Nidheesh M.S. v United India Insurance Company Ltd & Others (MACA No.2390 of 2012 and MACA No.711 of 2012, High Court of Kerala)

``` 2025:KER:10500 ``` **==> picture [57 x 58] intentionally omitted <==** ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE C.PRATHEEP KUMAR ``` ``` WEDNESDAY, THE 5[TH] DAY OF FEBRUARY 2025 / 16TH MAGHA, 1946 ``` ``` MACA NO. 2390 OF 2012 ``` ``` AGAINST THE AWARD DATED 31.10.2012 IN OPMV NO.149 OF 2011 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, KOZHIKODE ``` ## **`APPELLANT/PETITIONER :-`** ``` NIDHEESH M.S, AGED 29 YEARS KAKKOLI HOUSE, PUTHOOR AMSOM DESOM, ERANHIKKAL P.O ELATHUR, KOZHIKODE - 673 303 ``` ``` BY ADVS. SRI.R.SUDHISH SMT.M.MANJU SRI.K.R.RANJITH ``` ## **`RESPONDENTS / RES PONDENTS :-`** - **`*1 V.MAJEED, S/O HAMEED (DECEASED) MADATHIL HOUSE, CHRIYA VALAPPU, ANJARAKANDY P.O KANNUR-673 612`** - **`2 UNITED INDIA INSURANCE COMPANY LTD. P.B.NO.52, FORT ROAD, KANNUR-670001.`** ``` 3MOHANAN SO.GOPALA PILLAI R.G. MANDIRAM HOUSE, NELLETTIL P.O., KOLLAM - 691 302. ``` ## **`*ADDL.R4 ADDL.RESPONDENTS 4 TO 7 ARE IMPLEADED :-`** ``` AYSHA, W/O LATE V. MAJEED, MADATHIL HOUSE, CHRIYA VALAPPU, ANJARAKANDY P.O., KANNUR-673612 ``` ``` MACA NOs. 2390 & 711 OF 2012 ``` ``` 2 ``` **==> picture [57 x 58] intentionally omitted <==** ``` 2025:KER:10500 ``` ``` ADDL.R5IQBAL, S/O LATE V. MAJEED, MADATHIL HOUSE, CHRIYA VALAPPU, ANJARAKANDY P.O., KANNUR-673612 ``` ``` ADDL.R6ANWAR, S/O LATE V. MAJEED, MADATHIL HOUSE, CHRIYA VALAPPU, ANJARAKANDY P.O., KANNUR-673612 ``` ``` ADDL.R7ABDUL SAMAD, S/O LATE V. MAJEED, MADATHIL HOUSE, CHRIYA VALAPPU, ANJARAKANDY P.O., KANNUR-673612 ``` ``` *(R4 TO R7 ARE IMPLEADED AS THE ADDITIONAL RESPONDENTS 4 TO 7 IN THIS APPEAL VIDE ORDER DTD 02/02/2024 IN IA 3/16[IA 1901/16] IN MACA 2390/12) ``` ``` BY ADVS. T.P.SAJID PHIJO PRADEESH PHILIP P.VANDANA ADV.MOHAMMED NAZIR - R2 ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 05.02.2025, ALONG WITH MACA.711/2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA NOs. 2390 & 711 OF 2012 ``` ``` 3 ``` ``` 2025:KER:10500 ``` **==> picture [57 x 58] intentionally omitted <==** ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE C.PRATHEEP KUMAR`** ``` WEDNESDAY, THE 5[TH] DAY OF FEBRUARY 2025 / 16TH MAGHA, 1946 ``` ``` MACA NO. 711 OF 2012 ``` ``` AGAINST THE ORDER DATED 31.10.2011 IN OPMV NO.149 OF 2011 OF ``` ``` MOTOR ACCIDENT CLAIMS TRIBUNAL, KOZHIKODE ``` ``` APPELLANT/1ST RESPONDENT :- ``` - **`1 V.MAJEED [DIED] AGED 30 YEARS, S/O.HAMEED, MADATHIL HOUSE, CHRIYA VALAPPU, P.O.ANJARAKANDY, KANNUR - 673 612.`** - **`*2 ADDL.APPELLANTS 2 TO 5 ARE IMPLEADED :-`** ``` AYSHA, W/O LATE MAJEED, MADATHIL HOUSE, CHRIYA VALAPPU, ANJARAKANDY PO, KANNUR- 673612 ``` - **`3 IQBAL, S/O LATE MAJEED, MADATHIL HOUSE, CHRIYA VALAPPU, ANJARAKANDY PO, KANNUR- 673612`** - **`4 ANWAR, S/O LATE MAJEED, MADATHIL HOUSE, CHRIYA VALAPPU, ANJARAKANDY PO, KANNUR- 673612`** - **`5 ABDUL SAMAD, S/O LATE MAJEED, MADATHIL HOUSE, CHRIYA VALAPPU, ANJARAKANDY PO, KANNUR- 673612`** - **`*[ADDITIONAL APPELLANTS NO.2 TO 5 ARE IMPLEADED AS LEGAL HEIRS OF DECEASED SOLE APPELLANT, AS PER ORDER DATED 09/04/2024 IN IA-2/2024 IN MJC NO.31/2024 IN MACA 711/2012]`** ``` MACA NOs. 2390 & 711 OF 2012 ``` ``` 4 ``` ``` 2025:KER:10500 ``` **==> picture [57 x 58] intentionally omitted <==** ## **`RESPONDENTS/PETITIONERS/RESPONDENTS 2 AND 3 :-`** ``` 1NIDHEESH.M.S., AGED 28 YEARS, S/O.JANARDHANA KURUP, DRIVER,KAKKOLI HOUSE, PUTHOOR AMSOM DESOM, ERNAHIKKAL P.OELATHUR, KOZHIKODE - 673 303. ``` - **`2 UNITED INDIA INSURANCE CO.LTD P.B.NO.52, FORT ROAD, KANNUR - 670001.`** - **`3 MOHAN, AGED 49 YEARS, S/O.GOPALA PILLAI, R.G.MANDIRAMHOUSE, NEELETTIL P.O., KOLLAM DISTRICT - 685001.`** ``` BY ADVS. M.MANJU N.S.MOHAMMED USMAN K.R.RANJITH R.SUDHISH ADV.MOHAMMED NAZIR - R2 ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 05.02.2025, ALONG WITH MACA.2390/2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA NOs. 2390 & 711 OF 2012 ``` ``` 5 ``` **==> picture [57 x 58] intentionally omitted <==** ## `2025:KER:10500` ## **COMMON JUDGMENT** The petitioner in OP(MV) No.149/2011 on the file of the Motor Accidents Claims Tribunal, Kozhikode, is the appellant in MACA No.2390 of 2012. The 1[st] respondent in the O.P, is the appellant in MACA No.711 of 2012. (For the purpose of convenience, the parties are hereafter referred to as per their rank before the Tribunal). 