Kerala High Court

Shaheer vs Daniel on 7 April, 2021

          IN THE HIGH COURT OF KERALA AT ERNAKULAM

                           PRESENT

             THE HONOURABLE MR.JUSTICE C.S.DIAS

 WEDNESDAY, THE 07TH DAY OF APRIL 2021 / 17TH CHAITHRA, 1943

                   MACA.No.2149 OF 2011(C)

 AGAINST THE AWARD IN OP(MV)NO. 2800/2005 OF MOTOR ACCIDENT
         CLAIMS TRIBUNAL ,ERNAKULAM DATED 17.05.2011


APPELLANT/PETITIONER:

            SHAHEER, AGED 45,
            S/O.KUNJUMOHAMMED,
            2/1120, THURUTHY,
            KOCHI-1,, ERNAKULAM DISTRICT.

            BY ADV. SRI.R.MURALEEKRISHNAN

RESPONDENTS/RESPONDENTS:

      1     DANIEL, S/O.VARGHESE,
            PUTHENPURAKKAL HOUSE,
            WEST OF VIMALA MATHA SCHOOL,
            KADAKIKKATTU DESOM,
            MANJALOOR VILLAGE,,
            MUVATTUPUZHA, PIN-682 019.

      2     TOGI GEORGE
            NELLIKUNNEL,
            KADALIKKADU,,
            MOOVATTUPUZHA, PIN-682 019.

      3     ORIENTAL INSURANCE CO.LTD.
            BRANCH THOPPUMPADY,
            ERNAKULAM-682 005.

            R3 BY ADV. SRI.N.S.NAJEEB

     THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY
HEARD ON 31-03-2021, THE COURT ON 07-04-2021 DELIVERED THE
FOLLOWING:
 MACA.No.2149 OF 2011(C)
                               2




                             C.S.DIAS,J
                 ------------------------
                     MACA No. 2149 of 2011
                 ------------------------
                Dated this the 7th day of April, 2021

                           JUDGMENT

The appellant was the petitioner in OP (MV)

No.2800 of 2005 on the file of the Motor Accidents

Claims Tribunal, Ernakulam. The respondents in the

appeal were the respondents in the claim petition.

2. The facts in brief, for the determination of the

appeal are: on 26.02.2004 while the appellant was

travelling as pillion rider in a motorcycle bearing

registration No.KL07 AP 2510, which is ridden by

his friend through the Mattancherry-Boat Jetty road,

when they reached near the eastern gate of the

Pazhayannur Bhagavathi Temple, a stage carriage

vehicle bearing registration No. KL7/B1215

(offending vehicle) suddenly severed the vehicle to MACA.No.2149 OF 2011(C)

the right side and hit the motorcycle. The rider as

well as the appellant were thrown on the road and

sustained serious injuries. The appellant was taken

to the Gowtham Hospital and thereafter referred to

the Medical Trust Hospital, Ernakulam. The

accident occurred solely due to the negligence on

the part of the 1st respondent. The offending

vehicles was owned by the 2nd respondent and

insured with the 3rd respondent. The appellant was a

Coolie by profession and was earning a monthly

income of Rs.3,000/-. It was contended that the

respondents were jointly and severally liable to

compensate the appellant, which he quantified at

Rs.2,30,000/- but limited to Rs.2,00,000/- .

3. The respondents 1 and 2 did not contest the

proceedings and were set ex-parte.

4. The 3rd respondent - insurance company

filed a written statement, inter alia, contending that MACA.No.2149 OF 2011(C)

the accident occurred solely due to the negligence

on the part of the rider of the motorcycle. The

amounts claimed under different heads in the claim

petition were excessive. Hence, the claim petition be

dismissed.

5. The Tribunal, after considering the pleadings

and materials on record, by the impugned award

allowed the claim petition, in part, by permitting the

appellant to recover an amount of Rs.67,511-/ with

interest at the rate of 8% per annum from the date

of claim petition till the date of realization with

proportionate costs. The 3rd respondent was

directed to pay the compensation amount.

6. Dissatisfied with the quantum of

compensation awarded by the Tribunal, the

petitioner is in appeal.

7. Heard Sri.R.Muraleekrishnan, the learned

counsel for the appellant/petitioner and MACA.No.2149 OF 2011(C)

Sri.N.S.Najeeb, the learned counsel appearing for

the 3rd respondent - insurance company.

8. The sole question that emerges for

consideration in the appeal is whether the quantum

of compensation awarded by the Tribunal is

reasonable and just?

9. A Constitution Bench of the Hon'ble Supreme

Court in National Insurance Company Ltd. v.

Pranay Sethi [(2017) 16 SCC 680], has held that

Section 168 of the Motor Vehicles Act, 1988, deals

with the concept of 'just compensation' and the

same has to be determined on the foundation of

fairness, reasonableness and equitability on

acceptable legal standards. The conception of 'just

compensation' has to be viewed through the prism

of fairness, reasonableness and non-violation of the

principle of equitability.

