High Court of KeralaSingle Judge2021-04-07Appeal partly allowed; enhanced compensation; d...

SHAHEER v. DANIEL; TOGI GEORGE NELLIKUNNEL; ORIENTAL INSURANCE CO. LTD.

Case / Petition Number:MACA.No.2149 OF 2011(C)

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: C.S.DIAS
Judgment Date: 2021-04-07
Court Decision / Holding: The appeal is allowed, in part. The High Court enhances compensation by Rs. 93,000 over the Tribunal’s Rs. 67,511, totaling Rs. 1,60,011, with 9% interest on the enhanced amount from the petition date to realization and proportionate costs. The 3rd respondent/Insurance Co. must deposit the enhanced amount before the Tribunal within two months from receipt of a certified copy of the judgment, after which the appellant may withdraw the amount in accordance with law.
Final Disposition: Appeal partly allowed; enhanced compensation; deposit ordered.

Parties to the Case

Appellants / Petitioners

SHAHEER, AGED 45, S/O.KUNJUMOHAMMAD, 2/1120, THURUTHY, KOCHI-1, ERNAKULAM DISTRICT

Respondents

DANIEL, S/O.VARGHESE, PUTHENPURAKKAL HOUSE, WEST OF VIMALA MATHA SCHOOL, KADAKIKKATTU DESOM, MANJALOOR VILLAGE, PIN-682 019
TOGI GEORGE NELLIKUNNEL, KADALIKKADU, MOOVATTUPUZHA, PIN-682 019
ORIENTAL INSURANCE CO.LTD. BRANCH THOPPUMPADY, ERNAKULAM-682 005

Legal Representation & Advocates

Counsels for Petitioners

• SRI.R.MURALEEKRISHNAN

Counsels for Respondents

• SRI.N.S.NAJEEB

Case Synopsis & Summary

Shaheer, the appellant, challenged the Motor Accidents Claims Tribunal Ernakulam's award in OP(MV) No. 2800/2005, which granted Rs. 67,511 with 8% interest for injuries sustained as a pillion rider on 26.02.2004 when a stage carriage negligently veered and struck the motorcycle. The rider and the owner (first and second respondents) were ex-parte; the insurance company (third respondent) contested liability and argued that the petition claimed excessive sums. The Tribunal awarded part of the claim but did not grant compensation for disability despite Ext.X1 (31.03.2009) showing disability and Ext.X2 (23.09.2010) confirming 20% permanent disability. The appellant pressed the need to follow the Supreme Court’s Pranay Sethi framework, which requires just compensation to be determined on fairness, reasonableness and equitability. The High Court, applying Pranay Sethi principles, found the Tribunal erred by omitting disability compensation and by mis-sizing some heads (notably loss due to disability and loss of amenities). It held that with the appellant aged about 40, a 20% disability merits Rs. 1,08,000 under loss due to disability and reduced loss of amenities to Rs. 10,000. Other heads were deemed reasonable. The Court enhanced total compensation by Rs. 93,000 to Rs. 1,60,011, at 9% interest, directing the insurer to deposit the enhanced amount within two months. The appeal was allowed in part.

Provisions of Law Cited

Section 168 of the Motor Vehicles Act, 1988

Legal Doctrines & Maxims

Just compensation doctrine under the Motor Vehicles Act; fairness, reasonableness and equitableness as guiding principles; non-violation of the principle of equitableness.

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellant contends that the Tribunal erred in not granting full just compensation and failed to apply the Pranay Sethi framework, particularly by omitting compensation for disability despite Ext.X1/X2 showing 20% disability. He argues for enhancement based on a fair, reasonable, and equitable calculation using the 20% disability, an appropriate multiplier, notional income, and proper heads (loss due to disability, loss of amenities, medical expenses, pain and suffering, etc.).

