future prospects has also to be awarded, I am of the considered opinion that the compensation awarded under the heads **MACA.No.2410/2012 & CO 47/2019** **12** 'loss of earning power' and 'loss of expectation of life' has got watered down and the above heads of compensation are inclusive and covered under the head 'loss due to disability with future prospects'. Therefore, I hold that the amount awarded by the Tribunal under the heads'loss of earning power and loss of expectation of life' have to be set aside. Accordingly, I set aside the award of compensation under the said heads ' loss of earning power and loss of expectation of life'. ## Loss due to disability with future prospects 21. The Hon'ble Supreme Court in **Pranay Sethi** (supra), **Pappu Deo Yadav v. Naresh Kumar and others** (supra) and a whole line of precedents has gone on to hold that the victims in accidents are also entitled for future prospects. 22. Considering that the petitioner was 25 years of age at the time of accident, he is entitled to future prospects at the rate of 40%. Therefore, taking the income of the petitioner at Rs.5,000/- and **MACA.No.2410/2012 & CO 47/2019** **13** following the above parameters, I am of the considered opinion that the petitioner is entitled for compensation under the head 'loss due to disability with future prospects at Rs.13,45,682/- instead of Rs.4,08,000/- awarded by the Tribunal. ## Pain and suffering 23. It is established by Exts.A7 and A8 discharge summaries and Exts.X2 and X3 medical board certificates that the petitioner had sustained very serious injuries as mentioned above. He was treated as an inpatient for a period of 81 days. It is stated that he is still undergoing treatment and has various medical complications. Even though the petitioner had claimed an amount of Rs.1,00,000/towards pain and sufferings, the Tribunal awarded only Rs.90,000/-. In view of the peculiar facts and circumstances of the case, I am of the considered opinion that the petitioner is entitled for compensation under the head 'pain and sufferings' at Rs.1,00,000/-. **MACA.No.2410/2012 & CO 47/2019** **14** ## Other heads of claim 24. With respect to the other heads of claim, namely, loss of earning, Transportation expenses, Bystander expenses, Extra nourishment, Medical expenses, Loss of amenities, Future treatment and Loss of marriage prospects, I find that the Tribunal has awarded reasonable and just compensation. 25. On an overall re-appreciation of the pleadings, materials on record and the law laid down by the Hon'ble Supreme Court in the afore-cited precedents, I am of the firm opinion that the respondent/cross objector/ petitioner is entitled for enhancement of compensation as modified and recalculated above, and given in the table below for easy reference. **MACA.No.2410/2012 & CO 47/2019** **15** |SI.<br>No|Head of claim|Amount awarded by<br>the Tribunal (in<br>rupees)|Amounts<br>modified<br>and<br>recalculated<br>by<br>this<br>Court| |---|---|---|---| |1|Loss of earning|60,000|60,000| |2|Transportation expenses|25,000|25,000| |3|Bystander expenses|12,150|12,150| |4|Extra nourishment|25,000|25,000| |5|Medical expenses|83,091|83,091| |6|Pain and suffering|90,000|1,00,000| |7|Loss of amenities|50,000|50,000| |8|Future treatment|25,000|25,000| |9.|Loss of marriage prospects|1,50,000|1,50,000| |10.|Loss of earning power|1,50,000|Nil| |11.|Loss of expectation of life|1,20,000|Nil| |12.|Loss of disability with future<br>prospects|4,08,000|13,45,680| ||Total|11,98,241|18,75,921| In the result, the appeal and cross objection are disposed of by enhancing the compensation by a - further amount of Rs.6,77,680/ with interest at the rate of 8% per annum on the enhanced compensation from the date of petition till the date of realisation, after excluding the delay of 2201 days in filing the appeal and as ordered by this Court on 18.3.2020 in **MACA.No.2410/2012 & CO 47/2019** **16** C.M.A No.1/2019 in Cross Objection 47/2019, and proportionate costs. The appellant/3rd respondent shall deposit the enhanced compensation awarded in the cross objection before the Tribunal with interest and proportionate costs as ordered above, within a period of two months from the date of receipt of a certified copy of this judgment. The respondent/cross objector/petitioner would be at liberty to move the Tribunal for withdrawal of the deposited amount in accordance with law. Needless to mention that if the appellant has deposited any amount, only the balance amount need be further deposited. All Interlocutory Applications are closed. ma/09.04.2021 Sd/- **C.S.DIAS, JUDGE** ## **/True copy/**