United India Insurance Co. Ltd. v. Muhammad P.

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MRS. JUSTICE MARY JOSEPH`** ``` TUESDAY, THE 5[TH] DAY OF MARCH 2024 / 15TH PHALGUNA, 1945 ``` ## **`MACA NO. 1830 OF 2023`** ``` AGAINST THE AWARD DATED 13.12.2022 IN O.P(M.V) NO.833 OF 2019 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, VATAKARA ``` ## **`APPELLANT/3RD RESPONDENT IN THE O.P(M.V):`** ``` THE UNITED INDIA INSURANCE CO. LTD. 2ND FLOOR, KFC RESTAURANT BUILDING, SEEMA TOWER, MAVOOR ROAD JUNCTION, KOZHIKODE, PIN- 673 001. REPRESENTED BY THE MANAGER, REGIONAL OFFICE, UNITED INDIA INSURANCE CO. LTD., HOSPITAL ROAD, ERNAKULAM, PIN - 682011 BY ADV SMT.DEEPA GEORGE ``` ## **`RESPONDENT/PETITIONER IN THE O.P(M.V):`** ``` MUHAMMAD P. AGED 26, S/O. ABOOBACKER, ERIYALI MEETHAL HOUSE, PACHILASSERRY, MUDUVANTHERI P.O, THUNERI, VATAKARA, PIN – 673 505 ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR HEARING ON ``` ``` 05.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA NO.1830/2023 ``` ``` 2 ``` ## **JUDGMENT** ## **Dated this the 05[th] day of March, 2024.** The appeal on hand is originated from an award passed by Motor Accidents Claims Tribunal, Vatakara (for short, ‘the Tribunal’) on 13.12.2022 in O.P (M.V) No.833/2019. The appellant is the insurer of the offending vehicle involved in the motor accident. The challenge in the appeal mainly is against the quantum of compensation stood awarded by the Tribunal. 2. For the sake of convenience, the parties to this appeal will hereinafter be referred to as the petitioner and respondents 1 to 3 in accordance with their status in the Original Petition. 3. The facts of the case relevant for disposal of this appeal are summarised hereinbelow:- The motor accident in question was occurred at about 8.35 p.m on 29.01.2019. The petitioner was riding a motorcycle bearing Registration No.KL-18-R-7993 from Thalassery to ``` MACA NO.1830/2023 ``` ``` 3 ``` Iringannur and a JCB bearing Registration No.KL-18-W-1503 dashed against it when it reached near Maha Siva temple, Iringannur. The petitioner sustained serious injuries in the impact of the hit. He was rushed to Baby Memorial Hospital, Kozhikode and treated there as inpatient till 25.02.2019. The motor accident was allegedly occurred due to the rash and negligent driving of the JCB bearing Registration No.KL-18-W1503 by its driver. Raising a claim for `81,28,000/- as compensation from the registered owner, driver and insurer of the JCB arrayed in the Original Petition as respondents 1 to 3 the above Original Petition was filed. 4. All respondents were served with notice from the Tribunal. 1[st] and 2[nd] respondents did not turn up to contest the Original Petition and therefore were declared as ex parte. 3[rd] respondent filed written statement admitting insurance coverage for the JCB bearing Registration No.KL-18-W-1503, as on date of the motor accident. Negligence alleged against the driver of the JCB was denied and it was sought to be attributed ``` MACA NO.1830/2023 ``` ``` 4 ``` to the petitioner who was riding the motorcycle at the relevant time without wearing a helmet and also in excessive speed. Compensation claimed is also disputed for its exorbitant nature. Claims of the petitioner regarding his age, occupation, monthly income and nature of injuries sustained and the nature of treatment underwent were also disputed. 5. Before the Tribunal, the petitioner marked Exts.A1 to A13 and C1 in evidence. Evidence was not adduced by the respondents. Upon appreciating the evidence on record the Tribunal found that the motor accident in question was occurred due to the rash and negligent driving of the JCB bearing Registration No.KL-18-W-1503 by its driver, who was arrayed as the 2[nd] respondent. The Tribunal calculated compensation and arrived at `87,41,500/- as the total compensation payable in favour of the petitioner. 3rd respondent was directed to pay the above sum with interest at the rate of 9% per annum from the date of filing of the Original Petition till the date of realisation, in favour of the petitioner. ``` MACA NO.1830/2023 ``` ``` 5 ``` 6. The challenge mainly raised by the 3[rd] respondent is against the sum fixed as monthly income of the petitioner in the case on hand. According to the learned counsel, the claim of the petitioner in the Original Petition was that he was earning `18,000/- as monthly income at the relevant time of the motor accident. He failed to adduce oral or documentary evidence to establish his occupation as well as monthly income as claimed by him. But, Tribunal took `18,000/- itself as the monthly income without any basis. According to the learned counsel, even going by the fixation of monthly income notionally by the Apex Court in **Ramachandrappa vs. Manager, Royal Sundaram Alliance Insurance Company Limited [(2011) 13 SCC 236],** `12,000/- is a reasonable sum to be fixed in the case on hand. The learned counsel thus canvassed for fixation of `12,000/- as the monthly income. 