2. According to the petitioner on 08.06.2010 at about 11.45 pm, while he was driving a pick up van through Kottayam – Wayanad road, a lorry bearing registration No.KL-13-R-77 driven by the 3[rd] respondent in a rash and negligent manner, hit on his van. As a result of which, he sustained serious injuries. 3. The 1[st] respondent is the owner and the 2[nd] respondent is the insurer of the offending vehicle. According to the petitioner, the accident occurred due to the negligence of the driver of the offending vehicle. 4. The insurance company filed a written statement, admitting the accident as well as policy, but disputing the negligence on the part of the driver of the offending vehicle. 5. The evidence in the case consists of the oral testimony of PW1 ``` MACA NOs. 2390 & 711 OF 2012 ``` ``` 6 ``` **==> picture [57 x 58] intentionally omitted <==** ## `2025:KER:10500` and documentary evidence Exts.A1 to A6 and B1. 6. After evaluating the evidence on record, the Tribunal awarded a total compensation of Rs.74,200/-. 7. Aggrieved by the order of the Tribunal, the petitioner and 1[st] respondent preferred these appeals. 8. Now the point that arises for consideration is the following: _Whether the quantum of compensation awarded by the Tribunal is just and reasonable?_ 9. Heard Sri.Sudheesh R, the learned Counsel appearing for the claimants, and Sri.A.A.Mohammed Nazir, the learned Standing Counsel for the insurance company, Smt.M.Manju, the learned counsel appearing for the 1[st] respondent and Sri.T.P.Sajid , the learned counsel appearing for respondents 4 and 7. 10. In the accident the petitioner sustained fracture right femur. From Ext.A6 OP Ticket/discharge summary, it is revealed that on 30.08.2011 bone grafting right femur was done from the Kozhikode District Co-operative Hospital. 11. During the pendency of the appeal, the petitioner was referred to a Medical Board constituted by the Superintendent, Medical College Hospital, Kozhikode. As per the disability certificate received, the permanent physical ``` MACA NOs. 2390 & 711 OF 2012 ``` ``` 7 ``` **==> picture [57 x 58] intentionally omitted <==** ``` 2025:KER:10500 ``` disability of the petitioner was assessed as 3%. Since it was issued by a Medical Board the disability is assessed by the Medical Board and 3% is accepted. 12. According to the petitioner, he was a driver by profession getting a monthly income of Rs.10,000/-. However, the Tribunal fixed his notional income at Rs.4,000/- only. The learned counsel for the petitioner would argue that even the notional income of a coolie during the year 2010 as per the decision in _**Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Co. Ltd.**_ [2011 (13) SCC 236], will come to Rs.7,500/-. Since the petitioner being a driver by profession, his notional income is to be fixed much above that of a coolie. It is true that as per the decision in _**Ramachandrappa (supra)** ,_ the notional income of a coolie during the year 2010 will come to Rs.7,500/-. Considering the fact that the petitioner being a driver by profession, his notional income is fixed at Rs.10,000/-. 13. On the date of accident, the petitioner was aged 28 years. Therefore, 40% of the monthly income is to be added towards future prospects, as held in the decision in **National Insurance Co.Ltd v Pranay Sethi** [(2017) 16 SCC 680] and the multiplier to be applied is 17, as held in **Sarla Verma v. Delhi Transport Corporation,** [(2009) 6 SCC 121]. In the above circumstances, the loss of disability will come to Rs.85,680/-. ``` MACA NOs. 2390 & 711 OF 2012 ``` ``` 8 ``` **==> picture [57 x 58] intentionally omitted <==** ``` 2025:KER:10500 ``` 14. Towards loss of income, the tribunal has awarded only Rs.6,000/- @ Rs.4,000/- being the income for 1[1] /2 months. In this case, the petitioner has sustained fracture right femur and he was treated as inpatient for 26 days. Thereafter, bone grafting was done on 30.08.2011. According to the learned counsel for the petitioner, the petitioner was treated for a total period of more than 1[1] /2 years. Considering the entire facts, I hold that the petitioner is entitled to get compensation for loss of earning at least for a period of 9 months, which will come to Rs.90,000/- (10,000x9). 