Kerala High Court
Abdul Kareem.C vs The New India Assurance Co.Ltd on 2 March, 2021
MACA.No.3090 OF 2017
1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.S.DIAS
TUESDAY, THE 02ND DAY OF MARCH 2021 / 11TH PHALGUNA, 1942
MACA.No.3090 OF 2017(C)
AGAINST THE AWARD IN OPMV 475/2016 DATED 30-11-2016 OF MOTOR
ACCIDENT CLAIMS TRIBUNAL , TALIPARAMBA
APPELLANT/PETITIONER:
ABDUL KAREEM.C.
S/O MUHAMMED @ KUNHAHAMMAD,AGED 56 YEARS,
CHERIYANDEELAKATH,KODICHAL, PALLIVAYAL, PANNIYOOR
AMSOM,MUYYAM. P.O., KARIMBAM,THALIPARAMBA,
KANNUR DISTRICT-670142.
BY ADV. SMT.M.R.JAYALATHA
RESPONDENT/3RD RESPONDENT:
THE NEW INDIA ASSURANCE CO.LTD
KANNUR BRANCH, 963/2, SADHOO BUILDING,KANNUR-
670002(INSURER OF KL-59-L-1517 CAR POLICY NO.
76080131150100002345)
R1 BY ADV. SRI.VIJU THOMAS
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD
ON 02.03.2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
MACA.No.3090 OF 2017
2
JUDGMENT
Dated this the 2nd day of March 2021
The appellant is the petitioner in O.P.(MV)
No.475/2016 on the file of the Motor Accident
Claims Tribunal, Taliparamba. The respondent in
the appeal was the 3rd respondent in the claim
petition. The parties are, for the sake of
convenience, referred to as per their status in the
claim petition.
2. The petitioner had filed the claim petition
under Section 166 of the Motor Vehicles Act,1988
( in short "Act") claiming compensation on account
of the injuries that he sustained in a motor accident
on 18.11.2015.
3. The case of the petitioner in, brief, for the
determination of the appeal in the claim petition is
that on 18.11.2015 while he was travelling in a car
bearing Reg. No.KL 59 H 2382 from Kozhikode to
Taliparamba, a car bearing Reg. No. KL 59L 1517
(offending vehicle) driven by the 1st respondent, in a
MACA.No.3090 OF 2017
rash and negligent manner, hit the car in which the
petitioner was travelling. The petitioner sustained
serious injuries. He was hospitalised as an inpatient
for 54 days and underwent treatment in different
spells for the period from 18.11.2015 to 26.10.2016.
The petitioner was doing business in real estate and
he was getting an income of Rs.20,000/- per month.
The petitioner had to spent a considerable amount
for his medical treatment. Hence, the petitioner is
entitled for a compensation of Rs.20,00,000/-.
4. The respondents 1 and 2 were set ex
parte.
5. The 3rd respondent - Insurance Company
- filed a written statement, inter alia, refuting the
allegations in the claim petition. However, the 3 rd
respondent admitted that the offending vehicle was
insured with the said respondent. The 3 rd respondent
denied the factum of accident. It was contended
that the amount claimed by the petitioner was
excessive and exorbitant. Hence, the 3 rd respondent
prayed that the claim petition be dismissed.
MACA.No.3090 OF 2017
6. The petitioner was examined as PW1 and
Exts.A1 to A11 were marked through him. Ext.X1
disability certificate issued by the Government
Taluk Headquarters Hospital, Taliparamba was
also marked in evidence.
7. The Tribunal, after considering the
pleadings and materials on record, by the
impugned award allowed the claim petition, in part,
by directing the 3rd respondent to pay the
petitioner compensation of Rs.11,18,100/- with
interest at the rate of 9% per annum from the date
of petition till the date of realisation and
proportionate costs.
8. The comparative table showing the
compensation that was claimed by the petitioner
and that was awarded by the Tribunal is as
follows:-
MACA.No.3090 OF 2017
SI Head of claim Amount Amount Basis-vital
. claimed awarded (in details in a
No (in rupees) rupees) nut-shell
1 Loss of earning 80,000/- 30,000/- (5 months)
2 Partial loss of earning --- ----
3 Transport to hospital --- ---
4 Extra nourishment 3,000-- 10,000/-
5 Damage to clothing 2,000 2,000/-
6 Others: Medical 8,00,000/- 3,71,100/- (Medical
bills/bystanders 16,200/- bills
expenses produced)
7 Pain and suffering 2,00,000/- 1,00,000/-
8 Compensation for 3,88,800/- (43,200x9)
permanent disability
9. Compensation for loss 9,00,000/- --
of earning power
10. Amenities --- 1,20,000/-
11. Future Treatment --- 70,000/-
Total Rs.20,00,000- Rs.11,18,100
9. Dissatisfied with the quantum of
compensation awarded by the Tribunal, under the
various heads mentioned above, the petitioner is in
appeal.
10. Heard the learned counsel appearing for
the appellant/petitioner and the learned counsel
appearing for the 3rd respondent/Insurance Company.
11. The point that emerges for consideration in
this appeal is whether the quantum of compensation
awarded by the Tribunal is just and reasonable?
MACA.No.3090 OF 2017
12. 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.
