Kerala High Court
Irshad Hassan vs Unknown on 14 January, 2021
MACA.Nos.901 & 1612 OF 2018
1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.S.DIAS
THURSDAY, THE 14TH DAY OF JANUARY 2021 / 24TH POUSHA, 1942
MACA.No.901 OF 2018(A)
AGAINST THE AWARD IN OPMV 796/2015 DATED 16-12-2017 OF
PRINCIPAL MOTOR ACCIDENT CLAIMS TRIBUNAL ,KOZHIKODE
APPELLANT/ PETITIONER:
IRSHAD HASSAN
S/O ABDUL RAZAK, AGED 30 YEARS,RESIDING AT
KHADEEJAS', THAZHE MANNODIPARAMBU,KUNDOOR NARAYANAN
ROAD, P.O.KALLI, KOZHIKODE-673003.
BY ADV. SRI.AVM.SALAHUDIN
RESPONDENT/3RD RESPONDENT
SHRIRAM GENERAL INSURANCE CO.LIMITED
AZAD TOWERS, AMMAN KOVIL STREET, COCHIN,ERNAKULAM-
682035.
R1 BY ADV. SRI.R.AJITH KUMAR (128/84)
R1 BY ADV. SRI.R.AJITH KUMAR 12884
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD
ON 07-01-2021, ALONG WITH MACA.1612/2018(F), THE COURT ON 14-01-
2021 DELIVERED THE FOLLOWING:
MACA.Nos.901 & 1612 OF 2018
2
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.S.DIAS
THURSDAY, THE 14TH DAY OF JANUARY 2021 / 24TH POUSHA, 1942
MACA.No.1612 OF 2018
AGAINST THE AWARD IN OPMV 796/2015 DATED 16-12-2017 OF MOTOR
ACCIDENT CLAIMS TRIBUNAL ,KOZHIKODE
APPELLANT/ 3RD RESPONDENT
SHRIRAM GENERAL INSURANCE CO. LTD.
AZAD TOWER, AMMANKOVIL STREET, ERNAKULAM, REP. BY
IT'S MANAGER, SHRIRAM GENERAL INSURANCE COMPANY
LTD., ERNAKULAM.
BY ADV. SRI.R.AJITH KUMAR (128/84)
RESPONDENT/CLAIMANT
IRSHAD HASSAN
S/O. ABDUL RAZAK, RESIDING AT KHADEEJAS, THAZHE
MANNODIPARAMBU, KUNDOOR NARAYANAN ROAD, P.O.
KALLAI, KOZHIKODE - 673 003.
R1 BY ADV. AVM. SALAHUDIN
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD
ON 07-01-2021, ALONG WITH MACA.901/2018(A), THE COURT ON 14-01-
2021 DELIVERED THE FOLLOWING:
MACA.Nos.901 & 1612 OF 2018
3
JUDGMENT
The petitioner in OP(MV) No.796 of 2015 of the
Principal Motor Accidents Claims Tribunal, Kozhikode is the
appellant in MACA No. 901/2018. The 3 rd respondent - the
Insurance Company - before the Tribunal is the respondent
in MACA 901/2018. The 3rd respondent and the petitioner
in the above claim petition are the appellant and the
respondent in MACA No.1612/2018. As the parties are
the same and they are assailing the same award, these
appeals are disposed of by this common judgment. The
parties are, for the sake of convenience, referred to as per
their litigate status in the claim petition.
2. The petitioner had filed the claim petition under
Section 166 of the Motor Vehicles Act, 1988, claiming
compensation on account of the accident that he sustained
on 20.1.2015. The case of the petitioner, in a nutshell, is
that while he was riding his motor cycle bearing Reg.No.
KL-11-AV-1888 through the Nallalam-Feroke road, a stage
MACA.Nos.901 & 1612 OF 2018
carriage bus bearing Reg. No.KL-02-X-6667 driven by the
2nd respondent in a rash and negligent manner hit the
motor cycle of the petitioner. The petitioner sustained
serious injuries including a fracture. He was treated at the
MIMS Hospital, Kozhikode and, thereafter, at the Baby
Memorial Hospital, Kozhikode as an inpatient. The 1 st
respondent is the owner and the 3 rd respondent is the
insurer of the vehicle. The petitioner claimed an amount of
Rs.50,00,000/- as compensation.
3. The 1st respondent was set ex parte.
4. The respondents 2 and 3 had filed separate
written statements. The 3rd respondent, inter alia, admitted
that the offending vehicle was owned by the 1 st respondent
was driven by the 2nd respondent and had a valid insurance
policy. The 3rd respondent denied the age, income and
occupation of the petitioner and that the petitioner had
sustained injuries. The amount claimed as compensation
was stated to be exaggerated and exorbitant.
