National Insurance Company Ltd. v. Kasim & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN & THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** **WEDNESDAY, THE 24TH DAY OF FEBRUARY 2016/5TH PHALGUNA, 1937** **MACA.No. 868 of 2006 ( ) -------------------------** **AGAINST THE AWARD IN OP(MV) 378/2002 of M.A.C.T. TIRUR DATED 27-08-2005** **APPELLANT/3RD RESPONDENT.:** **--------------------------** **NATIONAL INSURANCE COMPANY LTD. REP. BY ITS MANAGER, KOCHI REGIONAL OFFICE, T.P.CELL, M.G.ROAD, ERNAKULAM.** **BY ADV. SMT.RAJI T.BHASKAR** ## **RESPONDENTS/PETITIONER AND RESPONDENTS 1 & 2 RESPECTIVELY:** **----------------------------------------------------------** **1. KASIM, S/O. KUNHUMOIDEEN, VALIYAVEETIL HOUSE, VALANACHERY P.O., KARINGALLATHANI, MALAPPURAM DIST.** **2. NOUSHAD V.A., S/O.ABU, KAIKALAMTHODI (H), MAVOOR P.O., PERAMMAL KOZHIKODE DIST.** **3. C.K.RAJASEKHARAN, S/O.EDAYADAN, SREENILAYAM (H), P.O.KURUMASSERY, ALUVA ERNAKULAM DIST.** **ADDL.R4 TO R7 IMPLEADED:** **----------------------ADDL.R4 HAFSAL, W/O. KUNHUMOIDEEN, AGED 49 YEARS, VALIYAVEETIL HOUSE, VALANACHERY P.O., KARINGALLATHANI, MALAPPURAM DISTRICT.** **ADDL.R5 NUSRATH, D/O. KUNHUMOIDEEN, AGED 33 YEARS, - DO -** **ADDL.R6 MOHAMMED NISSAR, S/O. KUNHIMOIDEEN, AGED 32 YEARS, - DO-** **ADDL.R7 ABDUL SATHAR, S/O. KUNHIMOIDEEN, AGED 30 YEARS, - DO -** **ADDL.R4 TO R7 ARE IMPLEADED AS PER THE JUDGMENT IN THE MACA.** **THE NAME AND ADDRESS OF ADDITIONAL RESPONDENTS 4 TO 7 IS CORRECTED AS FOLLOWS AS PER THE ORDER DATED 14.6.2017 IN IA.NO.1104/2017** **Addl.R4. Hafsath, aged 53 years, W/o.Kasim, residing at Valiya Veettil, Moodal Kuttippuram, Malappuram District, Pin-679 571. Addl.R5. Nusrath, aged 38 years, W/o. Mohammed, residing at Thachottil, Valanchery, Kulamangalam, Kattipparuthy, Malappuram District, Pin-676 552.** **Addl.R6. Nizar V.K, aged 38 years, S/o. V.K. Kasim, residing at Valiya Veettil House, Khaibar, Colony P.O, Paikannur, Naduvattom, Payinkanniyur, Malappuram, Pin-679 571, Addl.R7 Abdul Sathar, aged 36 years, S/o. V.K. Kasim, residing at Valiyaveettil House, Khaibar, Colony P.O, Paikannur, Naduvattom, Payinkanniyur, Malappuram, Pin-679 571.** **R1 BY ADV. SRI.P.M.KUNJIMOIDEENKUTTY R1 BY ADV. SRI.T.K.SAIDALIKUTTY R1 BY ADV. SRI.P.A.MOHAMMED ASHROF R1 BY ADV. SRI.A.A.ZIYAD RAHMAN R2,R3 BY ADV. SMT.N.DEEPA ADDL R4-R6 BY ADV. SRI.R.SREEHARI** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 24-02-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **P.N. RAVINDRAN & K. RAMAKRISHNAN, JJ.** .................................................. M.A.C.A.No.868 of 2006 ....................................................... Dated this the 24[th] day of February, 2016. ## **JUDGMENT** ## **K. RAMAKRISHNAN, J:** The third respondent in O.P.(M.V.)No.378 of 2002 on the file of the Motor Accidents claims Tribunal, Tirur is the appellant herein. The claim petition was filed by the original claimant, the first respondent herein, claiming compensation for the injury sustained by him in a motor vehicle accident involving a scooter with No.KL-7H-9039 owned by the second respondent, driven by the first respondent and insured with the third respondent. 2. It is alleged in the petition that the accident occurred due to negligent driving of the scooter by its rider. The injured was engaged in manufacture of beds and getting a monthly income of Rs.4,500/- per month. On account of the injury sustained, he suffered disability and incapacitated from doing his work. He claimed a total compensation of Rs.14 lakhs on various heads. 3. Respondents 1 and 2 remained absent. The third respondent filed a counter contending that it is a collusive claim made by the claimant with the owner and driver of the scooter, who are his relatives. Further, the accident was said to have occurred six years ago and there was no proper explanation given for the delay in filing the petition. So the claim 2 M.A.C.A.No.868 of 2006 petition is not maintainable. They have contended that there was no negligence on the part of the rider of the scooter. The amount claimed is excessive. They prayed for dismissal of the application. The claimant and his wife were examined as Pws 1 and 2. Exts.A1 to A11 were marked on their side. After considering the evidence on record, the court below found that the accident occurred due to negligence on the part of the driver of the scooter and awarded a total compensation of Rs.6,92,000/on various heads as follows: |Transport to hospital on various occasions|:|Rs.5,000/-| |---|---|---| |Expenses of bystander in the hospital|:|Rs.15,000/-| |Medical expenses|:|Rs.98,500/-| |Extra nourishment|:|Rs.5,000/-| |Damage to clothing|:|Rs.500/-| |Loss of earning capacity|:|Rs.4,68,000/-| |Pain and suffering|:|Rs.25,000/-| |Los of amenities|:|Rs.50,000/-| |Expenses of future treatment|:|Rs.25,000/-| ||----------------------|| |Total<br>|:|Rs.6,92,000/-| ||============|| 3 M.A.C.A.No.868 of 2006 and also directed the insurance company to pay the amount with interest at the rate of 6% from the date of petition till payment. Aggrieved by the quantum of compensation awarded, the present appeal has been preferred by the insurance company. 