13. On a re-appreciation of the pleadings and
materials on record, it is proved that the petitioner
was aged 56 years on the date of accident. Ext.A1
F.I.R substanties that it was the 1 st respondent who
was negligent in causing the accident. Exts.A3 to A6
discharge summeries substantiate that the petitioner
underwent treatment for the period from 18.11.2015
to 26.10.2016, i.e., for more than 11 months.
Ext.X1 disability certificate issued by the Medical
Board establishes that the petitioner has a
MACA.No.3090 OF 2017
permanent disability of 60%. All these facts are not
disputed. The petitioner had produced Ext.A9 series
medical bills, which shows that the petitioner
incurred expenses of Rs.3,71,100/- for his medical
treatment. The petitioner has also produced medical
bills along with I.A No.1/2019 before this Court, to
substantiate that the medical treatment he
underwent subsequent to the award. The said
application was allowed and the medical bills have
been accepted and marked in evidence as Ext.A12
series.
14. The pivotal point of dispute now before
this Court, is with regard to the notional income
fixed by the Tribunal. The petitioner claimed that
he was doing business in real estate. Although he
claimed that he was gettiing an income of
Rs.20,000/- per month, he had not produced any
document to prove his income. Accordingly,, the
Tribunal fixed the notional income of the petitioner
at Rs.6,000/- per month.
15. In Ramachandrappa v. Manager,
MACA.No.3090 OF 2017
Royal Sundaram Alliance [(2011) 13 SCC 236]
and in Syed Sadiq and others v. Divisional
Manager, United India Insurance Co.Ltd
[(2014) 2 SCC 735] , the Hon'ble Supreme Court
has fixed the notional income of a coolie worker
in year 2004 at the rate of Rs.4500/- per month
and for a vegetable vendor at the rate of
Rs.6,500/- per month in the year 2006,
respectively. Recently, this Court in Soman v.
Jinesh James and others [ILR 2020 (3) Kerala
1003] has fixed the notional income of a coolie
worker in the year 2010 at Rs.7,500/- per month.
16. Following the parameters laid down in
the above precedents and considering the fact
that the petitioner had claimed himself to be a
business man in real estate and that the accident
occurred in the year 2015, I am of the considered
opinion that the petitioner's notional income can
safely be fixed at Rs.10,000/-
MACA.No.3090 OF 2017
17. In view of the re-fixation of the notional
income of the petitioner and on finding that he
had undergone treatment for the period from
18.11.2015 to 26.10.2016 as evidenced by
Exts.A4 to A6, I am of the firm opinion that the
petitioner is entitled for loss of earnings for a
period of 11 months instead of five months fixed
by the Tribunal.
18. Although the Tribunal had taken the
correct multiplier at 9, the Tribunal has failed to
award any amount towards future prospects as
laid down in Pappu Deo Yadav v. Naresh
Kumar and others [AIR 2020 SC 4424] and a
line of precedents of the Hon'ble Supreme Court.
19. Taking into account the age of the
petitioner and the multiplier, I find that the
petitioner is entitled to10% of the compensation
on permanent disability as future prospects.
20. In light of Ext.A12 series medical bills,
MACA.No.3090 OF 2017
to prove that the petitioner is still undergoing
treatment, I am of the firm opinion that the
petitioner is entitled for a further amount of
Rs.2,30,000/- towards future treatment in
addition to the amount of Rs.70,000/- awarded by
the Tribunal.
21. With respect to the other heads of claim
namely, Transport to hospital, Clothing,
Bystander expenses, Extra nourishment, Pain and
sufferings and Loss of amenities, I find that the
Tribunal has awarded reasonable and just
compensation.
22. On an overall re-appreciation of the
pleadings, materials on record and the law laid down
by the Hon'ble Supreme Court and this Court in the
aforecited decisions, I hold that 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.No.3090 OF 2017
SI. Head of claim Amount Amount Amounts
No claimed awarded (in
modified
(in rupees) rupees)
and
recalculate
d by this
Court
1 Loss of earnings 80,000/- 30,000/- 1,10,000
(11 months)
2 Partial loss of earning --- ----
3 Transport to hospital 15,000 10,000 10,000
4 Extra nourishment 3,000-- 10,000/- 10,000
5 Damage to clothing 2,000 2,000/- 2,000
6 Others: Medical 8,00,000/- 3,71,100/-
bills/bystanders 16,200/- 3,71,100/-
expenses 16,200/-
7 Pain and suffering 2,00,000/- 1,00,000/- 1,00,000/-
8 Compensation for 3,88,800/- 7,12,800
permanent disability
(Loss due to disability
with future prospects
9. Compensation for loss of 9,00,000/- --
earning power
10. Amenities --- 1,20,000/- 1,20,000
11. Future Treatment --- 70,000/- 3,00,000
Total Rs.20,00,000 Rs.11,18,100 17,52,100
-
In the result, the appeal is allowed by directing
the 3rd respondent to pay the appellant/petitioner an
enhanced compensation of Rs.6,34,000/- 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. The
3rd respondent shall deposit the additional
MACA.No.3090 OF 2017
compensation with interest and proportionte costs
granted in this appeal before the Tribunal within two
months from the date of receipt of a certified copy of
this judgment, after deducting the liability, if any, of
the appellant/petitioner towards the balance court
fee and legal benefit fund. The disbursement of
compensation to the appellant/petitioner shall
be done by the Tribunal,in accordance with law.
Sd/-
ma/1.3.2021 C.S.DIAS, JUDGE
/True copy/