MACA.Nos.901 & 1612 OF 2018
5. The petitioner and a witness were examined as
PW1 and PW2 and Exts.A1 to A10 were produced and
marked through them. Ext.C1 disability certificate was
marked as a Court Exhibit and Ext.X1 was marked through
PW2.
6. The Tribunal, after considering the pleadings and
materials on record, allowed the claim petition, in part, by
ordering that the petitioner is entitled to a compensation of
Rs.31,18,000/- with interest at the rate of 9% per annum
from the date of petition till the date of realisation. The 3 rd
respondent was directed to deposit the compensation
amount within a period of 30 days.
7. The comparative table of compensation that was
claimed by the petitioner and that was awarded by the
Tribunal is as follows:-
MACA.Nos.901 & 1612 OF 2018
SI. Head of claim Amount Amount Basis/vital
No claimed awarded (in details in a
(in rupees) rupees) nutshell
1 Loss of earning 1,00,000 48,000 8000x6
months
2 Transport to hospital 10,000 6,000
3 Damage to clothings 3,000 1,000
4 Extra nourishment 50,000 12,000
5 Medical expenses 10,00,000 13,78,124 Ext.A8 series
and A9 series
6. Future treatment 5,00,000 Nil
expenses
7. Bystander 25,000 30,000 6000x5
months
8. Pain & suffering 50,000/- 1,00,000 (Relied on
Rajesh v.
Rajbeer Singh
(2013 (3)KLT
89)
9. Loss of amenities 2,00,000 1,00,000
10 Expenses for 5,00,000 2,50,000 (200000+5000
prosthesis and 0)
expenses for the
surgery of changing
the same
11 Dis-figuration Nil 50,000 (Relied on
Rajesh v.
Rajbeer Singh
(2013 (3) KLT
89)
12. Loss of income due to 15,00,000 11,42,400 8000x12x17x7
disability 0/100
Total 31, 17, 524/-
8. Dissatisfied with the quantum of compensation
awarded by the Tribunal, the petitioner has preferred
MACA No.901/2018. Aggrieved by the compensation
awarded by the Tribunal, the 3rd respondent/Insurance
MACA.Nos.901 & 1612 OF 2018
Company has preferred MACA No.1612/2018.
9. Heard the learned counsel appearing for the
appellant/petitioner and the learned counsel appearing for
the respondent/3rd respondent.
10. Exts.A2 and A3 medical records and Exts.A5 to
A7 and Ext.A10 discharge summaries issued by the Baby
Memorial Hospital and MIMS Hospital, Kozhikode prove
that the petitioner was admitted as an inpatient in the above
hospitals and underwent treatment on account of the
accident. Ext.A5 establishes that the petitioner had
sustained a severe crush injury on his right lower limb with
fracture of his bones with doubtful distal vascularity. His
right leg was amputated below the knee on 20.1.2015.
Ext.A10 certificate substantiates that due to the non-healing
of the wound, the petitioner was again admitted to the
hospital and underwent skin grafting procedure on the right
stump. Ext.C1, the permanent disability certificate, issued
by the Medical Board, constituted pursuant to the directions
of the Tribunal shows that the petitioner has a permanent
MACA.Nos.901 & 1612 OF 2018
disability of 70%. It was after taking into consideration all
the above aspects that the Tribunal awarded an amount of
Rs.31,17,525/-.
11. The learned counsel appearing for the petitioner
argued that the Tribunal has fixed the notional income of
the petitioner, who was a painter by profession at only
Rs.8,000/- per month.
12. Going by the law laid down by the Hon'ble
Supreme Court in Ramachandrappa v. Manager, Royal
Sundaram Alliance [(2011) 13 SCC 236] and Syed Sadiq
and others v. Divisional Manager, United India
Insurance Co.Ltd [(2014) 2 SCC 735] the notional income
fixed by the Tribunal is too low, especially considering the
fact that the accident occurred in the year 2015. He also
argued that in light of the law laid down in Munna Lal Jain
& another v. Vipin Kumar Sharma and others [(2015) 6
SCC 347] and United India Insurance Co. Ltd v. Satinder
Kaur @ Satwinder Kaur and others [2020 (3) KHC 760],
the Tribunal ought to have awarded future prospects to the
MACA.Nos.901 & 1612 OF 2018
petitioner. It was also contended that as per Annexure- A1
produced before this Court, the petitioner had to further
undergo amputation above his knee on 23.02.2018 and the
Medical Board, as per Annexure-A2, has certified that the
petitioner has a permanent disability of 80%. The petitioner
had to incur additional medical expenses of Rs.77,479/- as
per Annexure-A3 series bills. Similarly, as per Annexure-
A4, the petitioner had to spend an amount of Rs.6,10,000/-
for the modular leg prosthesis (TF). Hence, the appeal may
be allowed and the petitioner may be granted additional
compensation and also the expenses that has been incurred
for the subsequent surgery and for purchasing the artificial
limb.
