SHAHUL HAMEED v. E. SALIM, SHAMEER & THE MANAGER, NATIONAL INSURANCE CO. LTD

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MRS. JUSTICE SOPHY THOMAS`** ``` TUESDAY, THE 11[TH] DAY OF JUNE 2024 / 21ST JYAISHTA, 1946 ``` ## **`MACA NO. 2791 OF 2014`** ``` AGAINST THE ORDER/JUDGMENT DATED IN OPMV NO.665 OF 2007 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,KOLLAM ``` ## **`APPELLANT/PETITIONER :-`** ``` SHAHUL HAMEED, S/O. KOYAKUTTY, PALAKKAL, THEVALAKKARA P.O., KOLLAM. ``` ``` BY ADV SRI.A.N.SANTHOSH ``` ## **`RESPONDENTS/RESPONDENTS :-`** ## **`1. E.SALIM, S/O EBRAHIMKUTTY`** ``` LAKHAMVEEDU, MADAPPALLY ``` ``` CHAVARA, KARUNAGAPPALLY – 691 583. ``` ``` 2. SHAMEER, S/O SALIM LAKHAMVEEDU, MADAPPALLY VATTATHRA WARD, CHAVARA, KARUNAGAPPALLY – 691 583. ``` ``` 3. THE MANAGER NATIONAL INSURANCE CO.LTD PARAMESWARAN PILLAI CO. LTD HOSPITAL ROAD, KOLLAM – 691 001. ``` ``` BY R3-SMT.LATHA SUSAN CHERIAN REPRESENTED SRI.GEORGE CHERIAN (SR.) ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 11.06.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA. No. 2791 of 2014 ``` ``` ..2.. ``` ## _**J U D G M E N T**_ This appeal is at the instance of the claimant in O.P. (MV) No. 665 of 2007 on the file of Motor Accidents Claims Tribunal, Kollam, impugning the award on the ground of inadequacy of compensation. 2. On 29.03.2007 at 6.30 pm, while the appellant was riding a bicycle through Mukhammudimukku - Kottukadu public road, KL-2/Y 9317 motorcycle ridden by the 2[nd] respondent in a rash and negligent manner, knocked him down and he sustained serious head injury which resulted in psychological as well as neurological disability. He approached the Tribunal claiming compensation of Rs.10,00,000/-. But learned Tribunal awarded only Rs.37,650/-, and hence this appeal. 3. The 1[st] respondent was the registered owner of the offending motorcycle, the 2[nd] respondent was its rider, and the 3[rd] respondent was its insurer. ``` MACA. No. 2791 of 2014 ``` **==> picture [31 x 8] intentionally omitted <==** 4. Respondents 1 and 2 remained exparte before the Tribunal. The 3[rd] respondent insurer contested the case, but admitted the policy. Since the 2[nd] respondent had no driving license to ride the motorcycle at the time of the accident, there was violation of the policy conditions, and hence, the Tribunal allowed ‘pay and recovery’ in favour of the insurer. 5. In the appeal also, respondents 1 and 2 remained exparte though service was complete. The 3[rd] respondent insurer entered appearance through counsel. 6. Heard learned counsel for the appellant, and learned counsel for the 3[rd] respondent insurer. 7. Learned counsel for the appellant is assailing the award mainly on reasons that, the notional income fixed by the Tribunal was arbitrarily low, and the disability of the appellant was not taken into account. According to the appellant, he was a wood merchant aged 48, earning monthly income of Rs.4,500/-. But the Tribunal fixed his notional income @ Rs.3,000/- only. Learned counsel for the appellant relying on the decision ``` MACA. No. 2791 of 2014 ``` ``` ..4.. ``` _**Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited [AIR 2011 SC 2951],**_ would say that even a coolie worker was eligible to get his notional income fixed @ Rs.6,000/- per month in the year 2007. But his claim of monthly income was only Rs.4,500/- and the Court need not fix his income, exceeding his own claim. So this Court is inclined to fix his notional income @ Rs.4,500/- as claimed by him. 8. Learned Tribunal assessed loss of earning of the appellant for four months @ Rs.3,000/- per month. Since we have fixed his notional income @ Rs.4,500/-, he was eligible to get Rs.18,000/- (4,500 x 4). After deducting the amount already awarded i.e. Rs.12,000/-, he is eligible to get the balance amount of Rs.6,000/- under the head loss of earning. 