Shahul Hammed v. United India Insurance Co. Ltd.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE SYAM KUMAR V.M.** **FRIDAY, THE 12[TH] DAY OF APRIL 2024 / 23RD CHAITHRA, 1946 MACA NO. 925 OF 2014** **ARISING OUT OF THE AWARD DATED 27.03.2008 IN OPMV NO.7 OF 2003 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, NORTH PARAVUR** **APPELLANT:** **SHAHUL HAMMED AGED 55 YEARS S/O. SULTHAN RAVUTHAR, KANJIRAPARAMBIL HOUSE, GCDA COLONY, PARAVOOTHARA. BY ADV SRI.A.N.SANTHOSH** **RESPONDENT:** **UNITED INDIA INSURANCE CO. LTD PARAVUR BRANCH-683512.** **BY ADVS. SMT.S.JAYASREE, SC** **JOHN JOSEPH VETTIKKAD** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 12.04.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** M.A.C.A.No.925/2014 2 ## **JUDGMENT** _Dated this the 12[th] day of April, 2024_ Aggrieved by the quantum of compensation awarded in O.P.(M.V.) No.7 of 2003 filed before the Motor Accident Claims Tribunal (hereinafter referred to as the 'Tribunal'), North Paravur, this appeal is filed by the appellant who was the claimant therein. 2. Facts in Brief: On 07.09.2002, the appellant while riding his motor cycle bearing registration No.KL-7/AB-5300 from south to north and when he reached near Ezhikkara Panchayath Office, a tempotrax bearing registration No.KL-7/AD-3562, driven negligently came from the opposite direction and hit against his motor cycle. The appellant suffered various injuries including fracture of both bones of his right leg, type III A open fracture, fracture of patella right and right leg wound extending from proximal 5[th] to distal 3[rd] exposing tibia and serious contamination. He had to undergo treatment as inpatient for about 84 days in two hospitals viz., Specialists Hospital, Ernakulam and KMK Hospital, North Pravur. Appellant filed the M.A.C.A.No.925/2014 3 above OP (MV) arraying the owner, driver and the insurer as respondents 1 to 3 respectively. Respondents 1 & 2 jointly contested the application and contended that there was no negligence on the part of the 2[nd] respondent driver as alleged. The 3[rd] respondent insurer admitted the policy, but disputed the amount claimed under various heads. 3. The Tribunal framed three issues and parties went to trial. Neither side examined any witnesses. Appellant produced Exts.A1 to A15. Respondents did not produce any documents in evidence. 4. An Award for Rs.3,91,650/- with interest @ 7% per annum from the date of the petition upto the date of payment with proportionate cost to the appellant from the 3[rd] respondent was rendered by the Tribunal. The above MACA is filed by the appellant challenging the said Award. 5. Heard the learned counsel appearing for the appellant and the learned counsel appearing for the respondent insurance company. 6. Appellant's contentions are as follows: # The monthly income fixed by the Tribunal is too low M.A.C.A.No.925/2014 4 and it ought to have been fixed at Rs.6,000/-. # The Tribunal failed to note the functional disability of the appellant was more than 25% and the amount awarded for permanent disability is too low. # The Tribunal erred in fixing the multiplier and multiplicand. # The compensation awarded by the Tribunal for 'Pain & Suffering' and 'Loss of Amenities' is highly inadequate. 7. Per contra the learned counsel appearing for the insurance company submits that just and reasonable amounts have been awarded by the Tribunal in the facts and circumstances of the case and since the Award does not merit any interference, the MACA may be dismissed. 8. I have considered the contentions raised by the respective counsel and have perused the Award and pleadings. 9. The Tribunal has, based on the evidence produced, concluded that the accident happened due to the rash and negligent driving of the Tempo Trax vehicle insured with the respondent. The extensive nature of the injuries suffered by the appellant and the 25% disability mentioned in the Disability M.A.C.A.No.925/2014 5 Certificate have been noted by the Tribunal. Though the appellant has contended that functional disability was more than 25%, there is no material to substantiate the same. Hence the reliance placed by the tribunal on the Ext. A4 disability certificate is found valid and proper. 