4. During the pendency of the appeal, the claimant died and I.A.No.964 of 2013 has been filed to implead the legal heirs of the first respondent as additional respondents 4 to 7 along with delay condonation application and application to set aside abatement as Crl.M.A.No.787 of 2013 and I.A.No.963 of 2013. Notice to additional respondents 4 to 6 served. Sri. Srihari Rao entered appearance for them. The 7[th] respondent is none other than one of the legal heirs of the first respondent. Further, what is agitated is only the quantum of compensation. So under the circumstances, we feel that notice to the 7[th] respondent can be dispensed with as the entire estate is represented by other additional respondents. So the applications are allowed. Abatement is set aside and additional respondents 4 to 7 are impleaded as legal heirs of the first respondent. Since respondents 4 to 6 have already entered appearance and 7[th] respondent is one of the legal heirs left out, on whom notice has not been served, we are dispensing with notice to the said respondent in the appeal also. 4 M.A.C.A.No.868 of 2006 5. Heard learned counsel for the appellant, Smt. Raji T. Bhaskar and Sri. Srihari Rao, learned counsel appearing for the additional respondents 4 to 6. 6. The only contention raised by learned counsel for the appellant is that the claim petition was filed after 6 years of the accident and the quantum of compensation awarded is excessive as the disability certificate shows that he is having only 50% disability but the tribunal had arbitrarily taken 100% disability and awarded compensation, which is excessive. 7. Learned counsel for the respondents submitted that the amount awarded is just and proper considering the nature of injury sustained. 8. After coming into force of 1994 Act, there is no limitation provided for filing application for compensation. Further, the insurance company has no case that the claimant has earlier filed applications and that was dismissed on the ground of limitation. So under such circumstances, the contention of the insurance company that since claim was filed after 6 years of the accident, it is not maintainable has no substance and the tribunal was perfectly justified in coming to the conclusion that the application is maintainable. 9. As regards the other contention is concerned, the tribunal had taken monthly income of the first respondent as Rs.3,000/- per month. 5 M.A.C.A.No.868 of 2006 The evidence of PWs 1 and 2 will go to show that he was engaged in manufacture of beds and there is no contra evidence adduced to disprove this fact. But considering the fact that the accident occurred in the year 1996 and taking the income as Rs.3,000/- per month cannot be said to be on the higher side. Further, in the decision reported in **Rajesh v. Rajbir Singh** [2013 (3)KLT 89 (SC)] not only actual income at the time of accident but future prospects will also to be taken into consideration for the purpose of fixing compensation under the head loss of dependency. This principle has been extended for assessing compensation under permanent disability/loss of earning capacity as per the dictum laid down in the decision reported in **Syed Sadiq etc. v. Divisional Manager, United India Ins.Co.** (AIR 2014 SC 1052). So considering this aspect, the amount of Rs.3,000/- taken by the tribunal cannot be said to be on the higher side. Further, it was brought out in evidence that on account of the injury sustained he has become a quadriplegic patient, thereby he has been permanently disabled from doing any work. So the tribunal was right in taking 100% disability for the purpose of awarding compensation under the head loss of earning capacity. Further, considering the amount awarded under various heads, the multiplier taken is also proper. Considering the age, injury sustained and also the amount awarded under 6 M.A.C.A.No.868 of 2006 other heads, we feel that the tribunal has not committed any wrong in assessing compensation on various heads taking note of the injury sustained, disability suffered and also the loss of amenities caused to the claimant on account of the injury sustained. Under such circumstances, the total compensation awarded by the tribunal cannot be said to be excessive. Therefore, we do not find any reason to interfere with the compensation awarded by the tribunal as it appears to be just and proper and the appeal lacks merits and the same is hereby dismissed. In the result, this appeal is dismissed. Sd/- **P.N. RAVINDRAN, JUDGE.** Sd/- **K. RAMAKRISHNAN, JUDGE.** cl /true copy/ P.S to Judge