9. Learned counsel for the appellant would submit that, learned Tribunal rejected Ext.C1 disability certificate issued by the Medical Board of Thiruvananthapuram Medical College, and relied on the subsequent disability certificate issued by the Medical Board of District Hospital, Kollam, which was to the ``` MACA. No. 2791 of 2014 ``` **==> picture [31 x 8] intentionally omitted <==** effect that the appellant had not suffered any disability at all. During pendency of this appeal, on the request of the appellant, he was referred to State Medical Board for assessing his disability. As per certificate dated 15.04.2021, the State Medical Board constituted by 7 doctors, including Associate Professor of Psychiatry and Assistant Professor of Neurosurgeon reported that the appellant had suffered major neuro cognitive disorder due to traumatic head injury to the extent of 40%. Since there is disability certificate issued from the Competent State Medical Board certifying his disability as 40%, this Court is inclined to accept the same to find that, the appellant had suffered permanent disability of 40%. 10. As directed by this Court, the appellant appeared before this Court and it was found that he was able to walk only with the assistance of somebody and learned counsel for the appellant would submit that he was totally incapacitated to do any job, as he is having neurological disability also. So he would submit that his future prospects also have to be taken, while awarding ``` MACA. No. 2791 of 2014 ``` **==> picture [31 x 8] intentionally omitted <==** disability compensation. He relied on the decision of the Apex Court in _**Erudhaya Priya v. State Express Transport Corporation Ltd [2020 (4) KLT 730 (SC)]**_ , in which the Apex Court had considered future prospects, in a case of 31.1% of the whole body disability suffered by the injured. In the case on hand, the disability suffered is 40% and since it is neurological disability due to traumatic head injury, he may not be able to do any job properly. So this Court is inclined to add 25% as future prospects to his monthly income of Rs.4,500/-. Therefore, his monthly income can be taken as Rs.5,625/- (4,500 + 25%). The multiplier applicable is 13, as he was aged 48 at the time of accident. So, the disability compensation can be assessed as Rs.3,51,000/- (Rs.5,625/- x 12 x 13 x 40/100). 11. Towards pain and suffering, this Court is inclined to award Rs.5,000/- more, considering the nature of injuries and period of hospitalization. 12. Towards loss of amenities, this Court is inclined to award Rs.15,000/-, as he had suffered major neurocognitive ``` MACA. No. 2791 of 2014 ``` ``` ..7.. ``` disorders resulting in 40% permanent disability. ## 13. The compensation awarded under all other heads seems to be reasonable and hence it needs no modification. 14. The enhanced compensation awarded in this appeal is given in the table below:- |_SL._<br>_No_|_Head of claim_|_Amount_<br>_awarded_<br>_by the_<br>_Tribunal_|_Amount_<br>_awarded in_<br>_appeal_|_Difference to_<br>_be drawn as_<br>_enhanced_<br>_compensation_| |---|---|---|---|---| |_1_|_Loss of earnings_|_12,000/-_|_18,000/-_|_6,000/-_| |_2_|_Loss of_<br>_permanent_<br>_disability_|_…..._|_3,51,000/-_|_3,51,000/-_| |_3_|_Pain and_<br>_suffering_|_20,000/-_|_25,000/-_|_5,000/-_| |_4_|_Loss of_<br>_amenities_|_…._|_15,000/-_|_15,000/-_| |_Total_||||_3,77,000/-_| 15. So the appellant is entitled to get enhanced compensation of Rs.3,77,000/- (6,000 + 3,51,000 + 5,000 + 15,000). 16. The 3[rd] respondent insurer is directed to deposit the enhanced compensation of Rs.3,77,000/- (Rupees three lakhs ``` MACA. No. 2791 of 2014 ``` **==> picture [31 x 8] intentionally omitted <==** seventy seven thousand only) with 9% interest per annum from the date of petition till the date of deposit before the Motor Accidents Claims Tribunal, Kollam within a period of two months from the date of receipt of a copy of this judgment. Learned Tribunal shall disburse the award amount to the appellant after deducting the liabilities, if any, towards Tax, balance court fee and legal benefit fund. 17. Since there was violation of the policy conditions, the 3[rd] respondent insurer is at liberty to recover the amount so deposited, from the 1[st] respondent owner and his assets. The appeal is allowed to the extent as above and no order as to costs. Sd/- ## **SOPHY THOMAS** **JUDGE** SMA