7. According to the learned counsel, though the permanent disability was certified as 90% in a certificate marked in evidence as Ext.C1, the Tribunal has taken 100% as ``` MACA NO.1830/2023 ``` ``` 6 ``` his occupational disability and calculated compensation on its basis. According to her, the petitioner did not examine himself. The doctor who treated him or examined him for the purpose of assessment of disability was also not examined. Therefore, without any basis, 100% was taken by the Tribunal as his occupational disability. Accordingly, she canvassed for interference and confining consideration of permanent disability for the purpose of calculation of compensation to 90%. The learned counsel has pointed out further that even after calculating compensation for permanent disability by taking 100%, the Tribunal has also awarded compensation for loss of earning for one year. According to her, the Tribunal ought not to have done so. Accordingly, the learned counsel sought for discarding the compensation stood awarded by the Tribunal and to calculate the compensation afresh. 8. It is also pointed out by the learned counsel that for 66 days of inpatient treatment, the Tribunal has awarded `1,000/- per day as compensation towards bystander expenses. ``` MACA NO.1830/2023 ``` ``` 7 ``` The Tribunal has further awarded a sum of `12,96,000/- as compensation towards assistance to the injured. It is urged that the Tribunal is highly unjustified in awarding compensation accordingly and the said amount is liable to be deducted from the total sum payable. 9. The learned counsel has also canvassed for reducing the rate of interest fixed by the Tribunal for the compensation payable. The learned counsel has canvassed furthermore that `2,00,000/- stood awarded by the Tribunal towards loss of amenities and enjoyments in life is also liable to be deducted, since compensation has been calculated by taking 100% as the occupational disability of the petitioner. 10. It is pertinent to note that the petitioner has raised a claim for `18,000/- as his monthly income. He has also claimed that at the relevant time of the motor accident, he was working as a Mobile Phone technician. He has not mounted the box to depose orally and not even produced any documentary evidence to establish his monthly income. The Tribunal has ``` MACA NO.1830/2023 ``` ``` 8 ``` taken notice from the First Information Statement lodged by his mother to set the law in motion that he was stated as doing the work of a mobile technician at the relevant time of the motor accident. Though no evidence was adduced by the petitioner to establish the same, the Tribunal took `18,000/- as the monthly income and calculated compensation on its basis. The learned counsel for the appellant canvassed for reducing the monthly income on the basis of **Ramachandrappa** supra. In **Ramachandrappa** supra the monthly income in the case of a coolie worker was fixed notionally as `4,500/- in the case of a motor accident occurred in the year 2004. In the case on hand, the petitioner being a technician of mobile phones, the very same calculation cannot be adopted. Petitioner being a skilled worker, this Court is inclined to modify the monthly income from that ought to have been taken in the case of a coolie worker. Therefore, `14,000/- was considered as the monthly income instead of `18,000/- fixed by the Tribunal. In view of 90% permanent disability certified in Ext.C1, this Court ``` MACA NO.1830/2023 ``` ``` 9 ``` is inclined to consider loss of future prospects also by adopting the dictum in **National Insurance Company Ltd. v. Pranay Sethi and Others [2017 (4) KLT 662 (SC)].** The petitioner being aged above 22 years, 40% can be added to the monthly income fixed in his favour in consideration of loss of future prospects. Thus `19,600/- (`14,000/- + 40% of `14,000/-) is arrived at. This Court could not find any fault on the part of the Tribunal in considering 100% as the occupational disability of the petitioner for the reason that he was totally bedridden on account of his paraplegic condition. Therefore, this Court is inclined to maintain consideration of 100% disability by the Tribunal in the case of the petitioner. 