Shamsudheen v. K.P. Riyas and The New India Assurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **THURSDAY, THE 25TH DAY OF FEBRUARY 2021 / 6TH PHALGUNA, 1942** ## **MACA.No.62 OF 2009** **AGAINST THE AWARD IN OPMV 1588/2003 DATED 21-06-2008 OF THE PRINCIPAL MOTOR ACCIDENT CLAIMS TRIBUNAL ,KOZHIKODE** ## **APPELLANT:** **SHAMSUDHEEN AGED 38 YEARS S/O ABOOBACKER, PERINKOLLATHODI, BEYPORE P.O.,KOZHIKODE** **BY ADV. SMT.K.V.RESHMI** ## **RESPONDENTS:** **1 K.P.RIYAS, AGE NOT KNOWN KEERIYADATTAPARAMBA,BEYPORE P.O., KOZHIKODE DISTRICT 2 THE NEW INDIA ASSURANCE CO. LTD. DIVISIONAL OFFICE, SILVER PLAZA BUILDING, INDIRA GANDHI ROAD, KOZHIKODE** ## **R1 BY ADV. SRI.LAL GEORGE** **R2 BY ADV. LAL GEORGE** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 25.02.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA No.62 OF 2009 2 ## **P.V.KUNHIKRISHNAN, J** -------------------------------MACA No.62 OF 2009 ------------------------------- ## **JUDGMENT** Dated this the 25[th] day of February 2021 The appellant is the claimant in O.P (MV) No.1588/2003 on the file of the Principal Motor Accidents Claims Tribunal, Kozhikode. The appellant had filed the claim petition under Section 166 of the Motor Vehicles Act, 1988 claiming compensation for the injury sustained by him in a motor accident. 2. The case of the appellant is that, on 16.2.2003 at about 10.30 p.m he was a pillion rider on the motor cycle bearing No.KL 11/N 5081 and the vehicle hit on another motor cycle bearing No.KL11/P 6696. The appellant sustained serious injury. He claimed an amount of Rs.3 lakh as compensation for the injury sustained by him. 3. The appellant had produced Exts.A1 to A7 and the respondents produced Exts.B1 to B3 before MACA No.62 OF 2009 3 the tribunal. Ext.C1 is the proceedings of the Medical Board. 4. After going through the pleadings and documents, the Tribunal found that the appellant is entitled only a consolidated sum of Rs.30,000/which is just and reasonable compensation. In addition to this, the Insurance Company was exonerated for payment because no additional premium is paid for the pillion rider as per Ext.B1 policy. Aggrieved by the above, this appeal is filed. 5. When the appeal came up for consideration, the appellant submitted that since Exhibit B1 is a Comprehensive/Package policy, the finding of the Tribunal that the Insurance is not liable to pay the compensation is unsustainable. 6. The learned Standing Counsel for the Insurance Company fairly conceded that Ext.B1 is a comprehensive package policy and the 2[nd] respondent is bound to pay the compensation. MACA No.62 OF 2009 4 Therefore, the exoneration of the Insurance Company from payment of compensation is not sustainable. 7. Now this court has to consider the compensation part. The Tribunal fixed a consolidated amount of Rs.30,000/- as just and reasonable compensation, finding that no evidence is produced to prove the injuries. The Tribunal observed that even CT scan will not reveal injury to optic nerve. 8. I perused Exts.A5, A6, A7 and C1. Ext.A5 is the wound certificate of the appellant. In Ext.A5 wound certificate, a lacerated wound of 5x5 cm was seen on the eye lid. Another lacerated wound of 2x1cm on zygomatic arch. Thereafter, Ext.A7 CT scan report, it is clearly stated that there is commuted fracture lateral bone of left orbit. The impression in the CT scan reveals that there is multiple fracture. Ext.C1 is the proceedings of the MACA No.62 OF 2009 5 Medical Board, in which it is stated that there is 30% visual disability and a functional disability of 30% on account of the above injury. It is seen that the Medical Board found that there is a functional disability of 30%. The counsel for the insurance company submitted the disability is not to the whole body and the disability is only a visual disability. No evidence is adduced by the appellant to prove that there is a total disability of 30%. 9. The inquiry that has to be conducted in such situation is the resultant loss of income generating capacity of the claimant. The principle to be followed by the court in assessing motor vehicles compensation claims is to place the victim in the same position as he was before the accident. The apex court after referring the decisions in **Syed Sadiq and others v. Divisional Manager, United India Insurance Co.Ltd [(2014) 2 SCC 735] and Raj Kumar v. Ajay Kumar [2011(1)KLT 620(SC)] observed in Pappu Deo Yadv v. Naresh Kumar and others [AIR** MACA No.62 OF 2009 6 **2020 SC 4424]** that the court should not adopt a sterotypical or myopic approach, but instead, view the matter taking into account the realities supplied both in assessment of the extent of disabilities and compensation under various heads. Considering the entire facts and circumstances, and also considering Exts.A7 and C1, disability can be assessed as 20%. The appellant is aged 33 years and the multiplier applicable is 16. Therefore, the amount payable for the disability is Rs.4000x16x12x20/100 =Rs.1,53,600/-. As far as the claim for transport to hospital an amount of Rs.2,000/-, for extra nourishment an amount of Rs.2,000/- and for damage to clothing an amount of Rs.1,000/- can be granted as compensation. For bystander expenses an amount of Rs.1,000/- can be allowed. 10. Moreover, the appellant produced Ext.A7 series bills for Rs.4,479/-. As far as the pain and MACA No.62 OF 2009 7 suffering is concerned, the claim is Rs.30,000/-. In the facts and circumstances, an amount of Rs.15,000/- can be allowed under the said head. As far as the loss amenities is concerned, Rs.12,000/can be allowed, even though the claim is Rs.30,000/-. Therefore the following amount can be ## granted as compensation:- |Disability|| |---|---| |Rs.4000x16x12x20/100|- Rs.1,53,600| |Pain and suffering|– Rs. 15,000| |Loss of amenities|- Rs. 12,000| |Medical bills,|- Rs. 4,479| |Transport to hospital|- Rs. 2,000| |Extra nourishment|- Rs. 2,000| |Damage to clothing|- Rs. 1,000| |Bystanders expenses|- Rs. 1,000| ||-------------------| ||Rs.1,91,079/-| ||========| 11. Therefore, the appellant is entitled to an amount of Rs.1,91,079/- as compensation for the injuries. An amount of Rs.30,000/- is already awarded by the Tribunal as just and reasonable compensation, which is to be deducted from the amount awarded by this Court. Therefore, the MACA No.62 OF 2009 8 enhanced compensation payable to the appellant is Rs.1,61,079/-. The appellant is entitled interest at the rate of 7% from the date of petition till the date of realisation. In the result the appeal is allowed in part the impguned award is modified to the effect that the appellant is entitled an enhanced compensation of Rs.1,61,079/- with 7% interest. If any amount under Section 140 of the Act is already paid, the 2[nd] respondent need to pay only the balance compensation after deducting the above amount, paid. ## **Sd/-** **P.V.KUNHIKRISHNAN** **JUDGE** ska