Sheby Paul v Muhammed Niyas C.K., United India Insurance Co. Ltd., Jiji Sheby

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN** **SATURDAY, THE 19[TH] DAY OF NOVEMBER 2022 / 28TH KARTHIKA, 1944** **MACA NO. 2804 OF 2009** **AGAINST THE AWARD IN OPMV 1989/2002 OF MOTOR ACCIDENT CLAIMS** **TRIBUNAL, THRISSUR** ## **APPELLANT/1ST PETITIONER:** SHEBY PAUL, S/O.PAUL, PUTHIRI HOUSE, ARAMPALLY, P.O.ANJUR, MUNDUR, THRISSUR DISTRICT, (TOTALLY PARALYSED AND MENTALLY CRIPPLED), REPRESENTED BY THE MOTHER THRESYA PAUL, W/O.PAUL,, AGED 56 YEARS, RESIDING AT PUTHIRI HOUSE, ARAMPALLY, P O ANJUR, MUNDUR, THRISSUR DISTRICT BY ADV SRI.P.V.CHANDRA MOHAN ## **RESPONDENTS/RESPONDENTS:** 1 MUSTHAFA ( ***** DELETED) S/O.MUHAMED, KANNATHEYIL HOUSE, PERUMBADAPU, PONNANI, MALAPPURAM, DISTRICT. - 2 MUHAMMED NIYAS C.K. NIYAS MANZIL, P.O.NETTUR, COCHIN - 4. - 3 UNITED INDIA INSURANCE CO.LTD. , REGD. AND HEAD OFFICE - 24 WHITES ROAD,, CHENNAI - 600 014. (RESPONDENT 1 IS DELETED FROM THE PARTY ARRAY AT THE RISK OF APPELLANT AS PER ORDER DATED 18.02.2015 IN IA NO.658/2015 IN MACA 2804/2009) ## 4 **RESPONDENT NO.4/PETITIONER NO.2** JIJI SHEBY, W/O.SHEBY, PUTHIRI HOUSE, ARAMPILLY, P O ANTHUR, MUNDUR, THRISSUR BY ADVS. DEEPA GEORGE T.K.RADHAKRISHNAN THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 19.11.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.A.C.A.2804/2009 2 ## **C.JAYACHANDRAN, J** **-----------------------------------M.A.C.A.No.2804 of 2009 -------------------------------------Dated this the 19[th] day of November, 2022** ## **J U D G M E N T** **1.** This Court starts with the following observations from the Award of the Motor Accidents Claims Tribunal, Thrissur in O.P(M.V).No.1989 of 2002, along with a connected matter. “The petitioner was brought before the court. I have seen that he was in a wheel chair. He was unable to speak anything. He can stand up with the help of somebody else and he could move with two persons on either side. He appears to have lost his speaking and hearing capacity. This unfortunate youngster has become a doll having life and he cannot do anything without the help of somebody else. Considering all these aspects, I assess his permanent disability at 100%.” The above observations of the Tribunal - heavily relied upon by the appellant - would indicate the M.A.C.A.2804/2009 3 most unfortunate and pathetic state of affairs of the claimant in the O.P. above referred, who met with an accident on 03.03.2002. The claimant, along with his wife, was travelling in a scooter, whereupon a car coming from the rear side, dashed on the scooter, as a result of which, the claimant fell down, sustaining very serious injuries, especially on his head. Paragraph no.9 of the impugned award refers to the injuries sustained by the claimant. According to the learned counsel for the appellant, the appellant has been reduced to a vegetative state and has even became blind as a result of the injuries. On the above facts, the appellant seeks enhancement of the quantum of compensation awarded by the Tribunal. **2.** Heard Sri.P.V.Chandramohan, learned counsel for the appellant and Smt.Deepa George, learned counsel for the third respondent/insurance company. Perused the records. **3.** Learned counsel for the appellant first invited M.A.C.A.2804/2009 4 the attention of this Court to the income aspect of the claimant. He was a Senior Mechanic in Lakshmi Auto mobiles, authorised dealer in LML Vespa scooter during that point of time. He is a graduate, besides having a national trade certificate, as evidenced by Ext.A8. Ext.A15 is the salary certificate indicating a salary of Rs.9,400/- per month. However, the Tribunal has reckoned only Rs.2,000/-, for the reason that the person who issued the salary certificate was not examined. This Court is of the view that the salary reckoned at Rs.2,000/- is on the lower side. Even if recourse is made to the index available in ## **Ramachandrappa v. Manager, Royal Sundaram Alliance** **Insurance Company Ltd. [2011 KHC 4675]** , a sum of Rs.3,500/- can be reckoned for the year 2002, even for a coolie. In the instant case, the claimant is skillfully employed, he being a graduate and technically qualified, vide Ext.A8. This Court is, therefore, of the opinion that, it would be just and reasonable to fix the salary of the claimant at Rs.4,500/-. It is so done. M.A.C.A.2804/2009 5 **4.** The next point argued by the learned counsel is with respect to future prospects to be considered at the rate of 40% of the income, as per the judgment in ## **National Insurance Co. Ltd. v. Pranay Sethi [2017(4)** **KLT 662 (SC)].** This contention is also liable to be accepted. **5.** The third contention is with respect to future bystander expenses. Learned counsel once again emphasized that the claimant/injured is completely bedridden. His pathetic situation was taken judicial note of by the Tribunal, which has already been extracted above. He cannot move of his own and he is confined to a wheel chair. He is unable to speak. Even to stand up, he needs the help of somebody. To borrow the usage employed by the Tribunal, “the claimant, a unfortunate youngster has become a doll having life”. In the peculiar circumstances, this Court is inclined to recognize the claim for future bystander expenses. This Court fixes an amount of M.A.C.A.2804/2009 6 Rs.5,000/- per month for bystander expenses and the same has to be multiplied by the correct multiplier of 17, having regard to the age of the claimant at the time of accident, which is 27 years indisputably. **6.