11. Multiplier adopted by the Tribunal as 18 being correct is maintained. When compensation for permanent and continuing disability is calculated on the basis of the monthly income refixed and also maintaining other factors, `42,33,600/- (`19,600/- x 12 x 18 x 100/100) is arrived at as the compensation payable. ``` MACA NO.1830/2023 ``` ``` 10 ``` 12. Since, 100% disability is taken for calculation of compensation, the petitioner will not be entitled to get `2,16,000/- stood awarded by the Tribunal towards loss of earning and the same is discarded for the reason. 13. Though it was canvassed by the learned counsel that `2,00,000/- stood awarded by the Tribunal as compensation towards loss of amenities and enjoyments in life is also to be deducted, the petitioner being an young man aged only few months above 22 years, in view of the paraplegia impacted from the motor accident, he may not be in a position to live a life as people of his age would live. He was a bachelor at the relevant time of the motor accident. He won’t be able to lead a married life also. Therefore, the Tribunal is justified in awarding `2,00,000/- as compensation towards loss of amenities and enjoyments in life and the same is maintained. 14. It was canvassed by the learned counsel that after awarding `66,000/- as compensation towards bystander expenses, the Tribunal has also awarded `12,96,000/- as ``` MACA NO.1830/2023 ``` ``` 11 ``` compensation for future assistance. True that the Tribunal has awarded `66,000/- as compensation towards bystander expenses by taking the period of inpatient treatment as 66 days and `1,000/- as the sum payable daily. Going by the documentary evidence on record, it is noticed that the petitioner had undergone treatment for more than one year. The Tribunal has not considered the exact period of hospitalisation for calculating compensation for bystander expenses. The Tribunal has awarded `12,96,000/- as compensation towards future assistance of the petitioner. It is an undisputed factum that the petitioner being totally bed ridden after the treatment period, in view of the total paralysis of his limbs, he may require the assistance of a bystander for the entire remaining life. Considering that aspect, the Tribunal has awarded `12,96,000/- as compensation towards future assistance. But, the amount arrived at as above appears to this Court, on the higher side. ``` MACA NO.1830/2023 ``` ``` 12 ``` 15. It is found from the impugned award that the Tribunal failed to award compensation towards future treatment expenses for the reason that evidence in that regard was not adduced by the petitioner. This is a factum upon which judicial notice can be taken by the Tribunal but it failed to do so. In the above circumstances, `12,96,000/- stood awarded by the Tribunal is maintained and treated as if it also is inclusive of amount granted for future treatment expenses. 16. Interest rate fixed by the Tribunal is 9% per annum. The motor accident in question was occurred in the year 2019 when the entire world has been shut down due to Covid-19 pandemic. The economic status of the country has gone down and it was improbable for a bank to pay interest at the rate of 9% during that period. Without delving on those aspects, the Tribunal has fixed interest for the compensation, at the rate of 9% per annum from the date of filing of the Original Petition till the date of realisation. It is noticed that the interest rate has not been increased even after the pandemic period. In the above ``` MACA NO.1830/2023 ``` ``` 13 ``` circumstances, this Court finds it reasonable to fix 8% as the rate of interest payable for the total compensation awarded by the Tribunal. 17. In the above manner of calculation of compensation with the modified factors, the petitioner will get `73,15,900/(`42,33,600/- + `56,000/- + `2,000/- + `1,00,000/- + `10,62,300/- + `66,000/- + `3,00,000/- + `2,00,000/- + `12,96,000/-) (Rupees Seventy three lakhs fifteen thousand nine hundred only) as the modified compensation in the place of `87,41,500/- stood awarded by the Tribunal. The petitioner is also entitled to get interest for the modified compensation at the rate of 8% per annum from the date of filing of the Original Petition till the date of realisation. **-** 18. `12,96,000/ stood awarded by the Tribunal towards future assistance to injured as well as future treatment will not carry interest. 3[rd] respondent shall pay the modified compensation in favour of the petitioner within a period of two months from the date on which a certified copy of this judgment ``` MACA NO.1830/2023 ``` ``` 14 ``` is received. The disbursal of the compensation shall be in accordance with the directions issued by this Court in Circular No.03/2019 dated 06.09.2019. It is submitted by the learned counsel that 65% of the award amount is already deposited and the Tribunal on being convinced of shall adjust the same in the amount payable by the 3[rd] respondent. M.A.C.A is allowed accordingly. **`Sd/-` MARY JOSEPH** **JUDGE** JJ