Contentions of Respondents

The respondents contend that the accident was caused solely by the rider’s negligence; the petition claimed sums were excessive and the Insurance Company should not be burdened with inflated awards; they seek dismissal or upholding of the Tribunal’s partial award, emphasizing liability and reasonableness of the award.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
National Insurance Company Ltd. v. Pranay Sethi	(2017) 16 SCC 680	Positive	Cited and applied as the governing standard for determining 'just compensation' under Section 168, emphasizing fairness, reasonableness and equitability.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **WEDNESDAY, THE 07TH DAY OF APRIL 2021 / 17TH CHAITHRA, 1943** ## **MACA.No.2149 OF 2011(C)** **AGAINST THE AWARD IN OP(MV)NO. 2800/2005 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,ERNAKULAM DATED 17.05.2011** ## **APPELLANT/PETITIONER:** **SHAHEER, AGED 45, S/O.KUNJUMOHAMMED, 2/1120, THURUTHY, KOCHI-1,, ERNAKULAM DISTRICT.** **BY ADV. SRI.R.MURALEEKRISHNAN** ## **RESPONDENTS/RESPONDENTS:** **1 DANIEL, S/O.VARGHESE, PUTHENPURAKKAL HOUSE, WEST OF VIMALA MATHA SCHOOL, KADAKIKKATTU DESOM, MANJALOOR VILLAGE,, MUVATTUPUZHA, PIN-682 019. 2 TOGI GEORGE NELLIKUNNEL, KADALIKKADU,, MOOVATTUPUZHA, PIN-682 019. 3 ORIENTAL INSURANCE CO.LTD. BRANCH THOPPUMPADY, ERNAKULAM-682 005. R3 BY ADV. SRI.N.S.NAJEEB** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 31-03-2021, THE COURT ON 07-04-2021 DELIVERED THE FOLLOWING:** **MACA.No.2149 OF 2011(C)** 2 ## **C.S.DIAS,J** - - - - - - - - - - - - - - - - - - - - - - - - MACA No. 2149 of 2011 - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 7[th] day of April, 2021 ## **JUDGMENT** The appellant was the petitioner in OP (MV) No.2800 of 2005 on the file of the Motor Accidents Claims Tribunal, Ernakulam. The respondents in the appeal were the respondents in the claim petition. 2. The facts in brief, for the determination of the appeal are: on 26.02.2004 while the appellant was travelling as pillion rider in a motorcycle bearing registration No.KL07 AP 2510, which is ridden by his friend through the Mattancherry-Boat Jetty road, when they reached near the eastern gate of the Pazhayannur Bhagavathi Temple, a stage carriage vehicle bearing registration No. KL7/B1215 (offending vehicle) suddenly severed the vehicle to **MACA.No.2149 OF 2011(C)** 3 the right side and hit the motorcycle. The rider as well as the appellant were thrown on the road and sustained serious injuries. The appellant was taken to the Gowtham Hospital and thereafter referred to the Medical Trust Hospital, Ernakulam. The accident occurred solely due to the negligence on the part of the 1[st] respondent. The offending vehicles was owned by the 2[nd] respondent and insured with the 3[rd] respondent. The appellant was a Coolie by profession and was earning a monthly income of Rs.3,000/-. It was contended that the respondents were jointly and severally liable to compensate the appellant, which he quantified at Rs.2,30,000/- but limited to Rs.2,00,000/- . 3. The respondents 1 and 2 did not contest the proceedings and were set ex-parte. 4. The 3[rd] respondent – insurance company filed a written statement, i _nter alia,_ contending that **MACA.No.2149 OF 2011(C)** 4 the accident occurred solely due to the negligence on the part of the rider of the motorcycle. The amounts claimed under different heads in the claim petition were excessive. Hence, the claim petition be dismissed. 5. The Tribunal, after considering the pleadings and materials on record, by the impugned award allowed the claim petition, in part, by permitting the appellant to recover an amount of Rs.67,511-/ with interest at the rate of 8% per annum from the date of claim petition till the date of realization with costs. The 3[rd] was proportionate respondent directed to pay the compensation amount. 6. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioner is in appeal. 7. Heard Sri.R.Muraleekrishnan, the learned counsel for the appellant/petitioner and **MACA.No.2149 OF 2011(C)** 5 Sri.N.S.Najeeb, the learned counsel appearing for the 3[rd] respondent – insurance company. 8. The sole question that emerges for consideration in the appeal is whether the quantum of compensation awarded by the Tribunal is reasonable and just? 9. 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 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. 