10. For computation of loss of earnings, the Tribunal had computed the monthly income as Rs.2,000/- basing on Ext. A4 and applying a multiplier of 15, thus fixing the compensation for permanent disablement and loss of earning power at Rs.90,000/-. The principal attack of the counsel for the appellant is with respect to the said amount of Rs.2,000/- fixed by the Tribunal as monthly wages. He would contend that taking note of the fact that the accident had occurred in the year 2002, and also the future prospects, the Tribunal ought to have fixed the income of the appellant at Rs.6,000/-. No material to substantiate the said claim for Rs.6,000/- is seen produced. It is fair and reasonable that the monthly income is recomputed and fixed at Rs.3,500/-. Taking due note of the dictum laid down by the Hon'ble Supreme Court in **Sarla Verma and Ors. v. Delhi Transport Corporation & Anr.** M.A.C.A.No.925/2014 6 [2010 (2) KLT 802 (SC)] and subsequently in **National Insurance Company Ltd. v. Pranay Sethi** [2017 (4) KLT 662 (SC)] and in view of the fact that the appellant was aged 45 years during the relevant time, retaining the multiplier at 15 as taken by the Tribunal, the compensation towards Permanent Disablement and Loss of Earning Power is computed as Rs.1,57,500/- (3,500x12x15x25/100=1,57,500/-). Based on the same figure of Rs.3,500/- as monthly income, the loss of earnings for 9 months is recomputed at Rs.3,500x9=Rs.31,500/- instead of Rs.18,000/- awarded by the Tribunal. Taking note of the nature of injuries suffered by the appellant, which have been noted by the Tribunal as of extensive nature, it is just and reasonable that the amount of Rs.25,000/- awarded by the Tribunal under the head of Pain and suffering is enhanced to Rs.40,000/- ie., an enhancement of Rs.15,000/- The compensation for loss of amenities allowed by the Tribunal is Rs.15,000/- is accordingly enhanced by Rs.10,000/- to Rs.25,000/-. I do not find any other ground existing to interfere with the amount of compensation awarded by the Tribunal under the other heads. M.A.C.A.No.925/2014 7 11. Pursuant to the above enhancements made, the amount of compensation under the different heads in the Award stand altered as per the table below: |Sl.No.|Head of Claim|Amount awarded<br>by the Tribunal<br>(Rs.)|Amount modified<br>and recalculated<br>by this Court (Rs.)| |---|---|---|---| |1|Loss of earning|18,000/-|31,500/-| |2|Transportation charges|1,000/-|1,000/-| |3|Extra nourishment charges|4,000/-|4,000/-| |4|Damage to clothing|250/-|250/-| |5|Medical expenditure|2,30,000/-|2,30,000/-| |6|Nursing<br>&<br>bystander's<br>expenses|8,400/-|8,400/-| |7|Pain & suffering|25,000/-|40,000/-| |8|Loss of amenitites|15,000/-|25,000/-| |9|Permanent disablement and<br>loss of earning power|90,000/-|1,57,500/-| ||Total|3,91,650/-|4,97,650/-| The Award of the Tribunal is modified to the above extent entitling the appellant to a total amount to Rs.4,97,650/- under the respective heads as tabulated above. Thus the total enhancement allowed in the MACA is Rs.1,06,000/-. Needless to add, the amounts already awarded by the Tribunal under each of these heads will be deducted from the above enhancements. Appellant will be entitled to interest @ 7% per annum from the date of OP(MV) on the enhanced amount. However, the appellant will be dis-entitled for the interest for M.A.C.A.No.925/2014 8 the period of 1305 days which constitutes the delay in filing the MACA which was condoned by this Court subject to the said condition vide Order dtd.23.12.2021 in C.M.Appln.No.1/2014 (CMPA 1101/2014) in the above OP (MV). MACA stands disposed as above. Sd/- **SYAM KUMAR.V.M. JUDGE** csl