** The next point urged by the learned counsel is with respect to the loss of marital life of the claimant. It was pointed out that the claimant has lost his whole life, except for his vegetative existence and breath. Incidently, it was pointed out that his wife had abandoned him because of his incapacities, pursuant to the accident. This Court is of the opinion that the said head is also liable to be recognized. This Court fixes a sum of Rs.2,00,000/- towards loss of marital and future life. **7.** The last point is with respect to the expenses for future medical treatment. It was pointed out by the learned counsel that the claimant is completely bedridden and he needs to be hospitalized frequently, M.A.C.A.2804/2009 7 atleast once in a month, in connection with problem of bed soar and also, for removal of urinary catheters. This again, is another count which is liable to be recognized in the estimation of this Court. This Court fixes Rs.1,00,000/- towards future treatment expenses. **8.** The contention of the learned counsel for the 3[rd] respondent/insurance company in so far as the multiplier is concerned is also liable to be recognized. According to the learned counsel, the correct multiplier is 17, having regard to the age of the claimant at the time of accident; however, the Tribunal reckoned 18 as the multiplier, which is liable to be corrected. **9.** Another point argued by the learned counsel for the respondent is that, having reckoned 100% disability, a further compensation of Rs.10,000/- for loss of earning is not tenable. However, learned counsel for the appellant explained that the said M.A.C.A.2804/2009 8 loss of earning is only upto the date of petition, which is filed 5 months after the date of accident. Therefore, the said contention of the insurance company is rejected. **10.** The final objection raised by the learned counsel for the insurance company is with respect to 'loss of amenities' granted by the Tribunal at the rate of 25,000/-. Learned counsel pressed into service the judgment of the Supreme Court in **Raj Kumar v. Ajay Kumar [2011 ACJ 1 (SC)],** which _interalia_ holds that, if the disability is reckoned at 15% or above, there could be no amount granted under the head 'loss of amenities'. This contention of the learned counsel for the respondent is to be recognized and therefore, Rs.25,000/- granted under the head 'loss of amenities' is to be obliterated. **11.** In the result, M.A.C.A is allowed and the compensation amount payable to the claimant/appellant is reworked as indicated in the table here below. M.A.C.A.2804/2009 9 |**Sl.**<br>**No.**|**Head of Claim**|**Amount**<br>**awarded by**<br>**the**<br>**Tribunal**|**Total amount**<br>**after**<br>**enhancement in**<br>**appeal**| |---|---|---|---| |1|Loss of earning|10,000|22,500<br>[4,500 x 5]| |2|Expense for<br>transportation|7,000|7,000| |3|Expense for extra<br>nourishment|10,000|10,000| |4|Damages to Clothing|500|500| |5|Expenses for treatment|3,97,250|3,97,250| |6|Expense for bysander|50,000|10,20,000<br>[5,000 x 12 x 17]| |7|Compensation for pain<br>and suffering|50,000|50,000| |8|Compensation for loss of<br>amenities|25,000|NIL| |9|Compensation for<br>disability|4,32,000|12,85,200*****| |10|Loss of Marital and<br>Future Life|Nil|2,00,000| |11|Future Medical Treament|Nil|1,00,000| ||Total|9,81,750|30,92,450| |Amount enhanced= Rs.30,92,450||– Rs.9,81,750=**Rs.21,10,700/**|| |**[ * 4,500 x 140/100 x 12 x 17x**||**100%]**|| **12.** The Insurance Company shall pay interest for the amount awarded by the Tribunal at the rate directed M.A.C.A.2804/2009 10 in the impugned award; and for the enhanced amount, at the rate of 5% from the date of petition. Since there was a delay of 87 days in filing the appeal, the interest for the enhanced quantum shall not run for the said period as directed in order dated 14.09.2021 in C.M.A.No.1 of 2009 (old C.M.A.No. 3302 of 2009). If any amount has already been paid, the same shall be granted set off. The claimant shall produce the details of the Bank account before the Insurance Company/Tribunal within two months from the date of receipt of a certified copy of this judgment and amount shall be transferred to the Bank account directly through NEFT/RTGS mode, within a period of one month thereafter. If the Bank account is not given within the time stipulated, it is made clear that, no interest shall run on the enhanced amount after the period stipulated by this Court. However, if the Insurance Company fails to deposit the amount, as directed, interest on the enhanced amount shall also run at the rate ordered by the Tribunal from the date of petition. M.A.C.A.2804/2009 11 The appeal is allowed to the above extent. Sd/- **C.JAYACHANDRAN** **JUDGE** Sbna/