10. Ext.A9 charge-sheet filed by the City Traffic **MACA.No.2149 OF 2011(C)** 6 Police in Crime No.709 of 2009 substantiates that the accident occurred solely due to the negligence on the part of the 1[st] respondent – driver of the offending vehicle. Ext.A5 Wound Certificate and Exts.A6 and A7 discharge summaries substantiate that the appellant had sustained the following injuries: - “(i) Deep lacerated wound on the left eye brow - (ii) Small lacerated wound on the right eye brow - (iii) Contused abrasion on the forehead and right cheek - (iv) Pain and deformity of right shoulder - (v) Pain and tenderness of right upper both incisors - (vi) X – ray right shoulder - Acromio Clavicular dislocation “ ## 11. The appellant was treated as an in-patient for a period of 10 days. Ext.A12 Medical Bills proves that the appellant had spent an amount of **MACA.No.2149 OF 2011(C)** 7 Rs.23,011/- for his medical expenses. 12. The main area of dispute in this appeal is with reference to Ext.X1 and Ext.X2 disability certificates. 13. The District Medical Board by Ext.X1 dated 31.03.2009 came to a conclusion that the appellant who has a mild conductive hearing loss (Rt ear) and Profound mixed hearing loss (Lt eye) but had a physical disability of 90%. 14. Doubting the correctness of the assessment made in Ext.X1 certificate, the Tribunal referred the appellant to the State Standing Disability Assessment Board. The said Board by Ext.X2 dated 23.09.2010 came to a conclusion that the appellant has a permanent disability of 20%. 15. Based on Ext.X2, the Tribunal fixed the permanent disability at 20%. However, while fixing the quantum of compensation, the Tribunal omitted **MACA.No.2149 OF 2011(C)** 8 to grant any compensation under the head 'loss due to disability, instead, the Tribunal awarded an amount of Rs.25,000/-, under the head 'loss of amenities'. ## **Loss due to disability** 16. Going by the well settled principles in **Pranay Sethi** (supra) and a whole line of decisions, the Tribunal, especially after finding that the appellant had a disability of 20%, ought to have awarded compensation under the head 'loss due to disability'. In view of the findings in Ext.X2 that the appellant has a disability at 20%, I accept the same. The appellant being 40 years at the time of accident, the relevant multiplier is '15'. In the said circumstances, accepting the notional monthly income of the appellant at Rs.3,000/- and fixing his disability at Rs.20%, I award compensation for 'loss due to disability' at Rs.1,08,000/- **MACA.No.2149 OF 2011(C)** 9 ## **Loss of amenities** 17. It is seen that the Tribunal has awarded an amount of Rs.25,000/- under the head 'loss of amenities'. In view of awarding compensation under the head 'loss due to disability', I scale down the amount of compensation under the said head to Rs.10,000/- instead of Rs.25,000/- awarded by the Tribunal. ## **Other heads of claim** 18. With respect to the compensation awarded by the Tribunal, under the other heads of claim namely, loss of earnings, transportation, by-stander expenses, extra nourishment, medical expenses and pain and sufferings, I find that the Tribunal has awarded reasonable and just compensation. 19. 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- **MACA.No.2149 OF 2011(C)** 10 cited decisions, I am of the firm opinion that the appellant is entitled for enhancement of compensation as modified and recalculated above and given in the table below for easy reference. |Sl. No|Heads of claim|Amount awarded by the Tribunal (in rupees)|Amounts modified and recalculated by this Court| |---|---|---|---| |1|Loss of earning|6,000/-|6,000/-| |2|Transportation|500/-|500/-| |3|Bystander expenses|2,000/-|2,000/-| |4|Extra nourishment|1,000/-|1,000/-| |5|Medical expenses|23,011/-|23,011/-| |6|Pain and sufferings|10,000/-|10,000/-| |7|Loss of amenities|25,000/-|10,000/-| |8|Loss due to disability|nil|1,08,000| |||67,511/-|1,60,011| In the result, the appeal is allowed, in part, by enhancing the compensation by a further amount of Rs.93,000-(Rupees ninety three thousand only) with interest at the rate of 9% per annum on the enhanced compensation, from the date of petition till the date of realisation with proportionate costs. **MACA.No.2149 OF 2011(C)** 11 The 3[rd] respondent shall deposit the additional compensation awarded in this appeal before the Tribunal with interest and proportionate costs within a period of two months from the date of receipt of a certified copy of the judgment. The appellant will be at liberty to move the Tribunal for withdrawal of the deposited amount in accordance with law. **Sd/- C.S.DIAS,JUDGE** dlk 07.04.2021