10. Ext.A9 charge-sheet filed by the City Traffic MACA.No.2149 OF 2011(C)

Police in Crime No.709 of 2009 substantiates that

the accident occurred solely due to the negligence

on the part of the 1st respondent - driver of the

offending vehicle. Ext.A5 Wound Certificate and

Exts.A6 and A7 discharge summaries substantiate

that the appellant had sustained the following

injuries:

"(i) Deep lacerated wound on the left eye brow

(ii) Small lacerated wound on the right eye brow

(iii) Contused abrasion on the forehead and right cheek

(iv) Pain and deformity of right shoulder

(v) Pain and tenderness of right upper both incisors

(vi) X - ray right shoulder - Acromio Clavicular dislocation "

11. The appellant was treated as an in-patient

for a period of 10 days. Ext.A12 Medical Bills proves

that the appellant had spent an amount of MACA.No.2149 OF 2011(C)

Rs.23,011/- for his medical expenses.

12. The main area of dispute in this appeal is

with reference to Ext.X1 and Ext.X2 disability

certificates.

13. The District Medical Board by Ext.X1 dated

31.03.2009 came to a conclusion that the appellant

who has a mild conductive hearing loss (Rt ear) and

Profound mixed hearing loss (Lt eye) but had a

physical disability of 90%.

14. Doubting the correctness of the

assessment made in Ext.X1 certificate, the Tribunal

referred the appellant to the State Standing

Disability Assessment Board. The said Board by

Ext.X2 dated 23.09.2010 came to a conclusion that

the appellant has a permanent disability of 20%.

15. Based on Ext.X2, the Tribunal fixed the

permanent disability at 20%. However, while fixing

the quantum of compensation, the Tribunal omitted MACA.No.2149 OF 2011(C)

to grant any compensation under the head 'loss due

to disability, instead, the Tribunal awarded an

amount of Rs.25,000/-, under the head 'loss of

amenities'.

Loss due to disability

16. Going by the well settled principles in

Pranay Sethi (supra) and a whole line of decisions,

the Tribunal, especially after finding that the

appellant had a disability of 20%, ought to have

awarded compensation under the head 'loss due to

disability'. In view of the findings in Ext.X2 that the

appellant has a disability at 20%, I accept the same.

The appellant being 40 years at the time of accident,

the relevant multiplier is '15'. In the said

circumstances, accepting the notional monthly

income of the appellant at Rs.3,000/- and fixing his

disability at Rs.20%, I award compensation for 'loss

due to disability' at Rs.1,08,000/- MACA.No.2149 OF 2011(C)

Loss of amenities

17. It is seen that the Tribunal has awarded an

amount of Rs.25,000/- under the head 'loss of

amenities'. In view of awarding compensation under

the head 'loss due to disability', I scale down the

amount of compensation under the said head to

Rs.10,000/- instead of Rs.25,000/- awarded by the

Tribunal.

Other heads of claim

18. With respect to the compensation awarded

by the Tribunal, under the other heads of claim

namely, loss of earnings, transportation, by-stander

expenses, extra nourishment, medical expenses and

pain and sufferings, I find that the Tribunal has

awarded reasonable and just compensation.

19. On an overall re-appreciation of the

pleadings, materials on record and the law laid

down by the Hon'ble Supreme Court in the afore- MACA.No.2149 OF 2011(C)

cited decisions, I am of the firm opinion that the

appellant is entitled for enhancement of

compensation as modified and recalculated above

and given in the table below for easy reference.

     Sl.   Heads of claim                 Amount awarded by     Amounts
     No                                    the Tribunal (in   modified and
                                               rupees)        recalculated
                                                              by this Court
     1     Loss of earning                      6,000/-          6,000/-

     2     Transportation                        500/-           500/-

     3     Bystander expenses                   2,000/-          2,000/-

     4     Extra nourishment                    1,000/-          1,000/-

     5     Medical expenses                     23,011/-        23,011/-

     6     Pain and sufferings                  10,000/-        10,000/-

     7     Loss of amenities                    25,000/-        10,000/-

     8     Loss due to disability                 nil           1,08,000
                                                67,511/-        1,60,011

In the result, the appeal is allowed, in part, by

enhancing the compensation by a further amount of

Rs.93,000-(Rupees ninety three thousand only) with

interest at the rate of 9% per annum on the

enhanced compensation, from the date of petition

till the date of realisation with proportionate costs. MACA.No.2149 OF 2011(C)

The 3rd respondent shall deposit the additional

compensation awarded in this appeal before the

Tribunal with interest and proportionate costs

within a period of two months from the date of

receipt of a certified copy of the judgment. The

appellant will be at liberty to move the Tribunal for