15. The Tribunal has awarded only Rs.750/- towards transport to hospital, Rs.500/- towards extra nourishment, Rs.15,000/- towards pain and suffering and Rs.5,000/- towards loss of amenities. Considering the nature of injuries sustained by the petitioner and the period during which he was treated as inpatient, I hold that the compensation awarded on these heads are on the lesser side. Hence, the compensation on the head pain and suffering, loss of amenities, transportation and extra nourishment are enhanced to Rs.30,000/-, Rs.15,000/-, Rs.5,000/-, Rs.5,000/- respectively. 16. No change is required, in the amounts awarded on other heads, as the compensation awarded on those heads appears to be just and reasonable. 17. Therefore, the petitioners/appellants are entitled to get a total compensation of Rs.2,77,630/-, as modified and recalculated above and given ``` MACA NOs. 2390 & 711 OF 2012 ``` ``` 9 ``` **==> picture [57 x 58] intentionally omitted <==** ## `2025:KER:10500` ## in the table below, for easy reference. |**Sl.**<br>**No.**|**Head of Claim**|**Amount**<br>**awarded by**<br>**Tribunal**<br>**(in Rs.)**|**Amount Awarded in**<br>**Appeal**<br>**(in Rs.)**| |---|---|---|---| |1|Loss of earnings|6000|90000| |2|Transport to hospital|750|5000| |3|Extra nourishment|500|5000| |4|Damage to clothings and<br>other articles|400|400| |5|Treatment expenses|44,350|44,350| |6|Bystander expenses|2200|2200| |7|Pain and sufferings|15,000|30000| |8|Loss of amenities|5000|15000| |9|Loss of disability|Nil|85,680| ||**Total**|**74,200**|**2,77,630**| ||**Enhanced/reduced**|**2,03,430**|| 18. The Tribunal observed that the 3rd respondent had consumed alcohol and was driving the vehicle, and hence the 2[nd] respondent was permitted to recover the compensation from the 1[st] respondent/RC owner. The ``` MACA NOs. 2390 & 711 OF 2012 ``` ``` 10 ``` **==> picture [57 x 58] intentionally omitted <==** ``` 2025:KER:10500 ``` learned counsel for the 1[st] respondent relying upon the decision of the Hon’ble High Court in **Oriental Insurance Company Ltd, Mattancherry v. Vineetha Nair and others [2016 (4) KHC 392]** would argue that unless it is established that the driver was under the influence of alcohol pay and recovery cannot be ordered against the registered owner. 19. The learned counsel for the 3[rd] respondent would argue that as against the 3[rd] respondent there was a police case under Section 185 of the Motor Vehicles Act. At the time of evidence, PW1 also deposed that the 3[rd] respondent consumed alcohol. However, in this case there is no reliable evidence to prove that the 3[rd] respondent was under the influence of alcohol at the time of driving the vehicle. Therefore, the Tribunal was not justified in ordering pay and recovery, and as such, the said finding is liable to be set aside and the 1st respondent/owner of the vehicle is exonerated from the liability. 20. In the result, these Appeals are disposed of directing the 2[nd] respondent to deposit a total sum of Rs.2,77,630/- (Rupees Two Lakh Seventy Seven Thousand Six Hundred and Thirty Only), less the amount already deposited, if any, along with interest rate as ordered by the Tribunal, from the date of the petition till deposit/realisation, with proportionate costs, within a period of two months from today (enhanced compensation will carry interest @8%) . ``` MACA NOs. 2390 & 711 OF 2012 ``` ``` 11 ``` **==> picture [57 x 58] intentionally omitted <==** ``` 2025:KER:10500 ``` 21. On depositing the aforesaid amount, the Tribunal shall disburse the entire amount to the petitioner, excluding court fee payable, if any, without delay, as per rules. 22. The learned counsel for the 1[st] respondent/owner of the offending vehicle submitted that the 1[st] respondent has already paid Rs.83,789/and as such they are entitled to get back the said amount from the insurance company. Therefore, there will be a direction to the 2[nd] respondent to pay a sum of Rs.83,789/- to the 1[st] respondent from out of the compensation payable to the petitioner. **Sd/-** ## **C. PRATHEEP KUMAR, JUDGE** SMA