13. The learned counsel appearing for the
respondent/3rd respondent argued that Ext-C1 report of the
Medical Board certifies only the whole body disability of the
petitioner has been assessed and not the disability with
regard to particular limb as per the law laid down by the
Hon'ble Supreme Court. The amounts claimed in Exts. A8,
MACA.Nos.901 & 1612 OF 2018
A9 and A10 series are excessive. There is duplication to
the tune of Rs.3,76,000/- as evident from Ext.A8 Medical Bill
because the amount that was paid as advance has again
been claimed and awarded by the Tribunal, which is
unsustainable in law. The Tribunal has already awarded the
respondent the cost of the artificial limb after the first
amputation. Hence, the Insurance Company cannot be
saddled with the liability to pay a further amount as claimed
in Annexure-A4 for the amputation that was done above the
knee subsequent to the passing of the impugned award. At
any rate, the amount that has been awarded by the Tribunal
is on the higher side and only a reasonable amount shall be
ordered to be paid as compensation. He prayed that the
appeal filed by the respondent may be allowed and the
appeal filed by the appellant be dismissed.
14. The sole question that emerges for consideration in
these appeals is whether the quantum of compensation
awarded by the Tribunal is just and reasonable?
MACA.Nos.901 & 1612 OF 2018
15. 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.
16. It is on record as per Ext.A4 final report that the
accident was caused due to the rash and negligent driving
of the offending vehicle by the 2nd respondent and that the
offending vehicle was owned by the 1st respondent and
insured with the 3rd respondent.
17. Admittedly, the petitioner was aged 28 years at the
time of accident. He was a painter by profession. Although
the petitioner had claimed that he was earning a monthly
income of Rs.25,000/-, the Tribunal has fixed his notional
MACA.Nos.901 & 1612 OF 2018
income only at Rs.8,000/- per month.
18. The Hon'ble Supreme Court in Ramachandrappa
and Syed Sadiq (supra) has fixed the notional income of
a coolie worker at Rs.4,500/- per month in the year, 2004
and for a vegetable vendor at the rate of Rs.6,500/- per
month in the year 2008. Similarly, this Court in Soman v.
Jinesh James and others [ILR 2020 (3) Kerala 1003] has
fixed the notional income of the coolie worker in the year
2010 at Rs.7,500/- per month.
Income
19. Considering the parameters laid down by the
Hon'ble Supreme Court and this Court in the afore-cited
decisions, and taking into consideration the fact that the
petitioner was a painter by profession as on 20.1.2015, I am
of the considered opinion that the petitioner's notional
income can safely be re-fixed at Rs.10,000/- (Rupees
Ten Thousand only) per month, instead of Rs.8,000/- fixed
by the Tribunal.
MACA.Nos.901 & 1612 OF 2018
Disability certificate
20. The Tribunal had referred the petitioner to be
examined by a competent Medical Board. The competent
Medical Board after examining the petitioner, by Ext.C1
report, found that the petitioner has disability of 70%.
Although Annexure-A2 certificate has been produced before
this Court issued by another Medical Board of the Medical
College Hospital, to prove that the petitioner's permanent
disability is 80%, as on 17.4.2018, after the amputation
above the knee, I am of the considered opinion that Ext.C1
report can be relied on by this Court as there is no much
change in the whole body disability of the petitioner due to
his amputation above the knee subsequent to the passing of
the award. As the petitioner's disability as per Ext.C1 was
considered by the Tribunal, after examining the materials on
record and after personally seeing the petitioner, I fix the
petitioner's disability at 70%.
MACA.Nos.901 & 1612 OF 2018
Multiplier
21. As the petitioner was aged 28 years at the time of
accident, the multiplier to be adopted is 17 in light of the
ratio decidendi in Sarla Verma & Others v. Delhi
Transport Corporation [(2009) 6 SCC 121], National
Insurance Company Ltd. v. Pranay Sethi and United
India Insurance Co. Ltd v. Satinder Kaur @ Satwinder
Kaur and others (supra).
Loss due to disability with future prospects:
22. Even though the petitioner has suffered 70%
disability on account of the accident and his right leg was
amputated above the knee, as discernible from Annexure-A1,
the Tribunal failed to award the petitioner any compensation
for future prospects as per the law laid down by the Hon'ble
Supreme Court in Pappu Deo Yadav v. Naresh Kumar
and others (Civil Appeal No.2567/2020), Syed Sadiq
(supra) and Raj Kumar v. Ajay Kumar [2011 (1) KLT
620(SC)]. As the petitioner was aged 28 years and the
MACA.Nos.901 & 1612 OF 2018
multiplier is 17, I hold that the petitioner is entitled for
future prospects at 40%.
Loss of earnings
23. It is evident from Exts.A5 to A7,A10 and Annexure-
A1 discharge summaries that the petitioner underwent
medical treatment from 20.1.2015 to 24.2.2018.
Undisputedly, the petitioner's right leg was amputated
above the knee on 23.2.2018. However, the Tribunal has
awarded loss of earnings to the petitioner only for a period
of six months. In light of the above discharge summaries, I
hold that the petitioner is entitled for loss of earnings for a
period of 36 months.
24. I find sufficient force in the argument of the
learned counsel appearing for the respondent that the
Tribunal has not considered Exts.A1,A8, A9 and A10 series
medical records in its proper perspective.
MACA.Nos.901 & 1612 OF 2018
25. On a re-appreciation of the above medical bills,
especially Serial No.82 in Ext.A8 from page 12 onwards, it is
seen that a total amount of Rs.3,76,000/- was paid towards
advance amount. The said amount was again claimed
towards medical expenses, which was awarded by the
Tribunal based on the said documents. In fact, the
petitioner was entitled only to an amount of Rs.10,02,124/-
as per Exts.A8, A9 and A10 series bills. Thus, the Tribunal
has granted the petitioner an excess amount of
Rs.3,76,000/-, which I deduct from the amount of
Rs.13,78,124/- awarded by the Tribunal.
Other Heads of Claims
26. With respect to the amounts claimed under the
other heads of claim namely, (1) Transport to hospital,
(2)Damage to clothing, (3) Bystander expenses, (4) Extra
nourishment, (5) Pain and sufferings, (6) Loss of amenities,
(7) Expenses for Medical expenses for changing the
MACA.Nos.901 & 1612 OF 2018
artificial limb and Dis-figuration, I find that the Tribunal
has awarded reasonable and just compensation. I do not
find any reason to enhance the amounts under the said head
of claims.
27. In light of the discussions and findings above, I fix
the petitioner's notional income at Rs.10,000/-, his loss of
earnings for a period of 36 months, his medical expenses at
Rs.10,02,124/-, his future treatment (in light of Annexures-
A3 and A4. produced before this Court) at Rs.6,87,479/- and
his loss due to disability with future prospects at 40% at
Rs.19,99,200/-. The petitioner is entitled for enhancement of
the amounts as modified and re-calculated above and given
in the table below for easy reference.
MACA.Nos.901 & 1612 OF 2018
SI. Head of claim Amount Amount Amounts
No claimed awarded (in modified and
(in rupees) rupees) recalculated
by this Court
1. Loss of earnings 1,00,000 48,000 3,60,000
2. Transport to hospital 10,000 6,000 6,000
3. Damage to clothings 3,000 1,000 1,000
4. Extra nourishment 50,000 12,000 50,000
5. Medical expenses 10,00,000 13,78,124 10,02,124
6. Future treatment expenses 5,00,000 Nil 6,87,479
7. Bystander 25,000 30,000 30,000
8 Pain & suffering 50,000/- 1,00,000 1,00,000
9. Loss of amenities 2,00,000 1,00,000 1,00,000
10 Expenses for prosthesis 5,00,000 2,50,000 2,50,000
and expenses for the
surgery of changing the
same
11 Dis-figuration Nil 50,000 50,000
12. Loss of income due to 15,00,000 11,42,400 19,99,200
disability
Total 31, 17, 524/- 46,35,803/-
In the result, the appeals are allowed in part by
enhancing the compensation for an amount of
Rs.15,18,279/-. (Rupees Twelve Lakh Eighteen Thousand
Two hundred and Seventy Nine only). The
respondent/insurance company in MACA 901/2018 shall
deposit the additional compensation awarded of
Rs.15,18,279/- with interest at the rate of 9% per annum
from the date of petition till the date of deposit/realisation
MACA.Nos.901 & 1612 OF 2018
with proportionate costs before the Tribunal, within a
period of two months from the date of receipt of a certified
copy of the judgment, after deducting the liability, if any, of
the appellant/petitioner towards balance court fee and legal
benefit fund. The disbursement of compensation and
additional compensation to the appellant/petitioner shall be
done by the Tribunal in accordance with law.
ma/13.1.20201 Sd/-C.S.DIAS, JUDGE
/True copy/
